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Asmaboo Kurban HossaIn and ors. Vs. Province of Bengal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1942Cal569
AppellantAsmaboo Kurban HossaIn and ors.
RespondentProvince of Bengal
Cases ReferredState v. Hindustan Co
Excerpt:
- .....sum of about rs. 95,000 as compensation for the said premises. there was a reference taken to the calcutta improvement tribunal at the instance of the petitioners who were not satisfied with the award and the tribunal by its order dated 6th august 1940, enhanced the award of the collector by rs. 59512-8-0. there is no dispute that the original sum given as compensation by the collector has been paid to the petitioner : but as they were not paid as yet the additional amount allowed by the tribunal, they made an application to the president of the tribunal on 24th march 1941, praying for an order directing the province of bengal to deposit the said additional amount in court. in the alternative, it was prayed that a certificate of non-satisfaction of the award together with a copy of the.....
Judgment:

B.K. Mukherjea, J.

1. This rule is directed against an order of the President of the Calcutta Improvement Trust Tribunal dated 10th April 1942, passed in connexion with an application made by the petitioners, in whose favour an award was made by the Tribunal, for transmission of a certificate of non-satisfaction of the award to the Calcutta Small Causes Court, under this following circumstances : The petitioners were the owners of premises Nos. 1-A and 1-B, Pollock Street in the town of Calcutta which were acquired by the Board of Trustees for the Improvement of Calcutta and the Land Acquisition Collector made an award for a sum of about Rs. 95,000 as compensation for the said premises. There was a reference taken to the Calcutta Improvement Tribunal at the instance of the petitioners who were not satisfied with the award and the Tribunal by its order dated 6th August 1940, enhanced the award of the Collector by Rs. 59512-8-0. There is no dispute that the original sum given as compensation by the Collector has been paid to the petitioner : but as they were not paid as yet the additional amount allowed by the Tribunal, they made an application to the President of the Tribunal on 24th March 1941, praying for an order directing the Province of Bengal to deposit the said additional amount in Court. In the alternative, it was prayed that a certificate of non-satisfaction of the award together with a copy of the same might be transmitted to the Calcutta Small Causes Court with a view to enable the petitioners to execute the award under Section 77(2), Calcutta Improvement Act. This application was disposed of by the President by an order dated 6th June 1941, and the material portion of that order stands as follows:

Heard Mr. P.K. Mukherjee, Pleader, appearing for the petitioners as well as Mr. L.M. Bakshi, Advocate, appearing for the Province of Bengal. Under Section 77(2), Calcutta Improvement Act, Mr. Mukherjee's clients have got ample remedy in the Calcutta Small Causes Court to have the award of the Tribunal executed through that Court. Accordingly, this application is dismissed. In case of any difficulty arising in the execution proceedings before the Small Causes Court Mr. Mukherjee on behalf of his clients will be at liberty to apply to this Court for necessary orders.

2. On 18th March 1942, the matter was again brought to; the notice of the President, Calcutta Improvement Tribunal,. and it was represented on behalf of the petitioners that unless a certificate of non satisfaction together with a copy of the award wag sent by the Tribunal of the Calcutta Small Causes Court, no steps could be taken for execution of the award in that Court as contemplated by Section 77(2), Calcutta Improvement Act. The matter was heard by the President in the presence of the Government Advocate on 10th April 1942, and it was held by him that in the matter of realising the money payable under the award, the procedure laid down in Section 82, Civil P.C., ought to be followed. Accordingly, it was ordered that the amount awarded should be paid within three months from that date and if the Province of Bengal did not pay the amount within the time aforesaid, the Court would under Section 82 of the Code report the matter for orders of the Local Government. The application of the petitioners for a certificate under Order 21, Rule 6, Civil P.C., was dismissed as being premature. It is against this order that the present rule has been obtained.

3. It seems to me, on hearing the learned advocates on both sides, that Section 82; Civil P.C., has got no application to an award made by the Improvement Trust Tribunal on a reference made to it by the Land Acquisition Collector of Calcutta. Section 82 occurs in Part 4, Civil P.C., which deals with suits in particular cases, and Sections 79 to 82 of that Chapter are devoted to suits by or against the Crown or public officers in their official capacity. Section 79 lays down how the authorities are to be described in a suit by or against the Crown. Section 80 provides that no suit shall be instituted against the Crown or any public officer in respect of any act purporting to be done by such officer in his official capacity until the expiration of two months next after a notice in writing, in terms of the section, was served upon the Crown or the public officer as the case may be. Section 81 exempts a public officer who is thus sued from arrest and personal appearance. Section 82 then lays down that when the decree is against the Crown or against a public officer in respect of any such act as aforesaid, a time shall be specified in the decree within which it shall be satisfied; and if the decree is not satisfied within the time so specified, the Court shall report the case for orders of the Provincial Government, It further provides that execution shall not be issued on any such decree unless it remains unsatisfied for the period of three months computed from the date of such report. Thus it seems clear that Section 82 is confined to decrees passed in suits which are referred to in previous sections and which can only be instituted after service of notice under Section 80, Civil P.C. The object of the section undoubtedly is to allow time and opportunity to the Crown or public officers to satisfy the decree amicably before execution proceedings are allowed to be started against them.

