Wilson and Tottenham, JJ.
1. The course which the proceedings in this case have taken is in many respects unfortunate and it has led to very undesirable results. It appears that land was taken up for a public purpose and that some part of the land so taken up belonged to an estate of which the Official Receiver of this Court on its Original Side was appointed Receiver. The usual notices were issued, and particularly a notice issued calling upon that gentleman to put in his claim and to nominate his assessor, if he desired it, and be prepared to proceed with the hearing, all of which events were fixed for the 19 th January of this year, the notice having been issued on the 22nd December.
2. Two days before the 19th January, that is to say, on the 17th, the pleader who represented the Receiver applied to the Judge, to whom a reference to assess compensation had been made, and asked for somereasonable postponement to a day later than the 19th, but he omitted to give notice of that application to the Government Pleader on the other side. We assume that what is stated to have been said by the Judge as his recollection of what passed on that occasion, viz., the 17th, is strictly accurate; that his memory is clear; and that he did not give the pleader to understand that his application would be granted if renewed on the 19th; and ft is in accordance with that, that in the order sheet there is no entry under date the 17th. But it is equally clear that the pleader did understand, no doubt by mistake, the Judge to have given him reason to suppose that, when his application for the adjournment came on the 19th, it would be granted. That is clear from two things: first, that he did not give notice to the assessor, whom he had appointed, to attend on the 19th, and, secondly, horn the fact that the counsel whom he instructed was specially notified that he need not attend on the 19th. The matter came on the 19th, and the application for an adjournment was renewed. In the first instance the pleader who represented the other side assented to an adjournment subject to payment of the costs of the day, and that arrangement would have been carried out, but the pleader of that gentleman intervened and objected to any adjournment, and, on that, the Judge refused the adjournment. It is unfortunate that the case was thus forced on when one of the parties, having been misled, was placed at a disadvantage. Having refused the adjournment the Judge appears to have called upon the claimant's pleader to nominate an assessor. The claimant's pleader, as appears from his affidavit and the Receiver's affidavit, stated that he had already nominated a gentleman and could not nominate another. The Junior Government pleader in his affidavit says he does not recollect this to have been mentioned; but inasmuch as we know it to have been a fact that an assessor had been appointed, and it would have been but natural to mention the fact, we think we must take it that this statement was made. The claimant's pleader not having nominated another assessor, the Judge nominated one on his behalf, and proceeded then and there to inquire into the amount of the compensation. The claimant's pleader appears at that stage' to have left the Court and the case was decided on the evidence of two witnesses called apparently by the Government pleader. The result was that the assessors, one of whom was nominated in the way I have mentioned, on the evidence of these two witnesses, came to the conclusion that the offer made by the Collector was enough and more than enough, and the decision was accordingly given against the claimant.
3. Now it is obviously a very unfortunate thing that the case should have been decided in that way, that is to say, that by reason of a bond fide mistake on the part of those who represented the claimant, the value to be awarded to him for his land should have been assessed ex parte and substantially without any real trial. That is a result we should not allow to stand if we could, consistently with fair administration of the law and without straining it in any way, set it aside.
4. There is one defect in the proceedings, which, as it goes to the very root of what took place, makes it our duty to intervene in this matter. There are two or three sections in the Laud Acquisition Act which have to be referred to. Section 19 deals with notices and the other proceedings which are prescribed for bringing the parties together finally before the Judge. Section 20 says: 'In case of failure to nominate either of such assessors within the time so specified, the Judge shall himself appoint an assessor in his stead.' That clearly applies to a case where either party has made default in appointing an assessor. That is not the present case, because the claimant had nominated his assessor. Then Section 21 says: 'As soon as the assessors have been appointed, the Judge and the assessors shall proceed to determine the amount of the compensation.' Section 22 says: 'If before such amount is determined, any of the assessors dies or desires to be discharged or refuses or neglects or becomes incapable to act, the party by whom he was appointed may appoint some other qualified person to act in his place.' Then it says: In the case of an assessor appointed by either party, if for the space of seven days after notice from the Court for that purpose, the party who appointed such assessor fails to appoint another, the Judge shall appoint some other qualified person in his stead.' The provision of these sections, which seems to apply to this case, is that, 'If any assessor, already appointed, neglects to act, the Judge shall, after seven days' notice, appoint another person in his place.' Therefore, in the present case, assuming that the absence of the claimant's assessor amounted to a neglect to act, then after seven days' notice, not before, the Judge could have appointed an assessor in his place. A fresh assessor having been appointed on the day of hearing, without seven days' notice to the claimant, which Section 22 contemplates, the proceeding was opposed to the terms of this section.
5. On this ground, we think, we are bound to set aside the proceedings from the date at which the parties came before the Judge on the 19th January, and to direct that from that period they be resumed and proceeded with in accordance with law.