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The Land Acquisition Collector Vs. Smt. Parvati Devi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtHimachal Pradesh High Court
Decided On
Case NumberAppeal No. 56 of 1963
Judge
Reported inAIR1964HP32
ActsLand Acquisition Act, 1894 - Sections 9, 9(2), 18, 25 and 54
AppellantThe Land Acquisition Collector
RespondentSmt. Parvati Devi
Appellant Advocate K.S. Sauhta, Adv.
Respondent Advocate Parvati Devi and Amar Chand, Advs.
DispositionAppeal dismissed
Cases ReferredProsonna Kumar v. Smt. Adya Sakti Dasi
Excerpt:
- .....the land was owned by shri bihari lal and was under the tenansy of smt. gulab dassi, the mother of the respondent. the collector, by his award, dated 3-9-59, awarded and apportioned, compensation, with respect to the acquisition of the land. both shri bihari lal and smt. gulab dassi, felt dissatisfied with the award and filed objections against it. their objections were referred to the learned district judge, mahasu, for determination.3. in the present appeal, we are concerned with the objections, filed by smt. gulab dassi only. she had died during the pendency of the reference in the court of the district judge. the respondent, her daughter, was brought on record, as her legal representative.4. the objections of smt. gulab dassi, which are relevant for the.....
Judgment:

Om Prakash, J.C.

1. This appeal, by the Collector, Land Acquisition, Mahasu, is directed against an order of the District Judge, Mahasu, whereby, on a reference under Section 18 of the Land Acquisition Act, (hereinafter referred to as the Act), compensation payable to the respondent was enhanced by a sum of Rs. 2,385.95 nP.

2. Land, measuring one bigha and one biswa, comprised in Khasra No. 224/1, situated in Masho-bra, Tehsil Kasumpti, District Mahasu, was acquired in connection with the construction of Dhali-Mashobra-Tatapani-Road. The land was owned by Shri Bihari Lal and was under the tenansy of Smt. Gulab Dassi, the mother of the respondent. The Collector, by his award, dated 3-9-59, awarded and apportioned, compensation, with respect to the acquisition of the land. Both Shri Bihari Lal and Smt. Gulab Dassi, felt dissatisfied with the award and filed objections against it. Their objections were referred to the learned District Judge, Mahasu, for determination.

3. In the present appeal, we are concerned with the objections, filed by Smt. Gulab Dassi only. She had died during the pendency of the reference in the Court of the District Judge. The respondent, her daughter, was brought on record, as her legal representative.

4. The objections of Smt. Gulab Dassi, which are relevant for the decision of the present appeal, against the award, were that the market value of the land, as assessed by the Collector, was low and inadequate and that no compensation had been awarded for the five fruit trees which wers standing on the land.

5. The reference was contested, on behalf oi the Collector. It was denied that the market value of the land, as assessed by the Collector, was low. It was, further, denied that five fruit trees were standing on the land. Preliminary objections against the competency of the reference, and limitation, were also taken up. It was pleaded that as Smt. Gulab Dassi had failed to prefer any claim, pursuant to the notice, under Section 9 of the Act, she was debarred from claiming more compensationthan what had been awarded by the Collector, and that her reference for the award of more compensation was not competent. It was, further, pleaded that her reference was also barred by time. But this plea was abandoned, later on, at the trial.

6. On the points in dispute, the learned District Judge held that the market value of the land was assessed low by the Collector, that five fruit trees were standing on the land and that Smt. Gulab Dassi's reference was competent and she was not debarred from claiming more compensation than what was awarded by the Collector, as the notice under Section 9 of the Act, served on her, was not a valid one. As a result of his findings, the learned District Judge enhanced the market value of the land and awarded compensation for five fruit trees. Aggrieved by the aforesaid order, the Collector has come up in appeal.

7. It was contended on behalf of the appellant, that the notice, under Section 9 of the Act, served on Smt. Gulab Dassi was a valid one and that the learned District Judge erred in holding that the notice was not valid and that she was not debarred from claiming more compensation than what was awarded by the Collector. On the other hand, it was contended, on behalf of the respondent, that the notice served on Smt. Gulab Dassi was invalid, as it did not comply with the provisions of Section 9 of the Act. It was pointed out that the notice did not give clear fifteen days' time to appear and file her claim before the Collector and also did not give the particulars of the land to be acquired, correctly. It was urged that the aforesaid infirmities in the notice rendered it invalid and that the failure of Smt. Gulab Dassi to file a claim pursuant to the iavalid notice did riot attract the application of Section 25 of the Act and did not debar her from claiming more compensation than what was awarded by the Collector.

