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The Secretary of Sate for India in Council Represented by the Collector of Salem Vs. R. Narayanaswami Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1932Mad55; (1932)63MLJ962
AppellantThe Secretary of Sate for India in Council Represented by the Collector of Salem
RespondentR. Narayanaswami Chettiar and ors.
Cases ReferredRamachandra Rao v. Ramachandra Rao
Excerpt:
- - an acquisition officer was appointed and he made an award on 2nd september, 1926. many of the claimants were not satisfied with it and required a reference to the civil court under section 18 of the land acquisition act. if at this stage the government sent another communication to the municipal council fixing another date and published it by a notification, it will be perfectly valid. when the municipal council recommended a diversion of the road to the local government, the owner of another plot objected to the diversion as it caused him considerable inconvenience. the award of the land acquisition officer does not clearly show whether he passed any order deferring the question of this particular acquisition till the municipality decided the matter as vvas requested by the.....vepa ramesam, kt., offg., c.j.1. these are appeals against the award of the district judge of salem made in certain land acquisition proceedings which vvere taken pursuant to the town planning act (vii of 1^20). the scheme was generally known as maravaneri extension and was intended to enlarge the accommodation of salem town. the facts of the case may now be stated.2. on 1st february, 1921, the madras government invited the municipal council of salem by a notification published in the fort st. george gazette to submit for their sanction within three months from the date of the publication of the notification a scheme in respect of the area now in question (ex. a). this was under section 12 of the town planning act. that section authorises the government to fix a date within which the.....
Judgment:

Vepa Ramesam, Kt., Offg., C.J.

1. These are appeals against the award of the District Judge of Salem made in certain land acquisition proceedings which vvere taken pursuant to the Town Planning Act (VII of 1^20). The scheme was generally known as Maravaneri Extension and was intended to enlarge the accommodation of Salem Town. The facts of the case may now be stated.

2. On 1st February, 1921, the Madras Government invited the Municipal Council of Salem by a notification published in the Fort St. George Gazette to submit for their sanction within three months from the date of the publication of the notification a scheme in respect of the area now in question (Ex. A). This was under Section 12 of the Town Planning Act. That section authorises the Government to fix a date within which the Municipal Council should submit the scheme and the Government fixed three 'months as the period. The Salem Municipal Council did not submit their scheme within three months. The draft scheme was submitted on 28th August, 1921 (Ex. B). Seeing that the Government ultimately published a notification on 21st September, 1923, under Section 14(3) of the Act {vide Exhibit D) we must assume that the Madras Government has accepted the draft scheme though it was submitted late and condoned the delay of the Municipal Council. Section 34 of the Town Planning Act provides that a notification under Section 14 of that Act shall operate in respect of any land covered by it as a declaration under Section 6 of the Land Acquisition Act. So further proceedings were taken under the Land Acquisition Act. An Acquisition Officer was appointed and he made an award on 2nd September, 1926. Many of the claimants were not satisfied with it and required a reference to the Civil Court under Section 18 of the Land Acquisition Act. It was thus that the matter came up before the District Judge of Salem and against his award these appeals are filed by the Government and one claimant.

