STATE OF WEST BENGAL Vs. PHANINDRA KUMAR KUNDU

JUDGEMENT

(1.) This appeal is by the State of West Bengal against the judgment and decree of the Additional District Judge, Howrah, arising out of a Reference Case under Section 18 of the West Bengal Land Acquisition Act briefly in the following circumstances:-- The claimants-petitioners were the owners of certain lands together with building comprising more or less an area 35 cottahs 6 chattacks 12 sq. ft. situate on Telkalghat Road now known as Nityadhan Mukherjee Road within the municipal area of Howrah. By a notification dated 21-11-45 under Section 4 of the Land Acquisition Act (1 of 1894) the above premises were notified for acquisition and declaration was published in the Calcutta Gazette dated 14-6-51. The Special Land Acquisition Collector, Howrah, gave an award on 29-8-52 of a total sum of Rs. 57,477-7-3 on land and Rs. 22,493-3-0 on the buildings and other structures standing on a portion of such land with additional statutory compensation of 15% amounting in all to Rs. 91,966-3-5 as compensation in favour of the claimants as also a small fraction of the same in favour of the holder of the superior interest in respect of the said premises. Both the claimants, namely, Phanindra Kumar Kundu & Ors. as also the holder of the superior interest of the acquired premises made an application for reference under Section 18 of the Land Acquisition Act challenging both the valuation and apportionment as given by the Special Land Acquisition Collector in his award whereupon the matter was referred to the learned Judge for determination of both the questions.

(2.) The matter eventually came up before the Additional District Judge, Howrah, who enhanced the value and assessed the value of the land at a fiat rate of Rs. 2,000/-per cottah and awarded compensation of a total sum of Rs. 70,833.50 for the land and as regards the buildings and other structures also enhanced the valuation and awarded a total compensation of Rs. 40,136-3-0. These two sums calculated with the value of the trees came to Rs. 1,11,041-8-0 and with statutory compensation of 15% amounted in all to a sum of Rs. 1,27,697.10 and accordingly modified the award of the Collector. As regards the claim of the superior interest holder, namely, Prosad Bala Devi and others Reference Case being Misc. Case No. 124 of 1953 was dismissed without costs. That is how, in short, the State of West Bengal felt aggrieved and preferred the present appeal.

(3.) It appears that the learned Judge rather followed somewhat peculiar procedure for assessing the valuation of land and buildings by appointment of a Commissioner. The claimants-respondents, namely, the Kundus applied for appointment of a Valuer named P. C. Chatterjee of No. 12, Old Post Office Street, Calcutta, presumably for giving his opinion as to the market value of both the lands and the structures at the material time before the Court. While allowing such petition the learned Judge however appointed one J. M. Sen. Deputy Assessor of Howrah as Commissioner for the purpose of local inspection and for submission of a report on the valuation of the property in suit as prevailing, as appears from his order dated 6-8-1955, in or about 21-11-45 after taking into consideration the points referred to in the petitioners' application and also other facts that may be deemed necessary by the Commissioner. To this procedure, however, objections were raised on behalf of the State but not actually decided. The Commissioner submitted a report both on the valuation of the land and structures but he was not examined as a witness on behalf of either side in this case, as appears again from the order No. 70 dated 4-6-57. Both the claimants and the State filed however detailed objections against the report of the Commissioner. It is not, however, clear from the subsequent order or from the records of this case as to what happened actually to these objections. It is now contended on behalf of the State relying upon a note portion of a decision of this Court in Secretary of State v. Baijnath Goenka reported in (1908) 12 Cal WN CC (Notes) 200 that the Commissioner's report is not admissible. Such a procedure is unwarranted and the report submitted by the Commissioner is not admissible as the Court cannot delegate its function upon the Commissioner to find out the valuation of the acquired property. It is unnecessary for the purpose of this case to go into such questions for it appears that these objections were not pressed during the hearing of the case on behalf of the State. As already noticed the State also did not want the Commissioner to go into the witness box for offering himself to cross-examination at least on the question of valuation both as regards the land and building as estimated by him. Further, having regard to the facts and circumstances of this case we are not prepared to hold that the valuation of both building and land as made by the Commissioner appointed by the Court was altogether inadmissible. We have no doubt that he gave his opinion as an expert and we have equally no doubt that such opinion for the purpose of correct assessment of valuation of the disputed property can be gone into by the Court for effective determination of real question in controversy between the parties. There is also nothing to indicate in the circumstances of the case from his report that the Court delegated its judicial function to such Commissioner for determination of the valuation of the disputed property finally. Accordingly, it cannot be held that the Court was entirely wrong in considering the report of the Commissioner for determining the question of valuation of both the land and the buildings in this case.