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2001 DIGILAW 540 (CAL)

Gora Chand Mullick v. Land Acquisition Collector

2001-08-24

Malay Kumar Basu

body2001
Judgment Malay Kumar Basu, J. This revisional application under Article 227 of the Constitution is directed against the Order No.8 dated 17th January, 2001 passed by the ld. Land Acquisition Collector, Alipore in Ref. Case No.204 of 93-94. The relevant facts are that as far back as in 1979, the State of West Bengal requisitioned and thereafter acquired a number of plots of Mouza Purba Barisha under District 24-Parganas (S) comprising a vast area of valuable land and a two storeyed building containing valuable articles and furniture, land acquisition proceedings were started in 1983, the ld. Land Acquisition Collector made and published an award dated 31st March, 1993. The award was found inadequate, unreasonable and insufficient, the compensation-amount awarded being far below the market value of the properties concerned at the material time and accordingly, the owners of the said lands, namely, the present petitioners being dissatisfied herewith filed a petition before the ld. L.A. Collector, 24-Parganas (S) in 1994 under section 8 of the West Bengal Land Acquisition and Requisition Act, 1948 read with section 18(1) of the Land Acquisition Act, 1894 praying for an order referring the same to Court of District Judge for proper determination of the market value of the land including the structure thereon in question. The said reference petition-was filed well-within the period of limitation and it was registered as Ref. No.204/93-94. 2. Since the hearing of the matter was being delayed, the petitioner approached this court in its revisional jurisdiction and on 16th May, 2000 a single Bench of this court disposed of that application by directing the concerned authority to dispose of the said reference case within a period of three months from the date of communication of the said order along with further direction that the said authority should hear the parties and pass a reasoned order. Pursuant to this order the ld. L.A. Collector disposed of the matter by its order dt.17th January, 2001 rejecting the petition on a technical ground, namely, that since three awardees had filed that reference jointly it could not be entertained or found to be maintainable, inasmuch as, it was contrary to the provision of Rule 101 of the West Bengal Land Acquisition Manual, 1991. L.A. Collector disposed of the matter by its order dt.17th January, 2001 rejecting the petition on a technical ground, namely, that since three awardees had filed that reference jointly it could not be entertained or found to be maintainable, inasmuch as, it was contrary to the provision of Rule 101 of the West Bengal Land Acquisition Manual, 1991. It was further held in that order that the award in respect of the old pucca building could not be made for want of vetting by PWD authority and steps towards making payment of the award regarding the same in favour of the petitioners would be made after the vetted amount was available. 3. Being aggrieved by this order of the ld. L.A. Collector, all the three petitioners have preferred the present revisional application alleging it as illegal, erroneous and unsustainable. 4. Mr. Banerjee, appearing on behalf of the petitioners, has contended that the ld. L.A. Collector rejected the prayer of the petitioners for reference of the award to the Court of District Judge on purely technical grounds. Both under the provisions of section 8 of the West Bengal Land Requisition and Acquisition Act, 1948 and under section 18(1) of the Land Acquisition Act, 1894 his role was nothing but that of post office and was bound to send the award being disputed by the petitioners to the court of ld. District Judge for determination of the quantum of compensation. 5. The point which was found by the ld. L.A. Collector not favouring the petitioners is that the petition of reference were jointly filed by three petitioners, although they were three different awardees and under such circumstances they ought to have filed application separately and independently as per provision of Rule 101 of the Land Acquisition Manual, 1991. Mr. Banerjee vehemently-argues that this technical aspect cannot be allowed to prompt the court to overlook the substantive aspect of justice when the provisions of the Land Acquisition Manual are nothing but certain administrative directions and cannot be taken to have any impact on the statutory provisions for determination of rights and liberties of the people. In support of his contention Mr. Banerjee refers to a number of decisions. He cites the decision reported in AIR 1965 S.C. 1196 wherein the Apex Court has held that Rules framed under Assam Govt. In support of his contention Mr. Banerjee refers to a number of decisions. He cites the decision reported in AIR 1965 S.C. 1196 wherein the Apex Court has held that Rules framed under Assam Govt. Aided College Employees Rules, 1960 were bound to be in the nature of administrative instructions without any statutory force. 6. Then he refers to the decision in 1982 (1) CHN 198 where a Division Bench of this Court has held that the court should not be guided by technicalities but by the spirit of doing justice. 7. The third decision relied upon by Mr. Banerjee on this question is the decision reported in 1983 (2) SCC 132 . It has been observed in this case that fair play in action must inhere any judicial approach also as in administrative law and the Court's approach should be oriented with this view whether substantive justice is done between the parties or technical rules of procedure are given precedence over doing substantial justice in Court. A code of procedure is designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties. 8. In the present case the ld. Collector instead of disposing of the petition under consideration by referring the awards to the court of law found the petition not maintainable for the reasons that they were jointly filed in one single petition and under the provision of Land Acquisition Manual such jumbled up petitions could not be dealt with. It goes without saying that the manual of the Land Acquisition Laws constitutes certain procedural guidelines for the administrative authority to follow and is not certainly any substantive law. If any of such rules was violated, that might at the most cause inconvenience to the administration in so far as the procedural aspect was concerned, but certainly that cannot be allowed to strike a blow to the substantive rights of the parties making such application. When these petitions under section 18(1) of the L.A. Act was jointly filed by these awardees in the year 1994, the ld. L.A. Collector