Sabyasachi Mukharji, J.
1. This is an appeal arising out of an order passed and judgment delivered by T. K. Basu, J., on 9th Dec., 1977. By the said judgment and order Basu, J. has dismissed the writ application of the appellant on the ground of delay. The learned trial Judge has observed that though there was some confusion as to facts, he was not pursuing the aspect about the facts, because he was dismissing the application on the ground of delay. His Lordship observed that the factual aspect regarding 9 C. S. Plots, there were serious controversies raised. But the learned Judge made it clear that he was not pronouncing on the merits of the controversies, as he was dismissing the application on the ground of delay. With great respect it is difficult to appreciate this par of the observation of the learned trial: Judge. It is not possible to find out whether the learned Judge held that the factual controversies were such which disentitled the appellant to seek relief under Article 226 of the Constitution or not. Be that as it may, it would be profitable to refer to certain facts in order to appreciate the contentions raised in this appeal and the points upon which the learned Judge has proceeded.
2. It appears that on or about 18th April, 1921 a permanent lease (Mokarari Mourasi Patta) was granted of Touzi No, 2402 within the District of 24 Parganas, of which the appellant was Touzi holder and/or absolute proprietor to the extent of l/3rd. The said lease provided that in the event of permanent acquisition the appellant would be entitled to the share of compensation to the ratio of 6 : 10. On the 19th Dec., 1946, 44 C. S. Plots pertaining to the said Touzi comprising of as area of 68 bighas 15 cottahs 3 chittacks were permanently acquired by the Central Government without notice. Permanent Acquisition Case No. 27/4 of 1946-47 was started before the Land Acquisition Collector, 24 Parganas, who had assessed the land value at the flat rate of Rs. 4000 per bigha. On the 15th March, 1955 the appellant was served with a notice of acquisition and the Land Acquisition Collector on being moved directed the appellant to move the proper court of law. This appears from the averments made in para 14 of the petition and this averment is not seriously disputed on behalf of the respondents. On the 3rd May, 1962 the State Government issued a notification appointing an arbitrator for determination of the compensation payable in respect of the said Touzi land. On the 11th August, 1962 the arbitrator sent back the case to the State Government for re-submission, determination and apportionment of respective shares of the persons interested in the said Touzi land from the highest chain to the lowest. It appears that on the 11th March, 1963 a writ petition was filed by one Abhoy Singh Shahela. Thereafter on 19th April 1964 the appellant moved the Land Acquisition Collector for award of compensation. This would appear from the judgment of the learned trial Judge at p 177 of the Paper Book. The petition of Shahela was marked C. R. No. 125 (W) of 1963 and came up for hearing before B. N. Banerjee, J. on the 27th Sept. 1965. Banerjee, J. directed that the respondent-State Government would appoint another Arbitrator with a direction on him to determine compensation payable for the share of the petitioner in that case which share the petitioner in that case should establish before the arbitrator. The learned Judge had, further, ordered that if for the purpose it was necessary to add other parties to the reference, the arbitrator would be at liberty to do so or the respondent-State Government should itself do so. On the 29th August, 1966 apportionment case being Arbitration Case No. 67 of 1966 (A) and Arbitration Case No. 64 of 1966 (V) were started. The appellant was already a party, i.e., the referring claimant No. 2, in the valuation case, but was left out in the apportionment case. On the 22nd June, 1967 the appellant applied to the Collector for being included in the apportionment case. On the 14th June, 1968 the terms of reference was issued to the arbitrator. Again on 7th Oct. 1971 the appellant again applied for being included as a party referring claimant in the