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Then the arbitrator sets out the amounts awarded under each head of claim. Ratio |
A perusal of them shows that each bead relates to a claim for an unliquidated sum. Ratio |
The Interest Act, 1839 applies, as interest is (1) at 371.65 not otherwise payable by law in this kind of case (see Bengal Nagpur Ry.Co. vs Ruttanji Ramji(1)), but even if it be assumed that an arbitrator is a "court" within the meaning of that Act, (a fact that by no means appears to be the case), the following among ... |
Not one of these elements is present, so the arbitrator erred in law in thinking that he had the power to allow interest simply because he thought the demand was reasonable. Ratio |
It was suggested that at least interest from the date of "suit" could be awarded on the analogy of section 34 of the Civil Procedure Code, 1908. Ratio |
But section 34 does not apply because an arbitrator is not a "court" within the meaning of the Code nor does the Code apply to arbitrators, and, but for section 34, even a Court would not have the power to give interest after the suit. Ratio |
This was, therefore, also rightly struck out from the award. Ratio |
We pause to note that there was only a delay of five days at the outside in the over all picture. Ratio |
The last date for removal of the last instalment of bricks was 25 5 46 and the contractor says under this head that the whole contract was completed by the end of May, 1946. Ratio |
It is difficult to see how 88 lacs of bricks could have been damaged by rain in the last five days of May, and if the damage occurred before it would have occurred anyway, for on the contractor 's case he had to have a large stack of unbaked bricks on hand ready to enter the kilns in order to keep pace with his time ta... |
However, that was a (1) 65 I.A. 66. 9 66 matter within the jurisdiction of the arbitrator and is not a matter in which the Courts can interfere. Ratio |
That concludes Civil Appeal No. 260 of 1953 and we now turn to the other appeal, Civil Appeal No. 12 of 1954. Ratio |
Only two items are in dispute here. Ratio |
Heads 4 and 17 of the claim. Ratio |
The over all pattern of the claim is the same as in the other case. Ratio |
There was a contractor and he entered into an agreement containing the same terms and conditions, except about the details of supply. Ratio |
It was signed on the same day as the other and by the same authority on behalf of the Dominion Government., and the matter went before the same arbitrator and the award in this case was given on 1 5 1949, one week before the other award. Ratio |
Here also, no specific question of law was referred and we need not cover the same ground. Ratio |
Our decision is the same here as there. Ratio |
The fourth head of claim is about cloth and rations. Ratio |
The claim here. Ratio |
, and the Dominion Government 's reply, is the same as in the other case, but the award in this case is not based on an implied contractual obligation but on "a moral and implied obligation". Ratio |
The error here is even greater than before. Ratio |
The sum claimed was Rs. 51,495 and the amount awarded was Rs. 30,000. Ratio |
The seventeenth head of claim was about interest. Ratio |
The contractor claimed Rs. 27,665 and the arbitrator awarded Rs. 9,954. Ratio |
There is the same error of law apparent on the face of the award. Ratio |
The High Court was right in dismissing the claims made under the heads in dispute here. Ratio |
The two appeals fail and each is dismissed with costs in this Court. RPC |
Appeals dismissed. RPC |
Appeal No. 75 & 76 of 1974. FAC |
Appeal by special leave from the Common Judgment and Order dated 27 /28 9 1973 of the Bombay High Court, Nagpur Bench, in Spl. FAC |
Civil Applications Nos. FAC |
826 of 1968 & 389 of 1971. FAC |
Sardar Bahadur Saharya and Vishnu Bahdur Saharya, for the appellants. FAC |
M.N. Phadke and A. G. Ratnaparkhi, for respondent No. 1 and 2 (in Appeal No. 75/74). FAC |
Niren De, Attorney General of India, M. N. Phadke and A. G. Ratnaparkhi, for respondent No. 1 (In Appeal No. 76/74). FAC |
K.L. Rathi and M. N. Shroff, for respondents Nos. FAC |
(In Appeal No. 75/74) and respondent No. 3 (in appeal No. 76/74). FAC |
The Judgment of P. N. Bhagwati and A. C. Gupta, JJ. was delivered by Bhagwati, J. N. L. Untwalia, J. gave a separate Opinion. FAC |
But we are writing a separate judgment as we feel that the discussion in the judgment of our learned brother Untwalia, J., in regard to delivery of 'symbolical ' and 'actual ' possession under rules 35, 36, 95 and 96 of Order XXI of the Code of Civil Procedure, is not necessary for the disposal of the present appeals a... |
We think it is enough to state that when the Government proceeds to take possession of the land acquired by it under the Land Acquisition Act, 1894, it must take actual possession of the land, since all interests in the land are sought to be acquired by it. RLC |
Nor would possession merely on paper be enough. RLC |
How such possession may be taken would depend on the natureof the land. RLC |
Such possession would have to be taken as the natureof the land admits of. RLC |
There can be no hard and fast rule laying down what act would be sufficient to constitute taking of possession of land. RLC |
