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1978 DIGILAW 662 (CAL)

State of West Bengal v. Jasadarani Mondal

1978-12-18

DHIRESH CHANDRA CHAKRAVORTI, MURARI MOHAN DUTT

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JUDGMENT M. M. Dutt, J. - This appeal is at the instance of the State of West Bengal and it arises out of a proceeding for compensation filed by the respondent claimant before the learned Additional District Judge, Howrah under S. 18 of the Land Acquisition Act, 1894. 2. It appears that the disputed land measuring .055 acre comprised in Plot No. 309 1. of Mouza Ichapur, in the District of Howrah, was acquired by the State Government under Notification No. 5938 LA dated April 27, 1965 published under S. 4 of the Land Acquisition Act for the future improvement scheme of the Howrah Improvement Trust, namely, for constructing a park including a lake. The learned Additional District Judge on such – reference allowed the Misc. Case and directed that the referring claimant would get Rs. 6831/- as compensation in respect of the acquired land. Hence this appeal. 3. The only question that has been raised by Mr. Chatterjee for the appellant is that the learned Additional District Judge had no jurisdiction to entertain and hear the reference made by the respondent under S. 18 of the Land Acquisition Act. 1894. In order to consider this question, it is necessary to refer to some of the provisions of the Howrah Improvement Act. 1956 (hereinafter referred to as the Act), Under the Act, the Board of Trustees for the Improvement of Howrah has been constituted. Section 67 provides, inter alia, that the Board may, for carrying out the purposes of the Act, and with the previous sanction of the State Government, acquire land under the provisions of the Land Acquisition Act. Section 68 confers power on the Board to acquire and for future improvement schemes. Under S. 69, a Tribunal shall be constituted for the purpose of performing the functions of the Court in referenced to the acquisition of land for the Board under the Land Acquisition Act. Section 70 provides. inter alia, that for the purpose of acquiring land under the Land Acquisition Act, (for the Board) the Tribunal shall be deemed to be the Court, and the President of the Tribunal shall be deemed to be the Judge. Further, it provides that the Act shall be subject to the further modifications as indicated in Schedule I to the Act. Section 71 lays down the constitution of the Tribunal. Further, it provides that the Act shall be subject to the further modifications as indicated in Schedule I to the Act. Section 71 lays down the constitution of the Tribunal. Section 78 of the Act provides as follows :- Notwithstanding anything contained in Ss. 69, 71 and 72. the State Government may by notification, direct that the Tribunal constituted under S. 70 of the Calcutta improvement Act, 1911, for performing the functions of the Court in reference to the acquisition of land for the Board of Trustees for the Improvement of Calcutta shall in addition to the duties assigned to it under the said Act, perform the functions of the Court in reference to the acquisition of land for the Board of Trustees for the improvement of Howrah, and thereupon all references to the Tribunal in this Act shall be const ruled as references to the said Tribunal as if the said Tribunal were constituted under S.69 of this Act.” 4. We are told by Mr. Chatterjee, learned Advocate for the appellant, that no Tribunal has yet been constituted under the Act and all the reference cases are being disposed of by the Calcutta Improvement Tribunal by virtue of a notification issued in that regard by the State Government under S. 78 of the Act. The notification, being notification No. 10053/M. 3H-3/61 dated August 23, 1951 published in the Calcutta Gazette, Extraordinary dated August 31, 1961 at p. 3096 is as follows :- “No. 10053/M. 3H-3/61 - 23rd August 1961. In exercise power conferred by S. 78 of the Howrah Improvement Act, 1956 (West Bengal Act XIV of 1956), the Governor is pleased hereby to direct that the Tribunal constituted under S. 70 of the Calcutta Improvement Act, 1911 (West Bengal Act V of 1911), for performing the functions of the Court in reference to the acquisition of land for the Board of Trustees for the improvement of Calcutta shall, in addition to the duties assigned to it under the said Act perform the functions of the court, in reference to the acquisition of land for the Board of Trustees for the Improvement of Howrah. By order of the Governor, J. C. Talukdar, Jt. Secy." 5. By order of the Governor, J. C. Talukdar, Jt. Secy." 5. It is therefore, manifestly clear from the said notification that the Calcutta Improvement Tribunal constituted under S. 70 of the Calcutta Improvement Act, 1911, has been conferred with the powers to perform the functions of the Court in reference to the acquisition of land for the Board of Trustees for the Improvement of Howrah by virtue of S. 78 of the Act. The present application for reference, as staled already, has been filed before the learned Additional District Judge, Howrah, the acquisition has been made for the Board for future improvement scheme, that is, for constructing a park including a lake. In view of the notification under S. 78 of the Act, the le1fned Additional District Judge, who may have jurisdiction under S.18 of the Land Acquisition Act, will not have any jurisdiction to deal with such applications for reference as the land has been acquired for the future improvement scheme of the Howrah Improvement Trust. In view of the said notification under S. 78. so long as a Tribunal is not constituted by the State Government under S. 69 of the Act, it is the Calcutta Improvement Tribunal which will have jurisdiction to entertain and dispose of the application for reference filed under 18 of the Land Acquisition Act relating to acquisition of land for the future improvement scheme of the Howrah Improvement Trust. The question of jurisdiction does not appear to have been raised before the learned Land Acquisition Judge. But there can be no doubt that in view of the said notification under S. 78, the learned Additional District Judge had no jurisdiction whatsoever to entertain and dispose of an application for reference. Therefore, there is lack of inherent jurisdiction so far as .be learned Additional District Judge is concerned and it is now well settled that when there was absence of in jurisdiction, the point can be taken at any stage. As the learned Additional District Judge had no jurisdiction to dispose of the application for reference, we have no other alternative than to set aside this judgment and award and direct him to send the reference made by the respondent to the Collector, who is directed to transmit the reference to the Calcutta Improvement Tribunal as expeditiously as possible. As the learned Additional District Judge had no jurisdiction to dispose of the application for reference, we have no other alternative than to set aside this judgment and award and direct him to send the reference made by the respondent to the Collector, who is directed to transmit the reference to the Calcutta Improvement Tribunal as expeditiously as possible. This appeal is allowed but in view of the facts and circumstances of the case there will be no order for costs. Chakraborti, J, I agree. Appeal allowed. Award set aside, direction given.