M. Rama Jois, Ag. C.J.
1. We have noticed very disturbing state of affairs in several appeals coming before us against the awards made in references under Section 18 of the Land Acquisition Act which are barred by time by several years and awarding amount of compensation far more than what the claimants themselves had asked for. This Appeal preferred by the Special Land Acquisition Officer and the Assistant Commissioner, Gadag, aggrieved by the Judgment and Award made by the Civil Judge, Gadag, is one such and glaring instance too.
2. Two important questions of law arise for consideration in this Appeal. They are:-
(1) If an application seeking reference to the Court under Section 18 of the Act praying for awarding-higher compensation is filed before the Deputy Commissioner/Land Acquisition Officer after the expiry of 90 days, whether the Court has the power to condone the delay, to call for and to dispose of the reference on merits?
(2) Even though by amending Section 25 of the Act, the bar against granting compensation at a rate higher than the rate at which the claimant had claimed before the Land Acquisition Officer had been removed, under what circumstances compensation at a rate higher than the one at which the compensation was claimed in the statement filed before the Deputy Commissioner/Land Acquisition Officer, could be awarded by the Court?
3. Brief facts of the case are these:- (i) By a Preliminary Notification dated 7-10-1965 issued under the provisions of the Land Acquisition Act, 5 acres 19 guntss of land belonging to the respondent in Sy.No. 452/1C of Gadag Betgeri was proposed to be acquired for the purpose of Agricultural Produce Market Committee, Gadag, the 2nd respondent in the appeal. After the Final Notification was issued, the 1st respondent challenged the legality of the acquisition in Writ Petition No. 3341/1970 on 6-8-1970. The Writ Petition was dismissed as belated. The appellant thereafter filed suit O.S.No. 151 of 1973 on the file of the Civil Judge's Court at Gadag praying for the issue of an injunction not to proceed further with the acquisition on the ground that the acquisition was null and void for non-compliance with Section 5A of the Act. That suit was dismissed on 21-7-1975. Against the Judgment and Decree the respondent filed R.A.No. 59/1975 before the Civil Judge, Gadag. That was dismissed on 16-3-1976. Thereafter, he filed R.S.A. No. 376/1976 before this Court. The appeal was dismissed on 5-4-1984.
(ii) In the meanwhile, after the Final Notification acquiring the land was issued under Section 6 of the Act on receipt of the notice under Section 9 of the Act, the 1st respondent submitted his claim and claimed compensation at the rate of Rs. 600/- per gunts, which works out to Rs. 24,000/- per acre. The Land Acquisition Officer, however, awarded a sum of Rs. 2,000/- per acre. The Land Acquisition Officer made the award on 30th May, 1970. The 1st respondent made an application under Section 18 of the Land Acquisition Act on 29-5-1984. The relevant portion of the application dated 29-5-1984 reads:-
'In this the above named applicant begs to apply as under. The applicant is the owner of Sy.No. 452/1c of Betageri village in Gadag taluka, measuring 5 acres 38 guntss, 2 acres out of this land was converted into non-agricultural land in or about the year 1967. 12 plots have been laid down in the said non-agricultural area and plot No. 5, 6, 7 and 9, 11 are sold and they are in position of the purchaser. The agricultural land then numbered as Sy.No. 452/1C1 and non-agricultural land numbered as Sy.No. 452/1C2. This land of applicant is acquired by L.A.O., Gadag in L.A.R.Q. SR No. 883 and passed an award on 30-5-1970. The amount of compensation of Rs. 12,614-03 was awarded by Land Acquisition Officer, Gadag to the applicant. The applicant had challenged the legality of the said award in O.S.No. 151 of 1973 of Gadag Munsiff Court. The said suit was dismissed on 21-7-1975. Against the said decree applicant preferred an appeal R.A.No. 59 of 1975 in Civil Judge Court, Gadag. That also came to be dismissed on 16-3-1976. Against the said decree in the appeal applicant preferred a regular second appeal in Karnataka High Court in R.S.A.No. 376 of 1976. This second appeal also is dismissed on 5-4-1984. The applicant is still in possession of the above referred acquired land. There was an injunction order against the L.A.O. Gadag restraining him from taking position of the land of applicant, since institution of the suit O.S.No. 151/1973 in Gadag Munsiff Court on 12-7-1973, by the Civil Court, in suit in the first appeal and also in the second appeal. This injunction order came to be vacated with the dismissal order in R.S.A.No. 376 of 1976 on 5-4-1984. However, the Land Acquisition Officer has not yet taken position of the acquired land. The applicant has not received the compensation amount awarded by L.A.O., Gadag. The applicant intends the matter to be referred to Civil Judge Court, Gadag for enhancement of compensation. The award passed on 30-5-1970 by the Land Acquisition Officer and Assistant Commissioner, Gadag Division, Gadag is not acceptable and it is objected to on the grounds mentioned herein below:
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8) It is very strange to note how the L.A.O. has fixed the value of this land at the rate of Rs. 2,000/- per acre. Though the land in the vicinity of the applicants is sold at the rate of Rs. 50,000/- to Rs. 80,000/- per acre.
