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In Re: Suprovat Ghosh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Judge
Reported inAIR1984Cal1
ActsLand Acquisition Act, 1894 - Sections 11, 31(1) and 55; ;Land Acquisition Rules - Rule 10
AppellantIn Re: Suprovat Ghosh and ors.
Appellant AdvocateSaktinath Mukherjee, ;Kamalesh Bhattacharya, ;Sailendra Bhusan Bakshi and ;S.P. Roychaudhury, Advs.
Respondent AdvocateA.P. Chatterjee and ;Asit Goswami, Advs.
Cases Referred(Kanailal Bhattacharjee v. The Collector
Excerpt:
- .....mukherjee. he however submitted that under section 31(1) of the act the collector was required to tender payment of the compensation awarded by him to the persons interested and entitled thereto and as according to the executive instructions such payments were to be made through cheques the collector was competent to pass the impugned executive orders. according to mr. chatterjee by passing the impugned orders the collector did not violate any of the provisions of the act or the rules or the executive instructions earlier issued in that by the last order dated feb. 10, 1963 the collector has made it amply dear that the lawyers would be entitled to receive the cheques on behalf of their clients.8. a bare perusal of the provisions of the act, of rule 10 and the contents of form 15 makes.....
Judgment:
ORDER

Manoj Kumar Mukherjee, J.

1. This application under Article 226 of the Constitution of India has been filed by seven legal practitioners who ordinarily act, plead and practice in the Judges' Court at Alipore and also before the Civil authorities connected with requisition and acquisition of properties in the district of 24 Paraganas. Empowered with Vakalatnamas they have been representing their clients at every stage of acquisition proceedings, under the Land Acquisition Act, 1894 and receiving payments on their behalf. By an order dated Dec. 21, 1982 the Additional District Magistrate (L.R.) 24 Paraganas intimated all concerned that all payments to awardees of Land Acquisition Cases would be made by Account payee cheques direct to the parties on proper identification and not through Lawyers. Aggrieved by the above order the petitioners filed this writ application on Feb. 8, 1983.

2, For expeditious hearing of the application the Court directed the petitioners to serve copies of the application upon the State of West Bengal and the other respondents. When the writ application was pending hearing, some awardees filed an application for being added as parties in the main writ application whereupon this Court ordered that the application would be taken up for consideration at the time of hearing of the writ application. Another application was filed by the writ petitioners for amendment of the writ application toinclude a challenge of a subsequent order dated Feb. 10, 1983 issued by the Collector and District Magistrate, 24 Paraganas whereby the earlier order was suspended and all concerned were informed that the cheque would be issued in the name of the individual who was to receive the compensation and would be delivered to him or his duly authorised agent.

3. The parties wanting to be added, being awardees, were certainly interested parties; and to avoid multiplicity of proceedings the amendment application was also required to be entertained. For those considerations, the learned Advocate appearing for the awardees was heard and at the time of hearing of the original writ application arguments were allowed to be canvassed by the parties on the legality and propriety of the order dated Feb. 10, 1983 also. A formal order allowing those applications is therefore passed.

4. Coming now to the merits of tha case, Mr. Saktinath Mukherjee, the learned Advocate appearing for the writ petitioners, first contended that the Land Acquisition Act, 1894 (hereinafter referred to as the Act) and the Rules framed and the executive instructions issued thereunder entitled the petitioners to act on behalf of their clients, as their duly authorised representatives, throughout the acquisition proceedings and also entitled them to receive payments on behalf of their clients and as such the impugned executive orders were illegal and arbitrary. Mr. Mukherjee argued, relying upon a passage from Halsbary's Laws of England, 3rd Edition, Volume 1, pages 147-48, that whatever a person had power to do himself he might do through an agent and that general rule was subject to only two exceptions, namely, where the transactions were required by Statute to be evidenced by the signature of the principal himself, and where the competency to do the act arose by virtue of the holding of some public office or by virtue of some power, authority or duty of a personal nature and requiring skill or discretion for its exercise or where a statute imposed on a person a duty he was not free to delegate. Mr. Mukherjee submitted that the general rule of agency was to apply in the instant case as there was no provision in the relevant legislation to bring in the rule within the ambit of the above exceptions. To appreciate the contentionof Mr. Mukherjee it will be profitable atthis stage to refer to the relevant provisions of the Act and the Rules and to the relevant executive instructions.

5. Section 3(b) of the Act defines 'person interested' to include all persons claiming an interest in compensation to be made on account of the ac-quisition of land under the Act; and a person interested is an easement affecting the land shall be a person deemed to be interested in land.

