JUDGMENT
1. The facts of the present case are hardly in dispute, and are as follows: In Mauza Udaipur Khas, Pargana and Tahsil of Bareilly, there were three plots of land recorded as Nos. 42/1, 42/2 and 43 (paragraph 1 of the plaint). These belonged to two persons, lmdad Husain and Altaf Husain.
2. In 1907 these persons sold these plots to the plaintiff Qamar Ali, a practising Lawyer, living at Bareilly. It may be as well to point out here that Udaipur Khas is on the outskirts of Bareilly city.
3. Qamar Ali, though a Lawyer, and presumably well aware of the existence of Revenue Records and the duty imposed on a transferee of having his name duly recorded as the owner, did not apply for mutation of names at once.
4. Subsequently, lmdad Husain sold his share, together with other property, to his wife Ahmadi Begam.
5. She applied for and obtained mutation of names as against a half share.
6. After this Qamar Ali applied for mutation of names in respect to the whole, as against his transferors. As their names then stood recorded against part only of the property, the Revenue Court directed his name to be recorded in the Record of Rights as against that half only.
7. The result was that in the public records two Khatas were recorded.
8. No. 22 against the name of Ahmadi Begam.
9. No. 23 against the name of Qamar Ali.
10. Qamar Ali seems to have remained in possession and to have planted some trees. It may also be accepted that the boundary marks between the plots were obliterated.
11. It also appears that some scheme was proposed for the extension and improvement of Bareilly city, for which purpose it was necessary to take up and acquire a large area of land. The Local Government for this purpose notified a large area, under the Land Acquisition Act for compulsory acquisition. This was done in 1910 and in this area was included the land mentioned above, which is the subject matter of the present suit.
12. The area was large and the owners numerous and the actual acquisition and making of awards under the Act was spread over a considerable time, and the turn of the plots mentioned above did not come until 1912,
13. Their acquisition was carried out in two parts. Action was first taken in respect to Khata No. 22.
14. Here it is necessary to state another fact. Many owners of lands were prepared to build houses upon them so as to further the object of the Municipal Board and carry out the scheme. The Land Acquisition Officer, who was acting on behalf of Government in the Acquisition proceedings, consulted the Board and took action in respect to those plots (within the area notified) which the Board settled to be necessary for their scheme and which had, therefore, to be acquired In respect to the lands of those owners who agreed to build and help in the scheme, the Board asked the officer not to acquire them and in regard to them, apparently, no action was taken.
15. In regard to Khata No. 22 action was taken under Section 9 by issue of notice to those persons whose names were in the Khewat. Special notices were issued to them by order dated 22 nd February 1912.
16. Whether the public notice in respect there to, as required by Section 9 (1) of the Act, was ever issued it is impossible to say.
17. Apparently, no trace of it can be found. 18. It is admitted that no notice was issued to Qamar Ali as his name was not in the Khewat.
19. The 9th March 1912 was the date fixed in the special notices and on that date an award was made by the Special Officer. Here we note that it was very positively alleged on behalf of the plaintiff that no award had been made, but it was found after some trouble upon the Acquisition record. The notices issued did not give fifteen days' clear time to the persons concerned, but no objection was raised by any of them and the award was made. It was, perhaps, incomplete in that it did not apportion the total sum awarded amongst those to whom it was deemed payable.
20. Another point may be noted here. A copy of the village Khasra has been filed showing that certain persons were entered therein as tenants, but no notice was issued to them. In the column of remarks there is a note to the effect that Qamar Ali is in possession.
21. The only person who made any objection was Qamar Ali himself. On the 9th March 1912 he filed a petition before the Special Officer, in which he said that he had heard that compensation was about to be paid to other persons, that this should not be done as he was the owner and, therefore, the money should not be paid to others but to him.
22. He took no further steps, in spite of the knowledge that he had of the proceedings. He made no application under Section 18 for a reference to the Court, though, as a person interested, he had every right to claim one.
