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First Appeal No. 90 of 1963, decided on 10th May 1968.

, Ss. 4 & 6‑Acquisition proceedings startled and possession taken over before Issue of notifi cation under Ss. 4 & 6‑Highly irregular‑Issue of notification- Condition precedent to acquisition proceedings.

, Ss. 4 (I) & 23‑Compensation‑Market value to be determined according to prevailing rates on date of notification gazetted under S. 4 (1), notwithstanding date of actual possession of land acquired‑Land taken in possession in 1953 but notification under S. 4 (1) gazetted in 1959‑Market rate prevailing in 1959, In circumstances, held, should form basis for assessment of compensation.

, Ss. 11 & 18‑Land Acquisition Officer referring claimant's objection to Court‑Objection as to non‑maintainability of application, for enhancement of com pensation‑Cannot be taken and shall be deemed as waived.

Secretary of State v. Bhagwan Prasad and another A I R 1929 All. 769 and Secretary of State v. Bhagwan Prasad A I R 1932 All: 597 rel.

Ss. 12 do 31‑Notice under S.12 issued on 30‑6‑1960 and compensation paid on 1‑7‑1960 Contention that claimant having accepted compensation without protest could not re‑agitate claim and it was barred under S 31 Fact that claimant was paid off only next day, held, made it obvious that claimant was paid at his house In great hurry and was, In circumstances, given no chance to make a protest and could not be barred from making protest subsequently.

Notice under section 12 of the Act was issued on the 30th day of June 1960, and compensation was paid to the respondent on the 1st day of July 1960. Obviously, the amount in question was paid to the respondent at his house in great hurry, because otherwise it would be impossible to presume that, notice, dated the 30th day of June 1960, could have been served on him on the same day, and the 'respondent would have appeared before the Land Acquisition. Officer on the 1st day of July 1960, and collect ed the amount of compensation. In. that view of the matter, the respondent was hardly given any chance to make a protest against the amount of compensation awarded to him by the Land Acquisition Officer and, therefore, no exception could be taken to his subsequent protest, when he realised that, in terms of the requirement of section 12 of the Act, the lodging of protest was essential before a claim for enhanced compensation could be filed or entertained.

Sher Ali for Appellants.

K. A. Ghani for Respondent.

Date of hearing : 10th May 1968.

.----This appeal, under section 54 of the Land Acquisition Act, read with section 96 of the Civil Procedure Code was filed against the judgment and decree, dated the 24th day of October 1962, passed by the 2nd Additional District Judge, . Hyderabad in favour Of the respon dent on a reference made to him by the Deputy Commissioner, Hyderabad under section'18 of the Land Acquisition Act (herein after called the Act).

2. The brief facts of the case may be recalled;----‑

The appellant‑Government acquired agricultural land of the respondent comprising of Survey No. 124 and a part of survey No. 111 measuring 3 acres and 15 Ghuntas under the Land Acquisition Act and took its possession on the 5th day of June 1953, without any previous notification under sections 4 pad 6 of the Land Acquisition Act, After about six years, the Government issued the required notification on the 13th day of February 1959, which was subsequently gazetted on the 6th day of March 1959.

3. On the 8th day of May 1959, notice under section 9 of the Act was issued to respondent, but he did not file his claim for compensation before the Land Acquisition Officer. On the 30th day of June 1960, another notice under section 12 of the Act was. issued to him, and thereafter be was granted compens4tion of Fs. 4,575.56; at the rate of Rs. 827.50 per acre, together with 15 /o by way of compulsory acquisition and 6% interests. The Land Acquisition Officer made his award on the 30th day of June 1960, and the compensation was finally paid to respondent on the 1st day of July 1960.

4. The respondent, being dissatisfied with the award of the Land Acquisition Officer, filed an application under section 18 of the Act before the Deputy Commissioner. Hyderabad on the 5th day of August 1960 and prayed that, a reference be made to Court " for the enhancement of his compensation. On the 14th day of March 1961, the said application was forwarded to the Court by the Deputy Commissioner.

5. In his application, the respondent alleged that, the value of his land was about Rs. 3,000.00 per acre, as he had declined to sell it at Rs. 2,300.00 per acre and on that basis, he claimed enhanced compensation.