apportionment case. On the 29th Dec. 1972 the State Government accepted the appellant's representation and held that the appellant and the original referring claimant were jointly interested in the said acquired land. The appellant should also be included as a party referring claimant in the Arbitration Case No. 67 of 1966 (A) arising out of Arbitration Case No. 64 of 1966 (V). In this connection, reference may be made to page 113 of the Paper Book, wherein in the award Sri S. S. Ganguly, the Arbitrator observed that he had been appointed Arbitrator in Arbitration Case No. 64/66 (V) for apportionment and determination of compensation payable in respect of a number of plots and went on to say that as per the order of appointment he was required to determine the amount of compensation payable in respect of the interest of only the referring claimants involved in such acquisition of such properties. Thereafter he mentioned the different plot numbers which appear at page 114 of the Paper Book. Then he gave reference to the rights of the parties with reference to the geneological table and thereafter at page 116 of the Paper Book he had stated that the parties were interested in the following shares and it may be necessary to set out the said portion of the order in the said award :--
'4. From the above table, the shares of the descendants of Raja Bara Kantha and purchasers from them may be described in the following way:--
1.Kumar Veda Kantha1/3rd share2.(a)Satish Kantha by purchase from him Bahadur Singh Singhee by deed dated 7-9-1934
1/9th share (b)Nirmal Kantha1/9th shave (c)Rani Jotirupa1/9th share3.Purchasers in Revenue sale of the share of Hemada Kantha1/3rd share
5. Kumar Veda Kantha and Nirmal Kantha are referring Claimants Nos. 2 and 3 in this case. Admittedly, their shares in the touzi as shown in the above table were never transferred. It may be safely held, therefore, that they are entitled to get l/3rd and l/9th shares respectively out of the touzi holder's or landlord's share in the amount of compensation payable for the disputed plots.' 3. After referring to the several deeds and other documents, he decided the apportionment ease as under :--
'Ordered that the apportionment case is hereby decided in favour of referring Claimants Nos. 2 & 3 without contest and in favour of referring Claimant No- 1 on contest between him and Craig Jute Mills only. It is hereby declared that the referring claimants have the following shares, mentioned against the names of each, in the amount of land-value payable as compensation for the disputed lands covered by Touzi No. 2402 of the 24-Parganas Collectorate:--
1. Shri Abhoy. Singh Sahela 511/144th
2. Kumar Veda Kantha SinhaRoy 2/16th
3. Kumar Nirmal Kantha Roy 1/24th
Parties do bear their own costs up to this stage,'
4. Accordingly, the appellant was asked to submit a formal petition duly stamped and signed by him. On the 11th Jan. 1973 the appellant duly filed a stamped petition for being included as a referring claimant in the apportionment case. On the 19th Feb. 1973 the appellant was included as a referring Claimant No.2 in the said Apportionment Case No. 67/66(A). On the 4th July, 1973 the appellant was declared to be entitled to receive 2/16th share for compensation of all the 44 C. S. plots. In this connection, reference may be made to the observations of the learned trial Judge appearing at page 178 of the Paper Books. This award, according to the appellant was not challenged by the Union of India or any party. The award appears at p. 112 of the Paper Book. The material portions of the award I have set out hereinbefore. On the 31st Aug. 1973 a notification was issued by the State Government appointing one Sri B.K. Sengupta as the Arbitrator in respect of only 29 C. S. plots and not 44 C. S. plots i.e. about 15 plots were left out. From Nov. 1973 to Mar. 1974 the said Arbitration Case No. 64/66(V) was heard and on the 26th Mar. 1974 it was detected by the Arbitrator for the first time on the last day of the hearing that only 29 plots had been included in the notification appointing him as the Arbitrator on the 31st Aug. 1973. This point is also noted in the judgment of the learned trial judge.
