Sabyasachi Mukharji, J. - (1.) This is an appeal arising out of an order passed and judgment delivered by T. K. Basu, J., on 9th Dec., 1977. By the said judgment and order Basu, J. has dismissed the writ application of the appellant on the ground of delay. The learned trial Judge has observed that though there was some confusion as to facts, he was not pursuing the aspect about the facts, because he was dismissing the application on the ground of delay. His Lordship observed that the factual aspect regarding 9 C. S. Plots, there were serious controversies raised. But the learned Judge made it clear that he was not pronouncing on the merits of the controversies, as he was dismissing the application on the ground of delay. With great respect it is difficult to appreciate this par of the observation of the learned trial: Judge. It is not possible to find out whether the learned Judge held that the factual controversies were such which disentitled the appellant to seek relief under Article 226 of the Constitution or not. Be that as it may, it would be profitable to refer to certain facts in order to appreciate the contentions raised in this appeal and the points upon which the learned Judge has proceeded.
(2.) It appears that on or about 18th April, 1921 a permanent lease (Mokarari Mourasi Patta) was granted of Touzi No, 2402 within the District of 24 Parganas, of which the appellant was Touzi holder and/or absolute proprietor to the extent of l/3rd. The said lease provided that in the event of permanent acquisition the appellant would be entitled to the share of compensation to the ratio of 6 : 10. On the 19th Dec., 1946, 44 C. S. Plots pertaining to the said Touzi comprising of as area of 68 bighas 15 cottahs 3 chittacks were permanently acquired by the Central Government without notice. Permanent Acquisition Case No. 27/4 of 1946-47 was started before the Land Acquisition Collector, 24 Parganas, who had assessed the land value at the flat rate of Rs. 4000 per bigha. On the 15th March, 1955 the appellant was served with a notice of acquisition and the Land Acquisition Collector on being moved directed the appellant to move the proper court of law. This appears from the averments made in para 14 of the petition and this averment is not seriously disputed on behalf of the respondents. On the 3rd May, 1962 the State Government issued a notification appointing an arbitrator for determination of the compensation payable in respect of the said Touzi land. On the 11th August, 1962 the arbitrator sent back the case to the State Government for re-submission, determination and apportionment of respective shares of the persons interested in the said Touzi land from the highest chain to the lowest. It appears that on the 11th March, 1963 a writ petition was filed by one Abhoy Singh Shahela. Thereafter on 19th April 1964 the appellant moved the Land Acquisition Collector for award of compensation. This would appear from the judgment of the learned trial Judge at p 177 of the Paper Book. The petition of Shahela was marked C. R. No. 125 (W) of 1963 and came up for hearing before B. N. Banerjee, J. on the 27th Sept. 1965. Banerjee, J. directed that the respondent-State Government would appoint another Arbitrator with a direction on him to determine compensation payable for the share of the petitioner in that case which share the petitioner in that case should establish before the arbitrator. The learned Judge had, further, ordered that if for the purpose it was necessary to add other parties to the reference, the arbitrator would be at liberty to do so or the respondent-State Government should itself do so. On the 29th August, 1966 apportionment case being Arbitration Case No. 67 of 1966 (A) and Arbitration Case No. 64 of 1966 (V) were started. The appellant was already a party, i.e., the referring claimant No. 2, in the valuation case, but was left out in the apportionment case. On the 22nd June, 1967 the appellant applied to the Collector for being included in the apportionment case. On the 14th June, 1968 the terms of reference was issued to the arbitrator. Again on 7th Oct. 1971 the appellant again applied for being included as a party referring claimant in the apportionment case. On the 29th Dec. 1972 the State Government accepted the appellant's representation and held that the appellant and the original referring claimant were jointly interested in the said acquired land. The appellant should also be included as a party referring claimant in the Arbitration Case No. 67 of 1966 (A) arising out of Arbitration Case No. 64 of 1966 (V). In this connection, reference may be made to page 113 of the Paper Book, wherein in the award Sri S. S. Ganguly, the Arbitrator observed that he had been appointed Arbitrator in Arbitration Case No. 64/66 (V) for apportionment and determination of compensation payable in respect of a number of plots and went on to say that as per the order of appointment he was required to determine the amount of compensation payable in respect of the interest of only the referring claimants involved in such acquisition of such properties. Thereafter he mentioned the different plot numbers which appear at page 114 of the Paper Book. Then he gave reference to the rights of the parties with reference to the geneological table and thereafter at page 116 of the Paper Book he had stated that the parties were interested in the following shares and it may be necessary to set out the said portion of the order in the said award :-- "4. From the above table, the shares of the descendants of Raja Bara Kantha and purchasers from them may be described in the following way:-- 1. Kumar Veda Kantha 1/3rd share 2. (a) Satish Kantha by purchase from him Bahadur Singh Singhee by deed dated 7-9-1934 1/9th share (b) Nirmal Kantha 1/9th shave (c) Rani Jotirupa 1/9th share
(3.) Purchasers in Revenue sale of the share of Hemada Kantha 1/3rd share 5. Kumar Veda Kantha and Nirmal Kantha are referring Claimants Nos. 2 and 3 in this case. Admittedly, their shares in the touzi as shown in the above table were never transferred. It may be safely held, therefore, that they are entitled to get l/3rd and l/9th shares respectively out of the touzi holder's or landlord's share in the amount of compensation payable for the disputed plots." 3. After referring to the several deeds and other documents, he decided the apportionment ease as under :-- "Ordered that the apportionment case is hereby decided in favour of referring Claimants Nos. 2 & 3 without contest and in favour of referring Claimant No- 1 on contest between him and Craig Jute Mills only. It is hereby declared that the referring claimants have the following shares, mentioned against the names of each, in the amount of land-value payable as compensation for the disputed lands covered by Touzi No. 2402 of the 24-Parganas Collectorate:-- 1. Shri Abhoy. Singh Sahela 511/144th 2. Kumar Veda Kantha Sinha Roy 2/16th 3. Kumar Nirmal Kantha Roy 1/24th Parties do bear their own costs up to this stage,";