P L D 1963 Azad J & K 26 (PLP)

ABDUL HAMID KHAN, J.‑There is also a cross appeal entitled "Ghulam Muhammad v. Sarkar" filed in this Court and therefore this judgment will also cover the cross appeal. Land measuring 6 kanals 7 marlas under Surveys Nos. 5 and 6 situate in Chinari town was acquired by the Government for the purpose of construction of a dispensary. Award was given by the Collector Muzaffarabad on 10‑2‑62 and he fixed the compensation of the land acquired at Rs. 600 per kanal. The respondents Ghulam Muhammad and Feroze pro prietors of the land were not satisfied with the award. On 16‑2‑62 they applied for reference by the Collector of the matter for determination of the Court Their main objection to the award was that the compensation awarded for the land was much less than the market value. According to them the market value of the land was Rs. 2,000 per kanal. The District Judge after recording evidence in the case accepted the reference and raised the amount of compensation from Rs. 600 per kanal to Rs. 2,000 per kanal. The total amount of compensation payable to the respondents according to the District Judge comes to Rs. 12,

700. The Government has now come in appeal to this Court against this order of the District Judge. In the cross appeal the respon dents have prayed that they should be awarded 15%. of the market value in consideration of the compulsory nature of the acquisition which the District Judge omitted to award them in the order under appeal. We shall first deal with the appeal filed by the Government. The main contentions of the learned counsel on behalf of the Government are two‑fold:‑ Firstly, that the joint statement of the respondents recorded by the Collector on 20‑10‑61 that they should be awarded com pensation at the rate of Rs. 1, 0 per kanal is an admission and in view of this admission they are estopped from claiming more than Rs. 1,000 per kanal and, secondly ; that the average worked out by the Collector at Rs. 600 per kanal is correct and not the average worked out by the District Judge at Rs. 2,000 per kanal. As regard the first point, we do not agree that the admission on the part of the respondents is prejudicial to them. As remarked by the District Judge this admission clearly appears to have been made by them in ignorance of their legal rights and cannot be held to be binding on them. Moreover, this was never acted upon because the Collector did not base his award on this statement of the respondents. The perusal of the record shows that even though the respondents had asked for compensation at the rate of Rs. 1,000 per kanal in their statement on 20‑10‑61, they had subsequently retracted from that statement in their applications dated 13‑11‑61 and 2‑1‑62 and demanded compensation at the rate of Rs. 2,000 per kanal. Since we are convinced that the statement by the respondents to accept Rs. 1,000 per kanal as compensation was made by them in ignorance of their legal rights and the same was not acted upon in the sense that the award was not based on this statement and as subsequently the respondents had retracted from this statement and demanded Rs. 2,000, we do not hold that an admission of this kind can be said to be binding on them and we, therefore, agree with the learned District Judge that this admission has no value. There is another reason also why we do not attach much importance to the so‑called admission of the respondents and it is that according to section 23 of the Land Acquisition Act certain procedure has been laid down for determining the amount of compensation to be awarded for land acquired under the Land Acquisition Act. This statutory provision, in our opinion, cannot be ignored either by the Collector or by the Courts in determining the compensation. Even agreement of parties, in our opinion, cannot override the statutory provision, as laid down in section 23 of the Land Acquisition Act. As regards point (b) the learned District Judge accepted the price of 3 marlas of land sold for Rs. 300 by a registered sale‑deed dated 18‑1‑60, as a basis for calculating the value of the land acquired in this case, on the ground that this land was adjacent to the land under reference to him and had the possibility of a similar special adaptability as that of 3 marlas of land. We see no reason why we should differ from the finding of the District Judge. As there is no force in this appeal we dismiss the same with costs. As regards the cross‑appeal a preliminary point has been raised that the Secretary‑General was the proper person to have been impleaded as a respondent. In this connection reliance was placed on this Court's judgment entitled Syed Abdul Qaiyum Shah v. Sarkar through Collector Civil Appeal No. 12 of 1961. In reply it was stated that as the Secretary‑General was not a party in the proceedings before the District Judge, he was not impleaded as a respondent in the memorandum of appeal filed in this Court. When a Collector makes a reference to the Court under section 18 of the Land Acquisition Act, the Court proceeds to cause a notice specifying the day on which the Court will proceed to determine the objection and directing their appearance before itself on that day, to be served on the following persons, namely:‑ (a) the applicant ; (b) all persons interested in the objection, except such (if any) of them as have consented without protest to receive payment of the compensation awarded; and (c) if the objection is in regard to the area of the land or to the amount of the compensation, the Collector. The applicant on whose application reference is made by the Collector to the Court is treated as a plaintiff by the Court and if the objection is in regard to the area of the land or to the amount of the compensation a notice to the Collector is necessary and the duty of the Collector in such cases is to defend the case exactly as he would a Government suit. It is the duty of the Collector to see that he produces evidence before the Court to show the fairness of the amount which he has