23. No notice under Section 12, Clause (2), was given to him. He had appeared in person on the date of the award and had filed his petition of objection. The compensation awarded was put in deposit in the Treasury to the credit of Qamar Ali and is still there.
24. One further point must be noted. The amount awarded did not include anything on account of the value of trees, and there appear to be no boundary marks actually in existence marking off the land appertaining to Khata No. 22 from that appertaining to Khata No. 23.
25. In respect to this latter Khata (23) steps were taken in July 1912. The public notice and special notice were issued, the latter to Qamar Ali and his recorded tenants for August 2nd, 1912. The notice did not allow the full fifteen days mentioned in Section 9 (2), the time being short by five days.
26. Qamar Ali appeared and filed his objections. An award was made. He did not accept it but applied for a reference under Section 18 to the Court, and the reference was duly made and is pending. His objections were filed on August 2nd, 1912, and he therein made reference to his petition of the 9th March 1912. He was informed of the amount of compensation that stood to his credit in the Treasury, in respect to Khata No. 22, on 26th October, and he filed a petition saying that, for the first time, he had come to know "that day" that compensation had been awarded for a portion of his property (which was clearly untrue).
27. We note here that in July 1912, Qamar Ali became a member of the Municipal Board, having been nominated as a member by Government.
28. The second award (in re Khata No. 23) was made on November 14th.
29. Formal possession of Khata No. 22 was taken by Government on 16th April 1912, and of Khata No. 23 on 20th June 1914.
30. Five days after the last award, Qamar Ali sent a letter to the Chairman of the Municipal Board praying, for certain reasons, that the Board would not take up his land on condition of his building two bungalows on it.
31. On January 10th, 1913, the Board by a resolution resolved that it would not take up his land. On 24th February 1913, the Chairman informed the Special Officer of this resolution, The latter through the Collector informed the Commissioner, who addressed the Board pointing out that the land had already been acquired and the Board could not divest itself of property by a mere resolution. The Municipal Board subsequently met and cancelled its resolution of 10th January 1913, Another fact may be noted. While these proceedings were taking place, Qamar Ali sank a well on the land and he did it in the teeth of a protest by the Board (vide the evidence of the Chairman)
32. Qamar Ali brought the suit out of which this appeal has arisen on 1st August 1914, for a declaration that all the proceeding's taken for the acquisition of these plots of lands are null and void against him. He withdrew his claim for an injunction. He sued the Secretary of State and the Board.
33. The case in his plaint was (1) that there was no necessity to acquire his land, (2) that as the land was notified in 1910, it was the duty of the Collector to at once take it up under the Act, (3) that the Collector, the Acquisition Officer and the Municipal Board gave the plaintiff to understand that his land would be exempt from acquisition as he was a proprietor who could build houses upon it;
(4) that no steps were taken to acquire the land until July 1912, and this delay, and also the holding out of the hope that the land would not be taken, estopped the Secretary of State from acquiring it under the original notification;
(5) that the Board was only taking up the land to be able to sell it at a profit to the Rohilkhand and Kumaon Railway;
(6) that various irregularities, set out in paragraph 8 of the plaint, had taken place in the Acquisition proceedings which rendered them null and void and of no force against him;
(7) that the Compensation Officer had induced him, by holding out hopes of the non-acquisition of the land, to build a well and collect materials for the building of a house and had then through enmity reported that it should be taken up and, therefore, the Secretary of State was estopped.
34. It will be observed that in his plaint the plaintiff ignored the proceedings taken in respect to Khata No. 22.
35. The defendants contested the suit. The Court below has held (1) that representations generally were made by both the defendants to owners of sites that their lands would not be acquired in cases where the owners could build upon them, and that these representations, combined with the Board's resolution of 10th January 1913, operated as an estoppel and barred the defendants from acquiring the land in suit on the notification issued in 1910;
(2) that the delay in the Acquisition proceedings did not debar the defendants from acquiring the land;
(3) that in respect to Khata No. 22 the irregularities in procedure of the Acquisition Officer and the fact that the plaintiff was no party to them, resulted in their being void and ineffectual as against him and the plaintiff was still the owner of the land thereof;
(4) that the fact that a reference before the District Judge was pending was no bar to the present suit.
