' HAMID ALI MIRZA, J.--- These four civil appeals with leave of the Court, dated 10-6-1999 in Civil Petitions Nos. 793-K to 796-K of 1998 are directed against judgment dated 2-10-1998 whereby review petitions filed by the appellant-Land Acquisition Officer were dismissed maintaining the judgment dated 31-1-1993 passed by learned Judge in Chambers of the High Court of Sindh, Hyderabad Circuit, in Appeals Nos. 16 to 18 & 49 of 1988, whereby the appeals were dismissed and cross-objections filed by the respondents/landowners were allowed, thereby rate of compensation was enhanced to Rs,70,000 per acre with compulsory acquisition charges at the rate of 15% under section 23(2) of the Land Acquisition Act, 1894 (hereinafter referred to as the said Act), interest at the rate of 6% per annum from the date of possession i,e, 18-6-1980 and also additional compensation at the rate of 15% from the date of notification under section 4 of the said Act till the entire amount is paid to the respondents was granted.
2. Brief facts of the case are that the respondents owned land being S.Nos. 21, 219, 221 and 222 measuring 18-25 acres situated in Deh Jamshoro Taluka and City Hyderabad which land was acquired for construction of New Water Lagoon for Hyderabad Water Supply Project vide Notification dated 20-10-1979 under section 4 of the said Act and another Notification dated 22-5- 1980 under section 6 read with section 17 of the said Act, whereby Assistant Commissioner City Hyderabad was appointed to perform all the functions of Collector with regard to acquisition of suit-land and notices under section 9(1) and (3) of the said. Act were also issued by the Land.
Acquisition Officer to the owners of the said land to appear before him and state the nature of their interest and file their claim of compensation of land. The respondents appeared before the Land Acquisition Officer and filed their objections and claimed compensation for the land acquired by the Government at the rate of Rs,40,000 per acre when compensation awarded by the Collector was at the rate of Rs,13,000 per acre which rate was accepted under protest, therefore reference was made to the District Judge, Hyderabad under section 18 of the said Act for determination of proper and adequate compensation, who passed on the same to learned Additional District Judge, Hyderabad who vide judgment dated 30-11-1986 enhanced the rate of compensation to Rs,40,000 per acre from Rs,13,000. The appellants preferred appeals before the High Court of Sindh, Hyderabad Circuit, which were heard by learned Judge in Chambers who vide judgment dated 21- 2-1993 dismissed all the appeals and allowed the cross-objections filed by the respondents. The appellants against the said judgment preferred review petitions before the High Court which were also dismissed as per impugned judgment, hence petitions for leave to appeal were filed wherein leave to appeal was granted to consider (i) whether the High Court was justified to enhance the rate of compensation A to Rs,70,000 when the respondents' predecessor had himself demanded compensation at the rate of Rs,40,000 per acre which enhancement of compensation was against the provisions of section 25(1) of Land Acquisition Act; and further (ii) whether the petitions/appeals were barred by law of limitation.
3. We have heard learned counsel for the parties at length perused the record minutely.
4. Contention of the learned counsel for the appellants is that the learned Additional District Judge vide judgment and decree dated 30-11-1986 enhanced the rate of compensation from Rs,13,000 to Rs,40,000 per acre when the appeals filed before the High Court against the said judgment and decree were time-barred hence the same could have been dismissed on that account.
5. We find on perusal of the original record that appeals before the High Court were preferred by the appellant-Land Acquisition Officer on 5-5-1987, when certified copies of the judgment and decree were applied for on 17-2-1987, cost was deposited and copies were prepared on 7-3-1987, and copies were delivered on 9-3-1987, and appeals were filed on 5-5-1987 within statutory period of ninety days as required by Article 156 of the Limitation Act after excluding the time requisite for obtaining the certified true copies of the judgment and decree as such contention that appeals preferred were time-barred has no merit and substance. Reference may be made to Cholistan Cooperative Wool Development Marketing Union Ltd. Bahawalpur v. Nasir Ahmad and another 1983 SCM R 1105, (ii) Cholistan Cooperative Wool Development and Marketing. Union Ltd. v. Bashir Ahmad and others PLD 1982 Baghadad-ul-Jadid 65, (iii) and Ramasamillai v. The Deputy Collector of Madura and another ILR 43 (1920 Madras 51).
