GANESH NAYAK Vs. LAND ACQUISITION COLLECTOR
LAWS(CAL)-1960-7-21
HIGH COURT OF CALCUTTA
Decided on July 26,1960

GANESH NAYAK Appellant
VERSUS
LAND ACQUISITION COLLECTOR Respondents

JUDGEMENT

- (1.) IN this application there are 25 petitioners. The facts are shortly as follows: premises Nos. 3, 4/1a, 4/1b and 4/1c Luxmi Narayanganj Gulee, Khidderpore, originally belonged to the Mahapatras. The Mahapatras mortgaged them to the Srinibash Banking Corporation Ltd. The mortgagees filed a suit, and went into possession. For arrears of income-tax due by the Mahapatras, the properties were sold in certain proceedings, and purchased by the Calcutta Properties Ltd. On or about the 27th September, 1957 proceedings were commenced under the Land Acquisition Act by the Land Acquisition Collector, Calcutta. Objections were received from parties interested, and so far as the petitioners are concerned, objections were received from them, except as to five; that is to say, 18 of the 25 petitioners filed objections. The objections were heard and the premises were also inspected by the Land Acquisition Collector and a report made under sec. 5a of the Land Acquisition Act. Those objections were overruled, and the Collector was authorised under section 7 of the said Act to proceed with the acquisition. Thereafter, notices under secs. 9 and 10 of the said Act were served on parties, known or believed to be interested in the premises. This part of the proceedings commenced on the 27th September, 1957 and the subsequent order sheet is to be found as an annexure to the petition at pages 14 to 25. It appears from the order sheet that the matter was adjourned from time to time and the parties interested were called upon to file their title deeds and rent receipts. So far as the petitioners are concerned, it is not disputed that they did not file any title deeds, nor rent receipts. At least none appear in the records. On or about the 7th June, 1958 after completion of the enquiry an award was made. Before the award was finalised a draft award was made and notice given to the parties for settling it. Most of the petitioners refused to accept the notice. Then a date for compensation was fixed and at this time one Hiralal filed an application under Article 226 being C. R. No. 3635 of 1958 and further proceedings were stayed. Thereafter this application was taken out.
(2.) THE application by Hiralal has already failed, the Rule having been discharged. So far as this application is concerned, the petitioners state that they are thika tenants and had built structures on the land, and yet in the award that has been made, they have been allowed removal charges only but no other compensation. Although it is not stated in the petition or in the affidavits anywhere, it now appears that four of them, viz. , Ganesh Chandra Nayak. Banchhanidhi Nayak, Banchhanidhi Boral and Purna Chandra Rakshit have already made applications for a reference under section 18 of the Land Acquisition Act, not a word of which is mentioned in the petition. The ground upon which this application is made is that in the course of the enquiry the petitioners put in objections, but they were never heard, and without hearing them the award has been made, and they have been deprived of legitimate compensation. It is argued that the award is not in accordance with section 11 of the Land Acquisition Act, and therefore is not an award at all, and under such circumstances the petitioners are entitled to come to this Court and ask for the issue of a Writ in the nature of Certiorari quashing the award and the subsequent proceedings.
(3.) THE first point that is against the petitioners is the question as to whether an application by all these 25 persons in one petition lies. It appears that some of them have made applications for a reference under section 18 and others have not. Some of them again had preferred objections to the acquisition but others had not done so They are not jointly interested in any land or structure. There can be no doubt therefore that they have independent causes of action and I do not see how they can combine themselves and make one single application. This matter has been dealt with by Halsbury in his Laws of England, Vol. 11, 3rd Edition, page 83, Para 155 where it has been laid down that two persons cannot join in a single application for an order of Mandamus to enforce separate claims. There must be separate applications for separate orders. If however it is permissible for the petitioners to join in one application, then it seems there is another insuperable barrier to the success of this application, because, at least with regard to the four applicants who have made applications under section 18 of the Land Acquisition Act this application must fail in limine. They have chosen to avail themselves of an alternative remedy granted to them under the law. Consequently while that alternative remedy is being pursued, an application cannot lie in this Court for a high prerogative Writ. If therefore the case fails against four of the joint applicants, can it succeed with regard to the rest? This point was dealt with by a decision of the Andhra High Court in In re: Atmakuri Gopal Krishna Rao and others, (1) A. I. R. (1957) Andhra 88. The learned Judge stated as follows: "it is not open to him to join in this petition other person or persons affected by similar orders, for they too have remedies open to them and the quashing of one order does not necessarily render the other order null and void. The case however may be different where a common or class injury is done by some common order or orders. Even in cases where a joint application is thus permissible the principle laid down in American Jurisprudence, Vol. 35, page 81, paragraph 33 is that if it is found that even one of the applicants is disentitled to relief, the whole application must fail. ";


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