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1976 DIGILAW 156 (CAL)

Gopal Krishna Mukherjee v. STATE OF WEST BENGAL

1976-04-30

ARUN KUMAR JANAH, R.BHATTACHARYYA

body1976
Judgement R. BHATTACHARYA, J.:- This is a revisional application under Section 115 of the Code of Civil Procedure filed by the petitioners against the order of the Additional District Judge, First Court, Howrah rejecting the application for review of an Award passed in a reference case sent to the court by the Collector in connection with an acquisition of land. 2. In this case some land was requisitioned for Durgapur-Calcutta Gas-Grid-Project under the provision of Section 3 of the West Bengal Land (Requisition and Acquisition) Act, 1948, (West Bengal Act II of 1948) and the possession of the same was taken on 7th September, 1960. Thereafter, by a Notification under Section 4 of the Act II of 1948, the land was acquired and compensation was granted by the Collector. Being aggrieved at the assessment by the Collector, the claimants prayed for a reference to the Civil Court for enhancement of compensation and other dues as they did not get proper compensation according to their assessment. They valued danga lands at the rate of Rs. 600/-per cottah and the rate for tank was also mentioned in the petition for reference. The reference petition was heard by the learned Additional District Judge and the learned Judge accepted the valuation arrived at by the Collector. During the hearing of the reference certain deeds of conveyance were taken in evidence by both the parties, namely, the claimants and the State of West Bengal. The learned Judge who made the Award in his judgment considered the provisions of the second proviso to Section 7 (1) of the Act II of 1948 and he found that the kobalas exhibited by the claimants could not be comparable units in view of the common features regarding land values and the provisions of the Act, under which the lands were acquired. The grievance of the claimant-petitioners is that in the judgment, the learned Land Acquisition Judge relied upon the second proviso to Section 7 (1) of Act II of 1948 which had previously been struck down and also repealed by an amending Act and that the learned Judge, therefore, had no basis and proper criterion to assess the just valuation of the lands acquired. In this view of the matter a review application was filed. The learned Judge who heard the reference was, in the meantime, transferred and in his place was appointed Mr. In this view of the matter a review application was filed. The learned Judge who heard the reference was, in the meantime, transferred and in his place was appointed Mr. A.K. Chatterjee, who disposed of the review application. According to the present Judge of the Land Acquisition Court, the petition was liable to be rejected as the petitioners could have no grievance because his predecessor-in-office dismissed the reference on the view that there was no scaling down to the valuation level of 1948 in the judgment in question, as envisaged in the second proviso to Section 7 (1). According to him, there was no apparent mistake or error on the face of the record. 3. We have heard Mr. Mukherjee, the learned Advocate appearing on behalf of the petitioners and Mr. Basu, the learned Advocate for the State of West Bengal, the opposite party. During the argument of Mr. Basu a point was taken that the application for review was not maintainable according to law, particularly, in view of the provision of Act II of 1948, Admittedly, the land in question was ultimately acquired under the provisions of the West Bengal Land (Requisition and Acquisition) Act, 1948. Section 7 (4) (iii) lays down that where there is the disagreement between the Collector and the person interested in the compensation on the question of the assessment of compensation payable, the matter may be determined by a court under reference according to clause (b) of sub-section (1) of Section 8 of the Act. In Section 8 (2) we find that amongst other sections, Section 26 of the Land Acquisition Act, 1894 will be relevant and applicable according to thus Act. According to Section 26 (2) of the Land Acquisition Act, every Award made by the court 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 (2) and Section 2, clause (9) respectively of the Code of Civil Procedure, 1908. Now, proceedings under reference before the Court are in the nature of suits in the court of original jurisdiction. The Code of Civil Procedure, 1908, is an Act to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature. Now, proceedings under reference before the Court are in the nature of suits in the court of original jurisdiction. The Code of Civil Procedure, 1908, is an Act to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature. There can be no doubt whatsoever that the court where the reference is made by the Collector under Section 8 of Act II of 1948, is a Court of Civil Judicature. Section 141 of the Code of Civil Procedure, 1908 says that the procedure provided in this Code in regard to suits shall be followed as far as it can be applicable in all proceedings in any Court of Civil Jurisdiction. Clearly, therefore, according to this section the land acquisition court or the court to which a reference is made can take recourse to the provision of Order 47, Rule 1 for the purpose of review, if justice so demands. Mr. Basu wants to submit with reference to the inclusion of Section 53 of the Land Acquisition Act that as in the present West Bengal Act II of 1948 there is no such provision, the intention of the Legislature might be that the provision of the Civil Procedure Code should not be applicable in cases of reference and, as such, the question of review does not arise. The Act II of 1948 was of the year 1948 when the Code of Civil Procedure of 1908 was already in force, and the Section 141 thereof stands conspicuously. There was, therefore, no necessity for any provision like Section 53 of the Land Acquisition Act of 1894. Such provision, if there be any, would have been a surplusage. 