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1982 DIGILAW 132 (CAL)

Ashoke Kumar Bose v. State of West Bengal

1982-04-07

CHITTATOSH MUKHERJEE, SHARMA

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JUDGMENT Chittatosh Mookerjee, J. The appellants of these two appears are the heirs and successors in interest of Smt. Labanya Dutta who was the owner of Plot Nos. 515, 517, 518, 519, and 521 of Mouza Paschim Barisha, P.S. Behala, On November 23, 1954 a notification under S.4 of the West Bengal Land Development and Planning Act, 1948 was made for acquiring 2. 33 acres of land appertaining to Plot Nos. 515, 517, 519, 521 and a portion of Plot No. 518 mouza Paschim Barisha described in the Schedule B to the plaint of Money Suit No. 22 of 1968 (corresponding to F.A. 220 of 1976). By the same notification, 68 acres appertaining to Plot No.518 was proposed to be acquired under the said Act. On December 30. 1954 necessary declaration under the West Bengal Land Development and Planning Act 1948 was made in respect of the said plot of lands, It has also transpired in evidence that on May 18, 1953 the Collector of 24-Pgs had taken delivery of the said 2.33 acres of land and again on March 2, 1955 had taken possession of 66 acres of land appertaining to plot No.518. The purpose of acquisition of the aforesaid lands was "the settlement of immigrants who had migrated into. West Bengal account of circumstances beyond their control. 2. On March, 30 1955 two articles of agreement were executed between Asoke Kumar Bose and Kamala Basu Chakraborty, the heirs of Sm. Labanya Prova Dutta on one hand and the Governor of the Slate of West Bengal on the other for payment to the said owners sums of Rs.40998/- and Rs. 16534/- as advances on account of compensation on the agreed basis of Rs. 414/- per cottah in respect of 2.33 acres and 66 acres respectively (vide Exts. 3 and 3A) 3. On November 15. 1968 the State of West Bengal instituted Money Suit Nos. 21 and 22 of 1968 against the present appellants in the 7th court of the Subordinate Judge at Alipore for recovery of 8315. 19P. and Rs.29753, 83P. respectively on the following allegations. The State of West Bengal averred that 233 acres and .66 acres of land described above had been acquired under the provisions of the West Bengal Land Development and Planning Act and the Collector had taken possession of the same. 19P. and Rs.29753, 83P. respectively on the following allegations. The State of West Bengal averred that 233 acres and .66 acres of land described above had been acquired under the provisions of the West Bengal Land Development and Planning Act and the Collector had taken possession of the same. According to the averments in the paragraph 3 of the plaint, the State Government had sanctioned allotment for payment of 80% of compensation at the agreed rate of Rs.414/- per cottah and upon representation of the defendants (appellants before us) two sums of Rs. 13227/- and Rs. 40998/- had been paid to them on taking indemnity bonds and "on account basis". The state further pleaded that on March 2,1967 awards had been made at the rate of Rs. 112/- per cottah on the basis of the marked value prevailing in 1946. On this basis the State claimed that the defendants in Money Suit No. 21 of 1968 had been paid Rs.8315.19. in excess of the award money. Similarly, the defendants in Money Suit No.22 of 1968 had received Rs.19.753.83P. In excess of the sum awarded in their favour by the Collector. The State claimed that the awards being final and binding the defendants were not entitled to retain the said amounts which the State claimed had been paid to them in excess of the award "either illegally or by mistake of the officers of the plaintiff". The State alternatively pleaded that the defendants were bound to refund the said excess amounts on the basis of their indemnity. The State accordingly prayed for in the two suits recovery of the sum of Rs. 8315.19P and Rs. 29753.83P. 4. The defendants contested the said two suits by filing written statements. They inter alia pleaded that the State of West Bengal itself having estimated and settled the price of Rs. 414/- per cottah which the defendants had accepted, the State was not entitled to resile from and/or repudiate the said contract. They also pleaded that the Subsequent awards dated March 2, 1967 determining the market value of the acquired lands at the rate of Rs. 112/- per cottah was void, untenable, illegal and unwarranted. They also disputed their liability to refund the sums claimed by the plaintiff or any other amount. 5. They also pleaded that the Subsequent awards dated March 2, 1967 determining the market value of the acquired lands at the rate of Rs. 112/- per cottah was void, untenable, illegal and unwarranted. They also disputed their liability to refund the sums claimed by the plaintiff or any other amount. 5. The learned Subordinate Judge, 7th Court of Alipore who analogously heard the said two money suits has decreed them in part and ordered that the plaintiff would recover in the respective suits Rs. 8315.19P. and Rs. 29-753-83P. The defendants being aggrieved hereby. have preferred these two appeals before us. 6. Having heard the learned advocates for the parties and having perused the records we have reached the conclusion that the respondent State was not entitled to recover the amounts in question for the reasons presently indicated. In the first place, the State of West Bengal did not discharge the burden which lay upon it by adducing any evidence that there had been an a ward in respect of 2.33 acres on March 2, 1967 determining the market value at the rate of Rs.112/- per cottah Sudha Bindu Banerjee, P.W.1, the only witness examined on the plaintiff's side in his cross-examination admitted that he had no personal knowledge. Therefore, we will not be justified on relying upon his statement made in course of his examination in chief that claims in both the suits were true and there had been excess payment to the defendants in land acquisition matters. The State, however, in Money Suit No. 21 of 1968 had produced two awards respectively dated January 2. 