6. under Section 5A of the Act any person interested in any land which has been notified under Section 4 may file an objection and at the time of hearing of such objection he has the right to be heard through his Pleader. Similarly, at the time of hearing in respect of a declaration made under Section 6 the person interested may be represented by his agent. S- 12(2) of the Act casts an obligation upon the Collector to give notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made. Rule 10 of the Rules framed under Section 55 of the Act, on which much reliance was placed by Mr. Mukherjee, reads, so far as it is relevant for our present purpose as under :--

'In Riving notice of the award under Section 12(2), and tendering payment under Section 31(1), to such of the persons interested as were not present personally or by their representatives when the award was made, the officer shall require them to appear personally of by representatives by a certain date to receive payment of the compensation awarded to them, ..... Whenever payment isclaimed through a representative, whether before or after deposit of the amount awarded, such representative must show legal authority for receiving the compensation on behalf of his principal.'

The form of notice to be given under the above quoted Rule is prescribed by the executive instructions. It (Form 15) reads as follows;

' Number of Case

To

Notice is hereby given that in theabove case, in which you have beentreated as a person interested, an awardwas made by me on the 19 under Section 11of Act I of 1894. The sum payable toyou is Rs. (sic) If you are willing toaccept payment, you should appearbefore me personally or by a duly authorised agent on or before (sic). Interest will not be payable in case of failureto appear.

Collector under Act I of 1894.

dated (sic)

N. B. The party is instructed to bring with him a proper identifier such as a Dafadar or a member of the panchayat or the Union Board when the payment is demanded by himself and not through a legal practitioner.

2. He is also advised to bring with him a receipt stamp of anna one when the amount demanded is more than rupees twenty.'

Mr. Mukherjee submitted that the above provisions of the Act and the Rules and the prescribed form made it abundantly dear that the writ petitioners had the right to appear on behalf of their clients at every stage of acquisition proceedings and to receive payments on behalf of their clients.

7. Mr. Mr. A. P. Chatterjee the learned Standing Counsel, appearing for the the State did not dispute the above contention of Mr. Mukherjee. He however submitted that under Section 31(1) of the Act the Collector was required to tender payment of the compensation awarded by him to the persons interested and entitled thereto and as according to the executive instructions such payments were to be made through cheques the Collector was competent to pass the impugned executive orders. According to Mr. Chatterjee by passing the impugned orders the Collector did not violate any of the provisions of the Act or the rules or the executive instructions earlier issued in that by the last order dated Feb. 10, 1963 the Collector has made it amply dear that the lawyers would be entitled to receive the cheques on behalf of their clients.

8. A bare perusal of the provisions of the Act, of Rule 10 and the contents of Form 15 makes it explicitly clear that the writ petitioners, as authorised representatives are entitled to represent their clients throughout the acquisition proceedings and also to receive payments on their behalf.

9. Judged in that context the Additional District Magistrate (L.R.) 24 Paraganas was not justified in issuing the impugned order dated Dec. 21, 1982 whereby he intimated all concerned thatall payments to awardees of Land Acquisition case would be made by Account payee cheques direct to the parties and not through Lawyers. This finding however is of no avail to the petitioners having regard to the tact that the above order has been kept suspended by the subsequent order dated Feb. 10, 1983 whereby it has been directed that the payments may be received by the lawyers on behalf of their clients through account payee cheques drawn in favour of the awardees. It has therefore to be now ascertained whether the contention of the writ petitioners that the Collector is legally obligated to draw cheques in favour of the lawyers of the awardees, if asked for by the awardees, can be accepted or not; that is to say, whether by the subsequent order the Collector has violated any legal provision and has curtailed the right of the lawyers.

10. Under Section 31(1) the Collector has to tender payment of the compensation awarded by him to the person interested on making the award. If the person interested, or his representative is not present when the award is made the Collector is required under Section 12(2) to give immediate notice of his award to the person interested and as already stated the notice has to be given in Form 15 prescribed under the executive instructions and payment has to be made in accordance with Rule 10.

11. Mr. Mukherjee strenuously urged that to be a valid tender under Section 31(1) the amount was to be paid in cash unless the awardee agreed to accept the amount through cheque. In other words, according to Mr. Mukherjee, all payments are required to be made in cash unless the person receiving payment agrees to receive the same through cheque. As a corollary thereto, Mr. Mukherjee argired, that if the awardee refused to accept the money by cheque the Collector was obligated to make the payment in cash and it necessarily followed that the representative of the awardee in this case the lawyers -- was entitled to receive the same in accordance with Rule 10. Mr. Mukherjee submitted that in such an eventuality the Collector was obligated to make the payment to his lawyer on his satisfying the Collector that he had the legal authority for receiving the compensation. In support of his above contention Mr. Mukherjee referred to certain judicial pro-nouncements which may now be looked into.

