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Province of Bengal Vs. Joy Narayan Fatehpuria and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1947Cal25
AppellantProvince of Bengal
RespondentJoy Narayan Fatehpuria and ors.
Cases ReferredNitya Gopal Sen v. Secy. of State
Excerpt:
- .....are not concerned here with the claimant 6 who asserted that he was a lessee of the trees upon the land. the land is an irregular piece of land running east to west, measuring 4 bighas 8 cottas and abutting to the west on a narrow lane called banamali bidyasagar lane and to the south on the open lands of the calcutta improvement trust. the land acquisition collector awarded rs. 40,000 for the lands of the said premises but the claimants were not satisfied with it, they refused to accept the award and asked for reference under section 18, land acquisition act, by making two applications through their advocate mr. s.n. mitra, one application was for joynarain patehpuria and others and the other for mohan lall sew lall (firm) but the land acquisition collector made the reference in respect.....
Judgment:

Akram, J.

1. This is an appeal in a land acquisition case from the decision of the President, Calcutta Improvement Tribunal; it relates to valuation regarding the acquired premises Nos. 24 Cockier Lane and 45 Lake Road. Admittedly claimants 1 to 5 are joint owners of the said property having therein the following shares:

2. Claimant 1, Joynarain Patehpuria 1/5

' 2, Gourisankar ' 1/5 (now dead)

' 3, Nagarmal ' 3/10

' 4, Sitaram ' 1/10

' 5, Mohan Lall Sew Lall (firm) 1/5

3. Claimants 1, 2 and 3 are brothers, claimant 4 is the son of claimant 2 and claimant 5 is an outsider purchaser. We are not concerned here with the claimant 6 who asserted that he was a lessee of the trees upon the land. The land is an irregular piece of land running east to west, measuring 4 Bighas 8 Cottas and abutting to the west on a narrow lane called Banamali Bidyasagar Lane and to the south on the open lands of the Calcutta Improvement Trust. The Land Acquisition Collector awarded Rs. 40,000 for the lands of the said premises but the claimants were not satisfied with it, they refused to accept the award and asked for reference under Section 18, Land Acquisition Act, by making two applications through their Advocate Mr. S.N. Mitra, one application was for Joynarain Patehpuria and others and the other for Mohan Lall Sew Lall (Firm) but the Land Acquisition Collector made the reference in respect of Joynarain and Mohan Lall claimants 1 and 5 only, taking.the view that the learned Advocate Mr. S.N. Mitra appearing in the case was not authorised by his vakalatnama to act for claimants 2 to 4. The Tribunal however enhanced the valuation of the entire area to 64,948/11/- thus giving an increase of 24,948/11/-(exclusive of the statutory allowance) over the award of the Collector.

4. Against the decision, the Province of Bengal preferred the present appeal while claimants 1 to 5 filed cross-objection. It is urged by the learned Advocate for the appellant that the Tribunal acted illegally and without jurisdiction in going beyond the reference and increasing the Collector's award in favour of the claimants 2 to 4 also, when the reference was made for the claimants 1 and 5 only. Ramamurthi v. Special Deputy Collector : AIR1927Mad114 . In answer to that the learned Advocate for the respondent points out that the heading in the petition for reference showed 'Joynarain Fatehpuria and others' as 'claimants,' that in the claim petition, the claimants 1 to 3 had themselves put their signatures while the claimant 4 was represented by the claimant 1 as Executor, and all the four claimants had appeared through the same Advocate Mr. S.N. Mitra in the claim ease who filed the reference petition subsequently, that no objection on the score of want of authority m the Advocate, Mr. S.N. Mitra, was ever raised either before the Land Acquisition Collector or before the Tribunal; in the above circumstances it is argued that it was not open for the appellant to put forward such a technical objection for the first time in the appeal and the same should be considered to have been waived, Venkata Krishnaayya v. Secy. of State . The learned Advocate also draws our attention to the fact that in the -memorandum of appeal itself in this Court the claimant 1 Joynarain was impleaded as respondent 'for self and as Karta of the Mitakshara re-united joint family consisting of himself, 2 Nagarmall Patehpuria, 3 Sitaram Fatehpuria all of 23, Muktaram Babu Street Calcutta and representing 4/5 share in the property.'

5. It seems to me that there is much force iii the respondent's contention but, apart from it, the facts and circumstances of the case, viz. that the claimants 1 to 4 (respondents) are very close relations, that they live in the same house, that they refused to accept the award and made a joint petition for reference, that they have been described even by the appellant in their memo, of appeal as constituting a Mitakshara re-united joint family, represented by Joyanarain, claimant 1, indicate to my mind that throughout the proceedings Joynarain, claim. ant 1, was acting not only for himself but also for the benefit of his brothers and nephew the the claimants 2 to 4; in this view of the matter it would be unnecessary for Mr. S.N. Mitra to be separately authorised by claimants 2 to 4. I am, therefore, inclined to hold that the increase given by the Tribunal would accrue for the benefit not only of claimant 1 but of the claimants 2 to i as well. Reference in this connection may be made to the cases in Bijoychand Mahatab v. P.K. Majumdar ('11) 13 C.L.J. 159 and Surendra Nath v. K.S. Bannerjee : AIR1925Cal630 , the principle of which in my opinion applies to the facts and circumstances of the present case.

6. Next it is urged by the appellant that the Tribunal committed an error of law by giving a flat rate per cottah for the entire land treated as a single block and by not dividing the land into successive belts and giving a diminishing rate according to the several belts into which the lands fell. It appears, however, that the learned Judge has considered this matter and on a consideration of the situation, size, shape and frontage of the land came to the conclusion that the belting method is not a suitable one in the present case for the purpose of valuation. I do not think that he has committed any error of law regarding this matter or applied any wrong principle in fixing an average rate per cottah on the basis of the accepted awards; no hard and fast rule can be laid down and each case must be considered in view of its own special features Nitya Gopal Sen v. Secy. of State : AIR1933Cal25 . In my opinion both the contentions fail and the appeal must, therefore, is dismissed with costs; we assess the hearing fee at 15 gold mohurs.

7. As regards the cross-objection the only point taken is that the Tribunal should have determined the basic rate per cottah on the private sales proved in the case and not on the accepted awards, but this I think is a matter of appreciation of evidence and of the weight to be attached to it and not a matter of principle of law or procedure which can be urged in an appeal of a limited scope like the present one: (see Section 3, Act 18 [XVIII] of 1911.) In my opinion the cross-objection also must, therefore, be dismissed but without costs.

Mitter, J.

8. I agree.


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