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C.V. Gangadara Sastri Vs. the Deputy Collector of Madras - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai
Decided On
Reported in(1912)22MLJ379
AppellantC.V. Gangadara Sastri
RespondentThe Deputy Collector of Madras
Cases ReferredBritish India Steam Navigation Company v. Secretary of State
Excerpt:
- - rosario, the learned vakil for the appellant, has elaborately examined before us the provisions of the land acquisition act in order to make good his contention. but in my opinion he has failed to establish the correctness of his position. strong reliance is placed by mr rosario on section 20. that section says that 'the court shall thereupon cause a notice specifying the day on which the court will proceed to determine the objection, and directing their appearance before the court on that day, to be served on the following persons, namely :(a) the applicant ;(b) all persons interested in the objection except such, (if any), of them as have consented without protest to receive payment of the compensation awarded ;and (c) if the objection is in regard to the area of the land or to.....abdur rahim, j.1. this is an appeal by one mr. c.v. gangadara sastri from the award of the chief judge of the presidency small cause court in a land acquisition case and the only question we are asked by the appellant's vakil to consider is whether it was competent for the learned judge to hold that on some of the items included in the award of the collector the claimant was entitled to a sum less than what the collector would give him though, on the whole, the total amount of compensation awarded by the collector has not been reduced. the property acquired is a certain quantity of land and buildings standing on a portion thereof. the deputy collector awarded as compensation a sum of rs. 5,404-3-5 which consisted of the following particulars:rs. a. p.1. land at rs. 1,000 per ground .. .......
Judgment:

Abdur Rahim, J.

1. This is an appeal by one Mr. C.V. Gangadara Sastri from the award of the Chief Judge of the Presidency Small Cause Court in a land acquisition case and the only question we are asked by the appellant's vakil to consider is whether it was competent for the learned Judge to hold that on some of the items included in the award of the Collector the claimant was entitled to a sum less than what the Collector would give him though, on the whole, the total amount of compensation awarded by the Collector has not been reduced. The property acquired is a certain quantity of land and buildings standing on a portion thereof. The Deputy Collector awarded as compensation a sum of Rs. 5,404-3-5 which consisted of the following particulars:

Rs. A. P.1. Land at Rs. 1,000 per ground .. .. 1,700 0 02. Superstructure .. .. .. .. .. 2,103 0 03. Trees .. .. .. .. .. .. 26 4 04. Compensation for loss caused by severance ofacquired land from other land of theclaimant .. .. .. .. .. .. 1,000 0 05. 15 per cent on (1) (2) and (3) .. .. 574 7 5

2. The appellant applied for and obtained a reference against the Collector's award under Section 18. He, claimed Rs. 10.000, objecting to the finding of the Collector under each head. The Land Acquisition Judge would allow more than the Collector under heads (1) and (3) but less than what he gave under heads (4) and (5) and agreed with the Collector as to item (2). In the result, the figure arrived at by the Judge is somewhat below that of the Collector, but as he was not at liberty to award less than what the Collector has given, the Judge has confirmed the Collector's award. The contention of the appellant is that while the Judge was right in increasing the Collector's allotments under (1) and (3) it was not permissible for him to award under heads(4) and (5) less than what the Collector awarded, so that the total sum awarded by the Collector should have been increased by the sums which the Judge would give under (1) and (3) in excess of what the Collector had given. The argument is that under Section 20 the court is only to determine the objection to the award as made by the claimant and there is no provision in the Act for the filing of any cross-objection by the Secretary of State. Hence where a person interested objects to one of the items composing the award on the ground that it has been undervalued and claims something more than what the Collector has allowed under that head, all that the court is entitled to do is to allow or reject the excess claimed either in toto or in part but cannot reduce what has been awarded by the Collector on that account. The contention is based on a ruling reported in British India Steam Navigation Company v. Secretary of State for India I.L.R. (1910) C. 230 where the particular question is considered. With all respect to the learned Judges (Mookerjee and Sharfuddin JJ.,) who decided that case 1 am unable to accept the ruling as correct. In that case, the claimant had not disputed the items in question and on that ground a distinction may perhaps be drawn between that aud the present case in which the appellant