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In Re: Government and Dayal Mulji - Court Judgment

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Decided On
Reported in(1907)9BOMLR99
AppellantIn Re: Government and Dayal Mulji
land acquisition act (i of 1894) section 18.-assessment of value-how compensation to be awarded-circumstances to be taken into consideration.;the essential element to be taken into account in determining the market value of land compulsorily acquired is the fact of its probable user. in assessing the compensation the umpire may and ought to take into consideration every circumstance which is in existence as a fact at the moment when the notice to treat is given and not only those circumstances but also the probable user which might be made of the property.;the way in which compensation should be awarded for land compulsorily taken discussed. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward.....chandavarkar, j.1. this is a reference from the collector of bombay, under section 18 of the land acquisition act, in respect of the property of the claimant, dayal mulji, at dadar, compulsorily acquired by government for the purposes of the g.i.p. railway. the property fronts the dadar road and is about 10 minutes' walk from the station of the b.b. & c.i. railway and seven minutes' walk from the station of the g.i.p. railway. the dadiar goods-station of the g.i.p. railway is in front of the property on the west. the land compulsorily acquired is 4409 square yards and a portion of it was covered by an incomplete bungalow and out-houses at the date of the acquisition.2. the claimant with another person purchased the land in 1892 at rs. 2-8 per square yard. the next year he bought the.....

Chandavarkar, J.

1. This is a reference from the Collector of Bombay, under Section 18 of the Land Acquisition Act, in respect of the property of the claimant, Dayal Mulji, at Dadar, compulsorily acquired by Government for the purposes of the G.I.P. Railway. The property fronts the Dadar Road and is about 10 minutes' walk from the station of the B.B. & C.I. Railway and seven minutes' walk from the station of the G.I.P. Railway. The Dadiar Goods-Station of the G.I.P. Railway is in front of the property on the west. The land compulsorily acquired is 4409 square yards and a portion of it was covered by an incomplete bungalow and out-houses at the date of the acquisition.

2. The claimant with another person purchased the land in 1892 at Rs. 2-8 per square yard. The next year he bought the rights of 'his joint owner for Rs. 1000 and reclaimed the land. He commenced building in 1894. On the 3rd of November 1898, a Government Notification appeared in the Government Gazette, declaring the resolution of Government to acquire 768 square yards of the land compulsorily for the purposes of the Goods 'Reference from the Collector of Bombay under Section 18 of the Land Acquisition Act.

3. Station of the G.I.P. Railway. On the 16th of November 1898, the claimant received a notice from Government to that effect. On the 7th of December 1898, the claimant required Government, it under Section 49 of the Land Acquisition Act, to purchase the whole of the property and he claimed Rs. 75,000 for it. In August 1899, the Collector reduced the area required by Government by about 60 square yards, but, the claimant having insisted upon the purchase of the whole, the Collector referred the matter to this Court. On the 18th of January 1900,Tyabji J. upheld the claimant's requisition and that decision was confirmed on appeal in August 1900. Accordingly, a fresh declaration was made by Government, on the 16th of May 1901, for the compulsory acquisition of the whole of the claimant's property.

4. On the 6th of November 1901, the Collector made his award of Rs. 38,612-12-0 to be paid to the claimant for the compulsory acquisition of the whole. That amount was arrived at by the Collector as follows :-

Land 4,409 square yards at Rs. 4 per square yard Rs. 17636 0Trees ... ... ... ... ... ...Rs. 2000 0Building ... ... ... ... ... ...Rs. 13549 0Total ... Rs. 33185 0Add 15 per cent for compulsory acquisition... Rs. 4977 12Miscellaneous items...... ... Rs. 400 0Expenses of removal... ... Rs. 50 0Rs. 38612 12The claimant objects to this award and claimsRs. 74006 as follows :-For the land at Rs. 10 per square yard Rs. 44090 0For the buildings ... ......... Rs. 20716 0For loss of rent for three years at the rate ofRs. 200 a month... Rs. 7200 0Rs. 72006 0

5. These amounts are claimed in addition to the amounts allowed by the Collector for trees, miscellaneous items and expenses of removal and the 15 per cent allowed for compulsory acquisition.