6. Apart from joining issue with the respondent as to the merits of his case, the Government raised certain legal pleas as to the maintainability of his application, It was alleged that since he did not file any clamp for compensation, after he received notice under section 9 of the‑ Act, the compensation awarded to him could not be enhanced by virtue of section 25(2) of the Act. It was further alleged that, the respondent, having accepted the amount of compensation without protest, his claim for enhanced compensation was barred under section 31 of the Act. It was lastly alleged that his application was time barred and was liable to be dismissed.

7. On the pleadings of parties, the learned Additional District Judge framed the following issues

(1) Is the compensation awarded to the applicant Inadequate

(2) Is the' application within time

(3) Is the reference barred under section. 31 of the Land Acquisition Act .

(4) Is the application not maintainable.

5) What should the decree be

After recording evidence of the parties and their witnesses, the trial Court found on all issues in favour of the respondent and consequently awarded him enhanced compensation of Rs. 9,918.00 instead of Rs. 4,575.56 which was awarded to him by the Land Acquisition Officer.

8. We have heard Mr., Sher Ali, the learned counsel for the appellant‑Government and Mr. K. A. Ghani, the learned counsel for the respondent. Mr. Sher Ali assailed the judgment of the trial Court mainly on the ground that in awarding enhanced compensation to the respondent, it had taken into consideration sale‑deed (Exh. 40), relating to certain other land in the vicinity of the land in 'question, but that land, being a garden land, could not have formed proper basis for determining the amount of compensation of the respondent. If that was the only basis on which the trial Court enhanced the amount of compensation of the respondent, the contention of Mr. Sher Ali would have had some force but we have not been able to agree that the said sale‑deed was the only basis for, the trial Court's conclusion. The respon dent had examined two witnesses namely, Muhammad Ibrahim P. W. 2 and Mulla Muhammad Ismail P. W. 3 in support of his case apart from appearing as his own witness. As against this, the appellant, examined only one witness namely Muhammad Ali, the Land Acquisition. Officer, Hyderabad. The respondent in his evidence stated that, his land was situated within the Municipal limits of Hyderabad and was used for the cultivation of vegetables. According to him, the rate of lease of agricultural, land in that locality was Rs. 200.C0 to Rs. 600.00. per acre per year and, in support, he produced lease‑deed (Exh. 39). This lease‑deed, the authenticity of which was not questioned in cross‑examination, showed that 19 acres and 9. Ghuntas of agricultural land situated around the vicinity, was leased by its owners in 1955, at the rate of ‑ Rs. 400.00 per acre per year which roughly comes to a little more than Rs. 200.00 per acre. In that view of the matter, the value of respondent's land, which was admittedly used for growing vegetables, could not be any lesser than the value of this land.

9. Muhammad Ibrahim P. W. 2 supported the case of respondent and stated that, be had taken some land on lease in the same locality from one Muhammad Bux at the rate of Rs..600.00 per acre, per year. According to him, he knew the land of the respondent which was very valuable, as it was used for growing vegetables. Mullis Muhammad Ismail P'. W. 3 also supported the respondent's case and stated that, he bad acquired the lease of about 3 acres of land in. the same vicinity' at the rate of Rs. 400.00 per acre, per year. Accord ing 3o him, he knew the land of the respondent which was very valuable, as it was used for growing vegetables. Nothing was brought out in the cross‑examination of these witnesses, so as to cast any doubt on their testimony.

10. As against the evidence produced by the respondent, the appellant examined only one witness, namely, Muhammad Ali, the Land Acquisition Officer, Hyderabad in support of their case, but 'his evidence on the whole supported the case of the respondent rather than the case of the appellant. In examination‑in‑Chief he stated that, compensation to the respondent was assessed on the basis of the sale price of neighbouring land of one Muhammad Bachal, who had sold at on the 30th day of November 19.56, at about Rs. 80000. per acre. However in cross‑examination, he stated that; he had given evidence from record, but had no personal knowledge as to the nature or value of the respondents land. He further stated that, he had not seen the land in question nor did he know whether the lands in. that locality were used for growing vegetables. The trial Court disbelieved this witness on the ground that, the sale‑deed of Bachal's land was not produced before him and further that, the Land Acquisition officer had himself stated in the award that:

"sometimes low sale prices are shown in documents in order to save stamp duty and sometimes exaggerated price is shown." .

We have not been able to find any fault with the finding of the learned trial Court in disbelieving Muhammad Ali D. W. 1.