disputed before the court all the items making up the award. But, having regard to the reasoning employed in the Calcutta case, I do not think that the distinction would be either substantial or satisfactory. At all events I am clear that the entire scheme of the Land Acquisition Act show's that the only limitation upon the power of the court in awarding what it considers to be proper compensation is that contained in Section 25, the first sub- section of which lays down that the amount awarded to the applicant by the court shall not exceed the amount claimed by him before the Collector or be less than the amount awarded by the Collector under Section 11. What is meant by 'less than the amount awarded by the Collector' is obviously the total amount and not what is given under different heads with reference to which the entire amount is arrived at, Section 11, Cl. (11), requires that the Collector should make an award of the compensation which should be allowed for the land; and however the compensation may be calculated it is the sum total allowed as compensation which is one of the subjects of the award under this sub-section. The other provisions of the Act deary confirm this inference. For instance, Sections 18, 20(c), 23 and 30 all speak of the amount of compensation and Section 28 of the sum which the Collector ought to have awarded as compensation and of the sum which the Collector did award as compensation. One of the points on which a claimant is en-titled to ask for a reference to the court under Section 18 is the amount of compensation payable to him, that is to say, he may claim more than what the Collector has given ; once that is referred the whole question as to how the compensation is calculated is necessarily re-opened so that the court may determine whether the claimant is entitled to more than what has been given to him. No doubt he is required to state in his application for reference the grounds of his objection to the award but that is required apparently to facilitate enquiry. Similarly, as to the form of the award, Section 26 requires the court to specify the amounts awarded under different clauses of Section 23 and the grounds for awarding each of the said amounts apparently for the same reasons as the Civil Procedure Code requires that the judgment of a Subordinate Court shall contain certain particulars. None of these provisions indicate, to my mind, that the objection to the award to be determined under Section 18 is not whether the total sum awarded is less than what it ought to be, but whether the valuation by the Collector of each of the items objected to is less than the proper valuation. I am therefore unable to accept the decision in B.I.S.N. Co. v. Secretary of State for India I.L.R. (1910) C. 230 as laying down the law correctly on the point. On the other hand, I agree with the view expressed in Hugli Mills Co. v. The Secretary of State for India (1903) 12 C.L.J. 489 that when a reference is made to court the whole case is referred subject, of course, to the limitation contained in Section 26 and not merely the particular objection. The fact that the Secretary of State cannot apply for a reference does not seem to me in any way to militate against this construction of the Act as supposed in B.I.S.N. Co. v. Secretary of State for India I.L.R. (1910) C. 230. Probably the reason why the Secretary of State cannot question the award of the Collector by asking for a reference to court is that the Collector is regarded in this connection more or less as agent of the Secretary of Stale so that his award stands much on the same basis as an offer by an intending purchaser. If that be the underlying principle of Sections 18 and 25, it stands to reason that what should be regarded to be of importance to the parties as the ultimate question for determination is whether what is offered by the Collector on the whole and not the way in which he arrived at the figures should be accepted by the claimant. Further, as I have already pointed out in this case, the appellant objected to the Collector's findings on all items, though I base my decision on the broader ground. I may also observe that none of the cases relied on by Moorkerjee and Sharfuddin JJ. in B.IS.N. Co. v. Secretary of State for India I.L.R. (1910) C. 230 as I read them, support the propositon which they would lay down. All that those cases, viz., Abu Bakar v. Peary Mohan Mukerfee, I.L.R. (1907) C. 451 Mahammad Shafi v. Haran Chandra Mukerfee, Gobinda Kumar Roy Chowdhury v. Debendra Kumar Roy Chodhury, Prabal Chandra Mukerje v. Raja Peary Mohun Mukerjee 12 C.W.N 985 and Promotha Nath Mitra v. Rakhal Das Addy (1910) 11 C.L.J. 420 decide is that it is not open to a person who made no claim before the Collector to raise a question which has not been referred to the court for the first time before the judge. On the other hand, the construction I have placed upon the provisions of the Act in question agrees with what has been held by the Tribunal of Appeal in Bombay as reported in Mr. Campbell's Commentaries on the Land Acquisition Act, page 112.