9) The L.A.O. has not considered all the relevant provisions of Land Acquisition Act at the time of the passing of award.
10) The agricultural land of the applicant would have fetched Rs. 40,000/- to 50,000/- per acre and non-agricultural land would have fetched Rs. 5 to 8 per sq. ft. on the date of publication of notice under Section 4(1) of Land Acquisition Act, 1894. Hence, the reasonable value of the agricultural land is Rs. 45,000/- per acre and that of non-agricultural land is Rs. 7.00 per sq. ft. at the time of publication of Section 4(1) notification.'
As can be seen from the facts stated by the 2nd respondent in the above petition, after receipt of award notice instead of filing an application under Section 18 of the Land Acquisition Act, the 2nd respondent challenged the award in O.S.No. 151/1973 before the Munsiff Court, Gadag, challenging the legality of the award. The suit was dismissed on 21-7-1975 and his appeal before the Civil Judge in R.A.No. 59/1975 was dismissed on 16-3-1976 and Regular Second Appeal in R.S.A.No. 376/1976 was also dismissed, on 5-4-1984. It is after the dismissal of the second appeal, the appellant made an application on 29-5-1984. In the light of the facts stated by the 2nd respondent in the reference application itself, it is beyond doubt that the reference application was barred by time as under Section 18 of the Act, any person who is aggrieved by the award made by the Land Acquisition Officer has to make an application within 90 days before the Deputy Commissioner or Land Acquisition Officer, as the case may be, from the date of service of notice of the award. From the facts stated in the reference application, it is clear the appellant had been served with the notice of the award at least some time prior to 1973 as he filed the suit O.S.No. 151/1973 in the Court of the Munsiff at Gadag, challenging the legality of the award.
(iii) By letter dated 4-6-1984 of the Special Deputy Commissioner, the application was sent to the Assistant Commissioner, Gadag, for taking appropriate action. The Assistant Commissioner, Gadag, issued endorsement dated 2-7-1984, which reads:-
'Subject: Reference application under Section 18 of Land Acquisition Act, 1894.p3 No. LAQSRR-883 Gadag 2-7-1984 p2
To
Shri Rajasab Husenasab Kalburgi of Betgeri.
Sir,
With reference to your application dated 29-5-1984 addressed to the Special Deputy Commissioner, Dharwad I have to inform you that the Notices under Section 12(2) of the L.A. Act, has been received by you long back i.e., on 21-7-1970. As per Rule you were required to file the appeal within 90 days from the date of service of notice. But you have failed to file the application under Section 18 of L.A. within the stipulated period. Hence the question of condoning the delay does not arise.
Hence your application is filed.
Yours faithfully,
Sd/-
Assistant Commissioner, Gadag Sub- Division, Gadag.'
As can be seen from the endorsement, the notice under Section 12(2) of the Act has been served on the 1st respondent as early as on 21-7-1970. Therefore, the Assistant Commissioner stated that as the application was not filed within 90 days from the date of service of notice, the application was filed.
(iv) Section 18 of the Land Acquisition Act as amended by the Land Acquisition (Karnataka Extension and Amendment) Act, 1961, reads: -
'18. REFERENCE TO COURT:- (1) Any person interested who has not accepted the award for amendment thereof may, by written application to the Deputy Commissioner require that the matter be referred by the Deputy Commissioner for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested.
(2) The application shall state the grounds on which objection to the award or the amendment is taken;
Provided that every such application shall be made within ninety days from the date of service of the notice from the Deputy Commissioner under Sub-section (2) of Section 12,
(3)(a) The Deputy Commissioner shall within ninety days from the date of receipt of an application under Sub-section (1) make a reference to the Court.
(b) If the Deputy Commissioner does not make a reference to the Court within a period of ninety days from the date of receipt of the application, the applicant may apply to the Court to direct the Deputy Commissioner to make the reference, and the Court may direct the Deputy Commissioner to make within such time as the Court may fix.'