5. Thereafter on the 24th April, 1974 the appellant represented to the State of West Bengal for issuing a Corrigendum to include the said 15 plots after the notification dt. Aug. 31, 1973. On the 16th May, 1974 the State of West Bengal wrote a letter whereby, according to the appellant, the Stale of West Bengal promised in writing to issue a necessary corrigendum shortly pursuant to the representation of the appellant dt. 24th April, 1974. It would, therefore, be necessary to refer to the said corrigendum which has been referred to in page 163 of the Paper Book. But before that letter dt 16th May, 1974, there is a 'letter we must take note of which is dt 21st Aug. 1964 dealing with the petition of the petitioner dt 19th Apr. 1964, wherein it was stated that from the records it appeared that compensation payable in respect of the award had already been paid to the assessee after assessment by the Land Acquisition Collector. As the stipulation as referred to in the said noted petition was not brought to the notice of the office at the time of preparation of assessment, nothing could be done at the stage by the office as this was written by the Land Acquisition Collector, 24-Parganas. But on the 16th May, 1974 the Deputy Secretary, Government of West Bengal wrote to the petitioner regarding his petition dt. 29th Apr. 1974 to say that the Land Acquisition Office, 24-Parganas had been requested to send a proposal for appointment of an Arbitrator in view of what was stated in the petition of the petitioner dt, 8th Apr. 1974 and a proposal was still being awaited and necessary action would be taken as soon as the revised proposal was received from the Collector to remind the submission of the proposal.
6. Thereafter again after 1964's letter the State Government issued a corrigendum adding only 6 plots being C. S. Plots Nos. 321 to 325 and 329, leaving out still 9 plots as mentioned in para 29 of the petition which appears at page 13 of the Paper Book. It has been found by the learned trial Judge that on the last day of the hearing on the 16th March, 1974 it was noted by the Arbitrator that in the valuation case unlike in the apportionment case the terms of reference were limited to only 29 C. S. plots and not 44 C. S. plots. On the 20th Jan. 1975 the said valuation award was made and published and limited to 35 C. S. plots only. As a result of that, out of 44 C. S. plots valuation was awarded in respect of an area of 52 bighas 16 kattahs and 3 chittacks of land and the valuation of an area covered by the said 9 plots left out was not awarded. Therefore the appellant's grievance was that he had been deprived of the said 9 C. S. plots measuring an area of 15 bighas 17 kattahs. On the 7th Feb. 1975 the appellant obtained the certified copy. All the said 9 C- S. plots were danga lands and 'he Arbitrator, according to the appellant, had awarded compensation @ Rs- 6,500/- per bigha. It appears at page 151 of the Paper Book, But we are not concerned at this stage with this part of the award of Sri B.K. Sengupta.
7. On the 22nd Mar- 1976, the appellant issued a notice demanding justice. Thereafter on the 30th Apr. 1976 the appellant moved an application under Article 226 of the Constn. claiming, inter alia, that a writ of or an order in the nature of mandamus should be issued commanding the respondents and in particular the respondent No. 1, that is, the State of West Bengal and each of them and/or their agents and/or their servants to issue and/or cause to be issued necessary notification in the manner and according to the provisions of the Act and/ or otherwise as may be enjoined upon by law upon them, as referred to, in inter alia, paragraph 29 of the petition for computation, determination and assessment of the compensation of the land value of the 9 C.S. plots and other consequential reliefs. The particulars of the said 9 C. S. plots are as follows :
'Outstanding C. S. Plots for determination of the said compensation :
1130, 1131, 1143, 1141, 1330, 1332, 1334, 1335 and 1140-'
In the said application under Article 226 of the Constn., the State of West Bengal, the Union of India for whose purpose the land in question was acquired, the Land Acquisition Collector, the Court of the Arbitrator, Abhoy Singh Shahela and Nirmal Kantha Sinha Roy were added as respondents.
