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Mahesh Missir v. Province Of Bengal

Calcutta High Court
May 24, 1939
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Structured Summary of the Opinion (Mukherjea, J. and Roxburgh, J.)

Factual and Procedural Background

Premises No. 40, Lake Road (6 bighâs 5 cottâs 6 chhitâks) were scheduled for acquisition under the Land Acquisition Act as adapted by the Calcutta Improvement Act by declaration dated June 19, 1937. The owner, Saradindu Mukherji, applied under s.78 of the Calcutta Improvement Act for exemption of the property; that application was rejected. On January 24, 1939 an agreement was entered into between the owner and the Board of Trustees under which a portion of the premises (58 cottâs 12 chhitâks — the "blue" plot) was to be acquired and the remaining portion (66 cottâs 12 chhitâks — the "pink" plot) was to be exempted from acquisition.

The Collector thereafter initiated proceedings to acquire only the blue plot. The petitioners, described as occupants with huts on the pink portion, applied to the Collector asserting that the land proposed for acquisition contained part of the access to their structures and carried filtered water connections and drains crucial to their huts; they also claimed a right to use the tank and jhil water in premises No. 40 and 40/1. Because those access and water connections were said to be integral to the huts on the excluded (pink) portion, they prayed that those huts be acquired as well.

The Collector made a Reference to the Calcutta Improvement Tribunal under s.49(1) of the Land Acquisition Act asking whether the portion intended to be acquired formed part of the petitioners' house within the meaning of s.49. The Tribunal, by order dated April 18, 1939, rejected the Reference as incompetent. The present Rule (petition for revision) challenges the Tribunal's order.

Legal Issues Presented

  1. Whether the Tribunal's order rejecting the Reference under s.49(1) of the Land Acquisition Act was maintainable or whether revision lies against that order (i.e., whether the order was appealable or reviewable by way of revision).
  2. Whether, on the facts and applicable law (including the interaction between the Land Acquisition Act and the Calcutta Improvement Act), there had been an abandonment of acquisition in respect of the pink portion such that s.49 of the Land Acquisition Act could be invoked (i.e., whether the portion intended to be acquired formed part of a house within the meaning of s.49).
  3. Whether the petitioners' application under s.49 was premature or whether a Reference could legitimately be made at the stage reached in the procedure (considering the sequence of declaration for the whole, rejection of s.78 exemption, agreement under s.24 of the Calcutta Improvement Act and the Collector's acts).

Arguments of the Parties

Petitioners' (Applicants') Position

  • The land proposed to be acquired (blue plot) contained part of the access to their huts located on the pink plot and carried filtered water connections and drains necessary for those huts.
  • They asserted a right to use the water of the tank and jhil in premises No. 40 and 40/1.
  • Because those access and water connections constituted an integral part of the huts on the excluded portion, they sought acquisition of the huts as part of the "house" within the meaning of s.49 and therefore asked the Collector to refer the question under s.49(1).

Opposite Party's (represented by Mr. Bipin Chandra Mallik) Position

  • Preliminary objection: the Tribunal's order rejecting the Reference could have been challenged by way of appeal under the Calcutta Improvement Act framework, so revision did not lie (i.e., the petition for Revision was not maintainable).
  • Substantive objection: the agreement between the owner and the Board did not amount to an abandonment of acquisition in respect of the pink portion because various other things remained to be done by the owner; on that basis the application under s.49 could not be entertained at the present stage.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Sarat Chandra Ghose v. Secretary of State for India Held that no appeal lies from certain decisions of the Tribunal (i.e., decisions not amounting to an "award"). The court relied on this decision to reject the opposite party's contention that the present order was appealable and therefore not subject to revision; it supported the conclusion that the Tribunal's order was not an appealable "award."
Dalchand Singhi v. Secretary of State for India Discussed appeals from Tribunal orders; noted that other High Courts had entertained appeals but the presence of a petition in revision gave jurisdiction under s.115 CPC in that case. The court held that Dalchand Singhi could not be treated as authority for the opposite party's contrary view that an appeal necessarily lay; it distinguished that case because revision was available there and the judges relied on s.115 CPC.
Secretary of State for India in Council v. Mahip Sha (per D. N. Mitter, J.) Observed that the acquiring authority, given power to acquire lands, also has the power to abandon acquisition of any such land unless statute prevents piecemeal acquisition; described as "consistent with common sense." The court cited this observation to support the proposition that abandonment of part of the land intended for acquisition can occur even when it is not effected solely by the method prescribed in s.78 of the Calcutta Improvement Act.
Secretary of State for India in Council v. Hindustan Co-operative Insurance Society, Limited Discussed incorporation of the Land Acquisition Act into the Calcutta Improvement Trust Act (legislation by reference); emphasised reading the two statutes together as the Land Acquisition Act provisions were incorporated as adapted. The court invoked this authority to justify reading the Calcutta Improvement Act and the Land Acquisition Act together and to treat the incorporated provisions of the Land Acquisition Act as applicable in the present procedure (affecting the view on whether the Act's provisions were being put into force for acquisition of part only of the premises).