8. A perusal of Section 9 of the. Act makes it abundantly clear, that a notice under that Section, must inter alia, state the particulars of the land to be acquired, and the time, which shall not be earlier than fifteen days from the service of the notice, at which the interested person is to appear before the Collector to file his claim. It is well-settled that the provisions of Section 9 are mandatory and must be strictly complied with and that a notice which fails to comply with those provisions is not valid and failure to file a claim, pursuant to such a notice, does not attract the penal provisions of Section 25 of the Act. In this connection, refe- rence may usefully be made to Tara Prasad v. Secy. of State, AIR 1930 Cal 471, wherein it was observed:

'If the provisions of S. 9 have not been strictly followed as regards the service of notice, then it would be absolutely wrong to prevent the claimant from asking for proper compensation on a reference made by the Collector to the Court under the Land Acquisition Act. In such a case it is not possible to apply the penal provisions of Section 25 in order to prevent the claimant from putting forward his claim before the Court.'

9. The validity of the contention, urged on behalf of the appellant, is to be judged in the lightof the principles discussed above. The crucial point which requires decision is whether the notice under Section 9 of the Act, served on Smt. Gulab Dassi was a valid one. That notice did not give the area of the land to be acquired, correctly. The notice stated that the land acquired measured 16 biswas, while, actually, the area of the land, was 1 bigha and 1 biswa. The more serious infirmity in the notice was that it did not give Shmt. Gulab Dassi clear fifteen days' time to appear and file her claim, before the Collector. The notice was served on her on 25-10-1956. She was directed to appear before the Collector on 9-11-1956. The date of the service of the notice and the date fixed for appearance are to be excluded, while computing the period of fifteen days, vide Prassanna Kumar Das v. State of Orissa, AIR 1956 Orissa 114. After excluding the above two days, the time given to Shmt. Gulab Dassi for appearance and filing her claim was less than fifteen days. In AIR 1930 Cal 471 (supra), the notice under Section 9 of the Act, was served on the 24th February, 1926. It required the person interested to appear before the Collector on the nth March, 1926. It was held that the notice was not valid, as it did not give clear fifteen days' time to the person interested for appearance and filing the claim.

Similarly, in District Labour Officer v. Venkata-subrahmanya Sastri, AIR 1931 Mad 50 the notice under Section 9 of the Act, which was served on the 19th August, 1925, directing the person interested to appear on the 3rd September, 1925, was held to be invalid. The notice, in the present case, which did not give clear fifteen days' time, to Shmt. Gulab Dassi, to appear and file her claim before the Collector was not a valid one. Her failure to file a claim, pursuant to such a notice, did not attract the stringent and penal provisions of Section 25, of the Act and did not prevent her from claiming more compensation than what was awarded by the Collector. The contention, urged, on behalf of the appellant, that the notice served on Shmt. Gulab Dassi was a valid one and that she was debarred from claiming more compensation, is without any substance and must be rejected.

10. It was, next, contended on behalf of the appellant, that the market value of the land, as determined by the learned District Judge, was excessive. The land, in dispute was Bakhal Awal. It was suitable for planting an orchard. It abutted the Dhali-Mashobra Road, and was about one hundred feet from the Mashobra market. It was more advantageously situated than the land of Chiroo Mal which was away from the read. The land of Chiroo Mal was acquired by the Government for Post Office and was paid for at the rate of Rs. 200/- per biswa. In the circumstances of the case, the market value of the land in dispute, at the rate of Rs. 200/- per biswa determined by the learned District Judge cannot be said to be excessive. It is to be noted that no evidence was led on behalf of the Collector in support of the market value of Rs. 750/- per bigha, as assessed by him.

11. It was also, contended on behalf of the appellant that the reference, filed by Shmt. Gulab Dassi, was time-barred and should have been dis-missed, as such, by the learned District Judge. The right of the appellant to raise this contention, in appeal, was challenged on behalf of the respondent. It was urged that as appellant had abandoned the plea of limitation in the trial Court, he was barred from raisng that plea in appeal. It was, further, urged that once, the Collector had made the reference, the District Judge had no jurisdiction to go into the question that the reference was barred by time. As already stated, the plea that the reference was barred by time was taken up in the written statement but was abandoned later on, at the trial. The appellant cannot be permitted to raise a plea, in appeal, which he Lad abandoned in the trial Court. It was held in Prosonna Kumar v. Smt. Adya Sakti Dasi, AIR 1942 Cal 586, that a defendant who had raised the plea of estoppel under Section 115, Evidence Act, in his written statement, but had not pressed that plea at the trial was not entitled to raise that plea in appeal.

In the present case also, the appellant had abandoned the plea, that the reference was time-barred, in the trial Court. He is not entitled to raise that plea in appeal. In this view of the matter, it is not necessary to give a decision on the points whether the reference was time barred and whether the District Judge had jurisdiction to go into the question of limitation.

12. The result is that the appeal fails, andis dismissed with costs.


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