3. I am therefore of opinion that the view of the law upon which the learned Chief Judge proceeded is right and the appeal must be dismissed with costs.

Sundara Aiyar, J.

4. The question raised for decision in this case is of some importance. The Deputy Collector of Madras, acting as Collector under the Land Acquisition Act, made an award under Section 11 of the Act determining the compensation payable to one Gangadara Sastri a part of whose house was acquired by Government for the Corporation of Madras. The amount awarded by him was Rs. 5, 404-3-5 and was made up of 4 items, namely, compensation for the site, for the superstructure and for trees respectively and compensation for damages caused by the severance of the land acquired from the claimant's other land. The amount awarded by the Collector for the last item namely, the damage caused by severance, was Rs. 1,000. The claimant had claimed before the Collector a larger amount for each of the items. The amount he claimed for the last item was Rs.1,865. After the award, he applied to the Collector requiring that the matter be referred for the determination of the court. The learned Chief Judge of the Small Cause Court, acting as the Land Acquisition Court, passed an award determining the compensation payable under the several heads. He was of opinion that the claimant was not entitled to more than Rs. 480 for the last item, i. e., the damage caused by the severance of the land acquired from the rest of the claimant's property and he accordingly reduced the amount under that head. He awarded larger amounts to the claimant for the other three items than those awarded by the Collector. But in consequence of the reduction of the fourth item the total amount due to the claimant was found by him to be Rs. 5,264-6-7 only which was less than the sum awarded by the Collector, namely, Rs. 5,404-3-5. As under Section 25 of the Act the amount awarded by the court could not be less than the amount awarded by the Collector the Judge in the result awarded to the claimant the amount of the Collector's award. The point argued in the appeal is that the learned Judge had no power to reduce the amount a warded by the Collector for the damage caused by the severance of the portion of the house from the portion not taken up. Mr. Rosario, the learned Vakil for the appellant, has elaborately examined before us the provisions of the Land Acquisition Act in order to make good his contention. But in my opinion he has failed to establish the correctness of his position. Section 25(1) enacts that 'when the applicant has made a claim to compensation * * * the amount awarded to him by the court shall not exceed the amount so claimed or be less than the amount awarded by the Collector under Section 11 '. Section 11 provides that the Collector after making the enquiries referred to in the section shall make an award under his hand of (i) the true area of the land ; (ii) the compensation which in his opinion should be allowed for the land; and (iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land'; and in determining the compensation to be allowed, the Collector is to be guided by the provisions contained in Sections 23 and 24 which lay down what matters shall and what matters shall not be taken into account in determining the amount of compensation to be awarded for the land acquired under the Act. There can be no doubt that the compensation which shoud be allowed under Section 11(2) means the total amount of compensation awardable for the land including all the various items or considerations mentioned in Section 23 one of which is ''the damage (if any) sustained by the person interested * * * by reason of severing such land from his other land.' Section 25 (1), therefore, in providing that the amount awarded by the court shall not exceed the amount claimed by the applicant or be less than the amount awarded by the Collector under Section 11, must necessarily also refer to the total amount awarded by the Collector or claimed by the applicant for his land pursuant to any notice given under Section 9. It is impossible, in my opinion, to hold, by virtue of anything contained in Section 25 alone, that with regard to each item making up the total amount of compensation due for the land the court cannot exceed the amount claimed by the applicant or diminish the amount awarded by the Collector. Is there then any other provision in the Act which supports the appellant's contention that the Judge cannot diminish the amount awarded by the Collector under any one of the items making up the total amount of compensation to be awarded for the land? Strong reliance is placed by Mr Rosario on Section 20. That section says that ' the court shall thereupon cause a notice specifying the day on which the court will proceed to determine the objection, and directing their appearance before the court on that day, to be served on the following persons, namely : (a) the applicant ; (b) all persons interested in the objection except such, (if any), of them as have consented without protest to receive payment of the compensation awarded ; and (c) if the objection is in regard to the area of the land or to the amount of the compensation, the Collector'. Mr. Rosario's argument that the 'objection' referred to in the section must be the objection raised by one of the claimants to compensation and not by the Collector or Government is, in my opinion, clearly right. The objection mentioned in the section is that already referred to in Section 18 which