State of Kerala Vs. Kocheeppan George - Court Judgment

Subramonian Poti, Ag. C.J.

1. This appeal is before us by reason of the reference to a larger Bench by a Full Bench of this Court. The correctness of the earlier decision of the Full Bench of this Court in State of Travancore-Cochin v. Mathai, 1957 Ker LJ 893 was doubted and that was the occasion for such reference.

2. The matter had originally come up before a Division Bench which by an order dated 29-10-1979 referred the case to the Full Bench. The reference order reads thus:

'Section 27 (21 of the Kerala Land Acquisition Act provides that when a claimant has omitted without sufficient reason to make the claim for comoensa-tion before the Land Acquisition Officer, the amount awarded by the court shall in no case exceed the amount awarded by the Collector. In the case before us pursuant to notice under Section 9 (3) of the Land Acquisition Act the claimant is seen to have filed a statement before the Land Acquisition Officer claiming that he had title to the property, that documents have been produced, and that he must be paid compensation. The amount of compensation has not been specified therein. It was specified only in the application for reference filed later. In the claim statement before the court no explanation was offered by him why he omitted to make the claim before the Land Acquisition Officer inthe statement made under Section 9 (3) of the Act. It appeared to us therefore that it is a case where the reference court may not be competent to award enhancement. We are supported in this view by the decision in Kuriakose v. State of Kerala, ILR (1963) 1 Ker 398, State of Kerala v. Krishnaru, 1965 Ker LT 975, Pareed v. Sol. Dy. Collector. (1973 Ker LT 996) and Appu v. State of Kerala. 1976 Ker LT 195 : (AIR 1976 Ker 78). But the Court below has referred to the decision of the Full Bench of this Court in State of Travancore Cochin v. Mathai, 1957 Ker LJ 893 and particularly to certain observations therein. The case arose under the Travancore Land Acquisition Act, but the provision therein is materially similar to the provision in the Kerala Land Acquisition Act. The Full Bench observed in that case thus;

'Admittedly the notice issued under Section 9 (3) did not show the value offered to the claimant and there is nothing to show that even the rough valuation statement was ready or available for his perusal on the hearing date. In the circumstances we are inclined to think that these are pre-eminently fit cases where the learned Judge below could have exercised his discretion in holding that there was 'sufficient reason' for the claimant's failure to make a proper claim as required by law...... ...... ...... ......' If in arriving at that conclusion the Full Bench was of the view that the failure to show the value of the land in the notice issued under Section 9 (3) was a good reason, we do not find warrant for such view in the provision in Section 9 (3). In fact at that stage the question of determination of value by the Land Acquisition Officer does not arise. The later decisions do not seem to consider the view expressed by the Full Bench. Since the court below has acted on the observations of the above said Full Bench, we think it is necessary to re-examine this question and therefore we are referring this case to a Full Bench.'

3. The facts of the case, to the extent necessary for the purpose of the appeal, may now be stated. 95.44 Acres of land were acquired under the Kerala Land Acquisition Act for an electrical Sub-station at Pathananthitta The notification under Section 3 (1) of the Act was published in the Gazette on 19-10-1971. The declaration under Section 6 was on 10-7-1973. Advance possession had been taken on 22-3-1973. Notice under Section 9 (3) of the Act was served on the land owner on 4-6-1974. The case was posted for enquiry to 27-6-1974. On that day the claimant sought an adjournment and accordingly the enquiry was adjourned to 1-7-1974. He appeared on that day, filed a claim statement and produced certain title deeds. In the claim statement he mentioned that he had title to the land acquired, that the documents showing the title had been produced and that he may be paid compensation. The amount of compensation was not specified in that statement. An award was passed by the Land Acquisition Officer on 31-7-1974. The claimant moved an application for reference under Section 20 of the Act on 16-8-1974. On 19-11-1974 the Land Acquisition Officer made reference by a letter in which he specifically pointed out that in the claim statement no specific claim as to the amount of compensation was made and he also pointed out that for this reason the claimant was not entitled to any enhancement. When, pursuant to the notice from the reference court, the claimant appeared and filed his statement in court on 30-5-1975 he did not explain the reason whv he omitted to make a claim before the Land Acquisition Officer in response to the notice under Section 9 (3) of the Act. Even in the evidence no attempt was made by the claimant to indicate the reason as to why he failed to make a claim as to the specific quantum of compensation before the Land Acquisition Officer. At the hearing before the reference court Government counsel seems to have urged that the claimant was not entitled to any enhancement of compensation in view of his failure to make a claim. Section 27 (1) of the Kerala Act provides that if the applicant has made a claim to compensation pursuant to the notice given to him under Section 9 the amount awarded to him by the court shall not exceed the amount so claimed or be less than the amount awarded by the Collector under Section 11. Sub-section (2) of Section 27 provides that if the applicant has refused to make such claim or has omitted without sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded by the Court shall in no case exceed theamount awarded by the Collector. The consequence of the provision in Section 27 is that the compensation is limited to the amount claimed in the statement made pursuant to notice under Section 9 if such a statement had been filed. When the claimant fails to make such claim the reference court cannot award any enhancement. The exception to this is the case where the omission to make a claim is explained and the explanation is acceptable to the Judge,

