COLLECTOR Vs. EVENGELICAL ALLIANCE MISSION

JUDGEMENT

(1.) Two acres of land belonging to the respondents along with a building and 109 trees were sought to be acquired for the Lal Bahadur Shastri National Academy of Administration, Mussoorie. Notification under Section 4 of the Land Acquisition Act (hereinafter referred to as the Act) was issued on 1st Aug.. 1973. It was followed by a notification under Section 6 of the Act dt. 21st Feb.. 1975 and a notification under Section 9 of the Act dt. 20th Mar., 1975. After issuing notice? to the claimant-respondents the Lanj Acquisition Officer determined the amount of compensation payable to them at Rs. 19,561-66. Break-up of this compensation was as follows :-For the Rs. buildings11,190-00 For two acres of Rs. land3,206-14 For 109 trees. Rs. 2,614-00 As solatium Rs. 2,551-52 Aggrieved by the amount awarded by the Land Acquisition Officer as compensation the claimant-respondents made an application under Section 18 of the Act for a reference being made to the District Judge. In pursuance of that application a reference was made to the District Judge. Dehradun, who after hearing the parties and taking into consideration the evidence produced by them gave an award on 20th Dec., 1976; whereby he enhanced the amount of compensation from Rs. 19.561-60 to Rs. 45,696-50. In doing so he agreed with the Land Acquisition Officer that the value of the building was Rs. 11,190-00. In regard to the value of the two acres of land, however, he took the view that its market value was Rs. 24,000/-. Likewise in regard to the value of 109 trees the District Judge took the view that the proper compensation for those trees was Rs. 5.228-00. This was an amount just double the amount awarded by the Land Acquisition Officer. Aggrieved by the award of the District Judge, the Collector, Dehradun, has preferred this first appeal. A cross-objection has also been filed by the claimant-respondents on 1st Feb., 1978. The cross-objection is valued at Rs. 25,000/-. It contains three grounds and their perusal indicates that it is ton fined to the tennis court and retaining walls. The claimant-respondents have stated in their cross-objection that the District Judge has committed an error in not allowing any compensation in respect of the tennis court and the retaining walls.

(2.) The learned Standing Counsel appearing for the Collector. Dehradun, has urged that since the claimant-respondents had not filed any objection under Section 9 (2) of the Act the District Judge was not competent to enhance the amount of compensation awarded by the Land Acquisition Officer. In support of this submission reliance has been placed on a decision of the Supreme Court in Dilawarsab v. Special Land Acquisition Officer (AIR 1974 SC 2333). A similar objection was raised on behalf of the appellant before the District Judge also but was repelled. The relevant issue on this point was issue No. 1 and from a perusal of the findings of the District Judge on this issue it is apparent that the District Judge was of the view that sufficient cause was made out by the claimant respondents for not filing objection under Section 9 (2) of the Act. Sub-section (2) of Section 25 of the Act on which reliance has been placed by the Standing Counsel provides that when 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 the amount awarded by the Collector. In our opinion on the findings recorded by the District Judge it is not Sub-section (2) but Sub-section (3) of Section 25 of the Act which is relevant. It reads :-" When the applicant has omitted for a sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded to him by the Court shall not be less than, and may exceed the amount awarded by the Collector. It has been urged by the standing counsel that no application much less an affidavit had been filed by the claimant-respondents making out a case for not filing an objection under Section 9 (2) of the Act and consequently it was not open to the District Judge to have come to the conclusion that sufficient cause in this behalf had been made out. We are not impressed by this argument inasmuch as it places more emphasis on technicality than on substance. Order XV, Rule 5 C.P.C. contemplates that if a tenant in a suit of the nature mentioned therein fails to make the necessary deposits contemplated by the said rule and fails to file a representation within the time provided therein his defence is liable to be struck off. A question arose as to whether the provision in regard to filing an objection was of a mandatory nature so that in the event of no representation being filed the court was bound to strike off the defence. A Division Bench of this Court answered the aforesaid question in the affirmative. Disagreeing with the view of this Court it was held by the Supreme Court in Bimal Chand v. Gopal Agarwal, (AIR 1981 SC 1657) that it will always be a matter for the judgment of the Court to decide whether on the material before it, notwithstanding the absence of a representation under Sub-rule (2), the defence should or should not be struck off. The principle contained in the aforesaid case, in OUT opinion, can be applied to the facts of the instant case also. We are accordingly of the view that notwithstanding no formal application or affidavit having been filed by the claimant-respondents claiming the benefit of Sub-section (3) of Section 25 of the Act it was open to the District Judge on the material already on record to arrive at the conclusion that sufficient cause had been made out for not filing an objection as contemplated by Section 9 (2) of the Act.

(3.) In Babu Ram v. Antnrim Zila Parishad (AIR 1964 All 534) a Full Bench of this Court held that a Court of appeal would not interfere with the exercise of discretion by the court below if the discretion has been exercised in good faith, after giving due weight to relevant matters and without being swayed by irrelevant matters. If two views are possible on the question, then also the Court of appeal would not interfere, even though it may exercise discretion differently, were the case to come initially before it. In order to justify interference the exercise of discretion should manifestly be wrong. Having given our anxious consideration we find it difficult to take the view that the exercise of discretion by the District Judge in this behalf is manifestly wrong. The submission made by the Standing Counsel that the District Judge committed an error in enhancing the amount of compensation notwithstanding no objection having been filed by the claimant-respondents under Section 9 (2) of the Act is, therefore, not sustainable.