SNEHALATA BHOWMIK Vs. LAND ACQUISITION COLLECTOR WEST DINAJPUR

JUDGEMENT

(1.) An order dated June 28, 1977, passed by the learned District Judge, West Dinajpur in L. A. Case Nos. 69 of 1975, 72 of 1975, 2 of 1976, 8 of 1976 and 9 of 1976 modifying the judgment and decree earlier passed In those reference cases is the subject matter of challenge in the present revisional application. It la not In dispute that several plots of land Belonging to the petitioner having been acquired under the provisions of the West Bengal Land Requisition and Acquisition Act, 1948, the Collector made awards of compensation in respect of the land se acquired. The petitioners feeling aggrieved by and dissatisfied with the award so made obtained the above five references under Sec. 18 of the Land Acquisition Act. One of the grounds of objection raised to the award as made by the Land Acquisition Collector was that the Collector had wrongfully refused to award statutory compensation at 15/. by way of solatium under the provision of Sec. 23(2) of the Land Acquisition Act, 1894. By a judgment dated August 25, 1976, the learned District Judge disposed of those reference cases when he net only modified the award as made by the Collector but allowed the claim of statutory compensation at 15% by way of solatium under Sec. 23(2) of the Land Acquisition Act, 1894, It was so done on the concession of the Government Pleader appearing on behalf of the State in view of the decision of this court in the case of Bijali Prova Nandi Chowdhury v/s. State of West Bengal since reported in : AIR 1977 Cal 64

(2.) On May 27, 1977, the learned District Judge, however, recorded an order that a mistake appears to be apparent on the face of the record in his judgment disposing of the aforesaid reference cases which was due to the erroneous submissions made by the Government Pleader. He thought that the provision of Sec. 23(2) of the Land Acquisition Act not having been invoked by the West Bengal Land Requisition and Acquisition Act 1848, for the purpose of determining the compensation the statutory compensation at 15% could not have been lawfully allowed. Particular reliance was placed on the provision of Sec. 8(2) of the West Bengal Land Requisition and Acquisition Act, 1948. In that view he thought it necessary to modify his judgment delivered on August 25 1976, in exercise of his inherent powers and wanted to hear the parties afresh on the point. Arguments were heard on the point and by the impugned order dated June 28. 1977, he directed the earlier judgment dated August 25, 1976, to be modified by deleting the direction for grant of statutory compensation under Sec. 23(2) of the Land Acquisition Act and interest thereon. The learned judge took the view that as a court hearing the reference he is to dispose of the reference in terms of Sec. 8(2) of the West Bengal Land (Requisition and Acquisition) Act, 1948 and since under the said provision he is to dispose of the reference having regard to Sec. 18(2). Ss. 19 to 22, 25 to 28 of the Land Acquisition Act and the principles set out in subsection (1) and in clause (a) of subsection (2) of Sec. 7 of the West Bengal Land (Requisition and Acquisition) Act, 1948. so far as they may be applicable, he has no scope for taking into consideration or applying the provision of Sec. 23(2) of the Land Acquisition Act. According to the learned judge although this court in the decision referred to hereinbefore struck down the prevision of Sec. 7(2)(a) and Sec. 8(2) so far as that provision invoked Sec. 7(2) (a), that would not render Sec. 23(2) of the Land Acquisition Act applicable because under Sec. 7(1) the compensation is to be assessed in terms of subsection (1) of Sec. 23 of the Land Acquisition Act, 1894, which subsection alone had bean invoked and made applicable to determination of compensation for land acquired under the Act. The learned judge was conscious of the position that in the decision of this court referred to hereinbefore this court not only struck down the provision of Sec. 7(2) (a) together with Sec. 8(2) in so far thereby the aforesaid Sec. 7 (2) (a) was invoked but this court went further to direct granting of compensation by way of solatium under Sec. 23(2) of the Land Acquisition Act. The learned judge, however, expressed the opinion that the High Court could do it In an appeal under Sec. 8A there being no restriction on the powers of the High Court but it was not competent for him to do so In view of the restrictions imposed by Sec. 8 subsection (2).

(3.) On a careful consideration of the statutory provisions of West Bengal Land (Requisition and Acquisition) Act, 1948, we agree with the learned District Judge that there exists an anomaly which unless removed would create certain difficulty In the matter of invoking the provision of Sec. 23(2) Of the Land Acquisition Act, in the matter of determination of compensation for land acquired under the West Bengal Land (Requisition and Acquisition) Act. But in our view there is an apparent fallacy in the view taken by the learned District Judge to the effect that though the High Court can direct grant of statutory compensation under Sec. 23(2) of the Land Acquisition Act in an Appeal under Sec. 8A of the West Bengal Land (Requisition and Acquisition) Act, he as the court of reference cannot do so. The learned District Judge failed to appreciate that as a court of appeal this court can exercise only the same powers which he as the court of reference could exercise so that if he had no power or authority to grant statutory compensation under Sec. 23(2) of the Land Acquisition Act, necessarily the High Court in an appeal from the judgment and decree passed by him cannot do so.