1. This is an appeal against an order made by the Joint Judge of Ahmedabad in a reference made under Section 18 of the Land Acquisition Act, 189(4, against the award of the Special Land Acquisition Officer, Ahmedabad, in respect of Survey Nos. 178 and 180 which were notified for acquisition in September, 1935. Survey Nos. 178 and 180 together measured five acres and thirty-six gunthas and were purchased by the present appellant-claimant on May 17, 1934, for Rs. 3,500. Out of these five acres and thirty-six gunthas, five acres and eighteen gunthas were notified for acquisition for the purpose of constructing an aerodrome at Ahmedabad leaving an area of eighteen gunthas out of the said two survey numbers. The Land Acquisition Officer made an award at the rate of Rs. 320 per acre and allowed Rs. 180 for the mango trees standing thereon. Against that order the appellant-claimant asked for a reference to the District Court, and the learned Joint Judge who heard the reference valued the land at Rs. 593 per acre. This was precisely the price which the claimant had paid when he purchased the land on May 17, 1934. The learned Joint Judge allowed Rs. 50 as the fuel value of the mango trees and rejected the appellant's claim for severance and for damages for loss of trade profits. The learned Judge was of opinion that there was no damage on account of severance as the remaining eighteen gunthas of land were contiguous to the adjoining Survey No. 181 which also belonged to the claimant. The lands under acquisition were used for brick-making purposes and the adjoining Survey No. 181 was also used for the same purpose. The learned Judge thought that no case was made out for giving any compensation for damages on account of severance. The learned Judge further thought that there was no case made out for granting damages for loss of trade profits. Although the survey numbers in question were used for brick-making purposes, the learned Judge considered that the brick-making was stopped in April, 1937, two months before the possession of the land was taken, not on account of the impending acquisition but because the claimant had stopped his business, as he did not consider it profitable enough to go on with it. In his view the claimant had stopped business voluntarily in April, 193t7, and was not, therefore, entitled to any damages for injurious affection to his earnings under Section 23(1)(iv) of the Land Acquisition Act. Being of this opinion, he granted no compensation for loss of trade profits. In case he was wrong in this view of his, he considered that the claimant was entitled to Rs. 1,000 for loss of trade profits for four months on the basis that the claimant was making a profit of on an average Rs. 2,900 per year. In his opinion, this period of four months was sufficient to permit the claimant to start his business elsewhere. The learned Judge further considered that the claimant would have been entitled to Rs. 1,000 on account of the structures on the acquired lands in case the Court came to the conclusion that his business was stopped as a result of the acquisition. Being, however, of the opinion that the business had not come to an end because of acquisition, he rejected in Mo the appellant's claim for loss of trade profits. In the end the learned Judge increased the Special Land Acquisition Officer's award from Rs. 2,212-10-0 to Rs. 3,773-14-0, mainly for the reason that he valued the land as a brick-field at Rs. 593 per acre instead of at Rs. 320 per acre. Against that order the claimant has filed this appeal.
2. The only point that has been urged by the learned Counsel for the appellant is that the learned Judge was wrong in granting no compensation for the loss of trade profits. The claim is based on Section 23(1)(iv) of the Land Acquisition Act which lays down that 'the Court shall take into consideration the damage, if any, sustained by the person interested at the time of the Collector's taking possession of the land by reason of the acquisition injuriously affecting his earnings.' And the question, therefore, for consideration is whether the claimant's earnings were affected by reason of the acquisition of the properties at the time the Collector took possession of the lands in June, 1937. The learned Judge of the lower Court seems to have come to the conclusion that the claimant stopped his business voluntarily in April, 1937, as it was not sufficiently profitable. In our opinion, this conclusion of the learned Judge is not correct, and we must hold that the business came to an end by reason of the acquisition of the property at the time the Collector took possession of the lands in June, 1937. The claimant himself has stated in his evidence, exhibit 170, that his brick-making kiln was stopped owing to the acquisition, and there is no serious cross-examination by the respondent on this point. The learned Judge has in paragraph 28 of the judgment dealt with the question of the adaptability of the lands round about this locality for the purpose of brick-making. But that paragraph only contains a general1 discussion of the suitability of the lands in this locality generally for the purpose of brick-making. But it cannot be gainsaid that the two lands under acquisition as also Survey No. 181 of the claimant which adjoins those lands were being used for the purpose of brick-making, and the real point to be considered is whether the brick-making business in these two survey numbers came to an end by reason of the acquisition. The learned Joint Judge has referred to the fact that one Odhavji who had a brick-kiln in Survey No. 132 stopped his business in 1932 and sold the land in 1935, and from this example the learned Judge concludes that brick-making business was not profitable and hence the claimant also must have brought his business to an end in April, 1937. In our opinion, this instance on which the learned Judge relies is by no means conclusive. Odhavji had purchased the land for Rs. 1,201 in 1929. He carried on the brick-making business for three years and presumably when the capacity of that land for brick-making was exhausted, he sold the land in 1935 to one Kuberdas because he realised Rs. 5,500 on account of its potentiality for building-purposes. From this example we cannot conclude that the claimant ceased to use the land under acquisition for brick-making business in April, 1937, because he considered that it was no longer a profitable business. The more serious argument, how-ever, in support of the learned Judge's view is that the claimant himself stopped business of brick-making in April, 1937, even in Survey No. 181 which was not notified for acquisition. And the learned Government Pleader has attempted to support the conclusion of the lower