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Hindusthan Co-operative Insurance Society Ltd. Vs. Secy. of State - Court Judgment

LegalCrystal Citation
Subject Property
CourtKolkata
Decided On
Reported inAIR1930Cal230,121Ind.Cas.737
AppellantHindusthan Co-operative Insurance Society Ltd.
RespondentSecy. of State
Cases ReferredEspley v. Wilkes
Excerpt:
- .....in the boundary seems to me to be this that, if the improvement trust had not made a 100 feet broad road on the land contiguous to the pilots sold the purchasers might possibly have a claim for damages on the ground that they were induced to pay higher price for the plots purchased on that representation than what they would have paid, if it was not stated to them that the improvement trust was going to build a wide road there. but, as a matter of fact, the improvement trust has built a road, and we need not consider that situation. the only question is whether by that description in the boundaries of the lands sold a right of easement was conferred, and i have already said that no right of easement was conferred by that statement.7. that being so, the only question that remains for.....
Judgment:

B.B. Ghose, J.

1. This is an appeal by the Hindusthan Co-operative Insurance Society, Limited, which will henceforth be called the society, against the award made by the Tribunal under the Calcutta Improvement Act for acquisition of a plot of land, about 10 bighas 17 cottas in area, on account of the Trust. The society were claimants No. 1 and other persons were also parties as persons interested before the Collector. The declaration was made on 17th November 1920. The society, it appears, had acquired a tract of land about 162 bighas in area by several conveyances between the year 1917 and May 1919. They proposed to sell the land in small plots to different persons as building sites by driving roads through the land and make a profit by their scheme. A map was prepared by the society to show the manner in which the land should be disposed of. The Collector made an award of Rs. 32,000 odd plus the statutory allowance, and he made an apportionment by giving shares of the compensation to various persons on the ground that they were persons interested having rights of easement over the land acquired. He stated that the land has been valued on the presumption that it was a plot of land over which the owners of the plots adjacent to it had a right of way. The society had, before the declaration was made, sold a number of plots to different purchasers. But sometime before the declaration, they became aware of the fact that the Trust was going to purchase a 100 ft. broad strip of land in order to construct a road, which has been called in the various documents as their proposed Sewer Road. The society asked for a reference to the tribunal under the provision of Section 18, Land Acquisition Act, both on the ground of valuation and also with regard to the question of apportionment. The tribunal took up the case of valuation first, and the matter was decided on 10th November 1924. But the question of apportionment was left undecided on the ground that it was a separate matter, which the President of the tribunal could deal with sitting alone without the aid of assessors. The Tribunal dismissed the claim of the society for increased valuation, and from that judgment appeal has been preferred to this Court with the requisite leave obtained from the president. The appeal came up for hearing on a previous occasion before a Divisional Bench of this Court, of which I was a member. That Bench considered it necessary that the matter of apportionment of compensation should be heard immediately after the appeal with regard to the question of valuation, because the question of the rights of the other claimants were mixed up with the question of valuation in this particular case. The valuation was made by the tribunal, as it was made by the Collector, on the basis that the other claimants bad some right by way of easement on the property acquired. That right was denied by the society. The hearing of this appeal was, therefore, adjourned till the decision of the question of the rights of the other claimants to the property acquired. That matter has now been decided by the tribunal against those claimants, and they have preferred Appeals Nos. 96, 140 and 212 of 1928, which, will be dealt with after this appeal.

2. In determining the amount of compensation to be awarded for the land acquired, reference must be made to the addition made to Section 23, Land Acquisition Act by the Calcutta Improvement Act of 1911. The relevant portion of the amendment is that the market value of the land shall be deemed to be the market value according to the disposition of the land at the date of the publication of the declaration relating thereto under Section 6. The learned president held in his judgment that the disposition of the land by the society at the material time was that they had decided that there should be a road running through their property and between their two schemes and that the width of the road should be hundred feet. Further on, the learned president stated that:

if the matter had rested there, it might have been contended on behalf of the society hat the mere laying out by them of their own land in a particular manner would not fix the disposition of any part of that land. But that could no longer be said if at the material time the society had, by their dealings with the plots into which they had divided their property, created in favour of third parties, rights over different parts of the land on the basis of that lay out.

3. The learned president thereafter found that the description of a boundary in rive plots of land, which they had sold, i.e., plots 2, 26, 27, 28 and 30, was either as 'land kept for proposed 100 feet wide drainage road of the Calcutta Improvement Trust' or as 'the proposed drainage road of the Trust' and by reason of that, a right of way over the acquired land had been granted to the various purchasers of those plots by the operation of the rule of estoppel as against the society. The learned president, therefore, held that the land was rightly valued by the Collector as a road-way, and as it could not have been turned to any profitable use by the society such would justify a higher valuation than what has been put on it by the Collector, he dismissed the claim of the society.

