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Rishikesh Mitter Vs. the State of West Bengal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case Nos. 4299 to 4302 of 1959
Judge
Reported inAIR1964Cal277,69CWN287
ActsLand Acquisition Act, 1894 - Sections 12(2), 18, 18(1) and 18(2)
AppellantRishikesh Mitter
RespondentThe State of West Bengal
Appellant AdvocateB.B. Das Gupta and ;D.P. Chowdhury, Advs.
Respondent AdvocateC.N. Mookerjee, Adv. for Opposite party No. 2 in C.R. No. 4299 of 1959 and ;Nirmal Chandra Chakravarty, G.P. for Opposite party No. 1 in C.R. Nos. 4300-4302 of 1959
Cases ReferredCourt (see Ezra v. Secy
Excerpt:
- .....ground that these references were incompetent. the references were made by the collector on the written applications signed on behalf of the petitioners by their respective pleaders. in each case the vakalatnama of the pleader signed by or on behalf of the petitioner concerned was filed before the collector before the application was made to him. section 18 of the land acquisition act, 1894, provides that any person interested who has not accepted the award may, by written application to the collector, require that his objection to the award be referred by the collector for the determination of the court. in the instant cases the written application was not signed by the petitioner concerned but was signed by his pleader on his behalf. the question is whether in these circumstances.....
Judgment:

Bachawat, J.

1. These rules are directed against an order of the Special Land Acquisition Judge, Alipore, dated the 5th September 1959, rejecting the references made by the Collector at the instance of the petitioners under Section 18 of the Land Acquisition Act, 1894 read with Section 8 of the West bengal Land Development and Planning Act (Act XXI of 1948) on the ground that these references were incompetent. The references were made by the Collector on the written applications signed on behalf of the petitioners by their respective pleaders. In each case the vakalatnama of the pleader signed by or on behalf of the petitioner concerned was filed before the Collector before the application was made to him. Section 18 of the Land Acquisition Act, 1894, provides that any person interested who has not accepted the award may, by written application to the Collector, require that his objection to the award be referred by the Collector for the determination of the Court. In the instant cases the written application was not signed by the petitioner concerned but was signed by his pleader on his behalf. The question is whether in these circumstances the references are incompetent. Now the normal rule is that the party can do by means of an agent what he can do himself. The following passage in Halsbury's Laws of England, Third Edition, Volume 1, Article 352, pages 14/-48 accurately summarises the law on the point.

'It may be stated as a general proposition that whatever a person has power to do himself he may do by means of an agent x x x x x. There are,however, two exceptions to the general rule that a personmay do by means of an agent whatever he has power toDO himself: (1) Where the transaction is required bystatute to be evidence by the signature of the principalhimself; (2) Where the competency to do the act arisesby virtue of the holding of some public office or by virtue of some power, authority, or duty of a pesonal nature andrequiring skill or discretion for its exercise, or where astatute imposes on a person a duty he is not free todelegate.'

2. Admiitedly the second exception has no application to the cases before us. The general rule and the first exception were recognized in The Commr. of Agricultural Income-tax, West Bengal v. Keshab Chandra Mandai, : [1950]18ITR569(SC) . In that case Das, J. observed at P. 367 (of SCJ): (at p. 257 of AIR).

'There is no doubt that the true rule as laid down in judicial decisions and indeed as recognised by the High Court in the case before us is that unless a particular statute expressly or by necessary implication or intendment excludes the common law rule, the latter must prevail. It is therefore, necessary in this case to examine the Act and the rules to ascertain whether there is any indication therein that the intention of the Legislature is to exclude the common law rule.'

On a consideration of the Bengal Agricultural Income-tax Act (Act IV of 1944) and of the rules and the terms their Lordships of the Supreme Court held that there were clear indications of an intention on the part of the Legislature to insist on the personal signature of the assessee, appellant or applicant whenever his signature was required by the Act and the Rules and that the common law rule qui facit per alium facit per se was excluded by necessary implication and the intendment of the Act and the rules.

3. On behalf of the opposite parties it was argued that as Sections 5-A(2), 9(2) and 12(2) specially provide for representation of the party interested by his pleader or his agent and as Section 18(1) does not specially provide that be may by written application by his pleader or agent require the Collector to make the reference, the necessary implication and intendment of the Act is that he must by a written application signed by him personally require the Collector to make the reference. I am unable to accept this contention. Section 5A provides for hearing of objections to the preliminary notification issued under Section 4 and Sub-section (2) of Section 5A specially provides that the Collector must give the objector an opportunity of being heard either in person or by a pleader. Section 9 provides for issue of notices inviting claims to compensation after the publication of the declaration of the intended acquisition under Section 6; and Sub-section(2) of Section 9 provides that the notice shall require all persons interested to appear personally or by agent before the Collector- and to state their respective interests, claims and objections, but that the Collector may require such statement to be made in writing and signed by the party or his agent. It is to be noticed that unless required by the Collector even the basic statement of the claimant as to his interests, claims and objections need not be in writing signed by him or his agent., Section 11 provides for enquiry into the value of the land and into the interests, claims and objections of the claimants and for the making of the award by the Collector under his hand, and SECTION 12(2) requires the Collector to give immediate notice of his award to each or the persons interested as are not present personally or by their representatives when the award is made. It is to be noticed that at all stages of the enquiry by the Collector and also at the time of the making of the award, the claimant is entitled to appear personally or by his agent. We find no indication in the Act of any general intention on the part of the Legislature requiring the personal signature of the claimant on the statements and applications filed before the Collector on his behalf. Under Section 18(1) the claimant may, by written application, require the Collector to make the reference and there is nothing in the Act to show that the claimant cannot do by his duly authorized agent what he could do himself. It is necessary that the claimant must require the Collector by a written application that the matter be referred to Court, but the section does not insist that the written application must of necessity be signed by the claimant. The requirement of a written application does not necessarily imply that the application must be signed by the applicant. See Umed Singh v. Subbag Mal, 43 Ind App. 1 : 20 Cal WN 137: (AIR 1915 PC 79). In all the cases under discussion the duly authorised pleader of the claimant had signed the application. Before the application was presented to the Collector the written authority of the pleader signed by the claimant was filed before the Collector. The Collector was satisfied that a proper written application on behalf of the claimant under Section 18(1) had been duly made before him and that the other conditions of the section had been complied with. In these circumstances it must be held that the references made by the Collector were competent.