1957 and March 2 1967 in respect of acquisition of 66 acres of land appertaining to Plot No. 518 (vide Exts. 4 and 4(A). The said awards showed that originally on January 2, 1957 the Collector had awarded of Rs. 16534.2as. as the tolal value of the said land at the rate of Rs. 414/- which was described in the award as the agreed rate per Cottah. The Collector, however, by his subsequent award dated March 2, 1967 in respect of the acquisition of the identical land, i.e. .66 acres appertaining to C.S Plot No. 518 calculated land value at the rate of Rs.112/- per cottah and awarded compensation for Rs. 4251.94P. 7. 414/- which was described in the award as the agreed rate per Cottah. The Collector, however, by his subsequent award dated March 2, 1967 in respect of the acquisition of the identical land, i.e. .66 acres appertaining to C.S Plot No. 518 calculated land value at the rate of Rs.112/- per cottah and awarded compensation for Rs. 4251.94P. 7. Even assuming that there had been a similar award on March 2, 1967 payment of compensation in respect of 2.33 acres of land appertaining to C.S. Plot No. No 515, 517 to 524 mouza Paschim Barisha (although there was no evidence on record) in our view the said award as also the other award bearing the same date which was the subject matter of Money Suit No. 21 of 1968 were void ab initio The plaintiff State of West Bengal in paragraph 4 of the plaint of both the money suits pleaded that the said awards had been made on the basis of the market value prevailing on 31st December 1946 and on that basis it was found that the defendants of the two suits had been respectively paid excess sums of Rs. 8315.19P. Thus, the Collector in determining the amount of compensation to be awarded in the two case, had purported to apply the proviso (b) to S.8 of the West Bengal Land Development and Planning Act, 1948. So far as this court is concerned, it is now settled law that the said clause (b) of the proviso to S.8 of the West Bengal Land Development and Planning Act was ultra vires and, therefore, in determining the amount of compensation for acquisition under the said Act for the purpose of the settlement of immigrants who had migrated to the province of West Bengal on account of circumstance, beyond their control the market value in relation to the lands acquired in excess of the amount the market value of the land on December 31,1946 cannot be lawfully left out of consideration In other words, in respect of acquisition made under the said Act for the purpose mentioned in S.2(d)(i) of the West Bengal land Development and Planning Act, the State would be bound to determine and pay compensation according to the market price prevailing on the date of the notification under S.4 of Act. In the result, two awards determining the market value at the rate of Rs.112/- per cottah according to the price prevailing on 31st Day of December 1946 must be held to be null and void and thereby the State had no legal right to recover the difference between the sums previously paid in terms of the two agreements exhibits 3 and 3A and the sums ultimately awarded under S.11 of the Land Acquisition Act 1894 read with S.8 proviso (b) of the West Bengal Land Development and Planning Act, 1948. The award being ex facie invalid, the excess sums were irrecoverable in law. In view of the said position in law we need not examine the extent of liability of the defendants under the said two agreements and indemnity bonds (Exts 3 and 3A) to refund the sums in excess of awards which might validly be made in respect of the acquisition of the said 2. 33 acres and .66 acres of land. 8. We find no substance in the submission made on behalf of the State that the appellants cannot agitate the above question because the, same was not urged by them it the time of the hearing of the suits in the trial court, The said question is purely of law materially affecting the very authority of the Collector to a ward compensation according to the market value on 31st December, 1946 We are also bound by the Division bench decisions in Ramendra Nath Nandy v. State of West Bengal AIR 1975 Cal. 325 and State of West Bengal v. Land Development Bureau 1979(2) CLJ 169, declaring the proviso (b) to S,8 of the West Bengal Land Development and Planning Act, 1948 ultra vires. Further, the said question of law arises upon the averments made on the plants of the two suits and therefore, could be no impediment in the way of the defendant appellants raising the question of the validity of the two aforesaid awards determining the market Value at the rate of Rs. 112/- pef cottah. 9. We may shortly dispose of another Point raised of behalf of the appellants the appellants in F.A. 56 of 1982 have rightly painted out that in view of the award (Ext 4) dated January 2, 1957, second award in respect of the acquisition of the self-sane land dated March 2. 112/- pef cottah. 9. We may shortly dispose of another Point raised of behalf of the appellants the appellants in F.A. 56 of 1982 have rightly painted out that in view of the award (Ext 4) dated January 2, 1957, second award in respect of the acquisition of the self-sane land dated March 2. 1967 on the basis of valuation prevailing in December 1946 must be considered as null and void. After making the first award dated 1st January, 1957 the Collector had become functus officio and by relying upon certain administrative directions the Collector could not have assumed jurisdiction to the second award in the same case. We have already pointed out that the State did not produce award or awards relating to the Money Suit No 22 of 1968. Therefore, we need not express any opinion whether or not there bad been two awards in the manner done also on the other Money Suit But award upon which the plaintiff relied in Money Suit No. 22 of 1968 has been already found by us to be ultra vires inasmuch as the said award has been made according to the provisions of S.8 proviso (b) of the West Bengal Land Development and Planning Act, 1948 and the said provisions have been already pronounced to be invalid. 10. For the foregoing reasons, we allow these two appeals, set aside the judgment and decrees and dismiss the two suits in the circumstances of the case, parties will bear their respective cross throughout. Sharma, J:-I agree. Appeals allowed.