6. The principle of valuation, adopted by the Collector and accepted by the claimant during the proceedings before the former, was this. The Collector valued the land and the buildings separately ; and arrived at the value of the whole by adding the two values. As to the buildings, which consisted of a bungalow and out-houses, both incomplete at the date of the acquisition, the Collector adopted what is called the detailed estimate system, according to which all the different items of work executed are measured, proper rates for those different items are then put down and the total of those rates is arrived at as the cost of the building. The claimant has insisted before me that this detailed estimate system should be adhered to, because it was upon it that both parties-Government and the claimant-proceeded before the Collector. Mr. Binning, appearing for Government, has not demurred to that. On the other hand, Mr. Khandubhai Desai, an important witness for Government in this case, who was the Executive Engineer, Presidency Division, at the time of the compulsory acquisition and upon whose estimates the Collector has based his valuation of the buildings, has given it as his opinion that the detailed estimate system is the most accurate way of arriving at the cost or value of building. The claimant's expert, Mr. Payne, has suggested another way. It is called the cubical area system. It consists in finding out the cubic contents of the building and ascertaining the rate per cubic foot of contents with due regard to the general construction, quality of work etc. But Mr. Payne has suggested this only for the purpose of testing the correctness of the result yielded by the detailed estimate method of valuation. Another principle of valuation with regard to the whole property was suggested by Mr. Lowndes, counsel for Government, during the cross-examination of Mr. Payne. That is valuation on the rental basis. But I agree with the claimant's counsel that in the case of property which was not fully developed at the date of the compulsory acquisition it is not quite a satisfactory basis of valuation to go upon. And Mr. Binning for Government has also conceded that it is not easy to have a satisfactory valuation on the rental basis when the buildings were incomplete and yielded no rent.

7. The argument of Mr. Binning for Government has proceeded mostly upon the principle of valuation accepted by both the parties before the Collector; and I think that, having regard to the opinion of Mr. Desai, I ought to base my decision upon it under the circumstances of this case.

8. As to the land, apart from the buildings, the claimant asks for Rs. 10 per square yard. His case on that head is shortly this He purchased the land jointly with another person in 1892, when it was low-lying marsh land, for Rs. 12,000, at Rs. 2-80 per square yard. He bought his co-owner's interest shortly after that for Rs. 1,000. He paid altogether Rs. 23,000, which works out at the rate of Rs. 2-15-2 per square yard. He reclaimed the land at a cost equal to the amount of the purchase-money. Having regard to these circumstances, also the greater demand for land due to the movement of the population in Bombay to places like Dadar owing to plague, the trend of the market due to the general rise in the price of neighbouring lands and the possibility of using the land in a remunerative way, the claimant puts the market value of the land at Rs. 10 per square yard on the 16th of May 1901.

9. We must start with Rs. 2-80 per square yard as the value of the land in 1892, not Rs. 2-15-2. The amount of Rs. 1,000 paid by the claimant to his co-vendee was in respect of the latter's share, whereas Rs. 12,000 paid to the vendor in 1892 represented the value of both the shares.