Court's Reasoning and Analysis

Preliminary jurisdictional question (appealability/revision): The court (Mukherjea, J.) rejected the opposite party's preliminary contention that revision did not lie because an appeal was available. The court reasoned that the right of appeal conferred by the Calcutta Improvement Act (Act XVIII of 1911) is limited and applies to awards; a Tribunal decision that does not amount to an award (i.e., does not relate to compensation) is not necessarily appealable. The court relied on Sarat Chandra Ghose to support the proposition that no appeal lies in such cases and found Dalchand Singhi distinguishable and not authoritative for the opposite party's broader contention.

On the merits (abandonment, competence of Reference): The Tribunal had rejected the Reference as incompetent, apparently relying on prior Tribunal decisions which treated similar References as incompetent where a declaration under s.6 of the Land Acquisition Act covered the whole premises. The Tribunal's reasoning, as described by Mukherjea, J., was that s.49 of the Land Acquisition Act cannot apply unless the acquisition of lands upon which the remainder of a house stands has been abandoned — and the Tribunal assumed abandonment could occur only via the procedure of s.78 of the Calcutta Improvement Act (which prescribes a particular method for abandonment by agreement or payment).

Mukherjea, J. identified the error in that approach: the Calcutta Improvement Act's s.78 prescribes one method of abandonment but does not exhaustively prevent the acquiring authority from abandoning part of the land by other means. The court relied on the view (cited from Mahip Sha) that an authority empowered to acquire may also abandon acquiring any part unless the statute prohibits piecemeal acquisition. The court also noted that s.48 of the Land Acquisition Act and the broad contracting powers under s.24 of the Calcutta Improvement Act permit the Board to enter agreements and perform contracts necessary for carrying out its purposes; nothing in those statutes prevents the Board from abandoning a portion in pursuance of such contracts. Whether abandonment has in fact occurred is a question of fact dependent on circumstances; the court found no materials before it to conclude there had been no definite abandonment and observed the Collector's order suggested the agreement had been acted upon and that proceedings were confined to the blue plot.

Roxburgh, J. addressed the question of prematurity. He analyzed the wording of s.49 and its provisos: the Act's provisions are not to be put into force for acquiring a part of a house if the owner desires the whole to be acquired, and the second proviso requires the Collector to refer any question as to whether land forms part of a house to the Court. He observed that the precise timing for making a Reference is not clearly specified by the statute and that a Reference may be made at an earlier stage so long as the circumstances indicate the provisions of the Act are being put into force for acquiring a part. Roxburgh, J. concluded that the procedure in the present case — declaration and notice for the whole followed by an agreement under s.24 resulting in exemption of part, and eventual formal abandonment under s.48 — amounted to putting the Land Acquisition Act provisions (as part of the Calcutta Improvement Trust Act) into force for acquiring only the blue portion. Thus the application was not premature and the Tribunal had failed to exercise jurisdiction vested in it by declining to entertain the Reference.

Holding and Implications

Holding: Rule made absolute. The order of the Calcutta Improvement Tribunal dated April 18, 1939, rejecting the Reference under s.49(1) of the Land Acquisition Act, is set aside.

