RADHABAI PURSHOTTAM ALIAS RADHABAI DAMODAR Vs. SECRETARY MINISTRY OF LAND AND LAND REVENUE DEPARTMENT

JUDGEMENT

(1.) IN this rule the petitioner prays for a writ in the nature of mandamus commanding the respondents to implement the order of the learned District Judge (Special Judge)in the Estates Acquisition Appeal No. 16 of 1967. The petitioner's brother jiwandas P. Dutta, was the owner of about 133. 35 acres of lands and also some tenanted lands in Mouza Bhaluka, J. L. No. 1 P S. Amdanga and also in Mouza maricha, J. L. No. 5, district 24-Parganas. The said lands vested in the State by a government notification being No. l2538-L dated August 16, 1954 with the enforcement of the West Bengal Estates acquisition Act, 1953 (West Bengal Act 1 of 1854) with effect from 15th April, 1955. Thereafter notice under section 10 (2)was served on the petitioner's predecessor-in-title by which he was required to deliver up possession of those lands. In pursuance of the said notices it is alleged that possession was obtained by the respondents and the certificate of possession was granted to the petitioner by the respondents and the compensation assessment Roll was prepared by the settlement Camp 2 (C), Barasat, District 24-Parganas'. The brother of the petitioner filed an objection under section 15/1 (a) of the said Act and the said objection was numbered as objection Case No. 355. Jiwandas P. Dutta however died on 15th September, 1964, and the petitioner was substituted in his place and stead in the said proceedings under the said Act. The respondent No. 2, the compensation officer at Barasat by order dated 19th july, 1965 and December 18, 1965, awarded compensation in favour of the petitioner for about Rs. 39,000/ -. The petitioner being aggrieved by the said judgement and order preferred an appeal before the Special Judge, and the appeal was registered as Estates Acquisition Appeal no. 21 of 1966. The learned district judge at Alipore (Special Judge), allowed the appeal by his judgment and order dated February 29, 1967 and remanded the case back to the respondent No. 2 for rehearing of the same. Respondent no 2 re-heard the matter and again passed an order for assessing the compensation of Rs. 42,000/- and an appeal was again taken by the petitioner to the Learned district Judge (Special Judge) under the act and the said appeal was numbered as Appeal No. 16 of 1967. The learned district Judge (Special Judge) by order dated 31st July, 1969, set aside the order of respondent No. 2 compensation Officer and awarded the compensation to the petitioner to the tune of Rs. 1,28,584/- and the usual statutory interest thereon from the date of vesting. But it appears, however, against that order enhancing the compensation from Rs. 42,000/- to rs. 1,28,000/- no appeal was taken by the State Government under 20 (2) of the west Bengal Estates Acquisition Act. It is stated before me an application was moved by the State Government against the said order ; but unfortunately, it is stated by Mr. Bagchi, that the said application was rejected on the ground of delay. But still the State Government sat on it and did not pay any compensation to the petitioner. Hence the petitioner moved this Court and obtained the present Rule with a direction on the state Government by writ or mandamus to make the payment which is the State government's liability to pay to the petitioner on the basis of the order already passed.

(2.) MR. Sen on behalf of the petitioner contended that the State Government has taken the possession of the lands which have been vested in the State though assessment of compensation has been made and appeal was taken by the petitioner which succeeded in favour of the petitioner. Thereafter application challenging the order of compensation at rs. 1,28,000/- failed but still the State government is not making any payment whatsoever as compensation to the petitioner in respect of the lands which are admittedly vested in the state and the State has taken possession thereof. Mr. Sen further contended that the order passed by the (Special Judge) under section 17 is not an appealable order and as such the state Government could not prefer an appeal. In my opinion, Mr. Sen's argument is that the order passed by the learned Special Judge is without jurisdiction. If that is so, it was open for the State Government to challenge the order before me. It is now clear to me that the State Government did challenge the same before this Court but the said application was rejected by this Court under Article 227 of the constitution of India on the ground of delay. Therefore, so far as challenge of jurisdiction of the order of the special Judge is concerned this is not now open to the State Government to argue that the order is without jurisdiction. Once the petition having failed in this Court it appears to me that the order is binding and must have to be acted upon and the respondents cannot reagitate the question colaterally in an application moved by the. petitioner for implementation of the order passed in favour of the petitioner. Mr. Sen however contended that the order of the learned District Judge was wrong and he cannot pass an order under section 15 (1) (a) of the West Bengal estates Acquisition Act. Section 15 (1) (A) is in the following terms:- (a) an intermediary may file before the compensation officer an objection in writing in the prescribed form in respect of any entry therein, or any omission therefrom relating to his estates interests, or income.

(3.) SECTION 15 (1) (a) provides for filing an objections before the compensation Officer within one month from the date of the publication of the compensation Assessment Roll under section 14 and after hearing the objection the Compensation Officer must assess the compensation in accordance with section 17 of the Act. Against the assessment of compensation by the compensation Officer under section 15 and 15 (a) or under proviso (b) of subsection (2) of Section 25 an appeal lay to the Special Judge. The compensation Officer did assess the compensation for Rs. 42,000/ -. The appeal was taken by the petitioner to the Special Judge. The Special Judge has made an order for fresh fixing the amount of compensation under section 17 of the Act. The compensation Officer must assess the compensation on the basis of provision of section 17 of the Act. The computation of compensation is only under section 17 of the Act. Mr. Sen argues that the order is without jurisdiction I cannot agree with Mr. Sen's contention. An appellate tribunal has the same power to assess compensation as compensation Officer because he is the appellate authority to the Compensation officer itself. Otherwise the appellate power of the appeal court will be more or less nugatory and no order can be passed even if in the opinion of the appellate tribunal the assessment of compensation by the Compensation officer was wrong. In my opinion, therefore, there is no merit in the contention of Mr. Sen that appellate officer should have sent the case back to the compensation Officer for assessment of the compensation. It is made clear by the appellate order that the Compensation assessment Roll must be modified according to the judgement of the special Judge under section 20 of the West bengal Estates Acquisition Act.