Court by saying that this action of the claimant himself in closing his business in Survey No. 181 in. April, 1937, showed that the claimant considered that it was no longer profitable to go on with it. We do not think that the submission of the learned Government Pleader is correct. It is true that the claimant ceased to do business of brick-making in Survey No. 181 which adjoins the lands under acquisition in April, 1937. But this may be due to several reasons. It is possible that Survey No. 181 in which the claimant had started a brick-kiln in 1934 may have been exhausted by April, 1937. It may also be that having found that1 practically the whole of Survey Nos. 178 and 180 were being acquired, he may not have thought it worthwhile to continue business in the remaining Survey No. 181; There is evidence to show that Survey No. 181 with only eighteen gunthas remaining out of Survey Nos. 178 and 180 could have provided earth for brick-making for only one year more. And, lastly, there is the fact that the adjoining lands were being purchased by Kuberdas on account of their building potentiality. We cannot, therefore, say that if the lands under acquisition had not been acquired, the claimant's business of brick-making could not have gone on. The claimant seems to have stopped making katccha bricks in the lands under acquisition in April, 1937, in anticipation of their being taken possession of by Government, a notification for which actually appeared only three or four weeks thereafter. Moreover, there is a definite finding of the learned Judge that on an average the claimant was making a profit of Rs. 2,900 per year out of his Hansol kiln from the lands under acquisition. And, lastly, there is the fact that in the award the learned Land Acquisition Officer has stated that when he went to inspect the lands in July and August of 1937, the newly burnt bricks were being carted by the claimant in motor lorries. We are, therefore, of opinion that it must be held that the claimant's earnings in Survey Nos. 178 and 180 were injuriously affected by reason of the acquisition at the time when the Collector took possession of the lands in June, 1937.
3. That being so, the question arises whether the claimant is entitled to any compensation. Under ordinary circumstances the claimant would have been entitle to compensation in view of the conclusion to which we have come. But in this particular case there is the further complication that the claimant had not acquired permission of the Collector for using the land for non-agricultural purposes. So in a strict sense the business was not being legally carried on. In our opinion, the word 'damage' in Section 23(1)(iv) must be construed as damage in carrying on a lawful business in a lawful manner, and if the earnings of such a business are injuriously affected by reason of the acquisition, then the claimant would be entitled to compensation in respect thereof. The claimant admits that he had not obtained the permission of the Collector under Section 48 of the Bombay Land Revenue Code for using the land for non-agricultural purposes, and under Section 66 of the Bombay Land Revenue Code the claimant was not only liable to be fined but was also liable to be evicted at any time when the Collector chose to do so. It cannot, therefore, be said that if there was no acquisition and if the possession of the lands had not been taken in June, 1937, the claimant would have been entitled to carry on. his business and earn profits therefrom. It is quite conceivable that he may have been evicted at any time by the Collector. It can be said, therefore, that the business which the claimant was carrying on was not a lawful business, and in our opinion the damage resulting from the stoppage of such business is not the damage contemplated in Section 23(1)(iv) of the Land Acquisition Act. In this connection we would refer to Rule 4 of the rules framed under Section 2 of the English Acquisition of Land Act, 1919. That rule is in these terms:
Where the value of the land has increased by reason of the use thereof or any premises thereon in a manner which could be restrained by any Court or is contrary to law or is detrimerval to the health of any inmates of the premises or to the public health, the amount of that increase shall not be taken into account.
As pointed out by Om Prakash at page 275 of his book on 'Compulsory Acquisition of Land in British India,' the object of this rule is to remove from the consideration of the arbitrator any increased value owing to the premises being used for purposes not permitted by law. He observes:
For example the premises might be used for the purpose of business, whereas the covenants in the lease limited its user to private purposes only. In such case the Court could grant an injunction restraining such user. Again, the premises might be used as a brothel, and a larger rental might be paid to the landlord by reason of such user. Compensation based on such increased rental might possibly be claimed by the person or persons interested in the premises, but the above rule would render such a claim unarguable.
We consider that the reasoning on which Rule 4 of the rules framed under Section 2 of the English Acquisition of Land Act, 1919, is based, should be applied in construing the word 'damage' as used in Section 23(1)(iv) of the Land Acquisition Act. The learned Counsel for the appellant argued that as the Collector had allowed the use of the land for brick-making purposes for two years, he might have allowed its continued user for that purpose if the lands under acquisition had not been taken possession of. We cannot assume that the Collector was aware of the unlawful user of the land by the claimant, nor can we presume that the Collector would after becoming aware of this unlawful use have granted permission for the continued use of the land for brick-making purpose. The fact remains that the land was being used for brick-making purposes unauthorizedly and that the claimant had rendered himself liable to be evicted at any time by the Collector. Whether the Collector would have evicted the claimant or not is a matter of pure speculation. In any case the business which the claimant was carrying on was not in accordance with law, and we cannot hold that the damage resulting from the stoppage of such a business is a 'damage' within the meaning of Section 23(1)(iv) of the Land Acquisition Act.
4. We are, therefore, of opinion that the claimant is not entitled to any compensation under this head. This was the only point argued in appeal.
5. In our opinion the appeal fails. As the point on which the appeal fails was not taken in the lower Court, we direct that the parties will bear their own costs of the appeal.