Immediate consequences and directions:

  • The matter is remitted to the Collector so that the Reference may be disposed of on its merits and according to law.
  • It is desirable that Mr. Saradindu Mukherji (stated to be the owner) be present when the Reference is heard.
  • The opposite party (represented by Mr. Bipin Chandra Mallik) is at liberty to raise any other contentions relating to the maintainability of the Reference when the Reference is heard.
  • There will be no order as to costs in respect of this Rule.

Broader implications:

  • The court accepted the proposition (on the authorities and statutory construction) that abandonment of part of land originally scheduled for acquisition can occur by means other than the specific procedure in s.78 of the Calcutta Improvement Act; the acquiring authority's power to abandon part of an acquisition is not confined to the s.78 machinery.
  • The decision requires the Tribunal to adjudicate the factual question of whether abandonment had in fact occurred and whether s.49 applies — but the opinion does not purport to lay down a general new rule beyond the interpretation and application of the statutes and authorities cited in the particular factual context.

This summary is strictly based on the material contained in the provided opinion and does not add facts or inferences beyond that text.

Show all summary ...

The Judgment of the Court was delivered by

Mukherjea, J.:— This Rule is directed against an order passed by the Calcutta Improvement Tribunal, dated April 18, 1939, rejecting a Reference made to it by the First Land Acquisition Collector, Calcutta, under s. 49(1) of the Land Acquisition Act. The material facts may be shortly stated as follows:— Premises No. 40, Lake Road, which comprises an area of 6 bighâs 5 cottâs 6 chhitâks of lands, was scheduled for acquisition under the Land. Acquisition Act as amended by the Calcutta Improvement Act, under declaration No. 12578-L.A., dated June 19, 1937. One Saradindu Mukherji, who is stated to be the owner of the premises, applied to the Board of Trustees for the improvement of Calcutta for exemption of this property from acquisition under s. 78 of the Calcutta Improvement Act. This application was rejected. Thereupon, there was an agreement entered into between the owner and the Board on January 24, 1939, by which a portion of the premises measuring 58 cottâs 12 chhitâks only, which was coloured blue in the map, was to be acquired and the balance measuring 66 cottâs 12 chhitâks, which was painted pink, was exempted from acquisition. Proceedings were then taken up by the Collector for the acquisition of the blue plot only and the petitioners, who are alleged to have huts on the pink portion, filed applications before the Collector stating inter alia that the land to be acquired contained a part of the access from the lake to their structures and that filtered water connections and drains to their huts also ran through that land. It was further stated that they had a right to use the water of the tank and jhil in premises No. 40, and 40/1, Lake Road. As the aforesaid access and water connections were said to constitute an integral part of the huts in the excluded portion they prayed for the acquisition of these huts as well. Upon that the Collector made a Reference to the Court under s. 49(1) of the Land Acquisition Act and the question referred for determination was whether the portion of the land intended to be acquired formed a part of the house of the petitioners within the meaning of s. 49 of the Land Acquisition Act. The Tribunal, by its order mentioned aforesaid, rejected the Reference on the ground that the Reference was incompetent. It is against this order that the present Rule has been obtained.

Mr. Bipin Chandra Mallik, who appears for the opposite party, has raised a preliminary point and he has argued that, as the order rejecting the Reference could have been challenged by way of appeal, the petition for Revision does not lie. I do not think that this contention is sound. From the decisions of the Tribunal, only a limited right of appeal is given by Act XVIII of 1911 and, as the Preamble of that Act says, an appeal lies only from the award of the Tribunal constituted under the Calcutta Improvement Act of 1911. I am unable to hold that a decision on, or a determination by the Tribunal of, any matter which has no Reference to compensation in some form or other, comes under the definition of an award. That no appeal lies in such cases has been expressly held by a decision of this Court in the case of Sarat Chandra Ghose v. Secretary of State for India,. The case of Dalchand Singhi v. Secretary of State for India,, upon which reliance has been placed by Mr. Bipin Chandra Mallik, cannot, in our opinion, be regarded as an authority in support of a contrary view. In that case, it was not disputed that an appeal would lie only against an award, but it was observed by the learned Judges that such orders had been dealt with in appeal by the Allahabad and Madras High Courts. The learned Judges, however, concluded by saying that, as there was a petition in Revision filed in that case, upon which a Rule was obtained, they had ample authority to deal with the matter under s. 115 of the Code of Civil Procedure.