We should not, therefore, be taken as laying down an absolute and inviolable rule that merely going on the 'pot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking of possession of land in every case. RLC |
It appears that the appellant was not present when this was done by the Tehsildar, but the presence of the owner or the occupant of the land is not necessary to effectuate the taking of possession. RLC |
It is also not strictly necessary as a matter of legal requirement that notice should be given to the owner or the occupant of the land that possession would be taken at a particular time, though it may be desirable where possible, to give such notice before possession is taken by the authorities, as that would elimina... |
We are of the view, on the facts and circumstances of the present case, that the Tehsildar took actual possession of that part of the land which was waste or arable and handed it over to the Principal of the Agricultural College. RLC |
It is true that the Special Land Acquisition Officer in his letter dated 13th December, 1961 to the Commissioner stated that possession of the entire land was still with the appellant and it was not actually taken possession of by the Principal, Agricultural College. RLC |
But it is obvious that this statement was made by the Special Land Acquisition Officer because he thought that actual possession of the land could not be regarded as having been taken, unless the appellant was excluded from the land and since the appellant immediately, without any obstruction, entered upon the land and... |
This was plainly erroneous view, for the legal position is clear that even if the appellant entered upon the land and resumed possession of it the very next moment after the land was actually taken possession of and became vested in the Government, such act on the part of the appellant did not have the effect of oblite... |
There can, therefore, be no doubt that actual possession of 19 acres 16 gunthas of waste and arable land was taken by the Tehsildar on 3rd April, 1959 and it became vested in the Government. Ratio |
Neither the Government nor the Commissioner could thereafter withdraw from the acquisition of any portion of this land under section 48(1) of the Act. Ratio |
There will be only one set of costs. Ratio |
These two Civil Appeals filed by Shri Balwant Narayan Bhagde on grant of special leave by this Court arise out, of a common judgment of the Bombay High Court allowing Special Civil Application No. 826/1968 filed by Shri M. D. Bhagwat and Shri E. R. Mahajani, respondent Nos. 1 and 2 in Civil Appeal No.75 of 1974 and Spe... |
The High Court has held that possession of the land in question was taken by the Collector, Akola and given to the Principal, Agricultural College. RLC |
It was, therefore, not open to the Commissioner to withdraw from the acquisition of the land under section 48(1) of the Land Acquisition Act, 1894 as it stands amended by the Land Acquisition (Maharashtra Extension and Amendment) Act hereinafter called the Act. RLC |
It is well settled and nothing to the contrary was canvassed before us, that after possession of the land forming the subject matter of acquisition has been taken in accordance with section 16 or section 17(1) of the Act, the land vests in the Government and the Government or any other authority is not at liberty to wi... |
The controversy, therefore, centered round the question as to whether possession of the land which was released by the Commissioner under section 48(1) of the Act had been taken or not. Ratio |
For the purpose of the Agricultural College a large area of land was acquired near Akola. FAC |
The total area of this plot is 20 acres 33 gunthas. FAC |
As the land was urgently required for the purpose of College, action under section 17 of the Act was taken dispensing with the following of the procedure under section 5A. FAC |
A notification under section 6 of the Act was issued on the 17th February, 1959. FAC |
A direction was given for taking possession of the land under section 17(1) on the expiration of 15 days from the publication of the notice under section 9(1). STA |
Notice under section 9(1) of the Act was subsequently published on 6 3 1959. FAC |
After expiry of_15 days from the publication of the notice under section 9(1) on 24 3 1959 the land Acquisition Officer ordered the Tehsildar, Akola to deliver possession of the land to the Principal, Agricultural College or his nominee in the presence of the Sub Divisional Officer, P.W.D. Building and Roads Section, A... |
The Tehsildar took and handed over possession on 3 4 1959 and made a report. FAC |
An area of 19 acre 17 gunthas which contained a double storied house of the appellant and a well etc. was for the time being left and possession of the same was not taken. FAC |
It appears, just after the issuance of the notification under section 6 of the Act, the appellant who claimed to be the tenant of the land, the owners admittedly being respondents 1 and 2 in Civil Appeal No. 75 of 1974 made a representation to the Government that his field in Survey No. 30/2 should not be acquired and ... |
He seems to have filed an application to that effect before the State Government on 18 2 1959. FAC |