10. The claimant's statement that he spent about as much on reclamation as he had paid for the purchase rests solely on his oral testimony, unsupported by accounts or vouchers. He says that the land was six feet lower than the level of the Dadar Road when he purchased but that is contrary to the evidence as to adjoining land and lands in the vicinity. Mr. Payne, called as an expert by the claimant, says that the reclamation could not have been six feet all over but that it must be four feet. That seems to be cons istent with the evidence of Husain Vayadina, who has land in the vicinity, which, he says, was four feet and a half lower than the level of the road before he reclaimed it. According to the Government Surveyor, Mr. Sethna, who examined the land and the buildings for the Collector at the time of the compulsory acquisition in 1901, the depth of the foundations of the bungalow was from four to four and a half feet. In the previous proceedings in this Court before Tyabji J., the claimant stated that he had raised the land five feet in some parts to the west and about three feet in the highest part. Upon the whole the effect of the evidence, in my opinion, is that four feet and a half was the depth of the reclamation. I am unable to accept the claimant's statement that it cost him Rs. 2-8-0 per square yard to reclaim. There have been reclamations on the neighbouring lands but in the case of none of them did the reclamation cost so much. According to Mr. Payne, it must have cost the claimant between Re. 1 and Rs. 1.8. He says it is a difficult figure to give, because it depends on the distance to cart. Arab Mahomed, who has land in the vicinity, says that it cost him Re. 1 per square yard to reclaim. Husain Vayadina, whose land was low to the extent of four feet and a half, reclaimed it at Re. 1 or Rs. 1-2 per square yard. Mr. Ghamat, an Advocate of this Court, reclaimed his land, which was three feet and a half deep, at Re. 1 per square yard. He carted his materials from a place not C far from the locality. Eduljee Sorabji Ghamat reclaimed his land to the depth of three feet at Re. 1 per square yard. I think I should allow to the claimant Rs. 1-2 per square yard for reclamation.

11. One essential element, which must be taken into account in determining the market value of a land compulsorily acquired, is the fact of its probable user. 'In strictness the thing which is to be ascertained is the price to be paid for the land-that land with all the potentialities of it, with all the actual use of it by the person who holds it, is to be considered by those who have to assess the compensation.' per Lord Halsbury L.C. in Commissioners of Inland Revenue v. Glasgow and South Western Railway Company (1887) 12 App. Cas.315 . The same principle is enunciated by Vaughan Williams L.J. in In re Bwllfa and Merthyr Dare Steam Collieries [1902] 2 K.B. 135 as follows: -' The true rule is that in assessing the compensation the umpire may and ought to take into consideration every circumstance which is in existence as a fact at the moment when the notice to treat is given and not only those circumstances but also the probable user which might be made of the property. If, for instance, he has to assess the value of land which is used as agricultural land, he is entitled to take into, consideration its adaptability for building land, because that is a fact which is in existence at the time the notice to treat is given.' The same principle has been acted upon by our Courts in valuing land compulsorily acquired under the Land Acquisition Act. (See Secretary of State for Foreign Affairs v. Charlesworth, Pilling & Co. ILR (1900) 26 Bom. 1; In the matter of the Land Acquisition Act X of 1810, Munji Khetsey ILR (1890) 15 Bom. 279

12. The question, then, is-what was the probable user of this land on the date of the Government declaration for its compulsory acquisition In other words, what were its potentialities According to the claimant, he could have laid it out in a remunerative way by building godowns on that portion of the land which is adjacent to the Goods Station of the G.I.P. Railway and by erecting a chawl for the lower middle class people on the narrow strip of the approach to the bungalow which ho has built. As to the godowns, the evidence is clearly to the effect that there was no demand for them either before or at the date of the compulsory acquisition nor is there any even now. Mr. Payne ' says that, so far as he knows, no one has ever thought of putting up godowns in the locality. Ho supports the claim on this head on no other ground than that there is a Goods-Station there and that, therefore, a demand for godowns is likely. But the Goods-Station has been there for several years and yet, it is admitted, no one has built or even thought of building a godown. The reason is that it is a station not so much for receiving as for forwarding goods. It is admitted by Mr. Payne that the claimant himself had never any idea of building go-downs at the back of his property. There was and is no possible means of access to such godowns except by the central drive road and the Goods Station. It is suggested that he would have bought some adjoining land for the purposes of access and that he was at one time actually negotiating with its owner to acquire it. Further, it is said that the Railway Company would have allowed him access to the station. But these are all mere possibilities. The land cannot be treated as having had any potential value on account of its probable user for godowns.