8. The learned Trial Judge by the judgment and order dt. 25th July, 1977 discharged the rule nisi which had been issued on 30th April, 1965 on the ground of delay. The learned trial Judge mainly based his decision on the ground of 14 months unexplained delay, that is to say, the delay between 20th Jan. 1975 being the date of valuation award and 22nd Mar, 1975 the dale of demand for justice. This appears from page 181 of the Paper Book. The learned Judge therein had observed as follows :
'Unfortunately for the petitioner this story of his inaction does not stop there. As pointed out by Mr. Roy Chowdhury on the 22nd June, 1967 the petitioner filed a petition before the Arbitrator in the apportionment case for being added as a referring claimant. It is the petitioner's own case that notwithstanding the application no steps were taken by the appropriate respondents to add the petitioner as a party. Notwithstanding the above as Mr. Roy Chowdhury points out, the petitioner took no steps whatsoever till the 5th Oct. 1971 when he made a representation to the respondent No. 1 on this question. Therefore even at this stage the petitioner chose to keep quiet and take no steps whatsoever for a period of over 4 years- No explanation of any kind whatsoever is given either in the petition or in the course of the argument as to why the petitioner chose to wait for four long years before a pursuing this remedy.'
Though the learned trial Judge has indicated in the judgment that all throughout the period the appellant was not diligent in pursuing its remedy, the appellant states that the State of West Bengal had not taken the plea of delay however.
9. Before we deal with the points raised in this appeal, it will be necessary for us to refer to one important aspect, that is to say, the statement contained in the affidavit made by the Land Acquisition Collector, District 24-Parganas in answer to the rule nisi affirmed on the 9th Nov. 1976. In paras 16 and 18 therein, It was stated as follows :-
'16. Save that the said 29 C S. Plots referred to in para 26 of the petition became subject matter of the jurisdiction of the learned Arbitrator in a reference made by the Collector upon the application of the petitioner and that 15 C. S, plots were left out of the jurisdiction of the Arbitrator on the ground that the Arbitrator is incompetent to go into the question of the said C. S. Plots and save what has been stated hereinbefore and save that are matters of record, I make no admission of the statements contained in paras 19, 20, 21, 22, 23, 24, 25, 26 and 27 of the petition.
18. The allegations contained in paragraph 29 of the petition are denied and disputed, I say that on scrutiny by Land Acquisition Collector's Department it appeared that land value compensation in respect of the said 9 C. S. plots were already paid to Hercules Trading Corporation Ltd. and others on the basis of the assessment as far back as on l3th Nov. 1957. I further say that the said assesses M/s. Hercules Trading Corporation Ltd. and others were also not parties in the corresponding apportionment Case No. 67 of 1966 (A). The prayer for reference to arbitration in respect of these plots were therefore not allowed.'
While we are on this aspect, we may also refer to the affidavit filed on behalf of Union of India by one Harsharan Gang-war affirmed on the 10th Sept. 1976 wherein he stated inter alia as follows :
'6. From the said records it appears that the said nine C. S. plots which were the subject matter of the 226 application had already been assessed for compensation and compensation paid. The said assessment was made in the name of Hercules Trading Corporation Ltd. and payment was made to it on 13th Nov. 1957 by account payee cheque. The assessment of compensation so far as the landlord's interest is concerned was paid to Sri Rajendra Singh Singhee and Sri Narendra Singh Singhee. If necessary the petitioner will crave leave to refer to the records.'
Two important facts emerge out of this narration of facts. The apportionment case was initiated on or about 29th Aug. 1967. The appellant had applied to the Collector for being included as a party in the apportionment case though the appellant had been referred to as the claimant No. 2 in the valuation case. In the apportionment case the appellant was Included as a party on the 19th Feb. 1973, and on the 4th July, 1973, the appellant was declared entitled to receive 2/16Ih share of compensation for all the 44 C. S. Plots. This appears from the award at page 114 of the Paper Book as also from the judgment and order of the learned trial Judge.
