Salil Kumar Datta, J.
1. A property belonging to deities was acquired by the Government and the compensation money had been lying in Court invested fetching an income of Rs. 235/-annually. The petitioners claiming to be shebaits of the deities moved an application for purchase of land for erection of a temple thereon for the deities for a consideration of Rs. 4,355/-. This prayer was rejected by the Additional Special Land Acquisition Judge, 4th Court, Ali-pore by order No. 145 dated 27-11-1973. As no steps appear to have been taken against that order the learned Judge was of opinion that the said order acquired finality. Thereafter it appears these petitioners filed another application before the Judge stating that they as shebaits had purchased a piece of land and wanted to build a temple thereon in fulfilment of the wishes of the settlor in the deed of settlement executed by him In respect of acquired property. This application was rejected by order No. 158 dated 3-4-1976 by the learned Judge holding that in view of the earlier order it was not permissible to pass any order in favour of the petitioners on their present petition. The petitioners have challenged the propriety of this order by the instant Rule.
2. Sections 31 and 32 of the Land Acquisition Act 1894 provide as follows:--
31. Payment of compensation or deposit of same in Court.
(1) On making an award under Section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next sub-section.
(2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Court in which a reference petition would be submitted.....
32. Investment of money deposited in respect of lands belonging to persons incompetent to alienate.
(1) If any money shall be deposited in Court under Sub-section (2) of the last preceding section and it appears that the land in respect whereof the same was awarded belonged to any person who had no power to alienate the same, the Court shall
(a) order the money to be invested in the purchase of other lands to be held under the like title and conditions of ownership as the land in respect of which such money shall have been deposited or held, or
(b) if such purchase cannot be effected forthwith then in such Government or other approved securities as the Court shall think fit.....'
It was submitted on behalf of the State that in view of the provisions of Section 32 as quoted above, the Court was not in a position to entertain such application as it did not relate to purchase of the land but to construction of a temple on the land alleged to have been purchased by the shebaits. Accordingly the impugned order does not suffer from any infirmity.
3. In Re: Ganendra Mullick, reported in 25 Cal WN 597 = (AIR 1921 Cal 536) a Division Bench was considering the provisions of Section 32 of the Land Acquisition Act as amended by the Calcutta Improvement Act and it was held-- .....
'Section 32 of the Lend Acquisition Act, as amended by the Calcutta Improvement Trust Act provided that the Tribunal shall order the money to be invested in the purchase of other lands to be held under like title and conditions of ownership as the land in respect of which such money shall have been deposited was held. Here there can be no question as to the land being under like title and conditions of ownership because the proposal is to erect buildings on the land belonging to the trust estate. The only question for consideration, therefore, was whether the erection of buildings would come within the words 'invested in the purchase of other lands' in Section 32 of the Act. Having regard to the definition of the expression 'land' we think that the words of Section 32 quoted above would include the erection of buildings upon the land and if the President is satisfied that the money would be invested in the erection of buildings as proposed by the petitioners, we are of opinion that he is bound to pay the money over to the petitioners..... We think under these circumstances that the case should go back to the learned President of the Improvement Tribunal in order that he may satisfy as to whether the petitioners are the sole trustees of the trust estate and if so, whether money would be invested in erection of building on the land and whether there is an agreement between them and their lessees for the erection of the buildings on the portion of the land not acquired as mentioned in their petition and if he is satisfied upon those points, we think that he should pay out the money to the petitioners.'
4. It is thus obvious that provisions of Section 32(1)(a) of the Land Acquisition Act apply to construction of buildings on the land acquired by a person incompetent to alienate such land, apart from application of the section to the acquisition of such land by him.
5. In the present petition before the Judge the petitioners have prayed that they have already acquired the land as such shebaits and the funds are now needed for construction of the temple on such land. Accordingly following the above decision we are of opinion that the prayer made is in terms of the provisions of Section 32(1)(a) if other requisite conditions are satisfied. The previous order of the learned Judge does not -stand as a bar to the grant of the prayer on this application as in the earlier order the prayer for funds for acquisition of land was rejected. The learned Judge accordingly is in error in thinking that the previous order stood as a bar to a consideration of the present application made by the petitioners. We accordingly make the Rule absolute and set aside the impugned order and direct the learned Judge to consider the application of the petitioners in accordance with law keeping in view the decision we have cited above in extenso. There will be no order as to costs.
6. Let the records be sent down at once.
G.N. Ray, J.
7. I agree.