As can be seen from the language of Section 18 as amended by this State, an application seeking reference has to be made within 90 days from the date of service of notice of the award under Section 12(2) of the Act. If an application is filed within 90 days and the Deputy Commissioner fails to make the reference within 90 days from the date of the application, the claimant is given the right to make an application before the Civil Judge concerned seeking for a direction to the Land Acquisition Officer to make a reference. Such an application has to be made within 3 years as Article 137 of the Limitation Act applies. (See: S.L.A.O. v. GURAPPA). In the present case the 1st respondent could not make an application under Section 18 of the Act before the Civil Judge as he had made no application within 90 days from the date of service of the award notice. In the present case, the application before the Land Acquisition Officer was made by the first respondent after more than 13 years after the date on which the notice under Section 12(2) of the Act was served on the 1st respondent. The 1st respondent, however, made an application before the Civil Judge praying for calling for reference after the endorsement dated 2-7-1984 was issued stating that his application was rejected as time barred. Along with it, he filed an application for condonation of delay in making the reference application. The learned Civil Judge entertained the application, condoned the delay and directed the Land Acquisition Officer to make the reference by his order dated 4-11-1985. In obedience to the direction issued by the learned Civil Judge, the Land Acquisition Officer made the reference.
(v) Aggrieved by the order made by the learned Civil Judge condoning the delay and entertaining the application of the 1st respondent and making a prayer for direction to the Land Acquisition Officer to make the reference, the 2nd respondent filed C.R.P, No. 2930/1986 before this Court. During the pendency of the said revision petition, the learned Civil Judge made the award under Appeal on 7-7-1986. Therefore, the revision petition was dismissed on the ground that the objection regarding limitation could be raised in the appeal. The order of this Court on the revision petition reads:-
'Sri Goulay, learned Counsel for respondent No. 1, has produced a photostat copy of the award finally passed in L.A.C.No. 92/1985. So, the point sought to be impugned in the revision can be well agitated in the appeal that may be filed against the award passed in LA.C.No. 92/1985. Hence, this civil revision petition is accordingly dismissed with a liberty to the party concerned to agitate this point in the appeal if he chooses to prefer an appeal.'
(vi) In the reference the appellant had raised an objection to the effect that the reference was barred by limitation. It was the duty of the learned Civil Judge to decide that question. However, strangely, the learned Civil Judge, except stating in the course of the order that the respondent had raised the plea to the effect that the reference was barred by time, completely overlooked the said objection and made an award enhancing the compensation. He awarded compensation at the rate of Rs. 2.25 Ps. per square foot in respect of 2 acres of land which according to the respondent had been converted for non-agricultural purpose, which works out to Rs. 98,010/- per acre and at the rate of Rs. 2/- per square feet in respect of the balance of 3 acres 19 guntas, which works out to Rs. 87,120/-per acre. The learned Judge has awarded compensation at the aforesaid rate, though the 1st respondent himself had claimed a compensation at the rate of Rs. 600/- per gunts for the entire extent of land acquired, which works out to Rs. 24,000/- per acre.
4. Aggrieved by the said award, the appellant has presented this appeal. In the appeal, two grounds are urged:-
(1) The reference application having been made 13 years after the expiry of 90 days from the date of service of the award, the Courtacted without jurisdiction in purporting to condone the delay and calling for reference.
(2) The rate at which compensation is awarded, is not only excessive but there was also no justification to award compensation at a rate higher than at which the compensation was claimed by the 1st respondent before the Land Acquisition Officer in the statement filed by the 1st respondent before him.
5. It is in these circumstances, the two questions of Law set out in the fourth paragraph of this Judgment arise for consideration.
6. Now coming to the first question regarding the invalidity of the reference on the ground that the application made under Section 18 itself was barred by time by over 13 years, it is seen, from, the reference application which is in the records, it was not made by the 1st respondent within 90 days from the date on which the award notice was served. Notice was served on 21-7-1970; whereas the reference application was made on 29-5-1984 after more than 13 years. The question of law both regarding the power and duty of the Court to consider the question of limitation, as also regarding the validity of a reference made on an application filed after prescribed time after service of notice have been clearly answered by the Supreme Court in the case of Md. HASNUDDIN v. STATE OF MAHARASHTRA. : [1979]2SCR265 The relevant portion of the Judgment reads:-
'9. The short question that falls for determination in the appeal is whether the Court can go into a question that the application for reference was not made to the collector within the time prescribed in Section 18, Sub-section (2) of the Land Acquisition Act; and if so, can it refuse to entertain the reference if it finds it to be barred by time. There was at one time a great divergence of judicial opinion on the question. But almost all the High Courts have now veered round to the view that the Court has the power to go into the question of limitation, It not only has the power but also the duty to examine whether the application for reference was in accordance with law i.e., whether it was made within time prescribed under the proviso to Sub-section (2) of Section 18 of the Act or not. The view taken by them is that a Collector's jurisdiction is circumscribed by the conditions laid down in Section 18, Sub-section (1), that if he makes a reference even though the application for reference was not in accordance with the provisions of Section 18, the Court acquires no jurisdiction to hear the reference and that it can refuse to hear it if it was made on a time-barred application.'
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'11. It is contended on behalf of the appellant that a reference to the Court having been made by the Collector, the Court had no jurisdiction to question the validity of that reference and was bound to decide the matter on merits. In support of this contention certain authorities have been cited to us, in which it has been laid down that it is for the Collector, and the Collector alone, to determine whether to make a reference under Section 18, Sub-section (1), and if he decides to make a reference, it is not open to the Court to go behind the decision of the Collector, and hold the reference to be out of time.'