We are unable to hold that the order passed by the Tribunal in the present case was an appealable order.

Coming now to the merits of the case, it would seem that the Tribunal has rejected the Reference, relying on certain previous decisions of its own, where, under similar circumstances, the Reference was held to be incompetent. The reason in substance appears to be this. There was a declaration here made under s. 6 of the Land Acquisition Act, which covers the entire premises including both the pink and the blue plots. The agreement entered into between the Trustees on the one hand and Saradindu Mukherji on the other was not in pursuance of cl. (4) of s. 78 of the Calcutta Improvement Act and consequently there was no abandonment within the meaning of cl. (5) of that section. It is said, therefore, that, as there has not been an abandonment of the Land Acquisition proceedings with regard to the pink portion, s. 49 of the Land Acquisition Act is inapplicable, for it cannot be said that the provisions of the Act are being enforced for the acquisition of a part of the house, unless the acquisition of the lands, upon which the remaining part of the house stands, is abandoned. There can be no doubt, in my opinion, that unless, at the present moment, there has been an abandonment of the acquisition with regard to the pink portion, no question of Reference under s. 49 of the Land Acquisition Act can possibly arise. But the error lies in assuming that the only way of abandoning acquisition is that provided by s. 78 of the Calcutta Improvement Act. Section 78 lays down one particular method, according to which, if any area, the acquisition of which has been sanctioned by the Local Government, is not required by the Board for the execution of the scheme, the Board may abandon the acquisition proceedings in consideration of certain money payments being made by the owner or an agreement being executed by him in conformity with the provisions of that section. But even apart from s. 78 of the Calcutta Improvement Act there is nothing in the Land Acquisition Act or the Calcutta Improvement Act, which prevents the acquiring authority from abandoning a portion of the land in respect of which proceedings under the Act have been taken. As was observed by D.N Mitter J. in the case of Secretary of State for India in Council v. Mahip Sha,, it was consistent with common sense that the party, which had been given power to acquire lands for certain purposes, had also the power to abandon any such land which was intended to be acquired from acquisition, unless there was provision in the statute preventing such piecemeal acquisition. This is also the principle underlying s. 48 of the Land Acquisition Act. Under s. 24 of the Calcutta Improvement Act, very comprehensive powers are given to the Board of Trustees and they can enter into and perform any contract which they might consider necessary for carrying out the purposes of the agreement. There is nothing in law, therefore, which prevents the Board from abandoning any portion of the land intended to be acquired in pursuance of a contract entered into under the provisions of s. 24 of the Calcutta Improvement Act. Whether there has been abandonment or not in any particular case would of course depend upon the circumstances of that case. Mr. Bipin Chandra Mallik contends before us that the agreement in this particular case cannot amount to an abandonment, as there are various other things which are required to be done by the owner and, unless these things are done, the matter cannot be said to be complete. There is nothing, however, said on this point by the Tribunal and we have no materials before us upon which we can hold that the acquisition of the pink portion has not been definitely abandoned. On the other hand, the order of the Collector clearly suggests that the agreement has been acted upon and proceedings have been started to acquire the blue portion only to the exclusion of the pink plot.

In these circumstances, it seems to me that, if the petitioner's case is true, circumstances are present which would justify the Collector in making a Reference under s. 49(1) of the Land Acquisition Act and, in our opinion, the matter ought to be investigated on its merits by the Tribunal.

The result is that the Rule is made absolute. The order of the Tribunal, dated April 18, 1939, is set aside and the matter is sent back to him in order that the Reference case may be disposed of on its merits and according to law. It is desirable that the Reference should be heard in the presence of Mr. Saradindu Mukherji, who is stated to be the owner of the plots, and it would be open certainly to the opposite party to raise any other contention relating to the maintainability of the Reference at the instance of the petitioners, who are stated to be the tenants in occupation of certain huts upon the land.