Some stay order thereupon is said to have been passed staying the proceeding in respect of the appellant 's land. FAC |
Following upon this correspondence took place and reports came to be made in April, 1959 and thereafter until the withdrawal from the acquisition of 12 acres and 23 gunthas of the land in Survey No. 30/2 was directed to be made by the Commissioner in the year 1968. FAC |
As already stated the withdrawal was challenged by filing two writ petitions in the Bombay High Court. FAC |
On behalf of the Governmental authorities two counters were filed in the two Writ Petitions. FAC |
In the owners ' petition the petitioners had stated that pursuant to the relevant notifications, Government took possession of 19 acres 16 gunthas of land on 3 4 1959 And gave possession of the same to the Principal, Agricultural College. FAC |
The Government in its return filed in the said case denied that possession as alleged was taken from the appellant and given to the Principal, Agricultural College. FAC |
In paragraph 3 of Special Civil Application No. 389/1971 it wasstated on behalf of the Agricultural College that the Tehsildar took possession only of 19 acres and 16 gunthas out of the field as the remaining area was found in the meantime on spot inspection not to be waste or arable to which the provision of section 1... |
Actual possession of 19 acres 16 gunthas alongwith the other pieces of land measuring 200 acres and odd was delivered to the Principal, Agricultural College. FAC |
In the return filed on behalf of the Officers of the Government the contents of paragraph 3 of the petition were admitted. FAC |
But it was asserted that Government had taken only symbolical possession and the physical possession of the land remained with the appellant. FAC |
On consideration of the relevant materials placed before the High Court it has come to the conclusion that actual possession of the land in question was taken and handed over on 3 4 1959 on the spot ; and, even symbolical possession, if land is occupied by a person other than the owner. FAC |
would be good possession for the purpose of section 48 of the Act. Ratio |
Mr. Sardar Bahadur Saharya, learned counsel for the appellant, submitted that possession of any portion of the land comprised in Survey No. 30/2 was not taken by the Government or given to the Principal, Agricultural College, it was all a paper delivery of possession, no notice was ever given to the appellant as to the... |
Counsel further submitted that the order of withdrawal which is confined to 256 an area of 12 acres 23 gunthas only out of Survey No. 30/2 leaving a further balance of 6 acres 33 gunthas to the College was valid. ARG |
Mr. Hathi appearing for the Government and its authorities struck to their stand that only symbolical possession was taken and actual possession remained with the appellant. ARG |
Learned Attorney General for the Agricultural College, followed by Mr. Phadke for the owners, submitted that no where the appellant had challenged the taking of possession of the land on the spot on 3 4 1959. ARG |
The effect of taking possession of the land was to vest it in the Government and no portion of it could be released under section 48(1) of the Act. ARG |
It was further submitted that there is no provision in the Act requiring the giving of any notice to the possessor of the land of the exact date and time of taking possession on the spot and notice published under section 9(1) is sufficient. ARG |
It may be stated at the outset that there does not seem to be any dispute as respects the fact that Bhagwat and Mahajani were the owners of the land at the time of the issuance of the notification under section 4 of the Act and the appellant was in its occupation or actual possession as a tenant. Ratio |
There is no controversy that the Agricultural College not only needed the land in question but subsequently steps were taken for acquiring an additional area of 340 acres for the needs of the College. Ratio |
The Commissioner in his order dated 17th February, 1959 had directed that the possession of the land may be taken on the expiration of 15 days from the publication of the notice mentioned in section 9 (1 ) of the Act. Ratio |
The order recorded on 11 3 1959 shows that the notice in form 'D ' under section 9(1) of the Act was published on 6 3 1959, so the possession of the land could be taken on 21 3 1959 or there after. Ratio |
On 24 3 1959 various other persons including the appellant appeared before the Land Acquisition Officer. Ratio |
Appellant 's counsel prayed for time to file his written statement. Ratio |
He was directed lo do so by 5.00 p.m. on 24 3 1959. Ratio |
On this date the land Acquisition Officer recorded the order in presence of the parties including the appellant directing Tehsildar Akola to take possession of the land and hand it over to the Principal, Agricultural College, in the presence of S.D.O., P.W.D., Akola and to report compliance with possession receipt by 2... |
A written statement on behalf of the appellant was filed by 4.20 p.m. on 24 3 1959. Ratio |
It is necessary to refer to the claim of the appellant made in the written statement aforesaid. Ratio |
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