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'25. The conditions laid down in Section 18 are 'matters of substance and their observance is a condition precedent to the Collector's power of reference', as rightly observed by Chandavarkar, J., in Re Land Acquisition Act (supra). We are inclined to the view that the fulfilment of the conditions, particularly the one regarding limitation, are the conditions subject to which the power of the Collector to make the reference exists. It must accordingly be held that the making of an application for reference within the time prescribed by proviso to Section 18, Sub-section (2) is a sine qua non for a valid reference by the Collector.
26. From these considerations, it follows that the court functioning under the Act being a tribunal of special jurisdiction, it is its duty to see that the reference made to it by the Collector under Section 18 complies with the conditions laid down therein so as to give the Court jurisdiction to hear the reference.'
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'28. If an application is made which is not within time, the Collector will not have the power to make a reference. In order to determine the limits of his own power, it is clear that the Collector will have to decide whether the application presented by the claimant is or is not within time and satisfies the conditions laid down in Section 18, Even if a reference is wrongly made by the Collector the Court will still have to determine the validity of the reference because the very jurisdiction of the Court to hear a reference depends on a proper reference being made under Section 18, and if the reference is not proper, there is no jurisdiction in the Court to hear the reference. It follows that it is the duty of the Court to see that the statutory conditions laid down in Section 18 have been complied with, and it is debarred from satisfying itself that the reference which it is called upon to hear is a valid reference. It is only a valid reference which gives jurisdiction to the Court and, therefore, the Court has to ask itself the question it has jurisdiction to entertain the reference.
29. In deciding the question of jurisdiction in a case of reference under Section 18 by the Collector to the Court, the Court is certainly not acting as a Court of appeal; it is only discharging the elementary duty of satisfying itself that a reference which it is called upon to decide is a valid and proper reference according to the provisions of the Act under which it is made. That is a basic and preliminary duty which no tribunal can possibly avoid. The Court has, therefore, jurisdiction to decide whether the reference was made beyond the period prescribed by the proviso to Sub-section (2) of Section 18 of the Act, and if it finds that it was so made, decline to answer reference.'
The above Decision was followed by this Court in S.L.A.O. v. DATTATREYA NAGESH WADER. : ILR1991KAR1899 Relevant portion of the Judgment reads:-
'7. An application seeking reference under Sub-section (2) of Section 18 of the Act is required to be made within 90 days from the date on which the award notice is served or the amount of compensation awarded by the Land Acquisition Officer was received. In the present case, in the application itself the applicant has stated that he had received the award notice dated 8-3-1968 and that he had accepted the compensation under protest. The learned Counsel for the State also, after verification of the records, stated that he had actually received the amount of compensation on 10-7-1968 and this fact is also not controverted by the respondent. Therefore, it is obvious that the application was not made within 90 days from the date of receipt of the award or receipt of compensation amount and it was made some time after 1-11-1973. Therefore, the reference made pursuant to such an application, which was not made within 90 days in terms of Sub-section (2) of Section 18 of the Act, was incompetent and therefore it was liable to be rejected by the learned Civil Judge.'
From the above Decisions, it is clear that a reference even if made by the Land Acquisition Officer on an application presented after the expiry of 90 days from the date of service of notice of the award, reference would be incompetent. Further, it is also clear, the Court is under a duty to determine the question as to whether the application was made in time, and if it is found that it was not made in time the Court gets no jurisdiction to adjudicate. In the present case, the application before the Land Acquisition Officer was time barred by over 13 years and he had rightly rejected the reference application as time barred. Even if the Land Acquisition Officer had made the reference, in view of the ratio in the case of Hasnuddin2, reference would have been incompetent and the Court had no jurisdiction to entertain it. For the same reason the Court had no jurisdiction to call for reference. That being the clear position in law, the Court had no power to condone the delay and call for reference on such an application, as the power of the Court under Section 5 of the Limitation Act, is to condone the delay in making an application before it and not to condone the delay in making the application before the Land Acquisition Officer under Section 18 of the Act. Accordingly, we answer the first question as follows:-
'If an application seeking reference to the Court under Section 18 of the Act praying for awarding higher compensation is filed before the Deputy Commissioner/Land Acquisition Officer after the expiry of 90 days, the Court has no power to condone the delay, call for reference and to dispose of the reference on merits.'