36. It has, therefore, granted the declaration that the Acquisition proceedings are null and void.
37. The defendants have appealed.
38. It is urged before us that, though there may have been some errors in procedure in the course of the Acquisition proceedings, there has been nothing fraudulent or corrupt; that the plaintiff had full knowledge of them; that in the case of Khata No. 22 he could and ought to have applied for a reference to the District Court where all his objections could have been made and he could have had a judicial decision; that all the proceedings up to the making of the awards are purely administrative and not judicial, and that errors therein, which do not prejudice the plaintiff or prevent him obtaining a judicial determination, are not sufficient to enable the Court to declare them null and void; that in respect to Khata No. 23 a judicial proceeding is now pending where all the plaintiff's pleas will be heard and decided; that compensation for all the trees has actually been awarded to him in the acquisition of this Khata and the plaintiff has, therefore, no valid grievance; that there has been no withdrawal by Government from the acquisition and that Government alone can so withdraw; that the plaintiff has failed to prove that Government or the Board held out any hopes to him prior to the acquisition that the land would not be acquired, that it was not until after the awards had been made that the plaintiff approached the Board and the latter passed its resolution of 10th January 1913, that that resolution was subsequently cancelled and that the Board had no power to withdraw from the acquisition and its resolution had no legal effect.
39. Reliance is placed upon the decisions in Ezra v. Secretary of State 32 C. 605 ; 9 C.W.N. 454 ; 1 C.L.J. 227 ; 7 Bom. L.R. 422 ; 2 A.L.J. 771 (P.C.) and Ganga Ram Marwari v. Secretary of State for India 30 C. 576 and the decision of this Court in F.A. No. 67 of 1915, de decided on 10th May 1916 Musammat Shahjahan Begum v. Secretary of State for India 36 Ind. Cas. 265.
40. In regard to the question of estoppel we cannot agree with the Court below. We may assume that the Acquisition Officer did abstain from taking proceedings, at the request of the Board, in the cases of some owners who were willing and able to further the Extension scheme by building on their lands. It is nowhere shown that in the case of the plaintiff any such hope of non acquisition was held out as a consequence of which he abstained from protecting his rights in the Acquisition proceedings or in consequence of which he spent further sums in sinking his well or improving the property.
41. We have the evidence of the Chairman of the Board to show that the plaintiff was warned not to build his well and that he persisted in it in spite of warnings. Moreover, it was not until the second award had been made that the plaintiff approached the Board on the 19th November 1912. He was then, and had been a member of the Board himself since July 1912. He may have had hopes in his own mind, but he has utterly failed to prove that any such hopes were held out to him individually.
42. Under the terms of the Act itself, it is Government which was acquiring the land, and Government alone under the Act could withdraw from the acquisition. As a Lawyer the plaintiff must have been well aware of this.
43. When the Board's resolution of 10th January 1913 was passed, the Acquisition proceedings were ended and there remained only the judicial proceeding before the District Court on the reference made at the plaintiff's own request. The Board had no power to withdraw and the Commissioner of the division at once called the Board's attention to this and the Board rescinded its resolution. It has not been shown that the plaintiff, subsequently to 10th January 1913, so changed his position as to make it inequitable to allow the acquisition of the land without the issue of any fresh notification by Government under the Act. He was not prevented from putting forward his case in full in the District Court. He has not withdrawn from the reference made at his own request to the District Judge in the case of Khata No. 23, and it is not shown by any evidence at all that he abstained in the case of Khata No. 22 from applying for a reference by reason of any action on the part of the Board or the Secretary of State. The acquisition of that Khata took place early in 1912. We fail to see that the appellants have been estopped from acquiring the land in pursuance of the original notification of 1910.
