Anil Kumar Sen, J. - (1.) This is an application for special leave under section 77A(1)(b)(ii) of the Calcutta Improvement Act. The State of West Bengal is the applicant. The appeal proposed is against an award dated July 25, 1978 by the Calcutta Improvement Tribunal in Ref. Case No. 25 of 1972(2). The present application for special leave has been filed on a refusal by the Tribunal to grant such a leave under clause (i) of the above provision. An area of 3 Cottah and odd out of Premises no. 1, Raja Subodh Chandra Mallick Road abutting on that road was acquired by the petitioner for the purpose of widening the said road. The Collector made an award valuing the land so acquired at the rate of Rs 3765.00 per Cottah but on a reference to the Tribunal, the Tribunal has enhanced the compensation by valuing the land at Rs. 10,860/- per cottah. the Tribunal made the valuation on the basis of an award for compensation on acquisition of a similar plot of land quite near the land in disputes on the same road. Feeling aggrieved the State of West Bengal want to prefer an appeal to this Court. Hence the present application for Special leave.
(2.) The appeal is ex-facie barred by limitation but the Counsel for the State contends that in the event special leave is granted, the State would seek for condonation of the delay since there exists, according to him, sufficient cause. The appeal to this court being limited to the grounds specified in section 77A (2) the special leave prayed for can be granted if any of the grounds so specified can be said to have been made out. Such being the position in law Counsel for the State contends that the proposed appeal involves two questions of law. In the first place, it has been contended that the land under acquisition being a small strip of land carved out of a big plot being Premises no. 1, Raja Subodh Chandra Mallick Road on the road side the valuation could not have been made treating the land under acquisition at an independent and separate unit. On the other hand, it is said that the Tribunal should have found out the average rate per cottah of the entire land of which the land acquired is a part and should have valued the same at that rate. The laid principle not having been adopted it is urged that there has been a grievous error on the point of application of the correct principles of valuation. Obviously such a contention is based on an earlier decision of this Court in the case of State of West Bengal v. Bibhutl Bhusan Chatterjee, AIR 1959 Cal. 572. Secondly, it has been contended that the provision for solatium as in the Land Acquisition Act, the award of solatium is contrary to law.
(3.) This application is being contested by the claimant on a caveat lodged on their behalf. Mr. Chatterjee appearing on behalf of the claimant has contended that while the first point proposed to be raised does not arise in the present case on its facts and the other is covered by the decision of this Court as also that of the Supreme Court striking down the provision of the Calcutta Improvement Act whereby the provision for solatium had been ruled out. Incidentally it has been contended by Mr. Chatterjee that even the principle laid down by this Court in the case of State of West Bengal v. Bibhutl Bhusan Chatterjee (supra) is open to serious doutet as to its correctness in view of an earlier decision of the Privy Council in she case of Municipal Council of Colombo v. K.M S. Chattiar, 51 C.W.N 504.;