4. Before the reference court the State contended that no enhancement ought to be granted as there was omission to make a claim. Sufficient reason had not been pleaded despite the fact that even in the reference letter it had been pointed out that no specific claim was made in the statement. Despite the failure to plead sufficient cause in the claim statement filed before the reference court and the failure to attempt to prove it by the evidence in the case the claimant set up a case at the hearing that he had sufficient reason for omitting to make a claim. The reason was reliance upon the decision of the Full Bench of this Court in State of Travancore-Cochin v. Mathai, 1957 Ker LJ 893. It may be necessary here to advert to that decision. A Division Bencn of this Court had made a reference in that case to the Full Bench. The short question referred was whether the provision in Section 24 (2) of the Travan-core Land Acquisition Act corresponding to Section 27 (2) of the Kerala Land Acquisition Act providing for forfeiture of the right to claim enhancement of compensation as a consequence of failure to make a claim in response Lo notice under Section 9 (3) would arise for application in a case where the notice issued to the claimant under Section 9 (3) of the Act fixed the hearing within 15 days of the service of the notice. The question referred did not concern excusing delay but was purely a question of law as to the effect of a shorter notice on the consequences arising under Section 24 (21 of the Travancore Act. In a short judgment the Full Bench after posing this question held that the claimant in that case was precluded by sufficient reason from making a proper claim before the Land Acquisition authorities and so the penal consequences of his failure should not be visited upon him. It will be profitable toset down the reasoning of the Full Bench in the words of the learned Chief Justice Koshy who spoke on behalf of the Full Bench. The learned Chief Justice observed thus:

'The awards by the Land Acquisition Authorities were passed on 29-7-1953, that is, within nine days of the date ol the hearing pursuant to the notice under Section 9 (3). Admittedly the notice issued under Section 9 (3) did not show the value offered to the claimant and there is nothing to show that even the rough valuation statement was ready or available for his perusal on the hearing date. In the circumstances we are inclined to think that these are preeminently fit cases where the learned Judge below could have exercised his discretion in holding that there was 'sufficient reason' for the claimant's failure to make a proper claim as required by law rather than seek to decide the question of law as to whether a notice under Section 9 (3) required the same period of fifteen days mentioned in Section 9 (2). The decision of the point necessarily involves the question whether the notice under Section 9 (5) was issued or published and in the absence of any material on record about it, it was not very safe to pronounce upon the question. In his judgment the learned Judge mentions the question of 'sufficient reason' as one of the question to be decided by him, but no decision on it was rendered by him, apparently in view of his decision on the insufficiency of the notice under Section 9 (3). Be that as it may, we hold here that the claimant was precluded by sufficient reason for making a proper claim before the Land Acquisition Authorities and that therefore the penal consequences of his failure should not be visited upon him.'