7. In order to escape the inevitable consequence of not filing the reference application within 90 days after the receipt of the award, the respondent has taken an ingenious plea to the effect that the contents of the statement filed before the Land Acquisition Officer in reply to the notice under Section 9(2) of the Act, should itself be regarded as an application for reference. Elaborating the contention, the learned Counsel submitted in the claim statement before the Land Acquisition Officer in response to the notice issued under Section 9(2) of the Act, the 1st respondent had sought for reference and therefore that itself should have been treated as an application for reference made under Section 18 of the Act, as on the date of the award. In support of this contention, reliance was placed by the respondent on a Division Bench Judgment of this Court in U.K. RAMAPPA v. SPECIAL LAND ACQUISITION OFFICER, ILR 1979 KAR 986. In the said case also, a reference application had been made under Section 18 of the Act after the expiry of 90 days prescribed under the Section. Both the Land Acquisition Officer and the learned Civil Judge rejected the application. In the said case, the stand of the claimant was that while filing his statement of claim in reply to the notice served on him under Section 9(2) of the Act, the claimant made a prayer for making a reference to the Court in the event of compensation not being granted by the Land Acquisition Officer at the rate at which it was sought for, in the claim statement. The Division Bench of this Court noticed that the claimant in that case had in his claim statement made the following statement:
'....If the said rates are not given the claimant will receive the same under protest and further prays for reference to Civil Court under Section 18 of the Mysore Land Acquisition Act by treating this statement as an application made under the said Section for adjudication regarding compensation.'
In view of the above statement, the Division Bench held that the said statement itself could be regarded as an application for reference made immediately after the award was made by the Land Acquisition Officer and therefore a subsequent application made beyond time was no ground to reject the reference application as time barred. The ratio of the said Decision is clearly inapplicable to this case, for, the relevant portion of the claim statement reads:-
The clear purport of the Statement is that out of the land acquired for the purposes of A.P.M.C. 2 acres of land had already been converted for non-agricultural use prior to the issue of the preliminary notification and in respect of the balance of 3 acres 19 guntas also, the appropriate compensation to be paid must be the same as granted in respect of converted land, and that if compensation at the rate of Rs. 600/- per gunts was granted both for agricultural and non-agricultural land, he would have no objection for the acquisition, if not he would not agree for the acquisition. There is no statement made by the respondent similar to the one made in the case of Ramappa, namely, that in the event of compensation being granted at a rate less than Rs. 600/- per gunts, he would accept the same in protest and was requesting the Land Acquisition Officer to make a reference to the Court immediately after making the award. Consistent with the statement made in the claim statement, after the award was made, the 1st respondent challenged the acquisition before this Court in a Writ Petition and thereafter in civil suit, which culminated in a Second Appeal before this Court, in which his challenge to the acquisition failed. Therefore, we are clearly of the view that the contention urged on behalf of the respondent is not only ingenious but also clearly an after-thought. The ratio of the Decision in Ramappa's case could have been invoked if only the respondent had made a statement in his claim statement filed before the Land Acquisition Officer under Section 9(2) of the Act that in the event of the compensation being granted at a rate lower than Rs. 600/- per gunts, the said statement itself be considered as a request for making reference to the Court, Therefore, we find no substance in the stand taken by the respondents that his claim statement itself should have been treated as an application for reference. Instead of resorting to the appropriate remedy of filing an application under Section 18 of the Act in time, claiming higher compensation by making an application under Section 18 of the Act stating that compensation awarded by the Land Acquisition Officer at the rate of Rs. 2,000/- per acre was inadequate, the 1st respondent challenged the legality of the award itself in the Writ proceedings and thereafter in civil suit. The wrong legal advice resulted in the first respondent resorting to a futile remedy, instead of a fruitful remedy of making application seeking reference and thereby he lost the latter also, as it became time barred.
8. The second question which arises for consideration is: when the 1st respondent had claimed a compensation at Rs. 600/- per gunts, was there any justification for the learned Civil Judge to award compensation at a rate higher than the one claimed by the 1st respondent himself? The learned Counsel for the claimant submitted that though Section 25 of the Act, as it stood prior to the amendment of the Act by Amending Act 68 of 1984, had placed an embargo on the power of the Court to award compensation at a rate higher than the rate at which the compensation was claimed in Section 9 proceedings by a claimant whose land was acquired under the Act, that embargo had been removed by the Amending Act 68 of 1984 and therefore the Civil Judge had the power to award compensation at a rate higher than the one asked for by the claimant. As against this, the learned Counsel for the State submitted that though by the amendment of Section 25, the restriction on the power of the Court to award compensation at a rate higher than the rate at which the claimant had claimed, was removed, from that it does not follow that the Court can ignore the claim made by the person concerned without there being any justification to do so. He submitted that any such construction of the Section would render Section 9(2) of the Act requiring the claimant to specify the amount of compensation which the claimant claims and also to furnish the basis for such claim becomes purposeless. He submitted that the correct interpretation of the provision as amended is that if in a given case, a party pleads in the reference application that on account of ignorance or for any other reason he had claimed compensation at a much lower rate than at which rate he would or could have claimed, but for those reasons and proves the plea to the satisfaction of the Court, then only the Court could award higher compensation provided further there was conclusive evidence for granting higher compensation. He also submitted that in the nature of things in the claim statement every claimant claims compensation much higher than what is due and correct and therefore it was all the more necessary for the Court to consider the question of granting compensation higher than claimed, with great circumspection.
