- (1.) This appeal is at the instance of the referring claimant, Kumar Abhaychand Mahatab and it arises out of a reference case under S. 18 of the Land Acquisition Act, 1894.
(2.) Certain lands appertaining to the palace of the Maharaja of Burdwan were acquired by the Government for the purpose of the Burdwan University. The possession of the acquired lands and structures standing thereon was taken amicably even before the publication of the notification under S. 4. The Land Acquisition Collector made an award of Rs.248111.33 as compensation for the acquired lands. The appellant made a reference under S. 18 of the Land Acquisition Act claiming compensation at the rate of Rs.250000/- per acres for the bastu land measuring 1.535 acres. He also claimed compensation of Rs.400000/- for the house, Rs.20000/- on account of the tank measuring 46 acres with 8 pucca cemented ghats and Rs.10000/- on account of the compound walls. Other claims were also made by him. The total claim that was made by him was to the tune of Rs.942900/- including 15 per cent statutory compensation.
(3.) During the pendency of the reference case, a valuer was appointed at the instance of the appellant. The valuer submitted a report stating inter alia that the total amount of compensation that was payable to the appellant would be Rs.473108/-. Before the hearing of the reference case an application was filed by the State Government on March 19, 1965 in which it was inter alia stated that no claim petition was filed by the appellant before the Collector pursuant to the notice under S. 9 of the Land Acquisition Act and, as such, in view of S. 25(2) of the Land Acquisition Act, the award that might be made by the court should not exceed the amount awarded by the Collector. The said application was directed by the learned District Judge, Burdwan, to be heard along with the reference case on May 6, 1965. On that date an affidavit was filed by one S. K. Raja, who was the constituted attorney and manager of the appellant. In that affidavit it was stated that according to the arrangement prevalent at that time, the said Mr. Raja put in the box in the Land Acquisition Office a claim petition dated January 25, 1961 regarding the acquired lands. Further it was stated that as the record rooms in the Kachari' of the appellant were all in the acquired house and, as at the time of removal of the papers, they were in a disarranged condition, it was not possible to file a copy of the claim petition. In reply t the affidavit, two affidavits were filed - one by Banchharam Chowdhury, a clerk in the Burdwan Collectorate and theother by one Sambhu Nath Bhattacharya, a Bench clerk of the Special Land Acquisition Officer, Burdwan. In the affidavit of Banchharam Chowdhury it has been stated that a box under lock and key with only just enough opening at its top for inserting into it petitions, used to be kept in the verandah in front of the seat of the Special Land Acquisition Officer, Burdwan, and the key of the box used to be kept with him in his safe custody. He used to open the box soon after 12 noon and take out all the petitions filed in the box on the day and to lock the box again and, thereafter, used to take all those petitions and enter them in the petition register forthwith and present the same before the Land Acquisition Officer for his orders in respect thereof. The petition register was used to be kept on the tables and on shelves in the office and not in the custody of any office staff. It was averred that there was no occasion when any petition filed in the petition box by anybody was not taken out by him from the box and not entered in the petition register and not made over to the Bench Clerk concerned. In the affidavit sworn by Sambhu Nath Bhattacharya, the Bench clerk of the Special Land Acquisition Officer, Burdwan, it has been stated inter alia that the alleged claim petition was not in the records of the Land Acquisition Case No. 25/60-61, nor was it entered in the petition register.;