Nabin Chunder Sarma vs The Deputy Commissioner of Sylhet

This appeal arises out of a case under the law relating to the acquisition of land for public purposes. The reference to the Civil Court was made under sec. 15 of the old Act (X of 1870) on the 30th September 1893, and the Collector, after giving the names of the persons who claimed to be interested in the land, in his grounds of reference to the Civil Court, said this :-- "The persons interested did not agree to accept the amount of compensation offered, and there is also dispute among the persons interested as to the extent'' of their respective rights and interests." Upon this reference being made, the case was taken up by the Civil Court, and whilst the proceedings were pending, the old Act was repealed by Act I of 1894, which came into force on the 1st day of March 1894, and which, in sec. 2, sub-sec. 2, provides that all proceedings commenced under the old Act shall, as far as may be, be deemed to have been commenced under the new Act. The proceedings then went on before the Civil Court, and, on the nth April 1894, the pleader of one of the parties, viz., Nabin Chunder Sarma, the Appellant before us, intimated to the Judge below, as we find recorded in the order-sheet, that he did not contest the award of the compensation. The other claimants did contest the award of the compensation; and there was, as has been already pointed out in the Collector''s reference, also a dispute as to the shares. Then, it appears, that by an order, dated the 13th December 1894, the Judge directed that the sum of Rs. 1,465 be paid as the value of the land, and that compensation be paid according to clause (2), sec. 23, Land Acquisition Act, (I of 1894,) and that the case be brought up on the 21st December 1894 for adjudication of the question. of right. Later on, we find that the parties came to an amicable settlement upon the question of shares, separate petitions being filed by the different parties, in some of which the share of the Appellant was admitted to be a 2-annas odd gundah, as claimed by him, whilst, in other?, the admission was that the sum of Rs, 239-6-6 pies be paid to him out of the amount which was determined to be the value of the land, without any adjudication as to the shares of the claimants. The learned Judge, however, in making the final order, said this with reference to the claim of the Appellant before us, Nabin Chunder Sarma:--"With regard to the sum of Rs. 239-6-6 pies which, the parties agree, shall be taken by Babu Nabin Chunder Sarma, I decide that as that claimant did not contest the award of the Collector, he can receive no more than a sum which bears the same proportion to the sum awarded by the Collector as Rs. 239-6-6 pies bears to the whole sum awarded by me, including the 15 per cent, awarded under clause 2, sec. 23 of Act I of 1894. In other respects the agreement made by the parties is accepted."

Against this order of the learned District Judge, the claimant Nabin Chunder Sarma has preferred the appeal now before us, and it is contended on his behalf that, having regard to the circumstances of this case and to the nature of the admission made by his pleader in the Court below, he is not disentitled to the benefit of the increased value of the land which the Judge has determined. We are of opinion that this contention ought to prevail. The first question for determination is, whether this case should be governed by the old Act X of 1870 or the present Act I of 1894; and having regard to the provisions of section 2, sub-section 2 of Act I of 1894 already referred to, we think the case must be governed by the new Act, as the Judge says :--We may add, that this view is in accordance with the decision of this Court in the case of Balaram Bhrama-ratar Ray v. Sham Sunder Narendra ILR 23 Cal, 526. That being so, the next question is whether the learned Judge below was right in holding that the Appellant was disentitled to the benefit of the increased value determined by him on the ground that he did not contest the award of the Collector. The learned Judge has evidently based his decision upon the provisions of section 25 of Act I of 1894 Now, what that section enacts is this, that when the Applicant has refused to make a claim to compensation pursuant to any notice given u/s 9, that is, a notice issued by the Collector, or has omitted without sufficient reason to make such claim, the amount awarded by the Court shall not exceed the amount awarded by the Collector; and in the present case, far from there being anything to show that the Appellant refused or omitted to make a claim of this sort, we find it stated, in the Collector''s grounds of reference to the Civil Court to which we have already referred above, that the persons interested, amongst whom the Appellant is expressly named, did not agree to accept the amount of compensation offered. The case, therefore, in our opinion, is hot affected by the provisions of section 25. Then the learned vakil for the Respondent contends that when the pleader for the Appellant in the Court below distinctly stated that he did not contest the award of the compensation, it was not competent to the Appellant to claim anything in excess of the amount awarded by the Collector. Whatever force this argument might have been entitled to under other circumstances, we are of opinion that, having regard to the circumstances of this case, the argument ought not to have any effect given to it. For, though the admission was made in the terms in which it is recorded, it was made at a time when the question of shares was still in dispute, and had to be determined; and, as we have pointed out above, the way in which the question of shares was settled was that some of the rival claimants admitted the share of the Appellant to be a certain fractional share of the whole property, while others stated that a certain definite amount out of the amount determined by the Court below as the value of the land should be awarded to the Appellant leaving the question of shares undetermined. That being so, we do not think that the admission of the pleader in the Court below stands in the way of the Appellant recovering the amount that he claims. We may add that when, notwithstanding the admission of the Appellant''s pleader in the Court below, the learned Judge had to determine judicially the value of the land acquired by reason of the other claimants persevering in their objection, and when, moreover, what the Collector has to pay for is not the shares of the different claimants, but the value of the land acquired, the claim of the Appellant to his proportionate share of the value determined by the Judge seems to us to be perfectly just and tenable. The view we take of this matter is quite in harmony with the principle underlying the provisions of sec. 544, C.C.P., which authorizes an Appellate Court to reverse or modify the decree appealed against in favour of all the Plaintiffs or Defendants, notwithstanding that some only of them have appealed, when the case proceeds on any ground common to all the Plaintiffs or all the Decendants. For all these reasons, we are of opinion, that the appeal ought to be allowed, and the order of the District Judge, so far as it relates to the Appellant, set aside, and, in lieu thereof, a decree made to the effect that the Appellant do recover the sum of Rs. 239-6-6 pies with costs. The decree in other respects will stand. We assess the hearing fee at one gold mohur.