9. It is true that the embargo placed on the power of the Court to award compensation more than what was claimed in the claim statement by Section 25 as it stood prior to 1984 amendment has been removed by 1984 amendment. The question, however, raised by the appellant is under what circumstances the Court can award compensation higher than what was claimed. In order to answer this question, in the first instance it is necessary to refer to Section 9(1) and 9(2) of the Act, which read:
'9. NOTICE TO PERSONS INTERESTED: (1) The Deputy Commissioner shall then cause public notice to be given at convenient places on or near the land to be taken, stating that the Government intends to take possession of the land, and that claims to compensation for all interests in such land may be made to him.
(2) Such notice shall state the particulars of the land so needed, and shall require all persons interested in the land to appear personally or by agent before the Deputy Commissioner at a time and place therein mentioned (such time not being earlier than fifteen days after the date of publication of the notice), and to state the nature of this respective interests in the land the amount and particulars of their claims to compensation for such interests, the basis on which the compensation so claimed is computed, their objections, if any, to the area as specified in the declaration, and such other matters as may be prescribed. Such statement shall be made in writing in the prescribed form and shall be signed by the party or his agent.'
As can be seen from Section 9(2) a claimant is required to specify in the statement before the Deputy Commissioner the amount of compensation for his land acquired under the Act and also specify the basis for it. The last portion of Section 9(2) requires that the statement should be filed in the prescribed Form. The relevant portion of the Form prescribed in the Rules reads:-
'FORM 'B' (See Rule 10)
(FORM OF STATEMENT UNDER SECTION 9 OF THE LAND ACQUISITION ACT, 1894)
To
The Deputy Commissioner,
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3. That this claimant would claim Rs...........per..........of theland and Rs...........for the building standing thereon.
4. That he would claim Rs...........for the crops and trees (ifany) standing thereon.
5. That he would claim Rs...........for damage (if any) forseverance of the land acquired in the above case from his other land.
6. That he would claim Rs...........for damage (if any)sustained by him by reason of the acquisition injuriously affecting his other property, namely...........and Rs...........for injuriouslyaffecting his income.
7. That he would claim Rs...........as expenses incidental to the change of residence or place of business.
8. That he would claim Rs...........as damages (if any) thathas resulted from the dimunition of the profits of the landbetween the date of publication of the notification under Section4(1) and the time of the Deputy Commissioner taking possession.
9. That he would also claim the usual 15 per cent statutory allowance on the above amounts.
10. The basis on which the amounts in items 3 to 8 is claimed...........'
It is a matter of common knowledge that in the statements filed under Section 9(2), every claimant species the amount of compensation at a much higher rate than the market value of the land as on the date of preliminary notification, and at any rate there are little chances of a claimant claiming lower compensation than to which he is entitled to. Therefore, when the Land Acquisition Officer in his award awards an amount of compensation which is lower than what was claimed by the claimant and the claimant makes an application for reference, the only two questions which have to be decided by the Court are:
(1) Whether the compensation awarded by the Land Acquisition Officer is proper and correct?
(2) Whether the compensation claimed by the claimant before the Land Acquisition Officer was correct?
In fact, the question as to whether compensation higher than the one claimed by the claimant should have been awarded by the Land Acquisition Officer does not at all arise for consideration before the Court. Take for instance, if in a given case the Land Acquisition Officer awarded compensation as claimed by the claimant, the question of claimant contesting the correctness of the award would not arise. For instance, if in the present case, the Land Acquisition Officer had awarded compensation at the rate of Rs. 600/- per gunts, the first respondent could not make any grievance at all. Therefore, normally it is only in cases where the Land Acquisition Officer awards a compensation lower than what was claimed by the claimant, he seeks reference for awarding higher compensation of an amount which he had claimed in the statement filed under Section 9(2) of the Act.