4. I do not think that this provision can be applied to an award made by the Improvement Trust Tribunal. Under Section 71, Clause (d), Calcutta Improvement Act, the award of the tribunal shall be deemed to be the award of the Court under the Land Acquisition Act, 1894. Section 26 of that Act prescribes the form of an award to be made by the Court. It lays down that the award shall be in writing signed by the Judge and shall specify the amount awarded by Clause (i) of Sub-section (1) of Section 23 and also the amounts respectively awarded under each of the other clauses of the same Sub-section. Section 77, Clause (2), Calcutta Improvement Act, provides that every award of the tribunal and every order made by the tribunal for the payment of money shall be enforced by the Court of Small Causes of Calcutta as if it were a decree of that Court. I am inclined to think that an award made by the tribunal is not a decree at all for purposes of the Civil Procedure Code. It simply specifies the amount of compensation that is allowed to the claimant under several heads and the grounds of awarding the said amount. Power is given to the Calcutta Small Causes Court to enforce the award as if it were a decree of that Court; but as a matter of fact it is not a decree of that Court or of the Court which actually made it. It is true that by Act 19 of 1921, Sub-section (2) was added to Section 26, Land Acquisition Act of 1894, and this Sub-section provides that every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of Section 2, Clause (ii) and Section 2, Clause (ix) respectively, Civil P.C., 1908. But as was held by their Lordships of the Judicial Committee in Secy., of State v. Hindustan Co-operative Insurance Society Ltd. , the Calcutta Improvement Act is a self contained Act and it merely incorporates certain provisions from the Land Acquisition Act, 1894, and it was only for convenience of drafting that the reference was so made instead of setting out in extenso the provisions which it was desired to adopt. Sub-section (2) of Section 26 which was introduced by the amending Act of 1921 cannot therefore be taken as a part of the Calcutta Improvement Act of 1911.

5. But even assuming for the sake of argument that an award made by the tribunal is a decree, it is not a decree to which Section 82 is applicable. Here there was no suit against the Crown or any Public Officer as such as contemplated by Part IV, Civil P.C., and which could only be instituted after service of notice under Section 80 of the Code. The Collector made an award allowing compensation for land compulsorily acquired under statutory powers and the party aggrieved exercised his right of having a reference to the tribunal, which has the right of making the final award. There was no suit and no decree against the Crown, though the award could be enforced as if it was a decree. But though I hold that Section 82 is not applicable to the present case, I think at the same time that the petitioners have no right to ask the tribunal to transmit a copy of the award together with a certificate of non-satisfaction to the Calcutta Small Causes Court. Under Section 77, Clause (2), Calcutta Improvement Act, the award of the tribunal is to be executed by the Small Causes Court as if it were a decree made by that Court. This clearly shows that the Small Causes Court is not to be deemed to be a transferee Court within the meaning of Section 38, Civil P.C., and the procedure laid down in Order 21, Rule 6 of the Code would have no application to such cases. The result, therefore, is that the rule is made absolute in part. I hold that the provisions of Section 82 of the Code have got no application in the case of an award made by the Improvement Trust Tribunal. I hold at the same time that no application for transmission of a certificate of non-satisfaction could be made by the petitioners and the award has to be enforced as if it were a decree made by the Calcutta Small Causes Court itself. The rule is disposed of in these terms. We make no order as to costs in this rule.

Sen, J.

6. Two questions arise for consideration in this rule, viz.: (1) Is an award made by the tribunal constituted by the Calcutta Improvement Act governed by Section 82, Civil P.C. 1 and (2) Is it necessary for a party in whose favour an award has been made to obtain a certificate of non-satisfaction before he can get the award executed by the Court of Small Causes 1 In my opinion both questions must be answered in the negative. The questions have arisen out of the following circumstances. Property belonging to the petitioners was acquired by the Calcutta Improvement Trust. The amount of compensation awarded by the Collector did not satisfy the petitioners. The case was accordingly referred to the tribunal and the compensation was enhanced by that body. The petitioners now seek to realize the amount awarded. They applied for a certificate of non-satisfaction with a copy award. The President of the tribunal refused to issue such a certificate holding that the petitioners under Section 77 (b), Calcutta Improvement Act could get the award executed by the Court of Small Causes with, out such certificate. The petitioners were given liberty to apply for further orders if necessary. They applied again for a certificate and this application was heard on notice to the Province of Bengal who appeared. When this application was heard it was urged on behalf of the Province of Bengal that the award could not be executed inasmuch as Section 82, Civil P.C., was a bar to its immediate execution. Section 82, Civil P.C., is as follows:

(1) Where the decree is against the Crown or against a pubic officer in respect of any such act as aforesaid, a time shall be specified in the decree within which it shall be satisfied; and, if the decree is not satisfied within the time so specified, the Court shall report the case for the orders of the Provincial Government.

