HRISHIKESH MITTER Vs. STATE OF WEST BENGAL
LAWS(CAL)-1963-2-17
HIGH COURT OF CALCUTTA
Decided on February 14,1963

HRISHIKESH MITTER Appellant
VERSUS
STATE OF WEST BENGAL Respondents




JUDGEMENT

R.S.Bachawat, J. - (1.)These rules are directed against an order of the Special Land Acquisition Judge, Alipore, dated the 5th September 1959 rejecting the references made by the Collector at the instance of the petitioners under Section 18 of the Land Acquisition Act, 1894 read with Section 8 of the West Bengal Land Development and Planning Act (Act XXI of 1948) on the ground that these references were incompetent. The references were made by the Collector on the written applications signed on behalf of the petitioners by their respective pleaders. In each case the vokalatnama of the pleader signed by or on behalf of the petitioner concerned was filed before the Collector before the application was made to him. Section 18 of the Land Acquisition Act, 1894 provides that any person interested who has not accepted the award may, by written application to the Collector require that his objection to the award be referred by the Collector for the determination of the Court. In the instant cases the written application was not signed by the petitioner concerned but was signed by his pleader on his behalf. The question is whether in these circumstances the references are incompetent. Now the normal rule is that the party can do by means of an agent what he can do himself. The following passage in Halsbury's Laws of England, Third Edition, Volume 1, Article 352, pages 147-48 accurately summarizes the law on the point.
"It may be stated as a general proposition that whatever a person has power to do himself he may do by means of an agent. There are, however, two exceptions to the general rule that a person may do by means of an agent whatever he has power to do himself : (1) Where the transaction is required by statute to be evidence by the signature of the principal himself; (2) Where the competency to do the act arises by virtue of the holding of some public office or by virtue of some power, authority, or duty of a personal nature and requiring skill or discretion for its exercise, or where a statute imposes on a person a duty he is not free to delegate."

(2.)Admittedly the second exception has no application to the cases before us. The general rule and the first exception were recognized in The Commissioner of Agricultural Income-tax, West Bengal v. Sri Keshab Chandra Mandal, 1950 SCJ 364. In that case Das, J. observed at page 367, "There is no doubt that the true rule as laid down in judicial decisions and indeed as recognised by the High Court in the case before us is that unless a particular statute expressly or by necessary implication or intendment excludes the common law rule, the latter must prevail. It is therefore, necessary in this case to examine the Act and the rules to ascertain whether there is any indication therein that the intention of the Legislature is to exclude the common law rule." On a consideration of the Bengal Agricultural Income-tax Act (Act IV of 1944) and of the rules and the forms their Lordships of the Supreme Court held that there were clear indications of an intention on the part of the Legislature to insist on the personal signature of the assessee, appellant or applicant whenever his signature was required by the Act and the Rules and that the common law rule qui facit per alium facit per application was excluded by necessary implication and the intendment of the Act and the rules.
(3.)On behalf of the opposite parties it was argued that as Section 5A(2), 9(2) and 12(2) specially provide for representation of the party interested by his pleader or his agent and as Section 18(1) does not specially provide that he may by written application by his pleader or agent require the Collector to make the reference, the necessary implication and intendment of the Act is that he must by a written application signed by him personally require the Collector to make the reference. I am unable to accept this contention. Section 5A provides for hearing of objections to the preliminary notification issued under Section 4 and sub-section (2) of Section 5A specially provides that the Collector must give the objector an opportunity of being heard either in person or by a pleader. Section 9 provides for issue of notices inviting claims to compensation after the publication of the declaration of the intended acquisition under Section 6; and sub-section (2) of Section 9 provides that the notice shall require all persons interested to appear personally or by agent before the Collector and to state their respective interests, claims and objections, but that the Collector may require such statement to be made in writing and signed by the party or his agent. It is to be noticed that unless required by the Collector even the basic statement of the claimant as to his interests, claims and objects need not be in writing signed by him or his agent. Section 11 provides for enquiry into the value of the land and into the interests, claims and objections of the claimants and for the award by the Collector under his hand, and Section 12(2) requires the Collector to give immediate notice of his award to each of the persons interested as are not present personally or by their representatives when the award is made. It is to be noticed that all stages of the enquiry by the Collector and also at the time of the making of the award, the claimant is entitled to appear personally or by his agent. We find no indication in the Act of any general intention on the part of the Legislature requiring the personal signature of the claimant on the statements and applications filed before the Collector on his behalf. Under Section 18(1) the claimant may, by written application, require the Collector to make the reference and there is nothing in the Act to show that the claimant cannot do by his duly authorised agent what he could do himself. It is necessary that the claimant must require the Collector by a written application that the matter be referred to Court, but the section does not insist that the written application must of necessity be signed by the claimant. The requirement of a written application does not necessarily imply that the application must be signed by the applicant. See Umed Singh v. Subhag Mal 43 IA 1-20 C.W.N., 137. In all the cases under discussion the duly authorised pleader of the claimant had signed the application. Before the application was presented to the Collector the written authority of the pleader signed by the claimant was filed before the Collector. The Collector was satisfied that a proper written application on behalf of the claimant under Section 18(1) had been duly made before him and that the other conditions of the section had been complied with. In these circumstances it must be held that the references made by the Collector were competent.


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