ASMABOO KURBAN HOSSAIN Vs. PROVINCE OF BENGAL

JUDGEMENT

(1.) This rule is directed against an order of the President of the Calcutta Improvement Trust Tribunal dated 10 April 1942, passed in connexion with an application made by the petitioners, in whose favour an award was made by the Tribunal, for transmission of a certificate of non-satisfaction of the award to the Calcutta Small Causes Court, under this following circumstances : The petitioners were the owners of premises Nos. 1-A and 1-B, Pollock Street in the town of Calcutta which were acquired by the Board of Trustees for the Improvement of Calcutta and the Land Acquisition Collector made an award for a sum of about Rs. 95,000 as compensation for the said premises. There was a reference taken to the Calcutta Improvement Tribunal at the instance of the petitioners who were not satisfied with the award and the Tribunal by its order dated 6 August 1940, enhanced the award of the Collector by Rs. 59512-8-0. There is no dispute that the original sum given as compensation by the Collector has been paid to the petitioner : but as they were not paid as yet the additional amount allowed by the Tribunal, they made an application to the President of the Tribunal on 24 March 1941, praying for an order directing the Province of Bengal to deposit the said additional amount in Court. In the alternative, it was prayed that a certificate of non- satisfaction of the award together with a copy of the same might be transmitted to the Calcutta Small Causes Court with a view to enable the petitioners to execute the award under Section 77(2), Calcutta Improvement Act. This application was disposed of by the President by an order dated 6 June 1941, and the material portion of that order stands as follows: Heard Mr. P.K. Mukherjee, Pleader, appearing for the petitioners as well as Mr. L.M. Bakshi, Advocate, appearing for the Province of Bengal. Under Section 77(2), Calcutta Improvement Act, Mr. Mukherjee's clients have got ample remedy in the Calcutta Small Causes Court to have the award of the Tribunal executed through that Court. Accordingly, this application is dismissed. In case of any difficulty arising in the execution proceedings before the Small Causes Court Mr. Mukherjee on behalf of his clients will be at liberty to apply to this Court for necessary orders.

(2.) On 18 March 1942, the matter was again brought to; the notice of the President, Calcutta Improvement Tribunal,. and it was represented on behalf of the petitioners that unless a certificate of non satisfaction together with a copy of the award wag sent by the Tribunal of the Calcutta Small Causes Court, no steps could be taken for execution of the award in that Court as contemplated by Section 77(2), Calcutta Improvement Act. The matter was heard by the President in the presence of the Government Advocate on 10 April 1942, and it was held by him that in the matter of realising the money payable under the award, the procedure laid down in Section 82, Civil P.C., ought to be followed. Accordingly, it was ordered that the amount awarded should be paid within three months from that date and if the Province of Bengal did not pay the amount within the time aforesaid, the Court would under Section 82 of the Code report the matter for orders of the Local Government. The application of the petitioners for a certificate under Order 21, Rule 6, Civil P.C., was dismissed as being premature. It is against this order that the present rule has been obtained.

(3.) It seems to me, on hearing the learned advocates on both sides, that Section 82; Civil P.C., has got no application to an award made by the Improvement Trust Tribunal on a reference made to it by the Land Acquisition Collector of Calcutta. Section 82 occurs in Part 4, Civil P.C., which deals with suits in particular cases, and Secs.79 to 82 of that Chapter are devoted to suits by or against the Crown or public officers in their official capacity. Section 79 lays down how the authorities are to be described in a suit by or against the Crown. Section 80 provides that no suit shall be instituted against the Crown or any public officer in respect of any act purporting to be done by such officer in his official capacity until the expiration of two months next after a notice in writing, in terms of the section, was served upon the Crown or the public officer as the case may be. Section 81 exempts a public officer who is thus sued from arrest and personal appearance. Section 82 then lays down that when the decree is against the Crown or against a public officer in respect of any such act as aforesaid, a time shall be specified in the decree within which it shall be satisfied; and if the decree is not satisfied within the time so specified, the Court shall report the case for orders of the Provincial Government, It further provides that execution shall not be issued on any such decree unless it remains unsatisfied for the period of three months computed from the date of such report. Thus it seems clear that Section 82 is confined to decrees passed in suits which are referred to in previous sections and which can only be instituted after service of notice under Section 80, Civil P.C. The object of the section undoubtedly is to allow time and opportunity to the Crown or public officers to satisfy the decree amicably before execution proceedings are allowed to be started against them.