SECY OF STATE Vs. JOY NARAIN CHUNDER

JUDGEMENT

(1.) The case so far as this Court is concerned raises a question of first impression and involves a principle which would not only affect this particular case but may affect many other cases of the same description, and it is for this reason that I have heard learned advocates appearing for the respective parties at great length and have bestowed considerable attention to their arguments. The position is this: Premises No. 16 Bartala Street was acquired under the Land Acquisition Act. It belonged to Babu Subal Chand Chunder, but at the time of the acquisition that gentleman was dead. He left a will, two executors being appointed, and probate has been taken by them out. The award was made on 27 March 1935 and a large sum of money, namely about a lac and twelve thousand of rupees, was awarded as compensation money. Before the Collector it seems that the executors produced the will and they wanted the money from the Collector, but the Collector being doubtful of their powers to alienate land remitted the compensation money to the Calcutta Improvement Tribunal in accordance with the provisions of Section 31 (2), Land Acquisition Act. He took the view that the will contained restrictions on the powers of the executors to alienate land and he accordingly, as I have said before, deposited the money with the Calcutta Improvement Tribunal. The material portion of that section applicable to this case is as follows: If there be no person competent to alienate the land the Collector shall deposit the amount of the compensation in the Court to which a reference under Section 18, would be submitted.

(2.) The Court here, in this particular case, is the Calcutta Improvement Tribunal and to that Court the money was forwarded. On the said deposit being made the executors of the late Subal Chand Chunder made an application to the Calcutta Improvement Tribunal stating that the money cannot be invested under the provisions of Section 32 (1), but has to be made over to them, inasmuch as according to the terms of the will, there was no restriction on their powers to alienate the land. The President of the Calcutta Improvement Tribunal construed the will, and he came to the conclusion that there was, in fact, such restriction. He accordingly refused the application of the executors by an order dated 17 June 1935. The possession of the property had not been taken by the Collector up to this date. He took possession 10 days later, namely, on 27 June 1935. The executors of the said gentleman moved this Court on 24 June 1935 against the order of the President Calcutta Improvement Tribunal, dated 17th June 1935. A rule was issued and that rule was made absolute on 12 July 1935 by a Division Bench of this Court but without costs. This Court held on a construction of the will that there were no restriction on the executors power of alienation. In pursuance of this order the executors applied for withdrawal of the compensation money, and on 28 July 1935 the money was actually paid to them. Subsequently two applications were made by them in the Court of the Calcutta Improvement Tribunal. In one they stated that they ought to be awarded costs incidental to the withdrawal of the money. According to them the costs incidental to the withdrawal of the money included the money they had to spend before the Improvement Tribunal and the High Court for getting a construction of the will. This application was dismissed. The learned President has given certain reasons, but it is not necessary for me to consider those reasons because the executors have not moved this Court against that order.

(3.) The other application filed by the executors is this: they stated that they were entitled to claim interest on the amount of the compensation from 27 June 1935, the date when the Collector took possession to the 28 July 1935 when they actually received payment of the compensation money. This amount comes up to about Rs. 600. This application was successful before the President of the Tribunal on the basis of Section 34, Land Acquisition Act. The Secretary of State for India in Council has moved against that order and his learned advocate says that this case does not come within the terms of Section 34 at all. Section 34 is in these terms: When the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with interest thereon at the rate of six per cent per annum from the time of so taking possession until it shall have been so paid or deposited.