13. Next as to the chawl. On the date of the Government declaration the land had been laid out by the claimant. He had been building a bungalow and out houses on a portion of it; he had made a garden surrounding the bungalow after leaving some space for the road way and also in front. He had planted trees on both sides. Now, the claimant's case is that he could have erected a chawl on the narrow strip of land, 53 feet in width, leading to the bungalow. Mr. Payne has prepared the estimates for such a chawl. His calculations, which are embodied in Ex. 4, have been subjected to a good deal of criticism, but I do not propose to enter into the details on this head, because the sole question for inquiry is, whether, taking the land as it was on the date of the compulsory acquisition, its adaptability for a chawl is proved. There is a chawl on similar land three doors off; but there can be no doubt such a chawl would have to some extent depreciated the value of the bungalow. Mr. Payne does not deny that. That the claimant himself had never contemplated building a chawl on the narrow strip in question is clear from the fact that he had utilised it as a planted approach to his bungalow-he had in fact turned it into a garden, for which he claimed, before the Collector, at first Rs. 38,000, but subsequently Rs. 3000. The Collector has awarded to him Rs. 2,000 instead and G he is content with that. I am not quite satisfied that the hypothetical chawl would have added much to the value of the property. What the claimant would have gained from it he would have lost in the depreciation of the bungalow. I must, therefore, exclude the hypothetical chawl from my consideration as an element of potential value.

14. At the same time, in determining the market value of the land, I bear in mind the fact of its adaptability for building purposes. The Collector has assessed the land at the rate of Rs. 4 per square yard. He based his decision on several considerations, one of which is that, in proceedings relating to another land before the Collector in 1892, the present land was cited by way of comparison as showing that it must have cost less than Rs. 2-8-0 per square yard to the present claimant. I have heard nothing in the evidence before me as to those proceedings ; neither the claimant nor any witness examined in this case has been questioned with reference to what the Collector says appears from them. The next point made by the Collector is that 'it is impossible to view the whole of the plot as of frontage value.' This consideration has not been urged before me by counsel appearing for Government and I do not think that there is much force in it. Then the Collector relied upon the sales of adjoining lands, which, he holds, 'go to show that Rs. 4 per square yard is a reasonable price.'

15. A good deal of evidence as to these sales has been adduced before me and they are, I think, a fair criterion for determining the value of this land. It must be remembered that since the plague first broke out in Bombay the value of land in places like Dadar has gone on increasing. The claimant relies very strongly on the value of two plots at Dadar in support of his claim. First, there is the plot No. 2009 about a hundred yards distance from the land under reference. It has a building on it which is used as a licensed market. The evidence as to it is that in 1900 the market yielded a rental of Rs. 300 a month, which this year has gone up to Rs. 945 a month. Valuing that property on the rental basis, we get Rs. 20 per square yard as the value of plot No. 2009. But this property can hardly be taken for fair comparison in the present case. It is a licensed market has a good-will attached to it and has, therefore, a commercial value. Mr. Payne, in his evidence, admits that it has two frontages and that it is a first class commercial site both on account of a double road frontage and its proximity to the passenger station of the G.I.P. Railway. The next property is the land which is described as item No. 17 in the schedule to the Bombay City Improvement Trust's Act. That property is adjacent to the Dadar station of the G.I.P. Railway. The schedule shows that it was sold by Government to the Trust in 1898 at the rate of Rs. 10 per square yard. In 1903 the land was resumed by Government at the schedule rate and made over to the G.I.P. Railway at the rate of Rs. 2 per square yard. According to the claimant and Mr. Payne, this land was distinctly inferior to the land in dispute in 1898 because it was unreclaimed and had other disadvantages. But it had then one distinct advantage over the claimant's land-it adjoined the G.I.P. Railway station. I cannot altogether leave out of sight the value of this scheduled land in determining the value of the land in the present case. The other sales of which evidence has been given for comparison are these.