44. Mere delay in the proceedings based on that notification is no ground for holding that there is an estoppel. The proceedings, no doubt, were spread over a long period of time, but there were many owners of different plots to be dealt with. The plaintiff was in possession and enjoyment of the land. He had planted trees upon it and had leased it to tenants, who presumably paid him rent have incurred the cost would have bad to do with knowledge of the vested more capital in shown by own peril. for it. He may of upkeep, as he in any case. If, notification, be in it (which is not any evidence) be did so at his He was warned not to do so, and be actually did not approach the Board until after both awards had been made and formal possession taken in ' the case of the first one. The lower Court seems to think that it will be hard on the plaintiff as be had invested money in planting his trees before the notification and that they have so far given him no return, but this is a point which the District Judge, no doubt, will consider when he, in the judicial proceeding, comes to assess the compensation and work out the market value. The question of the compensation for all the trees is now before that Court,. the award of the Acquisition Officer having included the value of them all in the case of Khata No. 23. We cannot agree with the Court below that there was a substantial withdrawal from the acquisition by both or either of the defendants, nor does the fact that the Board at one time considered the advisability of making over this land to the Railway Company for the purposes of a Station, act as an estoppel. It may well have been a. part of the extension scheme to have a Station at this spot for the convenience of the public. It is not for the plaintiff to say to what use the Board should or should not put the land in carrying out their scheme.
45. The Board was not competent to withdraw from the acquisition, and it is not shown that, between the 10th January 1913, and the rescinding of the resolution of that date, the plaintiff materially altered his position. In fact, be was warned not to do so, On the question of estoppel we, therefore, cannot agree with the Court below.
46. The next question is as to the effect of the errors of procedure which took place in the course of the acquisition.
47. We have detailed those errors above and they need not be repeated.
48. With the necessity for the acquisition the plaintiff has no concern.
49. The delay in the acquisition does not invalidate the proceedings.
50. The survey was made at the very beginning of the proceedings.
51. The chief complaint, and in fact the only one of any substance is that the two Khatas are divisions only on paper and that the acquisition was carried out in two parts, and that in respect to Khata No, 22 no notice was issued to the plaintiff under Section 9, and no public notice apparently at all, and that in case of neither of the two Khatas was the full fifteen days' notice given to anybody. In the case of Khata No. 23, the plaintiff received ten days' notice.
52. The question is whether these errors so vitiate the proceedings that the Court ought to declare them null and void.
53. The plaintiff himself is not free from blame when he purchased the property at once for mutation gave the opportunity to execute the second sale, with the result that, when the Acquisition proceedings commenced, one-half of the property only stood in the plaintiff's name and the other half in the names of other persons. The Acquisition Officer dealt first with the latter half and acted on the Khewat entry. He issued notice to the recorded owners whose names were in the Khewat and they had no objection. But the plaintiff was well aware of the Acquisition proceedings. Other lands of his were acquired under the notification in 1911, and he contested that matter also. It was referred to the District Court and he came up on appeal to this Court. Moreover, he had actual knowledge himself of the proceedings regarding Khata No. 22 for on 9th March 1912, the date fixed for the making of the award, he entered the Court and filed his petition to the officer asking that the compensation should be paid to him and not to anybody else, and the sum awarded was actually credited to him in the Treasury As a person interested he, under Section 18 of the Act, could have applied for a reference to the District Court. Though he is a Lawyer and had had a similar case of his own in 1911, he took no steps under Section 18. In the case of Khata No. 23 he received notice, though only ten days before the date fixed. He appeared and objected and applied under Section 18 and a reference was made to the District Court. As their Lordships of the Privy Council have said in Ezra v. Secretary of State 32 C. 605 ; 9 C.W.N. 454 ; 1 C.L.J. 227 ; 7 Bom. L.R. 422 ; 2 A.L.J. 771 (P.C.) "When the sections relating to this matter are read together, it will be found that the proceedings resulting in this award are administrative and not judicial, that the award in which the enquiry results is merely a decision (binding only on the Collector) as to what sum shall be tendered to the owner of the lands, and that, if a judicial ascertainment of value is desired by the owner, he can obtain it by requiring the matter to be referred by the Collector to the Cout,"
54. The ultimate duty of the officer is, not to conclude the owner by his so called award, but to fix the sum which, in his best judgment, is the value that should be offered.
