1. ' MUZAFFAR ALI, J.--- The instant matter reached before this Court for the 3rd time. On the first occasion the case was remanded back to the referee Court with direction to submit amended Petition and on second the matter was referred to the Referee Court for giving fresh decision. The impugned judgment/decree is the third with the facts as under:--- ' In the year 1987, the present respondents proposed to construct link road at Village Kamango Kharmang and acquired the lands of the petitioners and passed the Award No,DK-1(3)/87 on 4-10- 1987, the petitioners assailed the award under section 18 of the Land Acquisition Act (1994)
2. (hereinafter referred to the Act) and claimed enhancement of the awarded amount with the contention that, the collector land acquisition (hereinafter referred to the Collector) has violated mandatory provisions of the Act and has not issued notices under the relevant provisions and has fixed the arbitrary rates of the acquired lands at the back of the owners and also has violated section 23 of the Act.
3. ' The Referee Court after receiving the petition from the Collector, followed the procedure and the respondents were given chance to defend. The impugned judgment/decree is third and the learned referee Court has dismissed the petition under section 18 of the Act. We intended to go into the merits of the impugned judgment/decree leaving aside the past orders either of this court or the orders passed by the referee court. In the impugned judgment the learned referee court also discussed the Issues Nos.2 and 4 thoroughly. The onus probandi of Issue No,2 is on the respondent while the Issue No,4 is to prove by the petitioneRs, The learned referee Court has held that the respondent No,1 (the Collector) did not follow the procedure provided by the Act before passing the impugned award and the same point has also been admitted by the respondent No, 1 .
4. ' Perusal of record also transpires that, the respondents have neither submitted any notice served on the petitioner nor the respondents have submitted any record, perusal of which would be facilitative to believe that, the Collector properly followed guidelines provided under section 23 of the Act at the time when the rates of the acquired land were fixed. The Collector fixed the rates silently without publishing notification in the official gazette and issuing public notice u/s 4 of the Act to enable the affected persons to meet the situation, but the travesty of the learned referee court from his own view makes us astonish that at the end he decides the issue in negative holding an ironical view that the impugned award once passed even in violation of mandatory provisions of law, cannot be set aside.
5. ' The learned referee court has ignored or failed to understand the intermix legal consequences of both the issues that, initially the burden lies on the Collector to prove that, he has taken all mandatory steps like notice under section 4, hearing of objection under section 5-A after publication of notification under section 4 of the Act, notice under A section 9, enquiry and award under section 11 and to issue immediate notice to the interested persons under section 12(2) of the Act to make the award final and conclusive evidence if the same is challenged under section 18 of the Act. The Collector is also bound to bring the entire record before the court with the help of which he fixed the market value of the lands acquired. The Collector is also to prove that, he followed the guidelines under section 23 of the Act at the time of passing the award and once the Collector appears before the referee court with the prima facie proof of the above stated legal burden then the petitioners are to prove that, .How the Collector has either ignored the market value of the land acquired and how he passed the impugned award arbitrarily without complying the guidelines of the section 23 of the Act.
6. In the case in hand, the respondents, particularly the Collector has failed to bring into record of the case the prima facie proof, rather he has admitted through his representative and the official wittiness that, he has not complied any mandatory provision of the Act and has submitted no record by perusal of the same it can be held that he fixed the rates of the acquired lands keeping in view the guidelines provided by section 23 of the Act. In such-like situation, there was no option to the referee court but to rely on the evidence adduced and submitted by the petitioners with the prayer to enhance the rates fixed by the Collector. In the impugned award, as the Collector himself has conceded that he had not followed the mandatory provisions of the Act and had adopted arbitrary proceedings in making the award.
7. ' The upshot of the above discussion is that the impugned Judgment/decree is set aside the impugned award is enhanced as prayed for in the petition under section 18 of the Act with 15% compulsory charges and 8% of compound interest till realization of the enhanced amount. No orders as to costs.