MAHESH MISSIR Vs. PROVINCE OF BENGAL

JUDGEMENT

(1.) This rule is directed against an order passed by the Calcutta Improvement Tribunal dated 18 April 1939 rejecting a reference made to it by the First Land Acquisition Collector, Calcutta, under Section 49(1), Land Acquisition Act. The material facts may be shortly stated as follows: Premises No. 40, Lake Road which comprises an area of 6B-5C.6ch of lands was scheduled for acquisition under the Land Acquisition Act as amended by the Calcutta Improvement Act, under declaration No. 12578L-A, dated 19 June 1937. One Saradindu Mukherji, who is stated to be the owner of the premises, applied to the Board of Trustees for the Improvement of Calcutta for exemption of this property from acquisition under Section 78, Calcutta Improvement Act. This application was rejected. Thereupon there was an agreement entered into between the owner and the Board on 24 January 1939 by which a portion of the premises measuring 58ct 12ch only which was coloured blue in the map was to be acquired and the balance measuring 66ct 12ch, which was painted pink was exempted from acquisition. Proceedings were then taken up by the Collector for the acquisition of the blue plot only and the petitioners who are alleged to have huts on the pink portion filed applications before the Collector stating inter alia that the land to be acquired contained a part of the access from the lake to their structures and that filtered water connexions and drains to their huts also ran through that land. It was further stated that they had a right to use the water of the tank and Jhil in premises Nos. 40 and 40/1 Lake Road. As the afore, said access and water connexions were said to constitute an integral part of the huts in the excluded portion they prayed for the acquisition of these huts as well. Upon that the Collector made a reference to the Court under Section 49(1), Land Acquisition Act, and the question referred for determination was, whether the portion of the land intended to be acquired formed a part of the house of the petitioners within the meaning of Section 49, Land Acquisition Act. The tribunal by its order mentioned aforesaid rejected the reference on the ground that the reference was incompetent. It is against this order that the present Rule has been obtained.

(2.) Mr. Bepin Chandra Mullik who appears for the opposite party has raised a preliminary point and he has argued that as the order rejecting the reference could have been challenged by way of appeal the petition for revision does not lie. We do not think that this contention is sound. Prom the decisions of the tribunal only a limited appeal is given by the Act 18 of 1911 and as the Preamble of that Act says, an appeal lies only from the award of the tribunal constituted under the Calcutta Improvement Act of 1911, I am unable to hold that a decision on or a determination by the tribunal of any matter which has no reference to compensation in some form or other comes under the definition of an award . That no appeal lies in such cases has been expressly held by a decision of this Court in Sarat Chandra Ghise V/s. Secy. Of State (1919) 6 A.I.R. Cal. 86 The case in Dalchand Dinghi V/s. Secy. of State (1917) 4 A.I.R. Cal. 148 upon which reliance has been placed by Mr. Bepin Behary Mullik, cannot, in our opinion, be regarded as an authority in support of a contrary view. In that case it was not disputed that an appeal would lie only against an award but it was observed by the learned Judges that such orders had been dealt with in appeal by the Allahabad and Madras High Courts. The learned Judges however concluded by saying that as there was a petition in revision filed in that case upon which a rule was obtained they had ample authority to deal with the matter under Section 115, Civil P.C. We are unable to hold that the order passed by the tribunal in the present case was an appealable order.

(3.) Coming now to the merits of the case it would seem that the tribunal has rejected the reference relying on certain previous decisions of its own where under similar circumstances the reference was held to be incompetent. The reason in substance appears to be this. There was a declaration here made under Section 6, Land Acquisition Act, which covers the entire premises in eluding both the pink and the blue plots. The agreement entered into between the trustees on the one hand and Saradindu. Mukherji on the other was not in pursuance of Clause (4) of Section 78, Calcutta Improvement Act, and consequently there was no abandonment within the meaning of Clause 5 of that Section. It is said therefore that as there has not been an abandonment of the land acquisition proceedings with regard to the pink portion Section 49, Land Acquisition Act, is inapplicable, for it cannot be said that the provisions of the Act are being enforced1 for the acquisition of a part of the house, unless the acquisition of the lands upon which the remaining part of the house stands is abandoned. There can be no doubt, in my opinion, that unless at the present moment there has been an abandonment of the acquisition with regard to the pink portion no question of reference under Section 49, Land Acquisition Act, can possibly arise. But the error lies in assuming that the only way of abandoning acquisition is that provided by Section 78, Calcutta Improvement Act. Section 78 lays down one particular method, according to which, if any area, the acquisition of which has been sanctioned by the Local Government, is not required by the Board for the execution of the scheme the Board may abandon the acquisition proceedings in consideration of certain money payments being made by the owner or an agreement being executed by him in conformity with the provisions of that Section. But even apart from Section 78, Land Acquisition Act, there is nothing in the Land Acquisition Act or the Calcutta Improvement Act which prevents the acquiring authority from abandoning a portion of the land in respect of which proceedings under the Act have been taken. As was observed by D.N. Mitter J. in Secy. of State V/s. Mahip (1936) 41 C.W.N. 437. it was consistent with commonsense that the party which had been given power to acquire lands for certain purposes had also the power to abandon any such land which was intended to be acquired from acquisition unless there was provision in the statute preventing such piecemeal acquisition.