1. This is an application under Section 115, Civil P. C, as well as under Section 107, Government of India Act, on behalf of one Sarala Debi against an order of the President of the Calcutta Improvement Tribunal dismissing her application by which she objected to the re-investment of certain Government securities which were deposited under the provisions of Section 32, Land Acquisition Act, for the purchase of land. The proceeding originated with a notice which was given by the President on 22nd March 1934 to the petitioner to the following effect:
Whereas a sum of Rs. 33,210-15-6 was remitted to this Court by the Land Acquisition Collector, Calcutta, for deposit under Section 81, Land Acquisition Act, and whereas Government Promissory Notes for Rs. 48,600 is now held in deposit to your credit in the above case, you are hereby required to show cause on the day of 5th April 1934, why the said sum should not be applied in whole or in part, in the purchase of lands in accordance with the provisions of Section 32 of the said Act. Failing such cause being shown the matter will be disposed of in your absence. Particulars are obtainable at this office of suitable lands for investment belonging to the Calcutta Improvement Trust, and of other lands offered by parties for sale.
2. On receipt of this notice the petitioner who is a Hindu widow and who has got the Hindu widow's estate in the lands which were acquired and compensation money in respect whereof was not paid to the petitioner but wa3 deposited with the President of the Improvement Tribunal raised an objection to the reinvestment of the securities in the purchase of land. No notice was given to the immediate reversioner who was the petitioner's daughter and to the ultimate reversioners, namely her daughter's, sons. The President of the Tribunal by the order which is the subject matter of this rule refused the objections of the petitioner to the application of the Government securities in the purchase of lands. The learned President was of opinion that having regard to Section 32, Land Acquisition Act, he had no option but to direct a change in the investment. The President says this:
The language of Section 32 is plain and imperative in directing the Court to invest the compensation money in land and the doing of that act is not made conditional on any action to be taken by any party. I am of opinion therefore that as suitable properties are available now, the Court must change the investment, and apply the compensation money in the purchase of other land under like title and conditions of ownership as the land in respect of which such money has been deposited.
3. It seems to us that in issuing the notice dated 2nd March 1934 the learned President was assuming jurisdiction under a wrong view of the law. It appears from, the plain reading of the statute that it is not incumbent on the learned President of the Tribunal under that section to direct a re-investment in land, the investment having been made so far back as 20 years from now in approved Government securities. It becomes necessary to consider the language of the section for the proper construction which is to be put upon Section 32. Section 32 of the Act runs as follows:
If any money shall be deposited in Court under Sub-section (2) of the last preceding section and it appears that the land in respect whereof the same was awarded belonged to any person who had no power to alienate the same, the Court shall (a) order the money to be invested in the purchase of other lands to be held under the like title and conditions of ownership as the land in respect of which such money shall have been deposited was held, or (b) if such purchase cannot be effected forthwith, then in such Government or other approved securities as the Court shall think fit; and shall direct the payment of the interest or other proceeds arising from such investment to the person or persons who would for the time being have been entitled to the possession of the said land, and such money shall remain so deposited and invested until the same is applied: (i) in the purchase of such other lands as aforesaid; or (ii) in payment to any person or persons becoming absolutely entitled thereto.
4. We are concerned in the present case with Section 32(b) for the purchase could not be effected at the time when the compensation money had been deposited. The former President of the Tribunal directed that the money should be invested in approved securities. The question that arises is as to whether having regard to Clause (1)(b) it can be said that as the President has said that the statute makes it obligatory on him to direct that the money be applied in the purchase of such other lands as aforesaid, that is in the manner provided for in Clause (i). We are of opinion that there is no such obligation, for the next clause which follows Clause (i), that is Clause (ii), runs as follows:
Or in payment to person or persons becoming absolutely entitled thereto.
5. It shows that the President of the Tribunal might wait till the reversion falls in or any person or persons becoming absolutely entitled to the money. Two alternative cases are contemplated: the security be applied either (i) in the purchase of such other lands as said in Clause (a) or (ii) in payment to any person or persons becoming absolutely entitled to the money.