5. We do not find any answer to the question posed before the Full Bench in the passage extracted above. The learned Judges of the Full Bench are seen to have disposed of the case on the approach that the discretion to find sufficient reason for the claimant's failure to make a proper claim should have been exercised by the reference court. In support of the finding that there was sufficient reason for the claimant's failure to make a specific claim the court observed that the notice issued under Section 9 (3) did not show the value offered to the claimant and there was nothingto show that even the rough valuation statement was ready or available for his perusal on the hearing date. Whether sufficient reason was shown was not a matter in issue in that case. That apart it is seen that certain assumptions have been made by the learned Judges of the Full Bench which had direct bearing on the decision in that case. It was assumed that the State will be in a position to give notice of the specific value to the claimant when it issues notice under Section 9 (3) of the Act and it further assumes that there is a duty cast on the Land Acquisition Officer when he issues notice under Section 9 (3) to give the claimant notice of such value. There appears to be no scope for these assumptions.

6. Let us now briefly advert to the scheme of the Kerala Land AcquisitionAct. Section 3 (1) of the Act empowers the Government or the Collector to cause to be published a notice of the fact that land is needed or is likely to be needed for any public purpose. It is this notification that enables any officer empowered in this behalf to enter upon, survey and take levels of any land in such locality and take other measures relating to survey. On the issue of such notice any person interested in any land is entitled to obiect, on which objection the Government or the Board of Revenue is to take the final decision. On such decision being taken a declaration is made under Section 6 to the effect that land is needed for a public purpose. At that time the plan of the land is ready for inspection by any person interested in such inspection. After such declaration the Collector under the Act takes order for the acquisition of the land. He causes the land to be marked out unless it had already been marked out. If no plan has been made he causes a plan to be made. This is under Section 8 of the Act. Section 9, which follows, obliges the Collector to give public notice of intention to take possession of the land and invite claims for compensation. Sub-section (3) of that section provides for issue of individual notices on all persons known or believed to be interested in the land. Sub-section (5) requires the notice to be published in the Gazette also. Section 11 of the Act deals with the enquiry and the award to follow. The Collector is to proceed to enquire into the objections. He is to enquire into objections concerningmeasurements and the value of the landat the date of publication of the notification under Section 3 (1), He is also to enquire into the respective interests of persons claiming compensation. After enquiry he is to make an award which award must contain the finding as to compensation allowed for the land. Section 17 provides that no award shall be made by the Collector under Section 11 or 16 unless the valuation statement prepared in such manner as may be prescribed by rules is approved by the District Collector in a case where the award is not by the District Collector and where the award is by the District Collector it is approved by the Board of Revenue. Thus we find that the only stage at which an enquiry into the value of the land is to be made under the statute by the Land Acquisition Officer is in the enquiry under Section 11 of the Act. Such value must have the approval of the higher authorities as mentioned in Section 17. All these happen in between the commencement of the enquiry and the passing of the award. At no earlier stage is there a need for valuation as a statutory requirement. We say 'statutory requirement' because it is open to the Revenue authorities to resort to preliminary valuation earlier. We are told that this is being done just to have an idea of the value of the land that may be acquired. We have been referred to the provisions in Kerala Land Acquisition Manual which is intended to unify the practice and procedure obtaining in the State and is a collection of instructions issued and information conveyed to officers entrusted with the work of acquisition of lands. Chapter 10 of the Manual deals with detailed valuation of the land and improvements and this valuation has to be made under the terms of the statute at the stage of enquiry under Section 11. What we seek to emphasise here is that at the lime notice is issued under Section 9 (3) of the Act the Land Acquisition Officer is not obliged, by any statutory provision, to be possessed of materials as to the value proposed to be offered. More significant is the fact that the statute which clearly indicates the scope of notice under Sections 9 (1) and 9 (3) does not expressly or by implication require furnishing of any information to the claimant as to the value of the land. There is no scope in the scheme of the Act for any provisional determination of the value of the land. Final determination can only be at the tune theaward is passed. Therefore there is no information as to value to be conveyed to the claimant when notice is issued under Section 9 (3). The failure to convey any such information cannot therefore be said to be failure to perform a duty cast upon the Land Acquisition Officer. If this be the approach to the question it cannot be urged that the claimant failed to make specific claim as to compensation because the information as to value of the land acquired was not conveyed to him in the notice under Section 9 (3). With great respect we find ourselves unable to agree with the Full Bench in State of Travancore-Cochin v. Mathai, 1957 Ker LJ 893.