55. If the proceedings are taken in such a manner that the true owner is barred from obtaining a judicial pronouncement on the matter, then there may, perchance, be good ground for complaint. But, as pointed out in Ganga Ram v. Secretary of State for India 30 C. 576 the very provisions of Section 9 show that persons interested, who are not known or believed to be interested, may not have notice and yet the proceedings may go on validly. If the Collector wilfully and perversely abstains from giving notice, then his proceedings cannot be considered bona fide and should be held inoperative in vesting the land in Government, but where, through mere inadvertence or mistake, a person interested has not had notice served upon him, the reason of the non service is rather allied to ignorance of the fact of his being interested than to wilful perversity. In the present case there is nothing to show that the proceedings were fraudulent or corrupt.
56. Now, in the ease of Khata No. 22 the plaintiff was not recorded as an owner. In the Khasra, no doubt, there was a note by the Patwari of his possession, but the Acquisition Officer worked on the Khewat. There, no doubt, was a mistake, The plaintiff has alleged malice and enmity, but his allegation is not supported by any evidence and in the end he did receive actual information, though not legal notice, and he did enter the officer's Court-room and actually filed his petition on the date fixed for the award. He had every right to apply for a reference and could have done so. He preferred to abstain from seeking the judicial pronouncement to which he was entitled and to bring the present suit and to take his stand on the fact that no notice had issued to him. He was not prevented from obtaining the remedy which the law gave him. There is, therefore, no sufficient reason for holding that the vesting of the land in Government did not take place There can be no sympathy with a litigious person who has acted as the plaintiff has done. The ruling in Ganga Ram's case 30 C. 576 has received the approval of this Court in First Appeal No. 67 of 1915 Musammat Shahjahan Begum v. Secretary of State for India 36 Ind. Cas. 265 which we have mentioned, and we fully approve of it also. If the plaintiff had been debarred from seeking and obtaining a reference to the District Court we might, perhaps, have held otherwise, for every person interested has the right given to him by Section 18, which, in certain circumstances, allows a period of six months from the date of the award. In the present case the proceedings in regard to Khata No. 23 were taken within six months of the award of 9th March 1912, of which the plaintiff had actual knowledge though legal notice had not been served upon him. He was well aware of the award and deliberately abstained from exercising his right under Section 18 of the Act.
57. In the case of Khata No. 23 he has still less right to complain, for notice was issued to him, though only ten days before the date fixed, and the reference to the District Court is actually pending and all his grievances can be aired there and full compensation awarded. Nor do we think that the fact that the two Khatas were treated separately (though there are no division marks upon the land itself) is sufficient cause for invalidating the proceedings. That is a matter of really very little concern when full compensation can be granted under a reference to the District Court.
58. We, therefore, hold, on the above findings, that the plaintiff is not entitled, in the circumstances of this case, to the declaration granted by the Court below.
59. We, therefore, allow the appeal, set aside the decree of the lower Court and dismiss the plaintiff's suit with costs of both Courts, including, in this Court, fees on the higher scale.
60. We notice with deep disapproval that the Court below did not deliver judgment until eight months after the evidence was concluded. Delays of this description are greatly to be deprecated and may in some cases amount to a scandal and a denial of justice.