1. This Rule arises out of certain proceedings under the Land Acquisition Act.
2. The petitioner alleged that he is the owner of a salt godown, for the efficient working of which the land in front is required, and that the Deputy Collector has acquired that frontal land without making a reference, as prayed, to the Civil Court under Section 49 of the Land Acquisition Act I of 1894.
3. We are invited in this Rule to set aside the order of the Deputy Collector dated the 22nd September 1910 and his proceedings up to, and including, an order of the 24th May 1911 wherein he refused to make a reference under Section 18 of the Act on the ground that the case had been completed and the award confirmed.
4. It appears that the 19th September 1910 was the date fixed by the Deputy Collector for claims to be put in. On that day, no claim was preferred nor was any petition for time filed. The order-sheet of the Deputy Collector is exceedingly brief and does not embody the details mentioned in his letter of explanation No. 1977 I.A., dated the 23rd August 1911, upon which the learned Senior Government Pleader showing cause relies. However that may be, orders were reserved on the 29th September 1910, and the award in this connection was not made until the 21st November 1910. The application of the petitioner praying for a reference under Section 49 of the Act bears date the 21st September 1910, and, apparently, reached the Deputy Collector through the post. There are two orders on this petition, the first order is 'File with the record,' the second order which is over a date 22nd September 1910 which has been altered, or inked over, is to the following effect: 'I have seen the land and godown. The godown is now closed and no business is being done there now. The land which is now under acquisition is not in the front of the building and its acquisition will not interfere with the business if the petitioner intends to start business at any future date. The petition is, therefore, rejected. Besides, the time for filing such petition has expired.' In this view of the matter, the Deputy Collector proceeded to complete the proceedings and possession was duly given of the land in question to the Eastern Bengal State Railway.
5. The first question that arises upon this Rule is whether the Land Acquisition Deputy Collector is subject to the extraordinary jurisdiction of this Court.
6. We have been referred to the cases of the Administrator-General of Bengal v. The Land Acquisition Deputy Collector 24-Pergannahs 12 C.W.N. 241 and British Steam Navigation Co. v. Secretary of State for India 8 Ind. 107 : 12 C.L.J. 505 : 15 C.W.N. 87 : 38 C. 230. In the present state of the law, we cannot do otherwise than follow the decision of Henderson and Mitra, JJ., in Administrator-General of Bengal v. The Land Acquisition Deputy Collector 24 Pergannahs 12 C.W.N. 241. It would, obviously, be unjust that the Deputy Collector should refuse to obey the provisions of the Act, and to provide no remedy for the correction of his mistaken action; where the law gives a right to a party to a certain procedure, it must also be deemed to give a remedy for the rectification of any irregularities committed in that connection. Section 49 of the Act clearly leaves no option to the Collector. It says 'he shall refer to the determination of such question (whether any land proposed to be taken under this Act does or does not form part of a house, manufactory or building) to the Civil Court.' He appears to have recognised the applicability of sect-ion 49 by framing the second order of the 22nd September 1910 which we have already re-produced. We entertain no doubt, therefore, that we have jurisdiction to set right the error committed by the Deputy Collector in not making a reference under Section 49.
7. The second question involved in this Rule is whether the petitioner is an owner of any house, manufactory or building, a part of which house, manufactory or building is being acquired.
8. The word owner is not defined in, the Act, but an owner must be declared to be one of the persons interested in the land being acquired [see Section 3(6) of Act I of 1894], Reading Section 10 of the Act we think that the proprietor, sub-proprietor, mortgagee, tenant or subtenant are all owners for the purposes of Section 49. The petitioner is an under-tenant of some kind. He is, therefore, admittedly, interested in the acquisition of the land, which for the purposes of Section 49, until the Civil Court finds otherwise, may be presumed to be part of his salt go-down.
9. The question for inquiry will be whether the piece of land in front of the godown forms the only means of approach to that godown or is reasonably necessary for the proper working of the salt business.
10. We, therefore, think that the petitioner was competent to apply -under Section 49 for a reference to the Civil Court.
11. The third contention of the learned senior Government Pleader is that the application for a reference was not filed in time. The first proviso to Section 49, however, says that the owner may, at any time before the Collector has made his award, withdraw his application, and it would follow that it was equally open to the petitioner to make a substantive application for a reference at some time before the award was actually made, that is, before the 21st November 1910. As a matter of fact, he made his application two months earlier, that is, on the 21st September 1910, and the Deputy Collector dealt with it on its merits by recording his second order after a local inquiry.
12. It is unfortunate that the Deputy Collector overlooked the imperative language of the second proviso to Section 49. We have no alternative but to set aside his proceedings from, and after, the 22nd September 1910, and to direct him to proceed in accordance with law under Section 49 of the Land Acquisition Act: whether any reference will be necessary under Section 13 is a matter contingent upon the decision of the Civil Court as to whether the land does or does not form part of the petitioner's salt go-down.
13. The Rule is made absolute. There will be no costs in this matter.