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Nirmal Chakravarti and ors. Vs. the Land Acquisition Collector, Alipur and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1750 of 1951
Judge
Reported inAIR1953Cal257
ActsConstitution of India, 1950 - Article 226; ;Code of Civil Procedure (CPC) , 1908 - Section 152; ;Land Acquisition Act, 1894 - Section 12
AppellantNirmal Chakravarti and ors.
RespondentThe Land Acquisition Collector, Alipur and ors.
Appellant AdvocateN.C. Sen Gupta and ;Hemendra Nath Lahiri, Advs.
Respondent AdvocateApurbadhan Mukherjee, ;J. Mazumdar and ;Amarnath Banerjee, Advs.
Excerpt:
- .....226, constitution of india, for an appropriate writ for cancellation of an award made by the land acquisition collector of 24 parganas and of orders for refund of compensation money passed by him and the subordinate judge, alipore, directing the receiver to whom the compensation money had been paid to refund the same. the facts may shortly be stated as follows: --one rai bahadur dwarka nath chakravartty had created a trust in respect of his immovable properties for payment of debts and for distribution amongst the beneficiaries mentioned in the trust. by the said deed the settlor appointed himself and petitioner 1 and opposite parties 4 and 5 as trustees for carrying on the said trust. the settlor died on 6th july 1945, and petitioners 1 and 2 and opposite parties 4 and 5 are the.....
Judgment:
ORDER

Bose, J.

1. This is an application under Article 226, Constitution of India, for an appropriate writ for cancellation of an award made by the Land Acquisition Collector of 24 Parganas and of orders for refund of compensation money passed by him and the Subordinate Judge, Alipore, directing the Receiver to whom the compensation money had been paid to refund the same. The facts may shortly be stated as follows: --

One Rai Bahadur Dwarka Nath Chakravartty had created a trust in respect of his immovable properties for payment of debts and for distribution amongst the beneficiaries mentioned in the trust. By the said deed the settlor appointed himself and petitioner 1 and opposite parties 4 and 5 as trustees for carrying on the said trust. The settlor died on 6th July 1945, and petitioners 1 and 2 and opposite parties 4 and 5 are the present trustees in respect of the trust estate. Disputes and differences arose amongst the trustees and there was an application made to Court under Section 26, Arbitration Act which was registered as Title SuitNo. 70 of 1947 and by an order; dated 12th July 1949, one Kalikananda Mukherjee, opposite party 2, was appointed receiver of the trust estate in that suit. It appears that thereafter some of the plots of lands belonging to the trust estate were acquired by the Government and the Land Acquisition Collector of 24 Parganas made an award on 15th March 1950, by which a sum of Rs. 9,112-8-0 was awarded as compensation in favour of Mr. Mukherjee, Receiver to the Dwarkanath Trust Estate, in respect of plot No. 135. By the same award, other sums were awarded to opposite party 3 Sitaram Kapur in respect of other plots of land. On 20th March 1950, compensation money was paid to the Receiver upon his giving an undertaking to refund the amount subsequently if called upon to do so. Thereafter opposite party 2 applied to the Land Acquisition Collector lor amendment of the award by representing himself to be a purchaser of the plot, being Dag No. 135, and the land Acquisition Collector has acceded to such application and amend the award and has called upon the Receiver to refund the sum to the Collector. On 17 August 1950, the Receiver was informed by a letter about the correction and refund of the money was actually asked for from him within a week from that date. On 20th March 1951, the Land Acquisition Collector, by another letter, again called upon the Receiver to refund the sum of Rs. 9,112-8-0 forthwith. On 9th April 1951, the Receiver applied in suit No. 70 of 1947 to the Subordinate Judge, Alipore for direction in respect of the 'order of the Land Acquisition Collector to refund the money and it appears that the Subordinate Judge has given directions upon the Receiver for complying with the order of the Land Acquisition Collector with liberty to the receiver to come up for further directions if necessary. This order was made on 19th May 1951, after hearing the petitioners and other beneficiaries who opposed any such direction being given to the Receiver for refund of the money.

2. The special Land Acquisition Collector, 24 Parganas, has filed a counter-affidavit in this case. In para 5 of the said affidavit, it is stated that the Land Acquisition Collector considered the application for amendment of the award in the presence of the parties and the Advocates appearing on behalf of the parties. It is alleged that one Lalit Mohan Chakravartty, who was the Advocate appearing on behalf of the receiver, was present during the hearing on the different dates. It is pointed out by Dr. Sen Gupta that this Lalit Mohan Chakravartty is not an Advocate at all but he was a mere clerk. It is further stated in the said para 5 of the said affidavit that the order amending the award was made upon hearing the parties and upon withdrawal of objections by the parties concerned. The deponent further states that from a perusal of the Land Acquisition proceedings it is clear that the Receiver was represented by an Advocate and that the receiver had full knowledge of the proceedings.

3. Opposite party 3, Sitaram Kapur, has also filed a counter-affidavit. In para 4 of the said affidavit he sets out the various facts showing his chain of title and the extent of his interest in the land in question. It is further stated that prior to the acquisition under the Land Acquisition Act, the lands had been requisitioned by the Government for military purposes under the Defence of India Rules and possession had been taken, but subsequently notice of derequisition was served upon opposite party 3, but before possession was re-delivered, proceedings under the Land Acquisition Act for acquisition of the property were started.

4. It may be pointed out that questions of title cannot be determined in proceedings under Article 226, Constitution of India. Such questions have to be decided in appropriate proceedings taken for the purpose.