10. After giving careful consideration to the point arising for consideration, we are of the opinion that the amendment of Section 25 does not enable a claimant to claim before the Court as of course, a compensation higher than what was claimed by him before the Land Acquisition Officer. Any claim for compensation at a rate higher than what was claimed in the claim statement would in substance amount to an amendment of the claim statement itself. Therefore, in order that any claim for higher compensation could be considered in a reference, there must be a plea in the reference application that on account of ignorance or for any other specific valid reason the claimant had claimed compensation at a rate lower than the rate at which he would have claimed compensation, but for such ignorance or cause. Further there should be convincing evidence in support of such plea and the Court should record a finding to the effect that the plea is well-founded and there must also be unimpeachable evidence justifying the awarding of compensation at a rate higher than the rate at which compensation was claimed, by the claimant before the Land Acquisition Officer. In the absence of any such plea or proof, the claimant cannot ask the Court to award compensation higher than what was claimed in the claim statement and the Court also should not make such an award. For the aforesaid reasons, we answer the second question as follows:
Even though by amending Section 25 of the Act, by Act 68 of 1984, the bar against granting compensation at a rate higher than the rate at which the claimant had claimed before the Land Acquisition Officer has been removed, compensation at a rate higher than the one at which the compensation was claimed in the statement filed before the Deputy Commissioner/Land Acquisition Officer under Section 9(2) of the Act, can be awarded by the Court only under the following circumstances:
(1) There must be a plea in the reference application that on account of ignorance or for any other specific valid reason the claimant had claimed compensation at a rate lower than the rate at which he would have claimed compensation, but for such ignorance or cause.
(2) There should be convincing evidence in support of such plea and the Court should record a finding to the effect that the plea is well-founded.
(3) That there must be an unimpeachable evidence justifying the awarding of compensation at a rate higher than the rate at which compensation was claimed by the claimant before the Land Acquisition Officer.
11. Now coming to the facts of this case, none of the above circumstances exist in that:
(1) There has been no plea in the reference application that the compensation claimed at the rate of Rs. 600/- per gunts before the Land Acquisition Officer was out of any ignorance or for any other valid reasons. In fact, the first respondent has not even disclosed in the reference application that he had claimed compensation at the rate of Rs. 600/- per gunts;
(2) Consequently, there was no evidence adduced in support of any such plea;
(3) Therefore the Court could not even consider the question of awarding an amount of compensation higher than what was claimed by the respondent before the Land Acquisition Officer.
(4) Further, there has been no such unimpeachable evidence on record which would show that the rate at which compensation was claimed by the respondent was patently low and that justice demands the awarding of compensation at a rate higher than Rs. 600/- per gunts i.e., Rs. 24,000/- per acre. On the other hand, the evidence indicates that the compensation claimed in the statement filed under Section 9(2) of the Act was made on the basis that it was the market value on the said date.
12. Therefore, we are of the view, even if, the reference application had been filed in time, the Court could not award compensation at a rate higher than Rs. 600/- per gunts.
13. Apart from the contention that the learned Civil Judge ought not to have awarded compensation at a rate more than what the 1st respondent himself had claimed before the Land Acquisition Officer in the claim statement filed under Sub-section (2) of Section 9 of the Act, the contention of the appellant has been that the compensation awarded at the rate of Rs. 2.25 ps. per square foot for converted land and at the rate of Rs. 2.00 per square foot for the rest of the land was exhorbitant and arbitrary. It is the case of the appellant that the material evidence adduced before the Court did not justify the awarding of compensation at such higher rate.
14. It is seen from the award of the Civil Judge that the 1st respondent had relied on Ex.P-2 under which sites formed out of the converted land had been sold on 31st January, 1966 i.e., after the preliminary notification. The price for which the plots were sold under Ex.P-2 as stated in the Judgment of the learned Civil Judge worked out to 75 paise per square foot. This being the documentary evidence produced by the 1st respondent himself, the contention of the appellant has been that the compensation awarded at Rs. 2.25 ps. per square foot was three times higher than the rate at which plots were sold as late as on 31st January 1966. In our opinion, this contention of the appellant is unexceptionable. There was absolutely no justification for the learned Civil Judge to award compensation at a rate higher than 75 paise per square foot.
15. The other document relied on was the Judgment of this Court in M.F.A.No. 406/1970 and connected cases, decided on 28-9-1972. The lands in respect of which quantum of compensation was considered in those appeals were also lands situated in the area of Gadag Betgeri town. The lands were acquired pursuant to the preliminary notification dated 14-2-1963. The Land Acquisition Officer had awarded a compensation of Rs. 16,000/- per acre. The learned Civil Judge had, on reference confirmed the said quantum of compensation. The matter was taken in appeal before this Court. In the appeal the compensation was fixed at Rs. 7.00 per square yard on the ground that though the lands were agricultural lands, they had non-agricultural potentiality and the lands were acquired for non-agricultural purpose. In the said case, the claimant therein had relied on sale of a plot measuring 60' x 85' for a sum of Rs. 3,500/-, which was marked as Ex.P-10 in the said case. On the basis of the sale price paid for that site, it worked out to Rs. 8.60 ps. per square yard. The Division Bench of this Court taking that as the basis, fixed compensation for 1 acre 7 guntas of land, which was the subject matter of acquisition in the said case at Rs. 7/- per square yard. The relevant portion of the said Judgment reads:-
'In respect of the said remaining extent of land, claimants 1 and 2 shall be paid compensation at the rate of Rs. 7/- per square yard. This we have arrived at by deducting a sum of Rs. 1-60 per square yard from the price which was paid under Ex.P-10. The above deduction is made by us towards the allowance that has to be made for the purpose of laying out a road as mentioned above.'