7. We fail to understand how the case in State of Travancore-Cochin v. Mathai can be pleaded as a sufficient reason for failing to make a specific claim as to the amount of compensation. No attempt was made here to sustain the reasoning in the Full Bench decision in State of Travancore-Cochin v. Mathai. Learned counsel for the respondent-claimant rested his case not on the correctness of the decision but on the fact that 1957 Ker LJ 893 having decided the question, if that was found to be sufficient reason by the court below that was a proper exercise of discretion and this court ought not to interfere with it. We put it to respondent's counsel whether it is the respondent's case that he failed to make a claim because he was led to act on the basis of the decision in State of Travancore-Cochin v. Mathai. In other words, is it his case that having read and understood the decision of the Full Bench he assumed that it was not necessary to make a specific claim as to compensation in the absence of particulars of the value mentioned in the notice under Section 9 (3) and having been misled on the faith of a decision of this court he had sufficient reason by way of explanation for his default in making the claim? Learned counsel fairly conceded that he cannot and does not set up his case in those terms. But his case is that whether the decision in State of Travancore-Cochin v. Mathai be right or not, at the time the lower court decided the reference the court acted properly in relying on that decision and once the discretion is so exercised the appellate court should not interfere with the decision,

8. It is one thing to say that an appellate court should not normally interfere with the discretion exercised by lower court but another to say that even if the lower court has misdirected itself on a question of law the appellate court should not interfere with it. The question that the court below purported to decide was whether there was sufficient cause for failure to make a specific claim. It assumed that there was sufficient cause in view of the decision in State of Travancore-Cochin v. Mathai. After referring to the decision in State of Travancore-Cochin v. Mathai, 1957 Ker LJ 893 (FB) the court observed thus:

'The facts in the instant case are similar to those in the case before the Full Bench. The value proposed to be offered to the plaintiff was not shown in the notice under Sections 9 (3) and 10, It is also not clear when the rough valuation statement was made. Ext. B-4 valuation statement does not contain any date. At any rate there is no evidence adduced by the defendant to the effect that the preliminary valuation statement mentioned in Ext. B-4 as prepared by the Village Assistant was made available to the plaintiff for perusal at the time of hearing. The facts being such there is no reason not to apply the decision of the Full Bench. Applying that I find that there was sufficient reason for the plaintiff's failure to make a proper claim as required by law.'

It is not disputed by the learned Additional Advocate General who appeared on behalf of the State that the value of the land was not shown in the notice under Section 9 (3). According to him it would not be shown in any case because such valuation will not be available at that time and also because the form prescribed does not provide for showing any such value. According to him the statement of such information being not a requirement in law it was not being shown in any case.

9. We may now advert to some of the later decisions of this court where the failure to make a specific claim in regard to compensation by the claimant has been held to be fatal to the claim for enhancement. In none of these cases reliance was placed on the decision of the Full Bench in State of Travancore-Cochin v. Mathai (1957 Ker LJ 893). We are referring to the decision in Pareed v. Spl. Deputy Collector, 1973 Ker LT 996 and Appu v. State ofKerala, 1976 Ker LT 195 : (AIR 1976 Ker 78). In these cases no claim was made as to compensation and therefore enhancement was disallowed. In the decision in Kuriakose v. State of Kerala, ILR (1963) 1 Ker 398 the claimant had, in the statement, referred to two sale deeds. But the court held that such reference is not an indication of any intention to rely on those sale deeds as criteria for the compensation. The High Court of Madras in Subbanna v. Dist. Labour Officer. East Godavari. (1953) ILR 53 Mad 533 : (AIR 1930 Mad 618) had taken a similar view. There the court held that merely because certain sale deeds of neighbouring lands were filed along with the claim statement without making a specific claim the claimant cannot seek enhancement. That a claimant will not be entitled to seek enhancement in the absence of specific claim was held by the Supreme Court in Gobardhan Mahto v. State of Bihar, (1979) 4 SCC 330 : (AIR 1979 SC 1246). Of course, it may be said that in none of the later cases of this court the question as it was posed in State of Travancore-Cochin v. Mathai did receive notice. Our attention has been drawn to two decisions wherein the decision of the Full Bench in 1957 Ker LJ 893 had been followed. A Division Bench in A. Section 541 of 1974 decided on 18-7-1978 followed the Full Bench decision, but there is no independent discussion. One of us Sri. P. C. Balakrishna Menon. J. had occasion to advert in a recent judgment, that in L. A. A. No. 40 of 1980 decided on 17-12-1980 to the decision in State of Travancore-Cochin v. Mathai. There, after noticing the dictum of the decision, the court applied it to the facts of the case. Since the State had no case that the notice issued disclosed the value offered to the claimant, the court found that it was right in finding sufficient cause for condoning the default of the claimant to make a specific claim. These decisions are evidently based on the decision of the Full Bench in State of Travancore-Cochin v. Mathai, 1957 Ker LJ 893 which we hold, with great respect, has not been rightly decided.