16. Bhau Mukundji sold to Vasanjee Premjee 2,024 square yards of land on the 21st of June 1900 for Rs. 4,364, i.e. at Rs. 2-2 per square yard (see Ex. 6). Vasanjee Premjee bought another land on the same date at the same rate (see Ex. 5). These two lands are to the east of the Dadar Road and have a frontage over that road. They were unreclaimed when Vasanjee purchased and Vasanjee sold them to Husain Vayadina on the 24th of March 1905 at, the rate of Rs. 2-12 per square yard. If we add Rs. 1-2 for reclamation, weget Rs. 3-14 per square yard as the value of the land in 1900. To that we must add something for the trend of the rising market.

17. I do not take into account the Sopari Baug Road property, the title deeds of which are Exs. A 2 and A 3. It is on the Elphinstono Road, at the corner where five roads meet.

18. Mr. Kaikhushru Edulji Ghamat owns property in the vicinity of the claimant's. He purchased, on the 29th of January 1900, 3,166 square yards for Rs. 7,915, i.e. at Rs. 2-8 per square yard (see Ex. XI). He purchased 3,120 square yards on the 25th of November 1903 at the same rate. Both the lands were unreclaimed. If we add Rs. 1-2 for reclamation we get Rs. 3-10 per square yard as the value of the land in 1900.

19. Mr. Ghamat's brother purchased some property, 428 square yards, for Rs. 12,500 in September 1901 (see Ex. 13). It had a building on it then worth Rs. 9,000. It has boon yielding Rs. 1000 as annual rent. Deducting 25'per cent from that for outgoings, we have Rs. 750 as the net annual rent, which at twenty years' purchase gives Rs. 15,000 as the value of the property. Deducting from that Rs. 9000 as the value of the building, we get Rs. 6000 as the value of 428 square yards, i.e., over Rs. 14 per square yard. This is deduced by adopting the rental basis system of valuation. But if we deduct Rs. 9000, the value of the building, from Rs. 12.500, the price paid by the vendee in September 1901, the value of the land works out at something over Rs. 8 per square yard.

20. Jehanghir Burjorji Cola's property adjoins the claimant's. Ho purchased the land from Haji Ebrahim Sumar on the 11th of January 190G at Rs. 4-15-11 per square yard. His vendor had bought part of it at Rs. 1-6-6 per square yard, on the 18th of June 1902 and the rest at Rs. 3-5 per square yard on the 27th of July 1902. It is this land of which the claimant states he wanted to buy a portion for the purposes of a roadway to his proposed godowns. The land is about one feet and a half lower than the Railway road and about one foot lower than the Dadar Road.

21. Framji Jamshetji Kathoke has land which has a frontage on the Dadar Road and which extends as far as the Railway at the back. He purchased it on the 11th of April 1906 at Rs. 4-14-0 per square yard. His vendor purchased it on the 18th of June 1902 at Rs. 1-6-8 per square yard. The land is about two feet lower than the level of the Goods-Station road. It is not reclaimed. It had long been in the market before Kathoke bought it, because of some difficulty about the title.

22. Mahomed Rahimtulla has property opposite Mr. Ghamat's He purchased it from Dhondi on the 5th September 1903 at Rs. 4-6-0 per square yard. It had then two bungalows.

23. Arab Mahomed purchased his land in 1900 (Ex. 20) at Rs. 3 per square yard. It was low-lying land and he has reclaimed it. There is the evidence as to land acquired by the Municipality for the purposes of set back at Rs. 3 per square yard. But I do not attach any importance to these purchases by the Municipality, for the same reasons for which Parran J. refused to take into account similar purchases in In the matter of the Land Acquisition Act X of 1870; Munji Khetsey ILR (1890) 15 Bom. 279.

