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Nawab Bahadur of Murshidabad Vs. Kumar Dinendra Mullick - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1932Cal844,140Ind.Cas.866
AppellantNawab Bahadur of Murshidabad
RespondentKumar Dinendra Mullick
Cases ReferredKamini Debi v. Pramatha
Excerpt:
- .....of premises no. 8 esplanade east belonging to kumar dinendra mullick. certain properties of the nawab bahadur in calcutta known as moidaputty properties had been acquired on behalf of the calcutta improvement trust and the compensation money had been invested under section 32 (1) (b), land acquisition act in government securities (1933-5% bonds) of the face value . of rs. 14,68,200 producing an annual income of rs. 73,589. the acquired properties were part of those held by the nawab bahadur under the murshidabad act (15 of 1891) and the schedule to that act, whereby certain lands were settled for the maintenance and support of the nawab bahadur for the time being and for the maintenance of the honour and dignity of his station. it appears that in july 1930 an application on behalf of.....
Judgment:

Pearson, J.

1. This Rule has been obtained on behalf of the Nawab Bahadur of Murshidabad and is directed against an order of the President of the Calcutta Improvement Tribunal dated 2nd October 1931 whereby he directed the investment of a sum of Rs. 9,88,000 out of the compensation money at present invested in Government bonds in the purchase of premises No. 8 Esplanade East belonging to Kumar Dinendra Mullick. Certain properties of the Nawab Bahadur in Calcutta known as Moidaputty properties had been acquired on behalf of the Calcutta Improvement Trust and the compensation money had been invested under Section 32 (1) (b), Land Acquisition Act in Government securities (1933-5% bonds) of the face value . of Rs. 14,68,200 producing an annual income of Rs. 73,589. The acquired properties were part of those held by the Nawab Bahadur under the Murshidabad Act (15 of 1891) and the schedule to that Act, whereby certain lands were settled for the maintenance and support of the Nawab Bahadur for the time being and for the maintenance of the honour and dignity of his station. It appears that in July 1930 an application on behalf of the Nawab Bahadur was made to the President of the Tribunal for the purchase out of the compensation money of zamindari property belonging to one Surendra Nath Tagore. Subsequently other persons came in and made offers of Calcutta houses. Government opposed the purchase of the Tagore properties, and on 31st March 1931 the Nawab Bahadur applied that the investment in Government securities should not be disturbed and on 30th April formally withdrew his application for purchase of the Tagore zamindari.

2. On 11th May the President of the Tribunal directed that the compensation money should be invested in the purchase of some suitable properties in Calcutta and ordered the Land Acquisition Collector to inquire into those which had not yet been inquired into. On 19th June 1931 the Government of Bengal assumed control of the Nawab Bahadur's estate, and Mr. K. C. De was made manager. He is a retired member of the I. C. S. and was recently the member in charge of the Board of Revenue of the Government of Bengal. On the reports of the Land Acquisition Collector, the matter came up on 24th August 1931 before the President when representations were made on behalf of the Nawab Bahadur that the properties in question were not suitable, that the Collector's valuation was too high and that in any event the investment in Government bonda should remain at least until the bonds matured in 1923 and full value could be obtained for them. The attitude adopted by the Nawab Bahadur was also supported on this occasion by Government and Mr. K. C. De's memorandum dated 11th August 1931 is very strong on the point. On 2nd October 1931 the President directed that premises No. 8 Esplanade Bast belonging to Kumar Dinendra Mullick should be purchased for Rs. 9,83,000.

3. Certain facts have been emphasized upon the merits which would possibly have been of great weight if this were a first appeal. For instance, the Nawab Bahadur and the Government who between them are the persons really interested now present a united front in saying that this is not the time to invest in house property in Calcutta and that in any event the matter should be postponed till the bonds mature. They stand at present at a discount and a sale now would result in a loss of many thousands of rupees. It is said further that the President has only taken into account taxes and repairs in his estimate of the income from the premises, has made no allowance for discount on the bonds, stamp duty on the conveyance, the income-tax on the property, rental as compared with the bonds (which are income-tax free) or the fall in rental values. On a proper comparison of the investments it is further said that the income from the bonds is a clear Rs. 6,000 a year better than that from the property proposed and though the Advocate-General argues that the statute does not make the amount of income the deciding factor its importance cannot be doubted particularly where it is a question of maintaining the honour and dignity of the station of the Nawab Bahadur. Assuming that the President has not considered all these facts, important though they be it cannot be said that they would authorize us to interfere in revision.