There will be no order as to costs in this Rule.

Roxburgh, J.:— On the merits, the simple question is whether the application of the tenants under s. 49 of the Land Acquisition Act, 1894, was premature or not. The order of the Tribunal is rather unfortunate in form, as it suggests that the only basis of decision is the fact that, as Government might change its mind and eventually go on with the acquisition, so the application of the tenants cannot be considered. The suit of a plaintiff might equally well be dismissed on the ground that he might subsequently change his mind and not execute his decree if obtained, and the first proviso to s. 49 itself makes provision, allowing the owner to change his mind at any time before the award is made. The point for decision is whether, under the law, circumstances exist by which the tenants have the right to make the application for a Reference; this is to be decided by reference to the terms of s. 49 itself, and to the facts. Under sub-s. (1) of s. 49, the provisions of the Act are not to be put into force for the purpose of acquiring a part of a house, manufactory or building, if the owner desire that the whole of such house, manufactory or building shall be acquired, and then, under the terms of the second proviso, provision is made that, if, any question shall arise as to whether any land proposed to be taken under the Act does or does not form part of a house, the Collector is to refer the matter to the Court. It will be seen that the precise time at which the Reference is to be made is not clearly specified; certainly it must be made if the provisions of the Act have already and clearly been “put in force”, but the terms of the second proviso of s. 49 are not inconsistent with a Reference being made at an earlier stage. In the present case the method, by which the provisions of the Act are to be put into force for the purpose of acquiring a portion of the premises in question, is by way of declaration and notice for acquisition of the whole, followed by an agreement under s. 24 of the Calcutta Improvement Act, made with the landlord for exempting a portion, and hence by eventual abandonment of the acquisition under s. 48. In such a case, it is even more difficult than in a case where the proposal to acquire a portion is a direct one, to determine the precise point of time at which it may be said that the provisions of the Act are being put into force for the purpose of acquiring a portion. In the present case there was originally an application for action under s. 78 of the Calcutta Improvement Act, but this was rejected by the Trustees, and the present proposal for action under s. 24 was adopted, and has been carried out to the extent of a formal agreement having been made. Mr. B.C Mallik draws attention to the terms of sub-s. (5) of s. 78, to the effect that when an agreement has been executed in pursuance of sub-s. (4) or payment has been made under the proviso the proceedings for the acquisition shall be deemed to have been abandoned and contends that, on the analogy of those provisions, the stage for the present application in the analogous procedure by way of s. 24 and of eventual formal abandonment under s. 48 of the Land Acquisition Act has not been reached, but consideration of these provisions seems to support rather the contrary view. It emphasises the fact that, in order to find out the whole land acquisition law applicable, here, we have to read the Calcutta Improvement Trust Act and the Land Acquisition Act as one, and, as has been pointed out in Secretary of State for India in Council v. Hindustan Co-operative Insurance Society, Limited,, incorporation of the provisions of the Land Acquisition Act into the provisions of the Calcutta Improvement Trust Act is a case of legislation by Reference, the terms incorporated being those of the Land Acquisition Act as it stood when it was adapted (in the schedule) and incorporated under ss. 69 and 71(b) of the Calcutta Improvement Act. In short, the present action, taken by way of agreement under s. 24 of the Calcutta Improvement Trust Act, for exemption of acquisition of part of the premises, following steps taken for acquisition of the whole, amounts to this that the provisions of Land Acquisition Act (as part of the Calcutta Improvement Trust Act) are being put into force for the purpose of acquiring a part only of the premises in question. The Collector himself appears to have understood the position to be such, for, in his order of Reference, after setting out the contentions of the applicants, he concludes:—

I beg, therefore, to refer for the decision of the Court as to whether the portion of the premises intended to be acquired form part of the home of the petitioners within the meaning of s. 49(1) of the Land Acquisition Act.

I think, therefore, that the application was not premature, and that the Tribunal has failed to exercise the jurisdiction vested in it.

N.C.C
Rule absolute.