6. These two clauses show that a discretion is vested in the President of the Tribunal either to apply the money in the purchase of such other lands or to wait till the reversion falls in. A proper reading of Section 32 makes it clear that the view of the learned President that there is a statutory obligation for re-investment is wrong. The matter, it is true, rests in his discretion but the discretion must be exercised on correct judicial principle. One of the elements which should be taken into account in the exercise of such discretion is as to whether the parties who are vitally interested in the compensation money have really asked for a re-investment in land. In the present case neither the lady, the applicant before us, nor the next reversioner, the daughter, nor the ultimate reversioners, the daughter's sons, have applied for a re-investment in land. We do not think that in the circumstances having regard to the fact that it was considered wise by his predecessor in office that the money should remain at least for a period of twenty years in Government securities, it could be said that he was exercising proper discretion in directing them to be invested in land. The question as to whether suitable land is available or not is a question between the parties themselves. But as we have already said the learned President had no jurisdiction to issue notice to the petitioner in the way in which it has been done in this particular case. That ia sufficient to entitle us to set aside his order and to entitle us to look to the facts of the case and to see if we would be properly exercising our discretion in directing a re-investment.
7. Having regard to the circumstances mentioned above we do not think that it would be right to direct a re-investment in lands, and more particularly, having regard to the low state of the market with regard to the value of the land. Lands do not fetch now the same value as they used to do say five or ten years ago. Mr. Biswas has contended broadly that according to the provisions of Section 32(b) it would appear that the President of the Tribunal cannot take any action under Clause (i) unless he is moved by the party's interest; and his argument is based on the provisions of the English statute which are said to have been reproduced substantially in Section 32 Land Acquisition Act. We are referred in this connection to a decision of this Court in Kamini Devi v. Pramatha Nath Mookerjee (1912) 39 Cal 33 and our attention was drawn to a passage in p. 40 of the said report where it is said:
Now in the case before us, Section 69 of the Lands Clauses Consolidation Act, 1845, upon which Section 32, Land Acquisition Act, is modelled, provides (we need only quote so much of the section as is relevant to our present purpose) as follows:
8. Then begins the quotation:
Now it is said that when one looks to the language of the clause it would appear that such money may be so applied as aforesaid upon an order of the Court of Chancery made on the petition of the party who would have been entitled to the rents and profits of the lands in respect of which such money shall have been deposited; and until the money can be so applied it may, upon the like order, be invested by the said accountant general in the purchase of three per centum consolidated or three per centum reduced bank annuities, or in Government or real securities, and the interest, dividends, and annual proceeds thereof paid to the party who would for the time being have been entitled to the rents and profits of the lands.
9. It is contended with reference to the compensation money that such money should be applied to the purchase of lands on the petition of the parties. Only as in England and it is desirable to look to the intention of the farmers of the Land Acquisition Act when enacting Section 32(a), it is difficult in the absence of an express provision in the statute to accede to this contention. But we are bound to observe that the President of the Tribunal should not exercise discretion unless he is moved by the parties who are vitally interested in the compensation money. The whole object, was to preserve the money for the benefit of the eventual reversioners. It is only reasonable to suppose that the President should not ordinarily move unless the person interested come forward and ask for re-investment of the security in land.
10. We are told by Mr. Biswas that the practice which is followed by the President of the Tribunal is that a list is hung up of a large number of immovable properties belonging to the Improvement Trust and also private owners as being lands suitable for investment and after that the limited owners are asked to show cause why the money should not be re-invested in such lands. To adopt a practice of the kind adopted by the President of the Tribunal would lead to harmful results if the limited owners are not allowed opportunities to closely examine their advantages and disadvantages by the intended re-investment. With these observations this rule must be made absolute and the order of the learned President dated 9th June 1934 must be set aside. We are of opinion that the moneys should lie where they are invested in Government or approved securities.
11. I agree.