The duty of the Subordinate Judge is to consider whether the failure to file the claim in writing was with or without sufficient cause, and the penal provision under Section 25 should only be applied in cases of clear and convincing proof of deliberate refusal or omission without justifiable reason.

GOVINDA MENON, J. :- These two appeals arise out of a common judgment passed by the learned Subordinate Judge of Kozhikode in L.A. O. P. Nos. 14 and 15 of 1957. Those petitions relate to enhanced compensation for the acquisition of T. S. Nos. 92/3 and 92/5 of the Calicut Municipality. In both these cases notices under Section 9 of the Land Acquisition Act were received by the appellants calling upon them to put in written statements of their claims on 27-8-1956. On that day admittedly no written statement was filed and the case of the appellants is that when they appeared their statements regarding their claims were recorded by the Land Acquisition Officer. The acquisition officer passed the award and later, on objection raised by the appellants, reference was made to the Subordinate Judge of Kozhikode.

2. In both the cases a preliminary issue was tried viz., whether the claim was barred under Section 25 (2) of the Act. The learned Subordinate Judge found that the appellants had omitted without sufficient reason to make a claim under Section 9(2) and therefore, no compensation exceeding that which was awarded by the officer could be granted to them: and dismissed their petitions.

3. It is contended before us by the learned counsel for the appellants that the learned Subordinate Judge has overlooked the fact that according to the Land Acquisition Officer himself statements of claims had been filed, because the schedule submitted by the officer to the court under Section 19 (2) of the Act mentions that statements had been filed and that, the learned counsel submits, would satisfy the requirements of Section 9 (2). It was further contended that even though written statements had not been filed inasmuch as on that day statements of their claims had been recorded by the officer, it might afford good and sufficient reason for their omitting to file written statements as required.

4. There is no mandatory provision that the statement, must be in writing, but the section gives discretion to the acquisition officer to require such statements to be made in writing. It is only his discretion and the question would arise whether the officer who wanted the claim in writing could not change his mind and proceed to record the statements of the parties and treat it as a claim under Section 9 (2). Section 25 of the Act being a penal provision must be applied only in cases where there is clear and convincing proof of deliberate refusal or omission without justifiable reason to make a claim and where there is neither negligence nor want of good faith the parties should not be deprived of the benefit of an enhanced valuation that might be fixed by the court. A duty, is, therefore, cast on the Subordinate Judge to apply his mind to the question whether the failure of the claimant to make a claim in writing was with or without sufficient cause. Beyond stating that there is no case that the statements could not be filed for any good or sufficient reason, no definite finding has been arrived at whether the claimant had any justification in not filing it and whether the omission could be condoned.

5. It is only fair that the matter should be properly considered and decided. It is certainly open to us, in appeal, to see whether there is sufficient cause for not filing the written statement in pursuance of the notice and whether the omission could be condoned. The learned Government Pleader represents that as the statements alleged to have been recorded by the acquisition officer and referred to in the schedule is not in the records, it would not be possible to decide whether the claim made by the acquisition officer satisfies the requirements of Section 9(2) as to the nature of their respective interests in the land and the amount and particulars of their claims to compensation for such interests. The learned counsel for the appellants, on the other hand, would say that the entry in the schedule is sufficient to show that the claim as contemplated