4. I may add that even assuming for a moment that the claimants should have put their signatures on the written applications, the absence of the signatures was a mere irregularity and did not affect the jurisdiction of the collector to entertain the applications and to make the references; and the references cannot be thrown out on the ground that they were incompetent and without jurisdiction.

5. The learned Judge rejected some of the references on the ground that the relative applications before the Collector were not filed within the time prescribed by Section 18(2). In C.R. Cases Nos. 4299, 4300 and 4302 of 1959 it was formally admitted by Mr. Chakravarty and Mr. Mookerjee before us that the relative applications were filed within the prescribed time. In C.R. case No. 4301 of 1959 Mr. cnakravarty argued that the application of Hrishikesh Mitter as Karta representing his joint family had not been filed before the Collector within the prescribed time. It is common case that Hnsmkesh Mitter was neither present nor represened before the Collector at the time when he made the award, and that his case' is governed by the proviso (b) to Section 18(2). Now Hrishikesh Mitter in his personal capacity was served with the notice under Section 12(2); and in that capacity he duly filed an application under Section 18(2) within six weeks of the date of the receipt of the notice. But no notice under Section 12(2) was served upon him in his capacity as Karta of his joint family; in his capacity as such Karta he was therefore entitled to apply within six months of the date of the award. His application as such Karta was duly made within that date and was not barred by limitation.

6. On behalf of the petitioners it was argued that the Land Acquisition Judge had no power at all to go into the question whether the conditions of Section 18 had been satisfied. We prefer not to express any opinion on this question, is we have come to the conclusion that an the conditions of Section 18 were satisfied.

/. We pass the following order:

The rules are made absolute.

8. The order of the Court below dated the 5th September, 1959, rejecting the references made by the Collector at the instance of the petitioners are set aside. We adjudge and declare that these references are competent and are entertainable by the Court below. The references are remanded to the Court below and the Court below is directed to hear and dispose of them in accordance with law and in accordance with the observations made above. The State of West Bengal shall pay to the petitioners the costs of the Rules hearing fee being assessed at two gold monurs in each case. LAW, J. :

9. I entirely agree with the judgment of my learned brother Bachawat, J., but I wish to add a few words to the main question, namely, whether under Section 18 of the Land Acquisition Act the signature of the person interested who has not accepted the award is required on his written application to the Collector requiring the matter to be referred for the determination of the Court? It cannot be disputed that the Land Acquisition Collector is merely the agent of the Government for the purpose of acquisition and is in no sense of the term a judicial officer ror is the proceeding before him a judicial proceeding. His enquiry and his valuations are departmental in their character and made for the purpose of enabling the Government to make a tender through him to the person interested. It has been held that if in such a proceeding the collector did not sufficiently consider the evidence produced by the owner but formed his opinion on materials not before him as evidence that would not render the proceedings had (see ILR 30 Cal 85 (sic)). The proceedings before the Collector are administrative in character and not judicial and his award though conclusive against the Government is subject to the owner's right to nave the matter referred to the Court (see Ezra v. Secy, of State lor India in Council, 32 Ind App 93 (PC)). If the owner doubted the correctness of his valuation his remedy only lies under Section 18 of the Act by virtue of which he can. require the Collector by a written application to refer the matter for determination of the Court. The word 'application' in my opinion, is not to be understood as the word is understood in connection with judicial proceedings. I think, the word 'application' here is merely a demand or a request by the person interested to the Collector to refer the matter to the Court for judicial determination as the Collector's award is not acceptable by him. The application is not the reference at all but is merely a request by the person interested to the Collector inviting him to refer the matter.

10. It appears that in these cases the respective applications were signed by the pleader who held vakalat-namas in his favour from the persons interested. The Collector had before him the said vakalatnamas and knewthat the applications were signed by the pleader and were otherwise in order. The Collector did not take any objection to the applications but acted upon them by duly referring the matters for the determination of the Court as required by the applicant. Therefore the State of WestBengal cannot now be heard to say that the applications were defective.

11. In these premises there is no reason to depart from the general rule that whatever a person has power to do himself he may do by means of an agent and thus I have come to the conclusion that the signature of the duly authorised pleader on the respective application wasquite sufficient to satisfy the renditions of SECTION 18, and the references are competent and entertainable bythe Court below.

12. The learned Judge of the Court below erred in holding that the applications not having been signed by the person interesed were invalid in law. The order dated 5 September 1959 is set aside.

13. I concur with the orders of my learned brotheras passed in these matters.


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