3. The District Judge held that, as the Salem Municipal Council had not complied with the notification of the Government within three months as required in Ex. A, the notification became spent as it were and any action taken by the Municipal Council subsequently for the purpose of settling a scheme and getting the approval of the Government could not be regarded as one under Section 12 of the Town Planning Act. He then observed that the Government had no power to extend the time mentioned in the notification and therefore the notification, Ex. A, had no legal effect whatever; but he also held that the subsequent proceedings taken under the Act were still valid. He pointed out that, apart from the notification under Section 12, the Municipal Council could suo mo tit frame a scheme under Section 10(3) or Section 11 and the Government may approve of the scheme under Section 14(3) and further proceedings can follow a notification by the Government under Section 14 of the Act. He finally held that though the notification under Section 12 lapsed and there was no notification under Section 10(1), and therefore Section 35(2)(a) of the Town Planning Act could not be applied, the notification under Section 14 could still be utilised for a date to calculate the values. Under Section 23 of the Land Acquisition Act the market-value of the land on the date of the publication of the declaration under Section 6 must be taken into consideration. Under Section 34 of the Town Planning Act the notification published under Section 14 of the Town Planning Act is itself deemed to be a declaration under Section 6 of the Land Acquisition Act. He therefore held that 21st September, 1923, the date of Ex. D, the final notification under Section 14, must be taken to be the date at which the value of the plots belonging to the claimants should be ascertained, and he proceeded to give his award. This conclusion is challenged by the learned Government Pleader. He cited some cases before us to show that the District Judge had no jurisdiction to go behind the reference. But I do not think that this point arises before us. The learned District Judge did not say that the reference to him was invalid, nor is any such proposition contended for by the respondents. The District Judge held that the notification under Section 14 was a valid notification and the further proceedings were valid. All that he said was that there was no notification utfder Section 10(1), nor any operative notification under Section 12 of the Town Planning Act, and therefore Section 35(2)(a) could not be applied. He therefore chose the notification under Section 14 which is equivalent to a declaration under Section 6 of the Land Acquisition Act and proceeded to estimate the value as on that date. It is therefore unnecessary to consider the cases cited hy the learned Government Pleader.

4. The next question is whether there was an operative notification under Section 12 so that we might take its date as the date with reference to which the lands have to be estimated under Section 35(2)(a) of the Town Planning Act. Now, taking Section 14 of the Act, Clause (1) refers to the date of the publication of a draft scheme. It is clear that there are two draft schemes referred to in the prior sections of the Act, one published by the Municipal Council under Section 11 suo motu and another prepared by the Council under Section 12 on the invitation of the Government. It seems as if both the Sections 13 and 14 were intended to apply to both kinds of draft schemes. But unfortunately Section 12 did not make any provision for the publication of the draft scheme as Section 11 did, with the result that the words 'the date of the publication of a draft scheme' cannot refer to the publication of a scheme under Section 12. Nevertheless Section 14(3) may refer to a draft scheme under Section 11(1) or a draft scheme submitted under Section 12. This is the view adopted by the learned District Judge, and also contended for before us by the learned Government Pleader. I agree with this contention. This defect in Section 12 has since been remedied by an amending Act and now it is clear that Section 14(1) applies to draft schemes under Section 11 or Section 12 and the original intention is now properly carried out. But this conclusion that Section 14(3) applies even to a draft scheme prepared suo motu by the Municipal Council and therefore the proceedings under the Town Planning Act are valid does not solve the question of the date of the notification which has to be adopted under Section 35(2)(a). The District Judge thought that the Government had no power to extend the time mentioned in its notification of February, 1921. The learned Government Pleader argues that this view is not correct. To this extent 1 agree with the learned Government Pleader. In the first place, the Act itself does not fix any period of time before which the scheme must be submitted by the Municipal Council. The date was to be fixed by the Government. The Government had so fixed the date, but the Municipal Council did not submit its scheme within that date. If at this stage the Government sent another communication to the Municipal Council fixing another date and published it by a notification, it will be perfectly valid. Only in such a case the date of the second notification would be the date to be adopted under Section 35(2)(a). Whether we call it an extension of the original date or whether we call it a. fresh notification it matters little. But what the learned Government Pleader requires for his argument is that while an extension of the original date may be made by the Government, the date of the first notification, the time prescribed in which is extended, is still the date to be adopted under Section 35(2)(a). I am unable to agree with this contention. The whole policy of the Act is that a reasonable date should be fixed within which the Council should submit its scheme and this date should be notified by the Government. If the Council submits its scheme within that date, the proceedings will continue with reasonable speed and the owners of lands will have the satisfaction of their lands being acquired and prices given to them corresponding to a date not unreasonably remote from the actual acquisition; but if delay is committed by the Municipal Council and if the Government extends the time, for the same reason for which the first notification mentioning a date for the submission of the scheme by the Municipal Council should be published, there must be a notification containing the second date and this notification should be equally published. What the Act contemplates under Section 35(2)(a) is the date of a notification which prescribes a date within which the Municipal Council should act and has acted. The date of Ex. A does not satisfy this condition. The Act does not expressly speak of any power in the Local Government to extend. As the sections are worded the Act contemplates that the Council has to take action within the time mentioned by the Government, but as I said an extension can always be granted by a further notification. If so, the date of the further notification will be the date to be adopted under Section 35(2)(a). Now, the final notification of the Government of September, 1923 (Ex. D) certainly shows that the Government was willing to condone the delay of the Salem Municipal Council and accept the scheme submitted by the Council and by some straining of language it may be regarded as a notification under Section 12, though in such a view we have got a merger of the notification under Section 12 and the notification under Section 14(4) ; but I do not see anything illegal in it, though this was not what was contemplated by ,the Act. In this view I am willing to say that tlie proceedings validly continued under the Town Planning Act and the date to be utilised under Section 35(2)(a) is 21st September, 1923, and we need not fall back upon the date fixed by the Land Acquisition Act. I might add that, if this view of mine is not permissible, the only alternative view, in my opinion, seems to be that adopted by the District Judge.