10. Now, it appears from other documents, which we have referred to, that sometimes in 1957 certain amounts were alleged to have been paid to M/s. Hercules Trading Corporation. It is not apparent that in the subsequent apportionment case, the case which determined the share of the parties in the land in question including other C. S. Plots M/s-Hercules Trading Corporation was even adjudicated as a party entitled to any share of compensation. It does not also appear that such alleged compensation which was alleged to have been paid to M/s. Hercules Trading Corporation by the State Government sometime in 1957 was done in any proceedings as a result of adjudication, notice in respect of which was given to the appellant. How there-fore and under what circumstances could the Hercules Trading Corporation come to receive any compensation, if it had received it at all, is not clarified either from the averments made in the affidavit filed on behalf of the State Government or from the affidavit filed on behalf of the Union of India. Therefore, the facts remain that so long as the apportionment award remains which has held as mentioned hereinbefore and accepted by the Government the appellant was entitled to compensation, according to his share, in respect of 44 C. S. Plots. It has been further held that he had shares in respect of 44 C. S. Plots. It is indisputable that appellant has not been paid his full share in respect of the entirety of 44 C- S, Plots. This, in our opinion, entitles the appellant to claim for adjudication before the appropriate authority of his right to compensation.
11. A large number of authorities were cited, before us, on the plea that delay is a relevant consideration in an application under Article 226 of the Constitution. It is not necessary to refer to all the decisions. But the Courts have taken different views in the background of the various facts and circumstances of the case. In some cases, delay of one year or less than one year has been considered to be fatal. In respect of compensation cases, in some cases, delay extending over 35 years have not been considered to be fatal. We will only note the numerous decisions, not because they are very relevant for the purpose of our decision in the facts of this case but out of deference to the arguments advanced by learned advocates on both sides. Reference was made to the decision of the Supreme Court in the case of M/s. Tilokchand Molichand v. Commr. of Sales Tax, Bom-hay, : 2SCR824 . Our attention was drawn to paras 9. 10 & 11 of the decision in the case of P.B. Roy v. Union of India, : 3SCR449 in the case of Nirmala Khosla v. Union of India, where delay between the period of 35 to 71 years was not considered to be fatal in respect of an award of compensation. Our attention was also drawn to the decision in the case of Sualal Yadav v. State of Rajasthan, 0065/1975 : AIR1977SC2050 and to the case of Smt. Hemlata Basu v. State of West Bengal, (1971) 75 Cal WN 94 where it was held that the conduct of the petitioner was a relevant factor and the relief under Article 226 of the Constitution was discretionary and should be granted more or less on similar ground, though not on identical ground on which the courts of Chancery in England exercised jurisdiction. Reference was also made to para 12 of the decision in the case of Madras Port Trust v. Hymanshau International, : 1979(4)ELT396(SC) , in the case of State of Gujarat v. Bhogilal Keshavlal, : 2SCR284 , in the case of Motilal Padampat Sugar Mills Co. Ltd. v. State of U. P., : 118ITR326(SC) which was relied on in aid of the proposition that in case of promissory estoppel Government was bound to perform its part. We do not think it is relevant for our present purpose. Reliance was placed on the observations of the Supreme Court in the case of Century Spg. & Mfg. Co. Ltd. v. Ulhasnagar Municipal Council, : 3SCR854 to highlight that it is necessary to find out whether there was a good case for the petitioner and whether he should be heard by the Court. Reference was also drawn to the decision in the case of R.L. Gupta v. Municipal Corporation, Delhi, (1973) 1 Serv LR 359: (1973 Lab IC 1253) (Delhi) to the case of State of Bihar v. Presiding Officer, Industrial Tribunal, Patna, 1977 Lab IC 803 (Pat), in the case of Sualal Yadava v. State of Rajasthan, 0065/1975 : AIR1977SC2050 . Reference was also made to the observations of the Supreme Court in the case of Uttar Pradesh Co-operative Federation Ltd. v. Sunder Bros., Delhi, : AIR1967SC249 in aid of the proposition that the grant of relief under Article 226 of the Constitution was discretionary and unless such discretion was exercised, the exercise of the discretion by the learned trial Judge should not be interfered with. These propositions are well settled.