(Underlining by us)
The learned Counsel for the appellant submitted that there was no evidence to state that the land in question was in all respects similarly situated as the land which was the subject matter for awarding of compensation in the said appeals and that even assuming that they were similarly situated, the compensation to be awarded could not exceed Rs. 7/- per square yard which stands corroborated by the evidence in the form of Ex.P-2 produced by the first respondent himself. The learned Counsel for the appellant also submitted that actually the computation made by this Court in M.FA.No. 400/1970 and connected cases itself was erroneous in view of the Judgment of the Supreme Court in ADMINISTRATOR GENERAL OF WEST BENGAL v. COLLECTOR, VARANASI, : [1988]2SCR1025 in which the Supreme Court has held that while applying the rate at which a site was sold for fixing the market value of a large extent of agricultural lands acquired at least 53% should be deducted for the purpose of fixing the market value. The relevant portion of the Judgment is at paragraph-6, which reads:-
'6. It is trite proposition that prices fetched for small plots cannot form safe bases for valuation of large tracts of land as the two are not comparable properties. (See Collector of Lakhimpur v. B.C. Dutta, : AIR1971SC2015 ; Mirza Nausherwan Khan v. Collector (Land Acquisition), Hyderabad, : [1975]2SCR184 ; Padma Uppal v. State of Punjab, : [1977]1SCR329 ; Smt. Kaushalya Devi Bogra v. Land Acquisition Officer, Aurangabad, : [1984]2SCR900 . The principle that evidence of market-value of sales of small, developed plots is not a safe guide in valuing large extents of land has to be understood in its proper perspective. The principle requires that prices fetched for small developed plots cannot directly be adopted in valuing large extents. However, if it is shown that the large extent to be valued does admit of and is ripe for use for building purposes; that building lots that could be laid out on the land would be good selling propositions and that valuation on the basis of the method of a hypothetical lay-out could with justification be adopted, then in valuing such small, laid-out sites the valuation indicated by sale of comparable small sites in the area at or about the time of the notification would be relevant. In such a case, necessary deductions for the extent of land required for the formation of roads and other civic amenities; expenses of development of the sites by laying-out roads, drains, sewers, water and electricity lines, and the interest on the outlays for the period of deferment of the realisation of the price; the profits on the venture etc., are to be made. In Brig. Sahib Singh Kalha v. Amritsar improvement Trust [See : AIR1982SC940 ] this Court indicated that deductions for land required for roads and other developmental expenses can, together, come up to as much as 53%. But the prices fetched for small plots cannot directly be applied in the case of large areas, for the reason that the former reflects the 'retail' price of land and the latter the 'wholesale' price.'
(Underlining by us)
16. Applying the ratio of the aforesaid Decision, as the price for which the site was sold under Ex.P-10 relied upon in M.F.A.No. 400/1970, was at Rs. 8.60 ps. per square yard, the value of the land could have been fixed at Rs. 4.30 ps. per square yard. This works out to Rs. 20,812/- per acre. Thus, it may be seen, the claim made by the 1st respondent at Rs. 600/- per gunts, which works out to Rs. 24,000/- per acre was actually more than the aforesaid amount. Therefore, the appellant is right in saying that there was no justification to award compensation at a rate higher than Rs. 24,000/-per acre. The appellant submitted that the reliance could not have been placed by the learned Civil Judge on the value of a small site measuring 20' x 25' situated in Gadag Betgeri for a sum of Rs. 950/-in the year 1962 sold in public auction in the face of Ex;P-2 produced by the claimant himself under which the value of the land worked out to 75 paise per square foot and also the Decision of this Court in M.F.A.No. 400/1970 in which compensation at the rate of Rs. 7/- per square yard was awarded. In our opinion, this submission of the learned Counsel is also unexceptionable. In the nature of things small site sold in public auction to the highest bidder indicates the payment of a fancy price and cannot be regarded as the normal value of the land, particularly when the respondent himself was able to sell sites in January, 1966 for a price which works out to 75 paise for square foot. Therefore, from any approach, we are of the view that there was no justification for awarding compensation at Rs. 2.25 ps. per square foot for converted land which works out to Rs. 20.25 ps. per square yard and at the rate of Rs. 2.00 per square foot for the rest of the land, which works out to Rs. 18/- per square yard in the face of Ext.P-2, according to which the price works out to Rs. 6.75 ps. per square yard and even according to the Judgment of this Court in M.F.A.No. 400/1970, the compensation awarded was Rs. 7/- per square yard.
17. In the result, we make the following order:
(i) The Appeal is allowed:
(ii) The Judgment and Award made by the Court below in L.A.C. No. 92/1985 is set aside.