5. But it seems to me that the whole discussion is academic. In my opinion there is plenty of documentary evidence in the case showing that on 1st February, 1921, the rate of 0-2-3 a sq. ft. should be adopted as the value of the lands.

6. [After discussing the evidence regarding the rate, His Lordship proceeded:]

7. This disposes of all the appeals in which special points were raised except Appeals Nbs. 226 and 443 which are cross-appeals in the same case, namely, L.A.C. No. 37. It will be convenient to take up these two appeals separately. The other appeals are dismissed with costs.

8. In these two appeals (Nos. 226 and 443) the facts arc these: One of the suggested roads according to the Town Planning Scheme cuts off a corner of the house of Mr. R. Srini-vasa Rao, an Advocate. The frontage of the house is on the western side and the road cuts off a slice in the backyard on the eastern side. When the proposal originally became known, the claimant pointed out the inconvenience caused to the house, and it was then thought that the Municipal Council should address the Government for a diversion of the proposed road. It may be mentioned here that an extension was made to the main building in about May, 1925, by the addition of a kitchen. The proposed road does not encroach on the kitchen but runs by the side of it. When the Municipal Council recommended a diversion of the road to the Local Government, the owner of another plot objected to the diversion as it caused him considerable inconvenience. The Government passed orders to the effect that unless the Municipal Council enters into an agreement with all the persons affected by the diversion the Government cannot approve of the diversion proposed. This was on 8th December, 1926. The claimant apparently anticipating that the Government would not sanction the diversion, filed his statement on 29th September, 1926, before the Land Acquisition Officer in which he,prayed that his whole house might be acquired under Section 49 of the Land Acquisition Act. The Land Acquisition Officer deals with this matter in paragraph 24 of his award. He says:

In response to the notice under Sections 9 and 10 of the Act, Vakil. R. Srinivasa Kao states that he has moved the Municipal Council about diverting the road at this spot and that the question of acquisition may be deferred till the Municipality decides the matter.

9. It does not appear when this statement was made. The Land Acquisition Officer then says that the Council have since approved of the deviation. But the statement of the claimant and the approval of the Council must have been prior to the date of the award, namely, 2nd September. The Land Acquisition Officer then observes:

As however it involves a variation of the scheme sanctioned by Government the deviation cannot be acted upon without Government sanction.