(2) Execution shall not be issued on any such decree unless it remains unsatisfied for the period of three months computed from the date of such report.

7. It was argued on behalf of the Province of Bengal that the award must be deemed to be a decree against the Province of Bengal and that it was therefore necessary for the Tribunal to specify a period in the award within which it had to be satisfied and that until that was done the award could not be executed. This view was accepted by the learned President of the Tribunal and the award was amended by inserting therein a statement that the money should be paid by the Province of Bengal within three months from the date of the amendment. The learned President also decided that if the money was not paid within that time the Tribunal would report the matter for the orders of the Local Government. The learned President did not decide whether a certificate of non-satisfaction was necessary or not; but said that the application for a certificate 'at the present stage' was dismissed.

8. On behalf of the petitioners, it is contended that the Code of Civil Procedure does not apply to an award and even if it did, Section 82, Civil P.C. had no application to it as the award was not a decree. It was also urged that a certificate of non-satisfaction was necessary. On behalf of the Province of Bengal our attention was drawn to provisions of Sections 69, 70 and 71, Calcutta Improvement Act, and it was argued that the provisions of these sections clearly indicate that the Tribunal constituted a Court which was bound to follow the procedure which the Court constituted by the Land Acquisition Act was directed to follow by that Act, with this exception that Section 54 of the aforesaid Act did not apply to an award of the Tribunal. Next it was pointed out that by reason of the provisions of Section 53, Land Acquisition Act, the Court under that Act was bound to follow the procedure laid down in the Civil Procedure Code. The result of these provisions, according to learned advocate for the Province of Bengal was that the Civil Procedure Code applied to the proceedings before the Tribunal and the award constituted a decree which was affected by the provisions of Section 82 of the Code, it being an award or decree against the Province of Bengal.

9. It is not necessary to decide the wide question whether the Code of Civil Procedure applies to proceedings before the Tribunal, inasmuch as, in my opinion, Section 82 of the Code can have no application to this award. Section 82 is a section which appears in Part. 4 of the Code which is headed Suits in particular cases'. Part 4 of the Code is sub-divided into three parts under three distinct headings, viz, (a) Suits by or against the Crown of Public Officers in their official capacity. (b) Suits by aliens and by or against foreign and native rulers, (c) inter pleader suits. Sections 79 to 82 deal with suits under part (a), Sections 83 to 87 with suits under part (b) and Section 88 with suits under part (c).

10. It is thus clear that Section 82 applies only when there is a suit against the Crown or Public Officer and a decree is passed against the Crown or Public Officer in that suit. In the present case there has been no suit against the Crown or Public Officer or against anybody at all. The Collector has awarded compensation for land acquired under the Calcutta Improvement Act. This award has not been accepted and he has referred the matter for determination to the tribunal which has now made its award. The award is executable as a decree but it is certainly not a decree made in a suit against the Crown or a Public Officer. Section 82 therefore has no application to this award and the learned President of the tribunal was wrong in amending it in the way that he has done.

11. I next turn to the question whether a certificate of non-satisfaction is necessary. Order 21, Rule 6 deals with this matter. It says that when one Court sends a decree for execution to another it shall send that Court a copy of the decree, a certificate of no satisfaction and a copy of any order for the execution of the decree or if no such order has been made a certificate to that effect. These certificates and particulars are required when a decree is transferred from the Court which passed it to another Court for execution. The reason for issuing these certificates is this. The Court which sends the decree for execution had the power to execute it, it is therefore necessary to apprise the transferee Court either that the decree has not been satisfied at all by execution within the jurisdiction of the Court which sends the decree or if it has been satisfied in part by execution to what extent it has been so satisfied. If this is not done mistakes may arise. But in the case of this award no such mistake can arise; the tribunal which made the award is not competent to execute it at all. The only Court that can execute it is the Court of Small Causes; no necessity therefore arises for the tribunal to send any certificate of non-satisfaction to that Court. Again the award is not sent by the tribunal to the Court of Small Causes for execution. The tribunal makes the award and the law provides that the Court of Small Causes shall enforce it as if it were a decree passed by it: vide Section 77(2), Calcutta Improvement Act. Order 21, B. 6 has no application and the petitioners' prayer for a certificate of non-satisfaction must be rejected. I agree with, the order which has been passed by my learned brother for the reasons stated above.


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