lays down that ''any person interested who has not accepted the award may require that the matter be referred by the Collector for the determination of the court' There is no provision authorising the Collector or the Government to raise any objection to the Collector's award and to require a reference to the court. Mr. Rosario further contends that the provision 'the court is to proceed to determine the objection ' means in cases when the objection is to the amount of compensation any particular objection that the applicant may make to that amount, and that therefore the court has no power to adjudicate on anything except the objection to the amount raised by the applicant. In other words a reference by the Collector must be taken to be of any particular objection to the amount of compensation raised by the applicant. I am of opinion that this contention is not correct as will appear from an examination of some of the sections of the Act to be presently made. But I may observe, to begin with, that the contention of the appellant would raise a serious difficulty in the interpretation of Section 25(1). In as much as according to that contention the Judge having power only to consider the claimant's objection that he is entitled to a larger amount than he gets under the Collector's award under any of the items making up the total amount of compensation, the total amount that the Judge would find due could not be less than the amount awarded by the Collector, the Judge having power only to increase the amount under one or other of the items making up the total. What then is the necessity for laying down in Section 25 (1) that the total amount awarded shall not be less than the amount awarded by the Collector under Section 11.? The provision would be necessary if the Collector is at liberty to increase some of the items and to reduce others. The learned Vakil for the appellant has not been able to suggest any solution of this difficulty. The in ference to be drawn from Section 25(1) is that the restriction on the Collector's power does not refer to lessening the amount due under any individual item going to make up the amount of compensation but only to the total amount of compensation. An examination of the other relevant sections of the Act, in my opinion, confirms this view. It shows that in laying on the Collector the duty of referring the objection of the complaint Section 20 refers to the 'objection' to the total compensation awarded for the land by the Collector and not to the amount settled for any of the individual items making up the total compensation. Section 20 evidently refers back to Section 18 (1). That section entitles a person who has not accepted the Collector's award to require that 'the matter' be referred by the Collector for the determination of the court ' whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. ' The objection is one or other of four kinds. One of them is the amount of compensation. It is not one referring to the amount awarded under any particular item making up the compensation but to the award of compensation as a. whole. No right is given to a claimant to require the Collector to refer to the court his objection to the amount awarded under a particular item taking up the compensation by itself without referring the question of the total amount of the compensation. His right is to require ' that' the matter' be referred by the Collector for the determination of the court.' 'The matter' is the objection to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. This is rendered clearer by Section 20. It lays down on whom the court should direct notice to be served according as the objection is to the area of the land or the amount of compensation.-see Cl. (c)-or to the persons to whom it is payable and its apportionment between them-see Cl. (b). It follows out the classification with reference to the applicant's objection already adopted in Section 18. The matter to be referred under Section 18 and the objection referred to therein must be the same as the objection referred to in Section 20 as the court must evidently decide the matter referred to in Section 18. Section 19 accordingly requires the Collector, in making the reference, to state for the information of the court the various matters specified in the section, namely, the situation and extent of the land, the names of the persons whom the Collector has reason to think interested in the land, the grounds on which the amount of compensation was determined, &c.; Here again the objection is regarded as one to the amounts of the compensation that is, the total amount of the compensation. In the case of such objection the Collector has to state the grounds on which the amount of compensation was determined. These grounds will no doubt state the amount which the Collector considers to be due to the claimant under each of the items mentioned in Section 23. Section 18, Cl. (2), requires the claimant to state the grounds on which objection to the award is taken, If the objection be to the amount of compensation he would, in stating the grounds on which he objects, naturally mention the amount he claims under each of the items making up the total amount. So far then as Sections 18 and 20 are concerned, they show that the reference by the Collector must relate to the total amount of compensation and that the court should decide the total amount to be awarded. Sections 23 and 24 strengthen this conclusion. Section 23 lays down that 'in determining the amount of compensation