12. The first decision Mr. Mukherjee relied upon is in the case of Jagat Tarini Dasi v. Nabagopal Chaki, reported in (1907) 5 Cal LJ 270 which has laid down the proposition that a tender to be valid must be made in the current coin of the country and that a tender by a cheque is not a legal tender. It has further laid down that when a tender is actually made but in a currency, different from that required by law, for instance by a cheque on a banker, the objection to the form of the tender may be expressly or im-pliedly waived by the creditor, and he will be deemed to have waived the objection if he rejects the tender on the ground of insufficiency in amount or on seme other ground, without making any objection to the legality of the tender in point of quality.

13. Mr. Mukherjee next referred to a judgment of the Bombay High Court in the case of Kirloskar Bros. Ltd. v. I.-T. Commr. reported in : AIR1952Bom306 . In that case Chagla, C. J. speaking for the Court observed that it was well settled in commercial practice that a cheque was looked upon as a payment if a creditor accepted a cheque in place of the country's currency; if he accepted the cheque then be was paid although payment might not be an unconditional discharge.

14. Reliance was next placed by Mr. Mukherjee on a Division Bench judgment of this Court in the case of Shree Nursing Timber v. Amala Dassi reported in : AIR1969Cal12 wherein the learned Judges ex-pressed the opinion that mere tender of. cheqires was not tantamount to payment unless, of course, there was a clear agreement to that effect.

15. Mr. Chatterjee on the other hand relied upon the judgment of the Supreme Court in the case of Damadilal v. Parashram, reported in : AIR1976SC2229 . In that case the Supreme Court first quoted the following passage from the judgment of the Madhya Pradesh High Court, which was under appeal (at p. 2232) : --

'The question as to whether instead of presenting the cash, if a cheque is sent to the landlord, that is sufficient tender of the arrears of rent or not.....In the highly developed society, pay-ment by cheque has become more convenient mode of discharging one's obligation. If a cheque is an instrument which represents and produces cash and is treated as such by businessmen, there is no reason why the archaic principle of the common law should be followed in deciding the question as to whether the handing over of the cheque is not a sufficient tender of the arrears of rent if the cheque is drawn for that amount. It is no doubt true that the issuance of the cheque does not operate as a discharge of the obligation unless it is encashed, find it is treated as a conditional payment, yet, in my view this is a sufficient tender of ihe arrears if the cheque is not dishonoured. Jn the present day society. I am of the view, an implied agreement should be inferred that if the payment is made by a cheque, that mode of payment would be accepted.'

16. The Supreme Court agreed with the above view with the following observations (at p. 2236):--

'We agree with the view taken by the High Court on the point. Rent is payable in the same manner as any other debt and the debtor is to pay his creditor in cash or other legal tender, but there can be no dispute that mode of payment can be altered by agreement. In the contemporary society it is reasonable to suppose such an agreement as implied unless the circumstances of a case indicate otherwise. In the circumstance of this case, the High Court, in our opinion, rightly held that the cheque sent to the plaintiffs amounted to valid tender of rent.'

17. The principle that can be culled from the above decisions is that ordinarily fender of a cheque is not a valid payment A cheque can be a valid tender only when there is an agreement between the parties that cheque would be accepted as a valid tender. Such agreement can be expressed or implied and an inference of implied agreement can be drawn from the course of dealing between the parties. Such an agreement can also, be reasonably said to be im-plied in the contemporary society 'unless the circumstances of a case indicate otherwise' (Damadilal v. Parashram) : AIR1976SC2229 (supra).

18. It has therefore to be now ascertained whether circumstances of theinstant case are repellent to such an implied agreement. The executive instructions which are being followed and holding the field for decades provide, inter alia, the mode of payment of compensation in Chapter X. Paragraph 98 thereof instructs that all large amounts due to single individual and all sums in excess of Rs. 20/- which are paid at head quarters shall be paid by cheques payable at the head quarters or Sub-Divisional Treasury according to the convenience of the parties imerested and the cheques must be drawn by the Land Acquisition Collector himself at the time of payment and handed over by him or in his presence to the payees; and according to the above instructions payments have all along been made through cheques. In fact at the time of argument what was asked for on behalf of the petitioners was that the payments should be made through cheques drawn in favour of the lawyers and not in favour of the awardees, if they so desired. This submission is undoubtedly based on the premise that the awardees agree to payments through cheques. The facts of the instant case do not therefore justify any presumption against an implied agreement of payment through cheques. According to the impugned order these cheques are to be drawn in favour of the awardees and their respective lawyers are entitled to receive those cheques. The awardees thereby would be receiving payment through their lawyers in accordance with the rules and the executive instructions. I am therefore unable tc hold that the awardees can legally insist upon payment through cheques drawn in favour of their lawyers or that by denying such payments the acquisition authorities would be violating any law.