fixed as compensation. The Col lector must remember that the Court will decide on the evidence before it what amount of compensation should be given and he must, therefore, be prepared with reliable evidence at the trial. Ezra v. Secretary of State (30 Cal. 89) may be referred to in this connec tion. In the present case reference was made to the Court by the Collector because the owners (appellants in the cross- appeal) were not satisfied with the amount of compensation fixed by the Collector. The District Judge on receipt of the reference issued notice to the Collector under section 20 (c) of the Land Acquisition Act and as the interim orders of the Court of the District Judge show the Public Prosecutor appeared before the District Judge, on behalf of the Collector, to defend the interests of the Government. It is correct as pointed out that the name of the Secretary‑General, who sues or is sued on behalf of the Government, did not figure as a party before the District Judge. The question arises whether the Secretary‑General was or was not a party before the District Judge and, secondly ; whether he was a necessary party to be impleaded as a respondent in the appeal. As regards the first point it is clear that in view of the provisions of section 20, Land Acquisition Act, the Court on receiving the reference from the Collector is bound to issue a notice to the Collector if the objection is in regard to the area of the land or to the compensation and as already remarked the duty of the Collector is to defend the case exactly as he would defend a suit against the Government. This means that the Collector represents the Government in such cases before the Court and since Government sues or is sued in the name of the Secretary-- General in the Azad State of the Jammu and Kashmir, the Collector acts on behalf of the Secretary‑General. We, therefore, hold that in the present case when the Collector appeared before the District Judge he appeared on behalf of the Secretary‑General. To answer this question we take into consideration the following authorities that have come to our notice :‑ (a) This Court's unreported judgment Syed Abdul Qaiyum Shah v. Sarkar through Collector. (b) 4 1 C 332, 18 1 C 37 and A I R 1936 Lah.

564. The judgments 4 I C 332 and 18 I C 37 were discussed by their Lordships of the Lahore High Court in their judgment reported as A I R 1936 Lah.

564. In 4 I C 332, the Government had acquired certain land for the Pubna Municipality and claims for compensation were preferred by 6 persons. The Land Acquisi tion Deputy Collector, awarded compensation to the claimants who were dissatisfied with the award and applied under section 18 of the Land Acquisition Act for reference to the District Court. The Sub‑Judge, who heard the reference modified the award of the Deputy Collector. Against those decrees appeals were preferred and the Secretary of State was not made a party to these proceedings held that a Company or Corporation for whose benefit any land may be required is not a necessary party in the proceedings, but the Secretary of State is a necessary party. Under section 50 of the Land Acquisition Act such a Company or local authority may appear for the purposes of watching the proceedings or assisting the Secretary of State, but it has not the power to ask for a reference under section 18, nor does the? Act give it the right of appeal. Ezra v. Secretary of State was referred to by their Lordships of the Calcutta High Court while deciding this case. It may be pointed out there that the case was remanded to the District Judge by their Lordships of Calcutta High Court on the ground that the Secretary of State had not been made a party before the District Judge. In 18 I C 37, one Faqir Chand, pleader, who claimed mukarri‑dari rights in part of the said land, applied to the Collector under section 18 of the Land Acquisition Act and prayed that the question as to the amount of compensation to be awarded might be referred to the Civil Court. The matter was referred accordingly and the parties to the proceedings, before the Divisional Judge, were the said Faqir Chand as plaintiff and the Secretary of State for India as defendant. It seemed that the conduct of the proceedings in the Court of the Divisional Judge was entrusted by the Collector as representative of the Secretary of State to the Municipal Committee, Hazroo, in whose behalf the land had been acquired by the Government. The Divisional Judge gave his award on the 5th of December 1908 and on the 2nd March 1809, the objector Faqir Chand filed an appeal in the Punjab Chief Court. The memo randum of appeal was drafted by Baghat Gobind Dass a leading Pleader and the person originally impleaded in the draft as respon dent was the Secretary of State for India but the appellant himself scored out the name of the Secretary of State and m its place inserted the name of the Municipal Committee, Hazroo through the Deputy Commissioner, Campbellpur. On objection, being taken, it was held that in an appeal in the case of a Land Acquisition Award, the only person who can be impleaded as a respondent is the Secretary of State ; and if he is not made a respondent when the appeal is filed there is, in fact and in law, no appeal at all so far as the respondent is concerned. An appeal cannot be said to be presented when the memorandum of appeal omits the name of the person who alone can be the respondent to such an appeal. Their Lordships even refused to extend the benefit of section 5 of the Limitation Act of 1908 to the appellant in the following words :‑ "On behalf of the appellant, it is urged that in preferring the appeal against the Municipal Committee of Hazroo, through the Collector, Campbellpur; he acted honestly, and was misled by the fact that in the Divisional Judge's Court, the Secretary of State had, through the Collector, practically handed over the conduct of the defence to the Committee, for whom the land had been acquired. We see no reason to doubt this. The appellant was clearly misled, and