6. He next contended that the land was acquired by the Provincial Government for the public purpose consequently appeals were to be filed by the Provincial Government after obtaining required sanction from the solicitor to Government of Sindh when the Advocate-General, Sindh was to present and file appeals but having not done so, the appeals so filed without authorized Law Officer of the Provincial Government were incompetent and were liable to be dismissed, therefore, the question of enhancement in the rate of compensation, through cross-objections of the respondents could not have been considered by the High Court in appeals. Learned counsel for the respondents has in reply submitted that the High Court was justified in view of the cross-objections filed to make enhancement of the rate of compensation considering the location of the land so also its potentiality.
7. It would appear from the original record of four Appeals Nos.16, 17, 18 & 49 of 1988 and Review Applications Nos. C.M.As. 504 of 1993, 458 and 228 of 1994 that the same have been presented by the Assistant Advocate-General Sindh and Additional Advocate-General Sindh respectively in the High Court of Sindh, therefore it could not be said that appeals were not properly presented before the Court of law. It may be observed that it was not necessary to place on record the sanction order of the solicitor authorizing the Advocate-General Sindh to file appeals, considering that the sanction order of the solicitor is sent to the Advocate-General for filing appeal who after having received, has either to file appeal or to refer back to the solicitor in case it is found by him not a fit case where appeal be preferred in the High Court, but having filed appeal in the High Court it would be considered that he has performed his official function in accordance with usual course of business which cannot be questioned before this Court being internal business between the solicitor and the Advocate-General. In the circumstances it cannot be said that appeal preferred by the Government was incompetently filed so also in respect of cross-objections. In the circumstances the contentions have no force and merit.
8. Third contention of the learned counsel for the appellants is that in the instant case provisions of subsection (1) of section 25 of the said Act would be attracted and not subsection (3) of section 25 of the said Act, therefore learned Judge in chambers was not competent to enhance the rate of compensation than what was claimed by the respondents in pursuance of notice given under section 9 of said Act. Learned counsel for the respondents has submitted that notice under section 9 of the said Act was not served upon the respondents, therefore provision of subsection (1) of section 25 of the Land Acquisition Act would not be attracted but section 25(3) of the said Act whereunder rate of compensation could be enhanced by the appellate Court.
9. We find from the original record of the Additional District Judge of the appeals that Exh.4 is the notice dated 24-5-1980 under section 9(3) of the said Act was issued to (1) Haji Muhammad Siddique (2) Gul Muhammad, (3) Mst. Baghbhari, and (4) Mst. Jannat which was served as would appear on the reverse of the said notice upon Haji Muhammad Siddique who received the same for self and on behalf of the co-sharers on 26-5-1980 as per report of process server. In pursuance of notice an application Exh.3 dated 8-6-1980 was made by Haji Muhammad Siddique wherein he has stated to have received notice under section 9(3) of the said Act and that he has no objection to the acquisition of the said land but stated that the land being on the super highway its compensation should not be less than Rs,40,000 per acre. Besides above we also find notifications were issued also under sections 4 and 11 as per Exhs. 5 and 6 of the said Act which notifications were also received by Haji Muhammad Siddique. We also find treasury deposit receipts whereby a sum Rs, 20,50,000 was deposited on 17-3-1980, in the State Bank of Pakistan out of which sum of Rs,1,59,187.88 was passed for payment in favour of Haji Muhammad Siddique as per Exh.108. The respondent Haji Muhammad Siddique in his cross-examination stated, "I do not remember that plaintiff had received any notice from the Land Acquisition Officer under section 9 of the said Act calling upon him to file objections to the acquisition of land." He voluntarily stated, "He had made application to the Land Acquisition Officer filing his demand for the suit-land and compensation to be awarded to him. I do not remember that the plaintiff had exactly mentioned the amount to be paid to him as compensation for the said land." The appellants examined Mir Hussain, Office Assistant in the office of Land Acquisition Officer, City, Hyderabad, wherein he deposed that notifications under sections 4, 9 and 11 were issued in the Gazette dated 18-10-1979 and 20-10-1979 vide Exh.94 and under sections 6 and 17 of the said Act were issued and published in the official Gazette dated 22-5-1980 as per Exh.95, and the notices under section 9(2) and (1) and under section 9 subsection (3) of Land Acquisition were issued as per Exhs.96 and 97' and as per Exh.98 notice was duly served upon the respondents/plaintiffs who filed objections and claim of compensation of the suit-land stating minimum compensation of Rs,40,000 per acre as per Exh.99.