4. Certain contentions have been raised before us however of a different nature. It has been argued that the order complained of is without jurisdiction because Section 32, Land Acquisition Act, does not apply to this case at all. The contention is one now raised for the first time though before the President the parties have made applications and the proceedings have all along been conducted on the footing that S.32 does apply. Be that as it may, the contention now made is that the section only applies to the case of money representing compensation for land in the case of 'any person who had no power to alienate the same' and that in the case of these lands the Secretary of State and the Nawab Bahadur jointly possessed such power of alienation so that the present case would not be within the section at all. But the Murshidabad Act (15 of 1891) in the indenture of settlement which is the schedule to the Act specifically provides that the Nawab Bahadur shall not 'sell mortgage devise or alienate' the properties otherwise than by lease or demise the terms and conditions of which have been previously approved by the Governor of Bengal in Council,' (amending Act 25 of 1923) and in case the Nawab Bahadur does attempt to go against that provision the indenture gives power to the Secretary of State to enter into possession of the properties and realize the rents, issues and profits. There is nothing here to confer any right of ownership or disposition on the Secretary of State with or without the concurrence of the Nawab Bahadur: the latter continues as a limited owner but with the income intercepted in certain contingencies: see Wasif Ali Mirza v. Karnani Industrial Bank . It appears therefore to be a case where the provisions of Section 32 would be applicable and this contention therefore fails.

5. A further contention based on the construction of Section 32 is as follows, and also appears to have been raised in these proceedings now for the first time. It is said that once the alternative in Section 32 (b) has been adopted and the money invested in Government securities, there is no power expressly to be found in Section 32 whereby the Judge or anybody else can order the money to be re-invested in the purchase of land. There is however the definite provision that the money, if invested, is to remain so until the same be applied in the purchase of such other lands aforesaid;' and from that it appears clear that some authority has power to pass orders to give effect to that provision of the section. It has however been argued farther that even in that case the authority in question would not be the Judge but the Collector, and that it is no part of the duty of the Judge to negotiate for sale or fix the value. In this connexion our attention is drawn to a resolution of 10th May 1896 in which the Government of India laid it down that under Section 32:

purchases of land should be effected under the Court's order through the Collector or other revenue authority of the province.

6. On the other hand it may well be doubted whether this is intended to say more than that once the Court has made an order for purchase, the details of carrying the order into effect upon such matters as investigation of title and settling the conveyance are to be left for the Collector to carry out. We may refer to the judgment of Suhrawardy and Jack, JJ., in this same matter dated 15th December 1930, where it is said inter alia that

the President of the tribunal has the discretion to inquire into the value of the various offers made to him and to decide the best mode in which the money should be invested.

7. We may also refer to the passage in Kamini Debi v. Pramatha [1912] 39 Cal. 33 at p. 49 where it is said that

upon first principles the position may be justified that as under Section 32, the fund is placed in the custody of the Court jurisdiction is by implication conferred upon the Court to deal with all questions that may arise as to the application of the fund in its custody.

8. We think therefore that the President had jurisdiction to make the inquiry he did and to pass orders thereon. Next, it is contended, that the procedure adopted by the President was wrong mainly in two respects: firstly, that he allowed the prospective sellers to be parties to the proceedings before him; and secondly, that the figure of 9,83,000 was arrived at in an irregular manner. As regards the first point it has already been laid down by this Court in the order of 15th December 1930, above referred to that the parties interested in the properties forming the subject-matter of investigation are not parties to the proceedings under the Act, and that the President was wrong in allowing them to appear before him and treating them as parties. Nevertheless it appears that the sellers were allowed to appear before the tribunal subsequently, and complaint is now again made of this by the petitioner. From the order of the learned President it appears that on 17th August 1931 he allowed the advocates of the rival sellers to appear before him. He explains that this was only done because he was in need of information from them regarding the various properties and wanted their help in examining the merits of their respective offers: he did not allow their appearance at the final hearing.

9. Then lastly, it is contended that the learned President adopted an illegal procedure in ascertaining the value of this property along with the others. He referred to the Collector in the first instance and that officer fixed it at Rupees 9,72,000. The learned President says that considering all the circumstances and certain discrepancies between the various valuations put forward, he thought it best to obtain an independent valuation of the rival properties by an outside expert. Accordingly after the close of the whole of the case he placed the matter in the hands of Mr. Hingston and on receipt of his report passed his order on the basis of it, without giving the parties concerned--the Nawab Bahadur and the Government--any opportunity of examining the report or cross-examining Mr. Hingston or making their submissions upon it. Mr. Kingston's valuation of these premises went up to Rs. 9,83,000 and that is the figure accepted by the Judge. It is Rs. 11,000 higher than the Collector's figure and though that is not perhaps a big sum compared with the total valuation, it is in itself a large amount and a substantial one. The President in these proceedings was a Judge and was bound to exercise his functions in a judicial manner, whereas in adopting this procedure he has clearly acted illegally, and substantial prejudice has resulted to the party. The Rule must be made absolute. The order of the learned President which has been challenged in this rule is dated 2nd October 1931. Having regard to the time which has since elapsed and the possibility of changed conditions at; the present moment, the whole matter should be left open from the beginning and the learned President should consider afresh in the first instance whether it is at all desirable or advantageous at this time to direct investment in landed property at all, especially in view of the expressed wishes of the Nawab Bahadur and the Government, whose bona fides can hardly be impugned.

Mallik, J.

10. I agree.


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