STATE OF BIHAR Vs. BHAGWAN SAH

JUDGEMENT

(1.) This is an appeal by the State against a Judgment of the Dist. Judge, Muzaffarpur, awarding compensation by fixing the market value of the acquired land at the rate of Rs. 600/- per katha in a reference under Section 18 of the Land Acquisition Act. The respondent is a raiyat of survey plot No. 218, out of which 0.27 acre was acquired in 1955-56 and the remaining area, namely, 0.07 acre was acquired subsequently; and the instant case is in respect of the subsequent acquisition. The learned Additional Government Pleader has questioned the Judgment and decree of the learned District Judge on two grounds, namely, (1) the District Judge had no jurisdiction to deal with this case, because a Subordinate Judge of Muzaffarpur was appointed by a Government notification published in the Bihar Gazette in June 1961 to discharge the functions of a court under the Land Acquisition Act, 1894, and (2) the compensation allowed by the Collector in his award could not be revised by the District Judge, because the respondent did not make any claim after the service of notice upon him under Section 9 of the Act.

(2.) I shall take up the second ground first. When the reference came to the District Judge, a petition in reply to the claim petition of the respondent was filed before the District Judge, and it was stated therein that the respondent could not make any claim under Section 18 of the Act, as he made no claim after the notice under Section 9. The learned District Judge has mentioned this objection of the State in paragraph 3 of the judgment; but he has not discussed it or referred to it at all subsequently. It is admitted that the notice under Section 9 was received by the respondent on the 2nd February, 1959, a few months before the Collector's award under Section 11 of the Act. Section 25 of the Act enacts: "(1) When the applicant has made a claim to compensation, pursuant to any notice given under Section 9, the amount awarded to him by the Court shall not exceed the amount as claimed or be less than the amount awarded by the Collector under Section 11. (2) 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. (3) 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: The question, therefore, for consideration is whether there is sufficient reason for the respondent for not making any claim in pursuance of the notice under Section 9. The learned District Judge has not considered this question; but this Court as a Court of fact in first appeal is competent to deal with the same, and I propose to do so. Mr. Jagdish Chandra Sinha, who appeared for the respondent, submitted that there was sufficient reason in the instant case for his client not to make any claim after the notice under Section 9 in as much as in the previous land acquisition proceeding in respect of 0.27 acre of the same plot the District Judge had allowed compensation at the rate of Rs. 600/- per katha; and the area acquired in the instant case being a part of the same plot, the respondent was justified in not filing any claim on the assumption that the same rate of compensation would be allowed in this case as well. This reason or anything about the compensation or market rate allowed in the earlier acquisition proceeding was not mentioned in the respondent's application under Section 18 in the instant case. In the schedule of that application, however, while slating the area of the land acquired, the respondent stated that the total area of plot No. 218 was 0.34 acre, out of which 0.27 acre had already been acquired, and the remaining area was 0.07 acre. This description does not, in my opinion, indicate the aforesaid reason for not making, any claim in the instant case after the service of notice under Section 9. Then, Mr. Sinha referred to the evidence of the only witness for the State, Sri Satya Narayan Prasad. He stated that the earlier acquisition was for the same project; but at the same time he said that the land acquired than was not similar in quality to the land acquired in the instant case. In cross-examination, it was suggested to this witness by the respondent that the market rate of the land per Katha had been fixed in the earlier case, but the witness pleaded his ignorance about the same. This suggestion, however, does not indicate that the respondent did not make any claim in the instant case after the service of notice under Section 9 on the ground that the market rate at Rs. 550/- or Rs. 600/- a katha had already been fixed in the earlier case in respect of a portion of the plot in question. The respondent could not be justified in presuming that the rate allowed in the earlier proceeding would automatically be allowed to him by the Collector under Section 11 in the instant case, because a portion of the, same plot may be better in quality than the remaining portion and also because the decision allowing a certain amount of compensation in respect of a portion of the plot in the earlier proceeding cannot operate as res judicata in respect of the compensation or market value of the raining area of the same plot. In the circumstances, I am of the opinion that the aforesaid reason advanced by Mr. J. C. Sinha is not a sufficient reason within the meaning of the expression used in Section 25 of the Act. In view of this finding, the compensation allowed by the learned District Judge in excess of the amount allowed by the Collector must be disallowed; and the respondent is not entitled to any amount in excess of the amount allowed by the Collector.

(3.) In view of the above finding, it is not necessary to consider the other ground urged by the learned Additional Government Pleader on behalf of the State.