24. Now, the result of these sales in the vicinity of the land under reference is shortly this. There is only one sale in 1901-that to Mr. Ghamat's brother. According to it, the value of the land would be, according to one estimate, Rs. 14-9, and, according to another, Rs. 8, per square yard. There are three sales of 1902 which show an average rate of Rs. 2-8 per square yard, but these relate to unreclaimed lands. Upon the evidence it is difficult to arrive at any precise rate with regard to the land under reference. Whatever conclusion is arrived at must be a matter more or less of inference and speculation, but, upon the whole, I think Rs. 5 per square yard is a reasonable rate to allow as the market value of the land at the date of compulsory acquisition. 1 have arrived at that rate, having regard to the different sales in the vicinity, to the rate of Rs. 10 in the case of the land mentioned in item No. 17 in the schedule to the Improvement Trusts Act, to the rising value of land at Dadar since the plague first broke out and the potential value of the land. The Collector's estimate of Rs. 4 per square yard goes upon considerations which, in my opinion, leave out of account the property sold by Government to the Improvement, Trust and that of Mr. Ghamat's brother. On the other hand the claimant's prayer for Rs. 10 is too high. And Rs. 5 is a fair mean between the two under the circumstances of the case.

25. For the buildings the claimant demands Rs. 20,716, whereas the Collector has awarded Rs. 13,549. Mr. Payne has given the figures in Ex. 0 to show how the amount claimed is arrived at; and he has explained his reasons in his report (Ex. M). He accepts the measurements, he says, on which the Government Engineer, Mr. Desai, proceeded in valuing the buildings at the Collector's instance; he takes the Municipal rates for the different items of work in all cases except a few as to which he has put his own rates based on his knowledge and experience of the market. The Municipal rates apply, however, to work by contract, whereas here we have the evidence of the claimant himself that his work was done ' departmentally'-i.e. by himself. Mr. Payne examined the buildings only some months ago whereas what we have to find out is its condition and the nature of the work done on it up to May 1901. The buildings were then incomplete. It appears from the evidence that at the claimant's instance Mr. Chambers had inspected and valued the buildings in 1901 but he has not been called as a witness in this case. It is true that Mr. Desai, on whose figures in his report, Ex. N 1, the Collector has proceeded, inspected the buildings only once in 1901 and his visit then lasted only an hour, during which he did not test the wood-work, but he had merely a general look at the whole. But his surveyor, Mr. Sethna, had done the inspection more carefully; and prepared sketches of the buildings. It is upon Mr. Sethna's information that Mr. Desai based his figures as to the quantities of work; and he put the rates in accordance with what he considered, from his knowledge and experience, to be the fair rates to allow.

26. First, as to the quality of the work done and the 'condition of the bungalow on the day of acquisition. It is admitted that the bungalow was not then completed. According to Mr. Sethna, it was not a first class bungalow, because the brick-work, the flooring of the out-houses, the steps to the building and the fixtures and fastenings to the door were defective; some part of the wood-work was not painted; the Porbander stone used was not of the very best because by rubbing with the hand it showed signs of decay. The bungalow had no roof; no verandahs. According to Mr. Desai, the Porbander stone used was coarse-grained-it showed a little of roughness. I accept the evidence of Mr. Desai and Mr. Sethna as to the condition of the bungalow and the quality of the work done on it. I adopt also the rates as given by Mr. Desai in Ex. N1. Following the detailed estimate method of valuation, he arrived at Rs. 1,37,561 as the value of both the buildings (the bungalow and the out-house) and the Collector has accepted that figure. According to Mr. Payne, the valuation ought to be, on the same method, Rs. 1,77,029, exclusive of the extra charges mentioned by him at the end of his valuation in Ex. 0. The difference is due to the rates. That Mr. Desai's rates are upon the whole fair is rendered clear when wo test his valuation, according to the detailed estimate system and by the cubical contents method, in the same manner that Mr. Payne has tested it.

27. The cubic contents of the bungalow are 38,663 cubic feet according to Mr. Payne, whereas according to Mr. Desai, they are 36,777. This difference is accounted for by the fact that Mr. Desai allows nothing for foundations. Mr. Payne's statement that 'in the present case there are four feet more foundations than would be in a building built upon ordinary, i.e. unreclaimed, land' is purely conjectural, because, he has admitted in cross-examination that he has no personal knowledge about the foundations except from what he had seen of adjoining land a few months before he gave his evidence here. Mr. Desai has added nothing for foundations, because, in his opinion, nothing ought to be added when they are of the usual depth.