the error he made in making the Committee the respondent to his appeal was, we think, perfectly honest. But both upon principle and upon authority, we cannot hold that 2 mistake of law, no matter how honestly made, can be held to amount to "sufficient cause" unless it can be said that such mistake was made in "good faith", that is to say, the mistake was made notwithstanding due care and attention on the part of the appellant." The appeal in this case was dismissed with costs. In the case A I R 1936 Lah. 564, certain land was acquired in Harnauli village for the District Board for the purposes of a School by the Local Government under the Land Acquisition Act. The owners applied under section 18 of the Land Acquisition Act demanding increased compensation. The reference made only the District Board parties and did not implead the Secretary of State through the Collector. The learned District Judge dealing with the reference, however, sent a notice to the Collector under section 20 of the Act. The Collector did not appear and the proceedings before the District Judge were conducted by the District Board, Mianwali. The compensation was enhanced. But in the award again the District Board was mentioned as the sole defendant. The claimants appealed to the Lahore High Court making only the District Board, Mianwali, through its Chairman and Secretary, party to the appeal without impleading the Secretary of State through the Collector. Objection was raised that as the Secretary of State was never impleaded as a party to the appeal there was no proper appeal to the Court held that:‑ "From section 50, Land Acquisition Act, it is clear that the party for whom the land is acquired can only assist the Collector on the question of the amount of compen sation to be paid to the claimant. It cannot apparently assist the Collector on the question of the area acquired though this may affect the amount of the compensation. The Secretary of State through the Collector is therefore a necessary party." The case was remanded by their Lordships of the Lahore High Court on the ground that the award of the learned District Judge in which the Secretary of State through the Collector was not shown as a party at all was a bad award. From the authorities referred to above it is clear that in an appeal to the High Court under section 54 of the Land Acquisi tion Act when the point involved is the valuation of the land the only person interested is the Secretary of State (here the Secretary-- General) who is a necessary party. We therefore, uphold the objection raised by the respondent in the Courts below that it was necessary to implead the Secretary‑General through the Collector as a respondent and since this was not done it should be done now. The question arises whether the benefit of section 5 of the Limitation Act be extended in the present case or not because otherwise the appeal against the Secretary‑General would barred by time. We consider that it is a fit case in which the benefit of section 5 be extended and this we do on the analogy of Punjab Province v. Nasir Ahmad (P L D 1960 Lah. 801) wherein it was held that,‑ "a litigant in order to be diligent can do no better than to engage a senior lawyer in his case. The lawyers, however senior and eminent they may be, are after all human and for that reason fallible. It is the possibility of the occasional error in the case of the litigants and their counsel that is guarded against by section 14 and other similar sections of the Limitation Act. It will be totally wrong to regard a mistake committed by an eminent lawyer, in instituting the suit in a wrong Court, as a matter for which a litigant should be punished Time should be allowed in such cases." In the present case as already stated the name of the Secretary --General does not actually figure before the District Judge and for this reason the counsel on behalf of the appellants were quite likely to be misled to omit the name of the Secretary‑General in appeal and instead of impleading Secretary‑General through the Collector, Muzaffarabad, impleaded only Collector, Muzaffarabad. In the Authority quoted as 18 I C 37, the benefit of section 5 was not extended on the ground that there was no sufficient cause for not instituting the appeal within the period of limitation against the Secretary of State. The case can be differentiated from the present case inasmuch as in that case Baghat Gobind Dass the counsel for the appellant had impleaded the Secretary of State for India as a respondent, the appellant himself had scored out the name of the Secretary of State and in its place inserted the name of the Municipal Committee of Hazroo through the Deputy Commissioner, Campbellpur. We need not adjourn the case for the insertion of the name of the Secretary‑General as a respondent in the memorandum of the cross‑appeal because there is already the appeal by the Secretary‑General before us and his counsel has addressed the arguments on his behalf. He will not, therefore, be prejudices if the hearing in the appeal .is not adjourned. We order that necessary correction in the memorandum of the cross‑appeal may be made and the Secretary‑General through the Collector, Muzaffarabad, may be impleaded as a respondent. As to the merits of the appeal all that is demanded by the appellant is 15% on account of compulsory acquisition. Section 23 (2) is clear on the point. Sub‑clause (2) lays down that in addition to the market value of the land the Court shall in every case award a sum of 15 percent. on the market value in consideration of the compulsory nature of the acquisition. The District Judge omitted to award this amount to the appellants. Since the appellants were entitled to the 15% of the market value in consideration of the compulsory nature of the acquisition they are allowed 15% of the market value on that account in addition to what they have been already awarded by the District Judge. We, therefore, accept the cross‑appeal with costs. K. B. A. Appeal dismissed Cross‑appeal accepted.