There is no suggestion in the cross-examination that notice under section 9 of the said Act was not served upon the respondents/plaintiffs. In view of the documentary evidence and as per testimony of Mir Hussain recorded in the Court of Additional District Judge, it stood proved that notice under section 9 of the said Act was served upon the respondents/plaintiffs who in response to the said notice also filed objections through his application claiming minimum of compensation of Rs,40,000 'per acre, therefore showing ignorance on the part of respondents as to whether the said notice under section 9 of the said Act was served upon the respondents/plaintiffs has no merit when on the affirmative side there being overwhelming evidence to prove the said fact of service of notice under section 9 of the said Act and service of notice under section 9 upon the respondents and after that a statement in writing was filed by the respondents claiming minimum of Rs,40,000 per acre as compensation. Section 9 of the Land Acquisition Act reads as under:-- "9. (1) Notice to persons interested.---The Collector shall then cause public notice to be given, at convenient places on or near the land to be taken, stating that the Government intends to take possession of the land, and that claims to compensation for all interest in such land may be made to him.
(2) Such notice shall state the particulars of the land so needed, and shall require all persons interested in the land to appear personally or by agent before the Collector at a time and place therein mentioned (such time not being earlier than fifteen days after the date of publication of the notice), and to state the nature of their respective interests in the land and the amount and particulars of their claims to compensation for such interests, and their objections (if any) to the measurements made under section 8. The Collector may in any case require such statement to be made in writing and signed by the party or his agent.
(3) The Collector shall also serve notice to the same effect on the occupier (if any) of such land and on all such persons known or believed to be interested therein, or to be entitled to act for persons so interested, as reside or have agents authorized to receive service on their behalf, within, the revenue-district in which the land is situate.
(4) In case any person so interested resides elsewhere, and has no such agent, the notice shall be sent to him by post in a letter addressed to him at his last known residence, address or place of business and registered under Part III of the Indian Post Office Act, 1866.
(5) The Collector shall also serve notice of the enquiry to be held under section 11 (such notice not being less than fifteen days prior to the date fixed under subsection (2) for determination of claims and objections) on the Department of Government, local authority or Company, as the case may be, for which land .Is being acquired, and require it to depute a duly authorized representative to attend the enquiry on its behalf for the purpose of making objections (if any) to the measurement of that land, claims to any interest in the land or the amount of any compensation. Such authorized representative shall be party to the proceedings."
' Learned 1st Additional District Judge, Hyderabad, vide judgment dated 30-11-1986 at page 7 of the judgment has observed:-- "From the plain reading of this section, it is transparent that the Court cannot award the compensation much more than the claimants/plaintiffs have already claimed which is at the rate of Rs,40,000 per acre. Moreover, from looking into the claim filed by the plaintiffs before the Land Acquisition Officer, demanding compensation of the suit-land at the rate of Rs,40,000, it is clear- cut and in the clear words that this amount was claimed by the plaintiffs after considering the facts that the suit-land is situated on the Super High Way and they will have no objection if suit- land is acquired after payment of claim at the rate of Rs,40,000 per acre. From the said demand of compensation made by the plaintiffs, it can be presumed that the plaintiffs must have considered the status and situation of the suit-land. Therefore, I am of the considered view that now, the plaintiffs cannot get out of their own claim made before the Land Acquisition Officer. Had, the plaintiffs not demanded the specific amount of compensation of the suit-land, the Court could have awarded the compensation looking to the material produced by the plaintiffs and the determination for compensation might have been otherwise. But, in the present suits, the claim of compensation is very specific and particular. Moreover, the amount of compensation over and above what has been claimed by the petitioner can only be awarded by Honourable High Court as held in authority, PLD 1978 Peshawar at page 138 referred to above and not by this Court. Thus, the plaintiffs cannot take benefit of this authority in this Court. The rest of the authorities are not applicable with the present case as the facts of the present case are distinguishable as in the present suits, the plaintiffs have demanded/claimed the compensation very specifically at the rate of Rs,40,000 per acre."
' Under Issues Nos.5 and 6 it has further been observed:-- "From the above discussions, I find that the plaintiffs have succeeded in establishing that the Award passed by the Land Acquisition Officer is not fair, proper and adequate. In fact, the plaintiffs should have been paid the compensation at the rate of Rs,40,000 per acre as Claimed by them which was very fair and justified. From the appraisal of all the above set-forth facts and law and also that the plaintiffs are barred from claiming the compensation of suit-land much more than they had claimed at the rate of Rs,40,000 per acre, this Court cannot award the compensation more than the plaintiffs had themselves claimed. Accordingly, in my opinion, the compensation of the suit-land at the rate of Rs,40,000 per acre as claimed by the plaintiffs shall be fair and reasonable. Resultantly, the plaintiffs are awarded compensation of Rs,40,000 per acre of the suit- land and of their respective shares."