10. Then he proceeds to dispose of the matter. The award of the Land Acquisition Officer does not clearly show whether he passed any order deferring the question of this particular acquisition till the Municipality decided the matter as vvas requested by the claimant. The next sentence of the Officer suggests that he did defer his own enquiry until the Municipality decided the question. If so, it is not clear whether he gave a further notice to the claimant saying that there was no use of a fresh adjournment as the deviation cannot be acted upon without Government sanction. The sanction of the Government has been applied for by the Municipal Council on 21st November long after the award (Ex. III). So at the time of the award there was no application made by the Municipal Council to the Government. But it seems to me that the Land Acquisition Officer ought at least to have informed the claimant that further adjournment of the matter would be useless and he would proceed with it. It does not appear that he has giyen any such notice. It cannot therefore be said that the request of the claimant in his statement of 29th September was made too late. On the request of the claimant the matter was simply forwarded by the Land Acquisition Officer to the District Judge. The learned District Judge held that this was not a case in which the whole house should be acquired and he gave Rs. 500 as damages for severance besides the price of the land.

11. The first question that arises in this case is whether an appeal lies. Two sets of cashes have been cited by the advocates on both sides. One set of cases cited by,Mr. B. Sitarama Rao, advocate for the claimant, shows that appeals under Section 49 have been entertained and considered by the High Court without any objection. The cases cited by the Government Pleader show that some Courts have held that no appeal lies. All these cases were decided before (1) the amendment of Sections 26 and 54 of the Land Acquisition Act by Act X of 1921, and (2) the decision of the Privy Council, Ramachandra Rao v. Ramachandra Rao , dated 31st January, 1922. Prior to the said amendment and the said decision, the view generally prevailing was that awards under the Land Acquisition Act were not decrees, for it was so decided by the Privy Council in Rangoon Botatoung Co., Ltd. v. The Collector, Rangoon (1912) L.R. 39 IndAp 197 : I.L.R. 40 Cal. 21 : 23 M.L.J. 276 (P.C.) and secondly apart from an award there could be no decree under the Act so as to make the matter res judicata between the parties. Now, the amendment and the decision of the Privy Council in Ramachandra Rao v. Ramachandra Rao : I.L.R. 45 Mad. 320 : 43 M.L.J. 78 (P.C.) have effected a change in both these matters. In Ramachandra Rao v. Ramachandra Rao the Privy Council held that if any question other than the amount of compensation was decided under the Land Acquisition Act by the Civil Court after reference, the order of the Civil Court amounts to a decree and an appeal lies and the decision would be res judicata. In that case reference to the Civil Court was made under Section 31(2) ; but there is nothing in the judgment of their Lordships which shows that the decision turned upon anything peculiar to Section 31. Section 31(2) refers to the Court to which a reference under Section 18 would be submitted. In Section 49 of the Act the language used is,.the Collector shall refer the determination of such question to the Court...In deciding on such a reference the Court shall have regard to the question....

12. This shows that the conclusion of the Court on a reference under Section 49 is regarded as a decision and if the conclusion on a reference under Section 31 is a decree there is no reason why a decision under Section 49 should not be regarded as a decree. In the present condition of the Act all awards are decrees and all decisions of the Civil Court other than awards on a reference under Section 31(2) are also decrees. I do not see any reason why decisions on reference under Section 49 should not also be decrees. The earlier decisions therefore are of no value now. The whole scheme of the Act from the point of view of the question whether decisions of Court are decrees and whether appeals lie therefrom has entirely changed. The preliminary objection is therefore overruled and I hold that both the appeals lie.

13. The next question is whether 'the claimant has precluded himself from insisting on the whole house being acquired by any delay in making his claim. I have already set forth the circumstances under which he made his claim on 29th September, that is, after the award, and I think there is nothing in his conduct amounting to laches or estoppel. But apart from this, there is nothing in Section 49 requiring the claimant to put forward this particular claim, namely, that the whole house should be acquired, at any particular stage of the proceedings. The learned Government Pleader argued that this Sub-clause (2) of Section 49(1) shows that it should.be made before the Collector made his award. But I do not think it shows anything of the kind. It only shows that in a case where it was made before the award the owner may withdraw or modify his desire. I cannot imply from this clause that such claims should be ma'de before the Collector made his award. I do not think that legislation by implication of this kind is justified, and apart from this clause there is no other clause which could be relied on to show that the owner should make this kind of claim before the award is made.

