COMILLA ELECTRIC SUPPLY LTD Vs. EAST BENGAL BANK LTD

JUDGEMENT

(1.) This rule is directed against an order dated 24 March 1939 by which the District Judge of Tipparah exercising the functions of the Court under the Land Acquisition Act, rejected a reference made to him by the Collector of Tipperah under Section 18, Land Acquisition Act, on the ground that the reference was incompetent in law. The material facts are not in controversy and may be shortly stated as follows: A quantity of land measuring "595 acres situated in mouza Dharampur, in the district of Tipperah, was acquired under the Land Acquisition Act at the cost of the Comilla Electric Supply Ltd., who are the petitioners before us, for the purpose of construction of a power house at Dharampur. In the land acquisition map the area acquired was shown as divided into 15 plots and in some of the plots the petitioner company themselves claimed to have tenancy and revenue-free rights. The Collector made his award on 8 June 1938 and compensation was given to the petitioner company in respect of some of the plots acquired, though in respect of others to which also the company laid claim, compensation was allowed not to them but to opposite party No. 1. The petitioner company thereupon prayed for reference under Section 18, Land Acquisition Act, and the Collector did make reference to the Court for determination of the questions as to whether the petitioner was entitled to compensation in respect of plot 13 and also in respect of the alleged revenue free rights in respect of plots 13 and 14. The District Judge has not decided the case on its merits but has rejected the reference on. the ground that the reference was incompetent by virtue of the provision contained in the proviso to Section 50, Clause (2), Land Acquisition Act, according to which the company or the local authority for whose benefit the acquisition is undertaken is not entitled to demand a reference under Section 18 of the Act. It is the propriety of this view that has been challenged before us by the learned advocate who appears before us in support of the rule.

(2.) It cannot be disputed that in the present case not only was the acquisition made at the instance, and for the benefit of the petitioner company, but they were claimants also who admittedly had some interest in some of the plots which were the subject-matter of acquisition. It has been held by this Court in Babujan V/s. Secy. of State (1906) 4 C.L.J. 256, that in such cases all the provisions of the Land Acquisition Act are applicable and the Collector would have to acquire the aggregate of rights in the land including the interest which is claimed by the company or local authority at whose cost the acquisition is made. The petitioners therefore are persons interested within the meaning of Section 3, Clause (b), Land Acquisition Act, and they would have a right to demand a reference under Section 18 of the Act unless that right has been taken away by some other provisions in the Act. The contention of the Advocate-General who appears on behalf of the opposite party is that Section 50, Clause (2) proviso, does take away the right and makes it incompetent for such local authority or company to demand a reference under any circumstance whatsoever under Section 18, Land Acquisition Act. In my opinion this contention cannot be accepted. Section 50, Clause (2) obviously contemplates a case where acquisition is undertaken by the Government at the cost of any company or local authority. The mere fact that acquisition is made for their benefit would not bring such a company or local authority within the purview of the definition of "persons interested" as given in Section 3, Clause 2, Land Acquisition Act, and consequently they would not have the right ordinarily of appearing before the Collector or the Court or adducing any evidence in the land acquisition proceedings.

(3.) Section 50, Clause (2) purports to remedy this disability and it lays down that in any proceeding held before a Collector or Court in such cases the local authority or company concerned may appear and adduce evidence for the purpose of determining the amount of compensation. The reason is plain. It is the company or the local authority who has got to pay the money in such cases and it would be unjust to deny them, the right to appear and adduce evidence-which would have a bearing on the amount of the compensation money. The proviso, in my opinion, makes it clear that although they can appear before the Collector and the Court they would not have the right of demanding a reference and in this respect their position is the same as that of the Government itself. This, in my opinion does not affect their rights as claimants in the land acquisition proceedings. There are-no express words in Sub-section 2 of Section 50 which. would take away the rights which the company or the local authority might enjoy as claimants or persons interested under Section 18, Land Acquisition Act. The application of the proviso must be held limited to cases where the provisions of the sub- section itself, which in one sense are qualified by the proviso, are applicable and it is a well established canon of interpretation that a proviso shall not be construed so as to enlarge the scope of the enactment when it can fairly and properly be construed, so as not to attribute to it this effect.