11. It may be mentioned that, the Government had taken over the possession of land of the respondent on the 5th day of June 1953, but notification under sections 4 and 6 of the Act was not issued and gazetted until 13‑2‑1959 and 6‑3‑1959 respectively. Consequently, the entire acquisition proceedings were highly irregular inasmuch as possession of the land in question could not have been taken over by the Government unless such notification was gazetted as a condition precedent. According to section 23 of the Act, the market value of the land, which was the subject‑matter o acquisition; was. to be determined according to the prevailing rate on the date when notice under section 4, subsection (1) of the Act was gazetted. Therefore, the value of the land in question was to be determined according to the prevailing market rate, on 6‑3‑1959, when notification under section 4 of the Act was finally gazetted, notwithstanding the fact that its possession was taken over by the Government on 5‑6‑1953. The Land Acquisition Officer had assessed the compensation of the land in question at Rs. 827.50 per acre in the year 1953 and, considering that; the value of land has been pro gressively rising from year to year, it cannot be said that, the trial Court was wrong in assessing the compensation of the respondent's land at. Rs. 2,300;00, per acre on the prevailing market rate in the year 1959. Further, the respondent had brought enough to evidence on record in support of his claim for enhanced compensation, and the trial Court accepted that evidence. . No reason 'was shown by the learned counsel for the appellant as to how the trial. Court was wrong in that respect. Accordingly, we are of the view that, the trial Court was right in awarding enhanced compensation of Rs. 9,916,00 the respondent, and no exception could be taken in regard to that finding.

12. The second contention of the learned counsel for the appellant that that respondent, having accepted compensation awarded to him by the hand Acquisition Officer, without pretest, could not re-agitate his claim for enhanced compensation, as it was barred under section 31 of the Act, is equally without force. Notice (Exh. 44) under section 12 of the Act was issued on the 30th day of June 1960, and compensation of Rs. 4,578‑8‑11 was paid to the respondent on the 1st day of July 1960. Obviously, that amount in question was paid to the respondent at his house in great hurry, because otherwise it would be impossible to presume that, notice, dated the 30th day of June 1960, could have been served on him on the same day, and the respondent would have appeared before the Land Acquisition Officer on the 1st day of July 1960, and collected the amount of compensation. In that view of the matter, the respondent was hardly given any chance to make a protest against the amount of compensa tion awarded to him by the Land Acquisition Officer and, therefore, no exception could be taken to his subsequent protest, when he realised that in terms of the requirement of section 12 of the' Act, the lodging of protest was essential before a claim for enhanced compensation could be filed or entertained. In any case, after the Land Acquisition Officer referred the respondent's application under section 18 of the Act to the Court, thereafter no objection could be taken as to the maintainability of that application, as it would be deemed to have been waived. For that conclusion, reference may be made to a judgment of Allahabad High Court reported as:

Secretary of State v. Bhagwan Prasad and another A I R 1929 Ali. 769.

Where, on an objection having been raised that, the claim for enhanced compensation was time barred, it was held: '

The Court to which a reference has been made by the Collector on an application under section 18 has no jurisdiction to go behind the reference in order to scrutinize its regularity and cannot enter into the question whether the application in pursuance of which it was made was within time or not.

Reference may be made to another judgment of Allahabad High Court reported as;

Secretary of State v. Bhagwan Prasad A I R 1932 All. 597.

Where in repelling‑, similar objection, it was held:

That once a reference has been made under section 18 of the Act it is not open to the Collector or the Secretary of the State to say 'that the reference was wrongly made and the Civil Court could not entertain the plea of limitation. When a Collector makes a‑ time barred reference to the Court he should be deemed to have waived the plea' of limitation.

13. Although in these cases the objection to the maintain ability of application under section 18 of the Act was grounded on limitation, yet the principle decided in these cases is equally, applicable to the objection raised by the learned counsel far the appellant. Once the Collector made a reference of the respondent's application to the Court, it would be deemed that all objections as to its maintainability were waived and the Court could not go behind such reference.

14. The learned counsel for the appellant did not press any ground of appeal and; in our opinion, quite rightly, for the other simple reason that; all these objections were pressed before the trial Court each one of which was repelled for sufficient reasons.

15. In view of the conclusions to which we have arrived, we find no force in this appeal, which is dismissed with costs.

A. E./S. A. H. Appeal dismissed.

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