Jogmaya Devi v. STATE OF WEST BENGAL — 1959 DIGILAW 50 (CAL)

JUDGMENT 1. THIS is an application by Sm. Jogmaya Devi, widow of late Bhairabendra Narayan Roy of Malda. She is a childless widow and an octogenarian. Under the will of her husband, she is entitled to half the estate which has been bequeathed to her for her maintenance. The estate was acquired under the West Bengal Estates Acquisition Act, 1953, in the year 1362 B. S. 2. SINCE the acquisition, she has not received a single farthing' from the State either for her maintenance or by way of ad interim payment or by way of compensation or by way of income or interest calculated in the prescribed manner. She had to sell her ornaments and incur debts. Her pitiable condition appears from annexure "a" to the petition which is an application she made to the Board of Revenue and is dated April 26, 1957. She applied for a Rule on February 6, 1958. The Rule called upon the State inter alia to show cause why the State should not forthwith pay to the petitioner the arrears of annual ad interim compensation and thereafter continue to pay the same annually till the final determination of the amount of compensation. The State was directed to file an affidavit-in-opposition on the 7th March 1958 within three weeks from that date. No affidavit on behalf of the State was filed. The learned Government Pleader, appearing before me, says that an affidavit was attempted to be filed on February 20, 1959, more than a year after the order of the Court. The State took no leave of the Court to file such affidavit. In fact, February 19, 1959, was fixed as a date for hearing by me on January 29, 1959. Even on January 29, 1959, no affidavit had been filed by the State. I, therefore, reject any belated affidavit which the State wants to file now after more than a year. 3. THE objection on behalf of the State, however, is not serious. The attitude taken by the State will appear from the letter of the Joint Land Reforms Commissioner, West Bengal, dated May 31, 1957, to the petitioner. He wrote to say as follows:- ". . . . 3. THE objection on behalf of the State, however, is not serious. The attitude taken by the State will appear from the letter of the Joint Land Reforms Commissioner, West Bengal, dated May 31, 1957, to the petitioner. He wrote to say as follows:- ". . . . I am directed to inform you that as you have not the right to alienate property according to the terms of the will, your case comes under the purview of Section 24 of the Estates Acquisition Act. But prior to the final publication of the Compensation Assessment Roll, no payment is possible under the said Section. As the law stands, ad interim payment cannot be made to you. If you think it necessary, you may obtain orders of the Court directing payment of ad interim compensation to you. " The position in law is to be found in Sections 12 and 24 of the West Bengal Estates Acquisition Act, 1953. Hinder Section 12 of the Act it is provided : "every intermediary shall be entitled to receive in cash in respect of such estate or interests an annual ad interim payment of one-third of the net approximate annual income from such estates and interests calculated in the prescribed manner. Such payments shall be deemed to be part of the compensation payable to such intermediary and shall, at the time of payment of such compensation, be deducted and adjusted against it, so however that where such compensation is payable partly in cash and partly in annual installments, the adjustment shall, as far as practicable, be against the installments. " 4. THIS provision has two provisos. The first proviso says: ". . . . that the first annual ad interim payment shall be made within eighteen months from the date of vesting and no ad interim payment shall be made after the date of final publication under section 21 of the Compensation Assessment Roll in respect of such intermediary. " Now, the State Government, in this case, has committed breach of this provision because more than eighteen months have passed from the date of vesting without providing for the first annual ad interim payment. 5. " Now, the State Government, in this case, has committed breach of this provision because more than eighteen months have passed from the date of vesting without providing for the first annual ad interim payment. 5. THE second proviso gives power to the State Government having regard to the financial position of the intermediary and, where the circumstances justify, to make ad interim payments of such amounts and at such times as seem to the State Government to be reasonable and such payments shall be deemed to be part of the compensation payable to such intermediary and shall be deducted and adjusted against such compensation. If the petitioner is an intermediary and if she is entitled to compensation, then she is clearly entitled to ad interim payment under this section. 6. BUT then persons who are incompetent to alienate their estate on interest are provided differently. Section 24 of the Act says: "if any intermediary entitled to receive such compensation in respect of any interest be a person incompetent to alienate such interest, the Compensation Officer shall keep the amount of compensation payable for such interest whether in cash or bonds in deposit with the Collector of the district and such Collector shall arrange to invest the cash and the income from the bonds in the purchase of such Government or other approved securities as such Collector thinks fit and shall direct the payment of the income from such investment to the intermediary who would for the time being have been entitled to hold and enjoy such interest if it had not vested in the State and such bonds and securities shall remain so deposited until they are made over to any person or persons becoming absolutely entitled thereto. " The net result of this Section 24 is that if the present petitioner is a person incompetent to alienate, as she is under the will, then she is only entitled to the income from the amount of compensation invested in the manner laid down in Section 24 of the Act. But even then such a person who is incompetent to alienate is entitled, at least, to the income. The petitioner, in this case, has not been even given that income or any part thereof. There is, however, a proviso to Section 24 which says: ". . . . But even then such a person who is incompetent to alienate is entitled, at least, to the income. The petitioner, in this case, has not been even given that income or any part thereof. There is, however, a proviso to Section 24 which says: ". . . . nothing in this section shall affect the right of a Hindu widow or other limited owner to receive the whole or any part of such compensation in circumstances where such Hindu widow or other limited owner would be entitled under the law to spend the corpus of the interest. " 7. THIS means that whether the petitioner's interest is regarded either as the estate of a Hindu widow or as the interest of a limited owner, in the sense limited by the will for the life estate of the petitioner and with no power to alienate, even then maintenance of a Hindu widow is a legal necessity for which she could have even sold away a part of the corpus of the estate. It is, however, unnecessary to go into these questions at this stage. All that is necessary to emphasize is that viewed either from Section 12 or from Section 24 of the Act, this much is certain that she is entitled to ad interim payment either in the manner laid down in Section 12 or by way of income as laid down in Section 24. 8. I, therefore, direct and order the respondents to make ad interim payments to the petitioner at the rate of Rs. 200/- (Rupees Two hundred) per month from the date of acquisition tin 1362 B. S. until the date of this order. This figure of Rs. 200/- (Rupees two hundred) is not any specially calculated figure but is broadly based on the calculation given in annexure "a" to the petition. The net annual income after deducting revenue, cess, taxes and costs of management of the half bequeathed to the petitioner comes to Rs. 13,883/2/6 p. according to the return filed before the Additional Collector, Estates Acquisition Department, Malda. In that view one third of that income will be about Rs. 4,000/- a year. This would be certainly more than Rs. 200/- per month. So the estate of Rs. 200/- per month is on the lower side. I direct and order that the respondents do calculate the tad interim payment at the rate of Rs. In that view one third of that income will be about Rs. 4,000/- a year. This would be certainly more than Rs. 200/- per month. So the estate of Rs. 200/- per month is on the lower side. I direct and order that the respondents do calculate the tad interim payment at the rate of Rs. 200/- (Rupees two hundred) per month from the date of vesting until the date of this order and pay this sum of money to the petitioner and to that extent I make the Rule absolute. This amount of money which, will be paid to her will be adjusted against either the compensation payable to her under Section 12 of the Act or the income payable to her under Section 24 of the Act. This figure or rate of Rs. 200/- per month is without prejudice to the rights of the parties herein to contend or fix the scale or amount or rate allowable by the Statute at the time of final determination, assessment and computation. 1 direct also that the money be paid to the petitioner within three weeks from date. There will be no order as to costs.