5. The petitioners are the beneficiaries in respect of the trust estate. They were not parties to the land acquisition proceedings at all. The receiver represented the interest of the beneficiaries at all material times and he was a party to these land acquisition proceedings. At the time the compensation money was paid to the receiver, the receiver had given an undertaking to refund the money if subsequently called upon to do so. The fact remains that the Land Acquisition Collector has called upon the receiver to carry out his undertaking and the receiver has agreed to do so. Not merely he has agreed but he has been directed by the Subordinate Judge to comply with the requisition of the Land Acquisition Collector. No steps have been taken to have the order of the learned Subordinate Judge which was passed after hearing the petitioners and in spite of the opposition, set aside or modified. But the petitioners have come forward to this Court in an application under Article 226, Constitution of India for having that order corrected. This relief the petitioners are not clearly entitled to in this application. The grievance of the petitioners is that they are affected by the conduct of the receiver who has acquiesced in carrying out the direction given by the Land Acquisition Collector for refund of the money. If they have any complaint against the conduct of the Receiver and have any grievance on that score, the proceeding under Article 226, Constitution of India is not the proper proceeding for ventilating such grievance.

6. It may be noted that no affidavit in reply has been filed on behalf of the petitioners to controvert the facts stated in the counter-affidavits filed by opposite parties 1 and 3. Dr. Sen Gupta submitted that as he is not asking this Court to enter into an investigation about the merits of the rival claims of the parties to the compensation money in question, his clients did not file any affidavit in reply. It is clear, however, from the materials before this Court that the receiver who represents the trust estate is not actively taking up any obstructive attitude so far as the carrying out of the directions of the Land Acquisition collector and the Subordinate Judge is concerned and in fact as officer of the Court he cannot do so. He applied for directions from the Court which was the proper thing for him to do and he has been directed to comply with the order of the Land Acquisition Collector. No objection to the order of the Land Acquisition Collector, or the order of the Subordinate Judge has been raised on behalf of the receiver. It is only the beneficiaries interested in the estate who are not parties to the Land Acquisition proceedings who have come up before this Court and are challenging the order of the Land Acquisition Collector directing refund of the money, although the receiver had given an undertaking to refund it.

7. I am given to understand that the Land Acquisition Collector has not yet come to a decision as to the merits of the claims of the rival claimants.

8. It has been contended by Dr. Sen Gupta that the Land Acquisition Collector having made an award in favour of the receiver, the award became final and conclusive under Section 12, Land Acquisition Act and after that there is no power in the Land Acquisition Collector to amend his award. He further contends that if any person is aggrieved by the award and does not accept the award,he may have the matter referred to the Court for determination of his objections as to the amount of compensation, as to the person to whom the compensation is payable and as regards the apportionment of the compensation money amongst the persons interested (Section 18), in the circumstances, Dr. Sen Gupta contends that the order amending the award was wholly without jurisdiction and so should be set aside. As I have pointed out before, the order of the Subordinate Judge directing the receiver to comply with the requisition of the Collector cannot be interfered with by this Court in this proceeding. What the Land Acquisition Collector has done is merely to call upon the receiver, who had already given an undertaking at the time he received the compensation money, to carry out his undertaking. The interest of the estate was being represented by the receiver and certain directions have been made upon him for refund of the money by the Subordinate Judge and the Collector. The petitioners are strangers to the land acquisition proceedings. It is not open to them to challenge the amendment of the award in this proceeding under Article 226, Constitution of India. I am of the view that this application is not maintainable at the instance of the present petitioners.

9. It was contended by Mr. Mazumdar, appearing for opposite party 1, that the land in question was acquired by the Government in the first instance under the Defence of India Rules for military purposes and it is in continuation of the proceedings taken for acquisition under the Defence of India Rules that steps under the Land Acquisition Act were taken and so the award is really an award in respect of the acquisition under the Defence of India Rules proceedings and so the provisions of the Code of Civil Procedure will apply and the Land Acquisition Collector has power to amend or correct the award as he has purported to do in this Case. This contention of Mr. Mazumdar is based on a misapprehension and cannot be accepted. It appears from the affidavit of opposite party 3 and the fact is also admitted by the learned Advocate for opposite party 3 that in fact a notice of derequisition was served upon opposite party 3 and the property was derequisitioned. But before possession was actually re-delivered to opposite party 3, proceedings under the Land Acquisition Act were started. In this state of facts, the matter must be governed by the provisions of the Land Acquisition Act and there is no question of Section 152 Civil P.C. applying to the facts of this case. Moreover, Section 152, Civil P.C. deals only with correction of clerical or arithmetical mistakes, or accidental slips or omissions. The nature of the amendment concerned cannot by any stretch of imagination be said to fall within the mistakes or slips as referred to in Section 152 of the Code.

10. I do think I shall be justified, in the facts and circumstances stated above and in the exercise of my discretion under Article 226, Constitution of India, in interfering with the order complained of.

11. The whole object of this application is to get round the effect of the order of the learned Subordinate Judge which was passed after contest by the petitioners (Para 14 of petition) by the indirect process of getting the order of amendment of the award, if it was amendment at all, set aside by this application under Article 226. It is a debatable matter whether the Land Acquisition Collector has at all amended the award or not. An undertaking was taken from the receiver to refund the money and the Land Acquisition Collector has purported to enforce the undertaking. That is all that has really taken place so far. I do not think that it is a bona fide application.

12. In the circumstances, this petition fails and the Rule must be discharged. The petitioners will pay two sets of costs, one to opposite party 1and the other to opposite party 3, the hearing feefor each set being assessed at one gold mohur.


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