10. Before closing we may refer to another argument attempted by learned counsel Sri. Cherian to sustain the decision of the court below on a different approach. Existence of good faith and absence of negligence entitled a claimant to seek condonation of his default.

In support of this counsel Sri. Cherian cites decisions in Subrahmanyamma v. Dist. Welfare Officer, AIR 1966 Andh Pra 15, Spl. L. A. Officer v. S. P. Patil, AIR 1974 Kant 74 and Subramania v. State of Madras, AIR 1953 Mad 943. Of course, the provision in Section 27 (2) is not to be understood as a provision to be used to defeat a claimant who would otherwise be entitled to obtain just value for his property. The provision calls for a liberal construction in favour of the claimant to the extent! possible. Though the provisions of the Act obliges the claimant to make a specific claim in his claim statement if he is later to seek enhancement and the penalty for failing to make such claim is the forfeiture of his right to claim enhancement, to a great extent the adverse consequence of this provision has been softened by the provision empowering the Judge to condone the default on the part of the claimant. The discretion conferred on the Judge is a very wide discretion, but sufficient reason has to be found by him to condone the default. In considering whether the reason urged is sufficient he should necessarily be led by considerations of good faith in the conduct of the party. If a party is shown to be vigilant all along and not negligent and there is no absence of good faith on his part that may be a good reason. What is said in this case is that though the claimant here is not an illiterate man, he being, a Professor of Engineering, he is not well-versed in the provisions of law and having failed to engage a counsel at the time he filed statement under Section 9 (3) he failed to make a specific claim as to compensation. His conduct in prosecuting the case showed that he is vigilant and there is no absence of good faith in his part. Such a case is urged for the first time before us in this appeal. It will not be possible for us to determine the question here, for, it is for the Reference Court to find whether there is sufficient reason for the failure on the part of the party to make a specific claim. It is for that court to be satisfied about the explanation for such failure. Learned counsel for the respondent urges that an opportunity be given to him to urge this in the court below. Normally we would not be inclined to allow such a request. That is because this is a matter the claimant has to urge in the court of first instance at the appropriate time and iihe fails to urge it, it is not for the appellate court after hearing the appeal to remit the case back to enable the party to urge it again. But we think in the interests of justice an opportunity may be allowed in the peculiar circumstances of this case. Perhaps the decision of the Full Bench of this Court was considered as sufficient answer by counsel appearing in the Reference Court. That appears to be the case, for that alone seems to have been urged by counsel despite the fact that it was evident that no specific claim had been made in the statement filed in response to Section 9 (3) notice. In these special circumstances and in view of what is said about the conduct of the claimant we think it will be fair and in the interest of promotion of justice to give an opportunity to the claimant to plead the case for his default or failure to make the specific 'claim before the Land Acquisition Officer at the appropriate time. We are, therefore, granting the request of counsel to send the matter back for that purpose and that alone.

In the circumstances the decree of the court below awarding enhanced compensation at Rs. 1,200/- per acre is set aside and the matter is remitted back to the court below to enable the respondent to plead sufficient cause under Section 27 (2) of the Kerala Land Acquisition Act. The matter will be disposed of by the court below afresh after considering the pleading, if any, that he may make and after going into the question. In the circumstances of the case we think it fair to direct that costs in this court and in the court below will depend on the ultimate success of the parties in the proceedings and will be provided for in the decree to be passed by the court below pursuant to this remit. The case is posted in the court below for appearance of parties to 15th June, 1981.