to be awarded for land acquired under this Act, the court shall take into consideration--first, the market value of the land; secondly, the damage sustained by reason of the taking of any standing crops or trees; thirdly, the damage sustained by the claimant by reason of the severance of the land from his other land; fourthly, the damage sustained by the reason of the acquisition injuriously affecting the claimant's other property; fifthly, the reasonable expenses incidental to the claimant being compelled to change his residence or place of business ; sixthly, the damage resulting from the diminution of the profits of the land between the time of the publication of the declaration under Section 6 and the time of the Collector's taking possession of the land.' Evidently the section requires the court to take each of these matters into account in all cases of reference to him. This can be done only if the whole question of the amount of compensation be opened before the court and not if the jurisdiction of the court is confined to the decision of an objection relating to any one of the matters mentioned in the various clauses of Section 23. Section 26 again says that every award under part III of the Act should specify the amount awarded for the market value treated of in Section 23 (1), Cl. (i), and also the amounts awarded under each of the other sub-clauses of Section 23(1). There are only two restrictions placed on the jurisdiction of the court to consider the whole question of the amount of the compensation to be paid for the land claimed by the applicant : one laid down in Section 21 that ' the scope of enquiry in every such proceeding shall be restricted to a consideration of the interests of the persons affected by the objection'; and the other laid down in Section 25 that the amount awarded by the court shall not exceed the amount claimed by the applicant or be less than the amount awarded by the Collector under Section 11 and that when the applicant refuses to make a claim or has omitted without sufficient reason to make a claim before a Collector the amount awarded by the court should not exceed the amount awarded by the Collector; and that further when his omission to make a claim is held by the Judge to have been due to a sufficient cause the amount to be awarded by the court should not be less than, and may exceed, the amount awarded by the Collector. I am therefore of opinion on the interpretation of the Act that the Judge had the right, and was bound, to decide the total amount due to the claimant for the compensation and the amounts due under each of the items making up the total amount and that nothing in the Act places any restriction on his power to award a less sum under any one item than that awarded by the Collector.

5. I will now refer to a decision of the Calcutta High Court strongly pressed on our attention by Mr. Rosario, namely, the case of British India Steam Navigation Company v. Secretary of State for India I.L.R. (1910) C. 230. In that case the question was raised whether the Land Acquisition Judge has jurisdiction to review the award at the instance of the Collector in so far as it is not challenged by the claimants and to re-examine items not controverted by them. Mookerjee and Sharfuddin JJ. held that he could not do so. The learned Judges admit that Section 18 is 'comprehensive enough to afford some basis for an argument that the whole question of the amount of compensation is referred,' They say: 'But this view, we think, is sufficiently negatived by Section 20 which directs the court to determine the objection, that is, the objection of the claimant. Because the claimant objects to a particular item and obtains a reference, the court cannot review another, a totally distinct and unconnected item.' The argument is evidently based on the assumption that the claimant is entitled to object to a particular item only which, for reasons already stated is, in my opinion, unsound. The learned Judges put an illustration in support of their position. They say : 'To take a concrete illustration, suppose the property acquired is land and a building thereon. The Collector in his award values the land at Rs. 500 a cotta and allows Rs. 1,000 for the house. The claimant obtains a reference on the ground that the land has been undervalued ; is it open to the Secretary of State, who cannot obtain a reference under Section 18, to urge that the building has been overvalued, to such an extent that the objection of the claimant as to the undervaluation of the land, however well founded it may be, must fail We are not prepared to hold that such a procedure was contemplated by the legislature.' It is no doubt true that the Collector could not obtain a reference under Section 18, but that does not affect the question whether the claimant, when he requires a reference, can require that one of the items of compensation for the land in question should alone be referred and whether his right is not restricted to require the whole question of the compensation awardable for the land to be referred to the Judge. If the Judge's duty is to decide the question of the compensation payable for the land stating the amounts due under the various headings mentioned in Section 23, then the Collector has a right to adduce evidence and to prove what the amount awardable under each item is. To allow the Secretary of State to do so would not be in substance to hold, as apparently considered by the learned Judges, that a reference under Section 18 may be made