14. The third question that arises in the case is with reference to the merits. The question is whether the land proposed to be taken is reasonably required for the full and unimpaired use of the house under the last clause of Section 49(1). Mr. Sitarama Rao, the learned advocate for the claimant, referred to a number of English decisions and also the decision in Khairati Lai v. The Secretary of State for India in Council (1899) L.L.R. 11 All. 378 The English Act and the Indian Act (X of 1870) on which these decisions were based dicLnot contain a clause similar to that in Section 49(1). As was pointed out in the decision in Venkataratnam Naidu v. The Collector of Godavari I.L.R. (1903) 27 Mad. 350 the clause was inserted to meet these decisions. I do not therefore think that these decisions are of any value to us. In the present case a small slice of the backyard is taken away for the road. It cuts off a small fuel shed which is a thatched structure. It also cuts off a portion of a latrine at the north-east corner of the compound. It is true that a latrine is,.necessary for the enjoyment of a house. If there is no other 'place within the compound where a latrine can be built for the use of this house, I think the owner can reasonably insist on trie whole house b eing acquired. I do not think it is prpper to point out to him that he'should build a latrine beyond the compound by purchasing some other site outside the present compound.' But it seems to me that the District Judge is right in holding that there is ample space within the backyard in which a latrine of the, former size, namely, 8 ft. 9 inches by 10 ft. 3 inches, can be built without any particular inconvenience to the use of the house. Similarly a fuel shed can be put up. It cannot be successfully argued that a latrine and a fuel shed can be put up only at the places at which they stood at the time of the acquisition. Only then, can it be successfully argued that the land acquired is reasonably necessary for the enjoyment of the house. I therefore agree with the view of the District Judge that this is not a case in which the claimant can insist on the acquisition of the whole house. The result is that Appeal No. 443 should be dismissed with costs.

15. The District Judge thinks that the amenities o f the house have somewhat suffered by taking away a substantial portion of the backyard and for this he gives damages for severance - Rs. 500. We do not see any reason why we should differ from the view of the District Judge. I think therefore that Appeal No. 226 should also be dismissed with costs.

16. Memorandum of Objections in A.S. No. 227 is not pressed and is dismissed with costs.

Cornish, J.

17. In the Appeals Nos. 217 to 229 I entirely agree with the judgment just delivered, except upon one point, namely, the date for ascertaining market-value for the purpose of compensation.

18. In my opinion, 1st February, 1921, the date of publication in the Fort St. George Gazette, of the Government's notification under Section 12, is the date at which the market-value is to be determined. In the Lower Court it appears to have been thought that, because the Government was empowered by Section 12 to fix a date for the preparation and submission of a draft scheme by the Municipal Council, the date when once fixed was unchangeable. But the date is not fixed by the Act. Section 12 says that the Local Government maji require the Municipal Council ' befofe a fixed date.' to prepare afid submit a scheme. This clearly means that the Government is to fix a date, and a power to fix a date carries with it a power to extend the date originally fixed, unless fliere is anything in the Act to the contrary.^ On the other hand, when a Municipal Council, proceeds under Sections 9 and 10 to initiate a scheme, Section 11 fixes the time, within which the draft scheme is to be prepared and published, and the power of the Local Government to extend this period is expressly limited by Section 11. But the provision made by Section 12 is ' notwithstanding anything contained in Sections 8 to 11 ', and this means that the power of the Government to fix a date under Section 12 is free from the limitation imposed by Section 11.