28. He says the usual practice is consistent with his opinion and that in the case of the claimant's property he made trial pits to ascertain the depths of the foundations. I accept Mr. Desai's figure as to the cubic contents of the bungalow.

29. As to the out-houses, Mr. Payne makes no distinction between them and the bungalow, whereas the rest of the evidence in the case, which is of persons who had seen the property in 1901, clearly proves that the out-houses are of an inferior quality. I have personally visited it and I agree with Mr. Desai and Mr. Sethna that the out houses arc inferior to the bungalow. Mr. Payne makes the cubic contents of the out-houses 6,100 cubic feet more than those of the bungalow. He arrived at his figure by representing a superficies that is wholly covered with a building of a certain height which, according to Mr. Desai and Mr. Sethna, was not so covered. The bungalow has a floor of large sizes of marble, whereas the floor of the out-houses is made of marble chips. The walls of the bungalow are made of Porbander stone; those of the out-houses are of brick. Upon the whole, I agree with Mr. Desai. I accept his cubic contents-26,480 cubic feet-and his rate of Rs. 2-8-0 per cubic feet as to the out-houses. According to the cubical contents method of valuation, then, the value of the bungalow is Rs. 9,194-4 and that of the out-houses Rs. 1,331-12-0, total Rs. 13,331-12-0. Substantially, therefore, Mr. Desai's valuation, according to the detailed estimate method, agrees with his valuation according to the cubical contents method.

30. Rs. 713 odd are deducted by Mr. Desai from the value of the buildings for what he terms deterioration. Mr. Payne objects to the deduction upon the ground that, ' deterioration' being the same as ' depreciation,' a thing which is provided for by means of a sinking fund calculated on the cost of building anew, it is improper to deduct anything on account of it from the value of a building before it is completed. Both Mr. Desai and Mr. Kent, examined as experts on behalf of Government, deny that deterioration and depreciation mean the same thing. According to them, deterioration means actual change for the worse which takes place from extraneous causes in the case of a building, whereas depreciation is a fixed percentage of the value of a building, calculated because it is so many years' old, although as a matter of fact there has been no deterioration at all. In his cross-examination Mr. Payne has accepted this view. He admits that Mr. Desai's estimate of Rs. 713-10 knocked off for deterioration of wood work would not be unreasonable, as a general rule; but in this case, he thinks, it is unreasonable, because first class teak was used in the case of these buildings. Mr. Desai, on the other hand, denies that first class teak was used. He states that when he saw the buildings, the wood work had deteriorated. The buildings had been up for eight or nine years before 1901 ; there wore no gutters on the roof to carry off rain-water. The timber roof was exposed to the elements for some years. Mr. Lewis, who has been residing in the bungalow, says that ho has been inconvenienced by damp, both inside and outside and in the Avails. Under these circumstances, I think Mr. Desai's figure of Rs. 713-10-0 must be deducted in respect of deterioration.

31. Mr. Payne thinks that the following charges should be added to the value of the building:-Rs. 921-3-5 being five per cent for extra charges, the works being out of Bombay; Rs. 9674-0 being Architect's charges; and Rs. 400 being Mistri's wages for eight months at Rs. 50.

32. As to the item of Rs. 921-3-5, Mr. Desai thinks it ought not to be allowed, because Dadar is not out of Bombay. He says that 'it is not necessary to make any allowance for building in Dadar. It is not at all usual .... There is nothing extra at all for charge & c. The contractor does not lose it. It does not cost more for materials at Dadar-as a whole it may cost less.' It is well known, however, that Dadar is practically regarded as a suburb of Bombay. ' At any rate in 1901 it was so regarded. In the case of these buildings we have the fact that marble and Por-bander stone have been used. There is evidence to show that these had to be carted all the way from Apollo Bunder. I think I should be dealing fairly by the claimant in allowing him Rs. 300 as extra charges. The figure is more or less guess work, as it has to be, in these matters.