did not raise any objection and admitted the petitions and got it registered thereby giving an impression that there was nothing wrong in its form or, for that matter, in the joint filing of the petitions. When these petitions under section 18(1) of the L.A. Act was jointly filed by these awardees in the year 1994, the ld. L.A. Collector did not raise any objection and admitted the petitions and got it registered thereby giving an impression that there was nothing wrong in its form or, for that matter, in the joint filing of the petitions. What is more, the petition remained pending for a long period of seven years before the court of the Land Acquisition Collector and during these period of seven years the department did not consider it necessary to return the petitions to the petitioners giving them an opportunity to remove defect and refile the same in the prescribed manner. After a passage of seven years when that period of limitation had already been over the ld. L.A. Collector rejected it on the plea that it was not in proper form with the result that the petitioners were left remedy less due to the operation of law of limitation. 9. Mr. Banerjee in order to bring home his point that the ld. L.A. Collector is debarred from passing such order has referred to a number of decisions of the Apex Court as well as of this court. Thus in AIR 1931 P.C. 39, the Privy Council has held that where in a reference-application a highly technical objection to the effect that the application requiring the ld. L.A Collector to make reference was not made by the proper person was not taken at the first opportunity, when it might possibly have been met by making fresh application, it must be considered to have been waived. 10. Mr. Banerjee contends that in the instant case although the objection that the petitions ought to have been separately filed instead of being a joint one was not taken during the long seven years of its pendency before the ld. L.A. Collector, far less at the first instance, and on the contrary it was taken on the date on which the Collector took the case up for disposal after a lapse of long seven years, when the petitioner could not be in a position to file fresh petitions, such order of the ld. L.A. Collector cannot be tenable in view of the above principle enuntiated by the Privy Council in the case under reference. 11. In another judgment relied upon by Mr. Banerjee viz. L.A. Collector cannot be tenable in view of the above principle enuntiated by the Privy Council in the case under reference. 11. In another judgment relied upon by Mr. Banerjee viz. in AIR 1991 SC 1966 , reference was sought by one of the co-owners of the land in question in respect of the award, but when ultimately it was found that the said co-owner was entitled to get additional compensation as prayed for, it was held by the Court that the other co-owners who did not file any such petition were also entitled to the enhanced compensation pro rata as per their shares. 12. Mr. Banerjee contends that if the Court consider it a fit case for dispensing with the formal requirement or filing a petition under section 18(1) of the L.A. Act for the purpose of modifying an award of the L.A. Collector, then there cannot be any impediment in the way of the Court's overlooking this technical irregularities for doing real justice to the needy parties. To such argument of Mr. Banerjee I can hardly pay a deaf ear. Mention should also be made to another decision relied upon by Mr. Banerjee reported in AIR 1972 Bombay 152, where it was found by the Court that every Manual issued by High Court containing Rules of guidance of subordinate court's and officers could not be used as an aid to the construction of a statutory provision. 13. Regard being had to the principles and pronouncements discussed above I am of the considered view that the provision of the Land Acquisition Manual which the ld. L.A. Collector highlighted and in view of which he refused to follow the mandatory dictates of section 18(1) of the L.A. Act as well as section 8 of the W.B. Land Acquisition and Requisition Act were of purely technical implication and could not be used to overstep the merit of the application and infringe the substantive rights of a litigant party. The ld. L.A. Collector misdirected himself and fell into clear error by refusing to refer the awards in question to the Court of law on purely technical ground after the lapse of so many years when the applicants had no scope to remove the defect. 14. So far as the question of maintainability of this revisional application under Article 227 of the Constitution is concerned, Mr. 14. So far as the question of maintainability of this revisional application under Article 227 of the Constitution is concerned, Mr. Banerjee has convinced me by relying upon an observation of a Division Bench of this Court reported in 66 CWN 446. It has been held therein that the ld. LA Collector in refusing the reference on the ground of limitation has certainly acted judicially or at least quasi judicially, and would at any rate come within the term 'Tribunal' under Article 227 of the Constitution. Here also, as has been rightly pointed out by Mr. Banerjee, by refusing to entertain the petition certainly the ld. Collector has passed an order while acting judicially and from that point of view the order must be treated as one passed by the Tribunal so as to bring it within the purview of Article 227 of the Constitution of India. 15. In view of the above discussion, it is clear that the order passed by the ld. Collector in question is highly improper and also illegal. The defect, if at all, of technical and formal nature ought to have been pointed out at the very outset and the petitioners ought to have given a chance to file petitions in proper form but since that was not done for long seven years, relying upon the Privy Council decision discussed above, I must hold that the said defect of technical nature has been waived. The ld. Collector, therefore, be directed to pass a fresh order making a reference of the awards in question to the Civil Court for adjudication and determination of the market value of the properties in question as prayed for by the petitioners. 16. The revisional application, therefore, succeeds and the impugned order be set aside. 17. There will be no order as to costs. 18. Since the matter has already been delayed and dragged for a long time, no further delay should be indulged in and the ld. L.A. Collector is directed to dispose of the matter within two months from the date of communication of this order without fail. 19. Let urgent certified xerox copy of this order be made available to the ld. Advocate for the petitioners, if applied for. Revisional application succeeds.