at the instance not merely of the claimant but also of the Secretary of State for India or to enable the Secretary of State to achieve by an indirect method what he cannot obtain directly. There is nothing unreasonable in holding that if a claimant chooses to require a reference the whole question of the compensation is then open before the Judge to be decided by him although the Secretary of State has in the first instance no right to require a reference. Reference is made in the judgment of the learned Judges to some previous decisions of the Calcutta High Court the principle underlying which decisions is said to support to some extent the view taken by the learned Judges. On an examination of those cases I am unable to find that they lend any substantial support to the view taken in British India Steam Navigation Company v. Secretary of State I.L.R. (1910) C. 230. Three of them, Gobinda Kumar Roy Chowdhury v. Debendra Kumar Roy Chowdhury 12 C.W.N. 98 Mahommad Safi v. Haran Chandra Mukerjee 12 C.W.N. 985 and Prabal Chandra Mookerjee v. Raja Peary Mohun Mukerjee 12 C.W.N. 987 merely lay down that it is not open to the Land Acquisition Judge to go into questions raised by the parties who did not object to the award and apply for a reference. This restriction on the jurisdiction of the Judge is specially laid down in Section 21 of the Act. See also Section 20, Cl. (b), Abu Bakar v. Peary Mohan Mookerjee I.L.R. (1907) C. 451 is also substantially to the same effect. There a certain portion of the compensation awarded by the Collector for trees was allotted by him to the Zamindar and another portion to the under-tenants holding under the tenants of the laud. The tenants objected to the allotment of the award for trees wholly to the under-tenants On the reference coming on before the court, the Zamindar claimed the entire amount awarded as the value of the trees although he did not require a reference of the question of compensation to be made to the Judge. Section 21 would clearly bar the Zamindar's contention. The view taken in Hughly Mills Co. v. The Secretary of State for India in Council (1903) 12 C.L.J. 489 is, on the other hand in my opinion, clearly in conflict with the decision in British India Steam Navigation Company v. Secretary of State for India I.L.R. (1910) C. 230, because it was there held that although the claimant might fail to substantiate the particular ojection raised by him to the Collector's award of compensation it was still the duty of the court to arrive at its own conclusion as to the amount of compensation to be awarded to the claimant and that it could not confirm the Collector's award without doing so. The learned Judges, Harington and Brett JJ., observe : ' If then the award of the Collector has been arrived at on a wrong principle the question has been raised whether the court is bound to accept the award if the claimants fail to make out their case or whether it is not the duty of the Judge, having regard to all the evidence and to all the circumstances of the case, himself to determine what is a fair compensation for the land acquired. The learned Counsel has contended that it rests with the court to determine the compensation to be awarded, and that for that purpose the Judge is in uo way bound by the award but that he should consider and weigh the evidence on which it has been based in the same way as he considers and weighs the other evidence in the case and then come to his conclusion. In this contention we are of opinion that the learned Counsel is right. The whole case is referred, not merely the objection, for determination, and the provisions of the Act clearly indicate that the award itself is only important in the trial of the reference in determining the question of costs.' It is observed in British India Steam Navigation Company v. Secretary of State for India I.L.R. (1910) C. 230 that ' an examination of the judgment, however, taken along with the points in controversy in that case makes it clear that the question now raised did not arise for consideration at all, and the isolated passage upon which reliance is placed cannot be deemed to embody a judicial determination of this point.' With all deference I am unable to appreciate this observation. In Hughli Mills Co. v. The Secretary of State for India in Council (1903) 12 C.L.J. 489 the Land Acquisition Judge, after finding that the claimant had failed to substantiate his objection, proceeded to consider what conclusion he should come to himself with respect to the proper amount of compensation to be awarded to the claimant, and the learned Judges of the High Court held that he was bound to do so and that his jurisdiction was not confined to deciding whether the claimant's objection was well founded, a view which is not in accordance with that taken in British India Steam Navigation Company v. Secretary of State for India I.L.R. (1910) C. 230 The conclusion I have arrived at is in accordance also with the view taken by the Bombay Tribunal of Appeal, a body appointed by Statute to decide references made by the Collector under the Land Acquisition Act--see page 112 of Campbell's 'Land Acquisition Act.' I hold that the learned Land Acquisition Judge in this case was entitled to reduce the amount awarded by the Collector for the damage sustained by the claimant in consequence of the severance of the portion of his land taken up from the remainder of his land. This appeal must therefore be dismissed with costs.


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