' This Court in Hyderabad Development Authority and another v. Karam Khan Shoro 1985 SCM R 45 at page 49 has observed:-- "The section provides for three classes of cases. The first clause of the section refers to the case where the applicant has made a claim for compensation pursuant to a notice given under section
9. In that case, the amount awarded to him by the Court i,e, by the Judge to whom the reference is made, shall not exceed the amount so claimed and at the same time it shall not be less than the amount awarded by the Collector under section 11. The second clause provides for the case where the applicant has refused to make such a claim or has omitted, without sufficient reasons, to make such a claim. In such a case, the amount awarded by the Court shall in no case, exceed the amount awarded by the Collector. It follows, therefore, that if without any sufficient reason he has refused to take action before the Collector when the award is made, he cannot afterwards ask the Court, to which the matter may be referred, to award more than the Collector has already done.
The third case is under clause (3) and that relates to cases when the applicant has omitted for a sufficient reasons to make such a claim. In such a case, the amount awarded to him by the Court, shall not be less than and may exceed the amount awarded by the Collector."
In the instant case admittedly the respondents/plaintiffs upon whom notices under subsection (3) of section 9 of the said Act were duly served as observed above and pursuant to that in the application respondent specifically claimed Rs,40,000 per acre and in view of other documentary as well as oral testimony on record, the respondents/plaintiffs would not be entitled to claim more than what they had claimed in pursuance of service of notice under section 9(1) of the said Act i,e, Rs,40,000 per acre hence there was no jurisdiction in law vested with the learned Judge in Chambers to enhance the rate of compensation from Rs,40,000 to 70,000 per acre in the cross- objections filed before him. Learned Judge in Chambers has placed reliance upon the case of Hyderabad Development Authority (supra) but in the said cited case notice under section 9 of the said Act was not served upon the claimant and the notices were not produced in the Court, therefore it was observed by this Court at page 50 of the said judgment that it was not possible to say that requisite notices according to section 9 were issued consequently the provision of section 25(2) of the said Act could not be invoked and it was also observed that the claimant have omitted for sufficient reasons their claim therefore they were entitled to enhanced rate of compensation and it was also found that claimant acted in good faith and there did not appear to be any negligence on their part. However, in the instant case the notices under section 9 of the said Act were duly served and in response to the said notice the claimants made a statement in the form of an application claiming not less than Rs,40,000 per acre, therefore in view of subsection (1) of section 25 of the said F Act, it was mandatory for the Court not to enhance the amount than what was claimed by the claimant in pursuance of the notice issued under section 9 of the said Act.
Reference may be made to (i) Prasannakumar Datta v. Secretary of State AIR 1934 Clacutta 525, and (ii) Punjab State v. M/s. Lachman Dass Sons AIR 1964 Punjab 68, wherein learned Division Bench of the Punjab Indian High Court has observed that provisions of section 25 limited the jurisdiction of the Court in the matter of enhancement of compensation and thus there can be no question of waiver of these provisions. A Court cannot do what the statute expressly forbids. Neither by consent nor by waiver the mandatory provision for I the statute can be either modified or waived. It is a statutory duty which is cast on the Court and effect must be given to it. It is not a benefit J which is conferred on any party.
10. Last contention of the learned counsel for the appellant is that learned Judge in Chambers has erred in law in granting additional compensation under section 28-A to the appellant.
11. We find no merit in the said contention. Additional compensation at the rate of 15% per annum of the compensation has been made permissible in view of the Sindh Amendment Ordinance XXIII of 1984, therefore the said additional compensation was rightly awarded by the learned Judge in Chambers hence no exception could be taken to the same. Reference may be made to Province of Sindh through Collector of District Dadu and another v. Ramzan and others (PLD 2004 SC 512).
12. From the above discussion it would appear that the learned Judge in Chambers of the High Court in appeal has misconstrued the provision of subsection (1) of section 25 of the said Act and also has misread the evidence on record, therefore enhancement of rate of compensation was made in violation of the principle of law and law laid down by this Court, consequently in review application the learned Judge in Chambers misconstrued the law and also misread the evidence and did not consider pleas raised before him which amounted to error floating on the surface of record, therefore impugned judgment dismissing the review applications cannot be sustained in law consequently the same is reversed so also the order passed in appeal and the appeals before us are also allowed with no order as to costs.