33. I do not think anything ought to be allowed either for Architect's charges or Mistri's wages. There is no evidence beyond the claimant's to show that such charges were as a matter of fact incurred. I have been referred by Mr. Kirkpatrick to Hurst's Architectural Hand-Book, where Architect's charges are provided for as one of the usual items in the valuation of a building. Mr. Desai thinks they should be allowed only if an architect was employed. The fact that the claimant was building in a leisurely manner shows that ho was trying to get the work done as cheap as possible. The building was up without completion for seven years. I disallow the two items in question.

34. The last question is as to the damages in respect of loss of rent claimed from Government under Section 23, Clause 6, of the Land Acquisition Act. The claimant demands damages at the rate of Us. 200 a month for three years, computed from November 1898-the date of the first declaration by Government for the compulsory acquisition of 768 square yards of this land. But the Government have not acquired the land under that declaration. The claimant having insisted that, if Government wanted to acquire, they must acquire the whole of his property, the Collector referred the question to this Court with the final result that the Court upheld the claimant's objection to the acquisition of only a part of the land. According to the decision of this Court, the declaration was inoperative, being contrary to the Act from the beginning-there was no compulsory acquisition at all. Government had after that to make up their mind whether they wished to acquire the whole. And they did decide to acquire it. A fresh declaration was notified and a fresh notice was given to the claimant on the 16th of May 1901. That is the compulsory acquisition we have to deal with in this case and if damages have resulted to the claimant they must be computed as from that date. The claimant states that soon after the first declaration, Mr. Morrison, the then Collector, verbally directed him not to go on with his buildings. I think that it is highly improbable that Mr. Morrison would have given any such direction, seeing that Government wanted at that time to purchase only 768 square yards of vacant land. The claimant is entitled to damages as for loss of rent from the 16th of May 1901 up to the 10th February 1902, when the Collector took possession.

35. The damages are claimed at the rate of Rs. 200 a month. Some evidence has been adduced by the claimant to show that he had customers who were ready to pay rent at the rate of Rs. 250 a month. The circumstances under which those offers were made were of an exceptional character. The customers were persons who wanted to seek shelter at Dadar more or less temporarily owing to the prevalence of plague then in Bombay. One of Mr. Ghamat's bungalows, which has nine or ten rooms with stabling accommodation, out-houses and servants quarters, brings in Us. 150 a month though it has not so large a frontage as the claimant's and its floor is made of mortar and sand and the walls are of bricks, whereas the claimant has used marble for the floor and Porbander stone for the walls. But the disadvantage in the case of the claimant's bungalow is that it is exposed somewhat to the offensive smell of hides and dried fish, kept in the Goods-Station of the G.I.P. Railway. Mr. Ghamat built the bungalow in 1903 or 1904 and he says the rents have gone ' up considerably at Dadar since 1901. Framji Jamsetji Kathoke occupies a bungalow adjacent to the claimant's and he has been paying Rs. 150 a month since 1903. I think upon the whole, Rs. 150 a month is a fair sum to allow as damages for loss of rent.

36. The result is that

(1) I allow Rs. 5 per square yard as the value of the land. That is, the claimant is entitled to Rs. 22,045 as the value of the land.

(2) I accept Mr. Desai's valuation of the buildings and, in my opinion, Rs. 713-10 must be deducted from the total value of the bungalow and the out houses. In that respect I confirm the Collector's award of Rs. 13,549, but I allow Rs. 300 as extra charges for works being out of Bombay. The result is that the claimant is entitled to Rs. 13,849 for the buildings.

(3) I allow damages at the rate of Rs. 150 a month minus 25 per cent for outgoings for the period from the 16th of May 1901 to the 15th February 1902.

(4) To the above sums must be added the following amounts awarded by the Collector :-

Rs. 2000 for trees.

Rs. 15 per cent for compensation.

Rs. 400 for miscellaneous items.

Rs. 50 for expenses of removal.

[Here His Lordship recorded his findings on the Issues.]

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