4. Next, it has been argued by Mr. Basu that there is the provision for appeal in Section 8-A of the Act and in the absence of any provision for review, it should be deemed that the power to review was not there with the court of reference. The court of reference, under Section 8, has been provided for in the matter of adjudication of dispute for compensation and in view of Section 141 of the Code of Civil Procedure, the proceeding for trial of disputes of original nature is to be followed, and for that purpose, procedure for review may be resorted to, if necessary. The court of reference, under Section 8, has been provided for in the matter of adjudication of dispute for compensation and in view of Section 141 of the Code of Civil Procedure, the proceeding for trial of disputes of original nature is to be followed, and for that purpose, procedure for review may be resorted to, if necessary. The provision for appeal is quite different from those applicable to the proceedings of the original jurisdiction for making awards. It creates an opening for going higher up to challenge the award of the Court. It relates to the appellate jurisdiction. The review is a process available under Section 141 of the Code of Civil Procedure connected with the final determination of the decree and to be adopted by the court of reference, if justice so demands. We cannot, therefore, hold that the provision for appeal may indicate that the court of reference cannot review its own award or decree. Section 141 of the Code of Civil Procedure speaks of suits in the original jurisdiction and consequently in Section 8 (a) it has been made clear that the provision of the Civil Procedure Code, 1908, regarding appeals shall apply to the awards treated as decrees to be made by the court. In view of our discussion we cannot, therefore, hold that the learned Additional Court of the District Judge hearing the reference had no jurisdiction to review its own award or decree passed. 5. Lastly, it was contended by Mr. Basu that there was no occasion for review. On this point we have heard Mr. Mukherjee. There is no doubt that in the original award made by the predecessor-in-office of Mr. Chatterjee we find that he made an attempt to assess the valuation of the land acquired according to the provision of Section 7 of Act II of 1948 and in that connection he relied upon the second proviso to sub-section (1) of Section 7 of the Act. Chatterjee we find that he made an attempt to assess the valuation of the land acquired according to the provision of Section 7 of Act II of 1948 and in that connection he relied upon the second proviso to sub-section (1) of Section 7 of the Act. The second proviso deleted by the W. B. Act VIII of 1954 runs as follows: "Provided further that if such market value exceeds by any amount the market value of the land on the 31st day of December, 1946, on the assumption that the land had been at that date in the state in which it in fact was on the date of the publication of the notice referred to in sub-section (1) of Section 4, the amount of such excess shall not be taken into consideration." 6. Due to oversight or otherwise it was not brought to the notice of the learned Judge that the said proviso was not there and that according to the provision of the Act after amendment, he was to assess the valuation as it was at the time when the land was acquired, and in this case, on 7th of September, 1962. The learned Judge had no idea that he was to assess the valuation according to that provision. All the time he had in his mind the second proviso to sub-section (1) of Section 7 which was not in the enactment. Practically speaking, the learned Jude decided the case and made the award on the basis of a provision which was not the law at the relevant time. This was clearly a decision without any proper basis and by application of a law not in existence. 7. According to the provision of Order 47, Rule 1, Civil Procedure Code, amongst other grounds, we find that if there be any mistake or error apparent on the face of record or if there be any other sufficient reason, the learned court will be entitled to review the order for ends of justice and for proper and correct decision. In the present case there can be no doubt that the learned Judge did not consider the relevant Act for the purpose of determination of the issue and he relied upon a non-existent law. In the present case there can be no doubt that the learned Judge did not consider the relevant Act for the purpose of determination of the issue and he relied upon a non-existent law. This kind of mistake is a mistake apparent on the face of record, and moreover, this was a ground which is sufficiently reasonable for the court to review the award for coming to a just and proper decision. In this view of the matter we find that the learned Judge of the court below was wrong in holding that there was no ground for review. The finding is clearly erroneous and he acted without jurisdiction not to act according to the provision of Order 47, Rule 1 to dispose of the application for review. To be more precise, he failed to exercise the jurisdiction vested in him to review. In view of the matter, we find that a proper case has been made out to interfere with the decision of the learned Judge of the court below and to set aside impugned order. We must hold that learned Judge below ought to have reviewed the award. 8. When we find that no proper application of mind was made and no proper law was considered to make a proper assessment of compensation, it is desirable, as submitted by the learned Advocates on both the sides, that the parties should be given an opportunity to produce further evidence if they so like, for the court to consider their respective cases and to come to a proper decision by an award. 9. In the result, the application succeeds and the Rule is made absolute. The impugned order is hereby set aside and the review application is allowed and the reference made by the Collector is sent back to the court below for proper consideration and decision according to law after giving the parties an opportunity to adduce further evidence if they so like. 10. In the facts acid circumstances, we pass no order as to costs. 11. Let the records be sent down as quickly as possible and the hearing be expedited by the court below as the matter is long pending.