19. The question is, does the fact of the Local Government altering the date originally fixed for submitting a scheme under Section 12 affect the date of the notification for the purpose of Section 35(2)? It seems to me that the fixing of a date for the submission of a scheme is subsidiary to the main object of the publication of the notification, which is to give public intimation of the Government's, resolve that a town-planning scheme shall be made by the Municipal Council. This also appears to be the main object of the notification under Section 10(1) when a Municipal Council has in the exercise of its powers under Section 9 resolvedjjOk, make a town-planning scheme. That is the reason, I think', why Section 35(2) provides that, 'in determining the amount of compensation to be awarded for land required under the Act, the Collector and the Court shall take into consideration (a) the market-value of the land at the date of publication of the notification under Section 10(1) or Section 12, as the case may be.' It could not, in my opinion, be successfully contended that, if after publication of a notification under Section 10(1) the Municipal Council obtained an extension of time from the Local Government under Section 11(1) for the preparation and publication of the draft scheme, the date for determining the market-value under Section 35(2) would be correspondingly shifted, (and more than one extension might be granted) for, that would be to make the date for determining the market-value not the date of publication of the notification under Section 10(1), but the date when time was finally extended under Section 11(1). And I see no reason why an extension of the time originally fixed by Government under Section 12 should have any different result. In neither case does the Act require the publication of a fresh notification when an extension of time i% given, and inihe absence of such statutory requirement it appears to me that there is, no foundation for the argument that the extended date for the submission of the draft scheme must be treated as the date of publication 'of the notification for the purpose of Section 35(2)(a).

20. But, as my Lord has pointed out, the question is not of practical importance in this tase. The evidence of sales of plots between November, 1919 to May, 1920 and May, 1921 - excluding the 6 pies plot which was obviously exceptional and should not be taken into account in striking an average - shows that a rate of a little over 2 annas per sq. foot would be a fair market-value for February, 1921.

21. With regard to Appeal No. 443 of 1929 I agree that this appeal should be dismissed, not on the two preliminary objections taken by the learned Government Pleader, but on the ground that the District Judge has rightly held that the appellant is not entitled to compel the Municipal Council to acquire the whole of his premises. Section 49 of the Land Acquisition Act cannot, in my opinion, be construed as requiring that an owner must before the award has been made express his desire to have the whole of the house or building acquired; though that would be the normal procedure. No doubt the section provides that an owner may withdraw or modify his expressed desire before the award is made. But that does not imply that an owner who has not made his claim prior to the award can in no circumstances make it afterwards. It has been suggested that the Acquisition Officer's notice under Section 9 of the Land Acquisition Act furnished the proper opportunity to the appellant to make a claim under Section 49. But the particulars required to be put forward under Section 9 are quite different from a claim under Section 49. It is not necessary to decide whether, when a draft scheme is published under Section 14(1) of the Town Planning Act, the objections and suggestions relatin g to the scheme which have to be made within the period of sixty days would include a claim of an owner under Section 49 to have the whole of his premises acquired when the scheme proposes to take only a part, or whether, if an owner neglected to put forward this claim within the prescribed period for making objections and suggestions, lie would be precluded from doing so thereafter. The question does not arise, because there was no publication of the draft scheme here. It is dear that the appellant is not otherwise estopped by anything he did or failed to do. At the time when the award was made there was no occasion for him to put for.vPard a claim under Section 49. The Municipal Council had agreed with him to divert a road, and if this deviation from the scheme had been carried out there would have been no necessity for the taking of any portion of his premises. Unfortunately, the Government refused to concur in this arrangement and only signified their refusal after the award had been made. In this state of facts I do not think that the appellant was debarred from having the question whether the Municipal Council should take the whole of his premises referred to the Court. On the authority of Venkatareddi v. Adhinarayana Rao which in turn followed the Privy Council's ruling in Ramachandra Rao v. Ramachandra Rao% the decision of the Court upon this reference under Section 49 must be held to be a decree and therefore appealable. But I think that the appeal fails on the merits. The appellant can only insist on the whole of his house being acquired if the parts proposed to be taken ' form part of the house '. This is entirely a question of fact which the Court in deciding is required by Section 49 to ' have regard to the question whether the land proposed to be taken is reasonably required for the full and unimpaired use of the house'. Looking at the plan of the appellant's premises it appears to me that there are good reasons for the District Judge holding that the portion taken under the scheme is not reasonably required for the full and unimpaired use of the appellant's house, and consequently the appellant cannot compel the Municipal Council to acquire the whole.


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