19. Mr. Mukherjee however, relied upon an unreported judgment of this Court in Civil Rule No. 218 (W) of 1963 (Kanailal Bhattacharjee v. The Collector, 24 Paraganas) disposed of on May 25, 1964, in support of his contention that the lawyers could insist upon receipt of money on behalf of their clients. In that case the Collector of 24 Paraganas prepared a panel of lawyers who were entitled to withdraw monies on behalf of their clients and the names of the petitioner of that case and some others did not find place. This Court held that the rules did not contemplate the formationof any panel and did not indicate any standard for such formation and in absence of such provision the Collector was not free to form a panel of lawyers in which he was entitled to include such lawyers as were approved by him and to exclude from it other names according to his own inclination. In the context of the question raised in this application I am afraid that decision is of no assistance to Mr. Mukherjee.

20. Now that all the points raised by Mr. Mukherjee have been considered, let me now consider the submissions of Mr. Buxi, appearing for the added petitioners who are some awardees. Mr. Buxi submitted that the method of payment according to the impugned order would not suit the awardees for the following reasons:--

(a) as the cheques to be issued by a Collector towards payment of compensation money do not admit of double endorsements the payees would have to open accounts with Bank to encash the cheques which would be difficult and hazardous;

(b) some of the awards have been made jointly and as the Land Acquisition Collector has no jurisdiction to make any apportionment of such award after the same become final it will be difficult for the awardees to negotiate the cheques;

(c) no Lawyer usually feels interested to handle such cheques after they are drawn in the name of their clients and as such the awardees will be deprived of the services of efficient lawyers commanding high fees;

(d) it is not possible to pay fees in advance prior to encashment of a cheque but no such difficulty occurs when cheques are drawn in the name of the lawyer; consequently the clients would be deprived of the services of efficient lawyers at the initial stage for commencement of the proceeding under Section 18 of the Act; and

(e) there are legal technicalities to he looked into at different stages including the stage of payment and the very purpose of seeking a reference under Section 18 of the Act would be defeated in absence of lawyers.

21. Having carefully gone through the reasons canvassed by the awardees, I do not find that those are well founded A-s the Supreme Court pointed outin the case of Damadilal (AIR 1970 SC 2229) (supra) in the contemporary society payment by cheque is a valid tender and it can be safely presumed that the said view was expressed by the Supreme Court in the con text of the fact that after nationalisation, branches of nationalised banks have been opened in the villages and banking facilities have been made available to every villager, not to speak of people living in the town. In that context no grievance can be entertained on the ground that the awardees would have to face any difficulty in opening or operating a bank account. The contention of the added petitioners that operation of banking account would be hazardous, is, to say the least, unfounded. On the contrary it is the carrying of cash money which may be hazardous.

22. The difficulty that may have to be faced by some awardees, as the awards stand jointly in their names, is their own creation. In the enquiry held under Section 11, they had the right to claim compensation according to their individual interests and the award was to be made apportioning the compensations among all the persons known or believed to be interested in the land. If the awardees wanted to have the amount apportioned according to their individual claims they could have prayed for the same at that time and there would not have been any difficulty for the Collector to issue separate cheques in favour of the awardees before the award was made final. Another aspect of the matter which has to be looked into is that one of the added petitioners, namely, Santosh Krishna Mukherjee has filed a petition before the Land Acquisition Collector stating that he had not signed any Vakalatnama in favour of any Advocate to draw on his behalf his portion of compensation money. To avoid such a situation in future, the awardees should have asked for payment of compensation money separately at the time of hearing of the objections under Section 11 of the Act. Be that as it may, even now the above grievance may be redressed through a reference under Section 30 of the Land Acquisition Act and if the added petitioners raise any grievance on that score or if any dispute is raised within thirty days from date, the Collector shall refer the matter to the appropriate Court under Section 30 of the Land Acquisition Act,The other grievance of the petitioner as regards the non-availability of lawyers cannot be a genuine one. The lawyers do offer, and are expected to offer, their services and accept brief's on proper fees and it cannot be conditional on their clients' success, or receipt of compensation money by their clients, as in this case. I do not find any justification in the petitioners' raising such a grievance, and on the contrary I feel, that, such insinuation undermines the prestige and status of the members of the noble profession.

23. For the foregoing discussions I hold that the order dated Dec. 21, 1982 is illegal and opposed to the provisions of the Land Acquisition Act, and the rules framed and executive instructions issued thereunder, and I quash the same. The prayer of the petitioners to that extent is allowed. I however hold that the order dated Feb. 10, 1983 is a valid one and as such I reject the prayer of the petitioners for quashing the same.

24. The writ application is thus disposed of. There will be no order as to costs.


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