12. In our opinion, the following propositions can well be applied out of the principles enunciated in different cases in the background of the facts of this case. If a person has a good case on the merit, a good case in the sense that it is otherwise entitled to be considered by the Government, then, normally his petition should be entertained and should be examined. Secondly, delay is a relevant and material factor. While the claimants and the persons who are assertive of their rights should not be disentitled to the exercise of discretion by the Courts under Article 226 of the Constitution in order to consider whether the delay should defeat the right of the claimant, it is material to bear in mind whether by the conduct or delay in the conduct of the petitioner or the appellant, the other side, viz. the Government or the respondents have been prejudicially affected or they have altered their position thereby or if the damage has been caused to the respondent or who is to pay compensation by the delay on the part of the petitioner or the claimant. Thirdly, it appears that in considering the question of delay, the merits of the case of the petitioner or claimant should be taken into consideration, the nature of it, how it has been caused and what would be the effect of delayed grant of relief. Grant of relief under Article 226 of the Constitution is discretionary and an exercise of such discretion by the learned trial Judge should not be interfered with normally by an appellate authority. But it has also to be emphasised that the power which is given to the Court must be exercised on intelligible and rational basis and on sound legal principle. It is true that the party affected must be diligent in asserting and pursuing his claim. This right, however is coupled with the fundamental obligation of the State to pay compensation for acquisition and requisition of the property. It is asserted that it is the citizen's duty to prefer his claim if his claim has been denied. It has, however, also to be borne in mind that in a society governed by rule of law it is the Government's primary obligation to pay for any property acquired if the parties are entitled under the provisions to the compensation. This principle is clearly enjoined by Section 8 of the Requisitioning & Acquisition of Immovable Property Act, 1952 under which the State has in this case acquired the property, it imposes a reciprocal obligation and reciprocal right that while one should be diligent in pursuing its right the other should be equally diligent in discharging its obligation. In this case the indisputable fact is that in the apportionment case, as it stands, the appellant has been declared to be entitled to a share in the 44 C. S. plots. The appellant has not been paid compensation in respect o the entirety of the said 44 Plots. The appellant might have pursued his claim more vigilantly. There is nothing to show that in 1957 when the alleged payment was made to the Hercules Trading Corporation by the State Government the appellant was aware because in the subsequent documents that we have mentioned the Government did not make any reference of this. The adjudication in the adjudication reference holding that the petitioner is entitled to compensation in 44 C. S. plots stands. If that fact stands this cannot be consistent with the alleged payment in respect of the petitioner's share to the Hercules Trading Corporation.
13. In the premises, we are of the view that the ground upon which the learned Trial Judge has exercised his discretion is not a proper ground, in the facts and circumstances of the case. The petitioner is certainly entitled to a proper adjudication by a proper authority on the question whether the petitioner is entitled to any compensation lawfully under the provisions of the law in respect of C. S, plots in respect of which he has been adjudged in the apportionment case as a share-holder- In the premises the order and the judgment of the learned trial Judge dated July 25, 1977 are hereby set aside. The appeal is allowed to that extent,
14. Let a writ be issued directing the respondents 1, 2, 3, 4 and 5 to issue or cause to be issued necessary notification in the manner and in accordance with the provisions of the Requisioning and Acquisition of Immovable Property Act, 1952 in respect of the plots mentioned in paragraph 29 of the petition and in case it is determined that the petitioner is entitled to compensation in respect of the 9 C. S. plots he should be paid such compensation. As the matter has prolonged for a long time, let the notification and steps as indicated above to be taken by the respondents be issued as expeditiously as possible. After that the Arbitrator will decide the matter as expeditiously as possible, The Rule is made absolute to the extent indicated above.
15. In the facts and circumstances of the case the parties will pay and bear their own costs.
16. Learned advocate on behalf of the Union of India prays for certificate for leave to appeal to the Supreme Court. As we have determined the case on the facts and circumstances of the case and as no principle of law requires interpretation by the Supreme Court, we decline to grant any certificate.
C.K. Banerji, J.
17. I agree.