4. Against that judgment it is contended on behalf of the society by the learned Advocate General that the initial defect in finding the market value of the land was that the Collector as well as the tribunal proceeded to value the rights of the society to the land separately on the supposition that it was burdened with encumbrances, that it was not the right way of finding the market value of the land, and that the Collector ought to have valued the land with all the bundle of rights and left the parties interested to claim apportionment of the compensation awarded according to their rights. It cannot, however, be laid down that; that should be the uniform rule for arriving at the market value of a piece of land acquired under the Act. It was observed in the case of Trustees for the Improvement of the City of Bombay v. Jalbhoy Ardeshir Sett [1909] 33 Bom. 483 cited on behalf of the appellants, that no general principle as regards the mode of valuation can be laid down in finding the marked value. The same principle was laid down in the case of Girish Chandra Roy Choudhury v. Secy, of State [1920] 24 C.W.N. 184, to which my learned brother was a party, and in which all the previous cases have been referred to. Instances may be cited where it would be inequitable not to take into account the value of the different rights which the several claimants may have in the land acquired. The mode of valuation must, therefore, be left to the discretion of the Collector and the Court, having regard to the nature of the property. But the appellants have a grievance in this case as regards the apportionment made by the Collector. Their case is that, after having valued only what may be called the 'subsidiary interest' of the society in the land acquired, the Collector proceeded again to give the other persons who were supposed to have rights of easements over the land a part of the compensation or, in other words, the Collector has valued the land neither by taking into consideration the whole bundle of rights free from all encumbrances nor by valuing the rights of different claimants to the property.

5. But the question in this case does not depend upon the mode of the valuation by the Collector. The principal question in this case is whether the purchasers of the plots, I have mentioned above, had a right of way over the land, by reason of any rule of estoppel as found by the learned president and as contended for on behalf of the Secretary of State as well as by the counsel for the different claimants in the other appeals. The main and the most important case that was dealt with by the learned president in finding that the purchasers had a right of way over the land acquired is the case of Espicy v. Wilkes [1872] 7 Ex. 298. It is not necessary to state the facts of the case, in detail, as they have been fully dealt with by the learned president. It is only necessary to say that in that case the lessor by the grant expressly described the land demised as abutting upon strips of land of his own to the north and the east and which were distinctly delineated upon the plan and therein called 'new streets.' The lessor was, therefore, held to be estopped from denying that there were streets running along the north and the east fronts of the houses to be built on the demised lands according to the terms of the lease : see p. 303 of the report. It seems to me that the facts of that case are quite different from those of the present. I need not deal with the other cases referred to by the learned President in this connexion, because, in my judgment, it is a well established rule shat, in order that representation may operate as an estoppel, it must be representation of an existing fact and of not mere intention or future promises. The question has been fully discussed in Pollock's Principles of Contract (Appendix, Note 1) and summarised in Everest and Strode's Law of Estoppel, 3rd Edn., p. 279. Estoppel does not confer any title, but is merely a rule of evidence which prevents one party from denying the existence of a fact, which he represented as existing and upon which representation, another person has been induced to act to his detriment.

6. Now, what was the representation which was made in describing the boundaries of the plots which had been conveyed to the different claimants? As the learned President points out, and that is borne out by the documents (Ex. J for plot 2, Ex. 3 for plot 26, Ex. 5 for plot 27, Ex. 11 for plot 28 and, Ex. 94 for plot 30) : that the description of the plots conveyed as in the boundaries, was either 'the proposed drainage road of the trust' or 'the proposed 100 feet wide drainage road of the Calcutta Improvement Trust.' It seems to me to be quite clear that there was no representation of an existing fact like that on which the decision of Espley v. Wilkes [1872] 7 Ex. 298 proceeded. It is a statement of what the improvement trust was going to do with regard to the land which was described to be on the boundary of the plots sold. It did not confer any title on the purchasers of the land sold either by express grant or by implication. It has been argued on behalf of the other claimants in the other appeals and I think this argument may also be considered here, that with regard to some of the plots they might claim an easement of necessity as a right of way over this land. But that is quite a different question from the fact that a right had been conferred by grant. For, claiming an easement of necessity, it must be shown that the land conveyed is surrounded on all sides by lands belonging to third persons, and the only way of acccess is over the contiguous, land of the grantor. That does not appear to have been the fact with regard to any of the purchasers of the different plots. The only effect of the statement made in the boundary seems to me to be this that, if the improvement trust had not made a 100 feet broad road on the land contiguous to the pilots sold the purchasers might possibly have a claim for damages on the ground that they were induced to pay higher price for the plots purchased on that representation than what they would have paid, if it was not stated to them that the improvement trust was going to build a wide road there. But, as a matter of fact, the improvement trust has built a road, and we need not consider that situation. The only question is whether by that description in the boundaries of the lands sold a right of easement was conferred, and I have already said that no right of easement was conferred by that statement.

7. That being so, the only question that remains for consideration is as to what was the disposition of the land at the date of the publication of the declaration. It has been contended by Sir Benode Mitter, on behalf of the Secretary of State, that we are bound by the findings of fact of the learned President that the disposition of the land at the material time was that this land acquired should be a road 100 feet broad and that according to the provisions of Section 3, Sub-section (2), Calcutta Improvement (Appeals) Act, we are bound by the finding of the learned Judge which is a finding of fact. Now, the first answer to it is that there is no evidence on the record that the disposition of the land at the date of the declaration was such as the learned president has found. Secondly, it seems that the learned president has misapprehended the expression, 'according to the disposition of the land at the date of the publication of the declaration.' The mere fact that the society knew before the date of declaration that the improvement true was going to acquire this land for the purpose of building a road and, therefore, left it vacant, and did not dispose of it by sale, cannot be considered as disposition of the land as a road. The real disposition of the land was that it was a part of scheme for the purpose of selling it in small plots to purchasers as building sites and, in pursuance of that scheme, they intended to drive roads through the land, in order to give access to the various plots they wanted to sell.

8. In my opinion, therefore, we must consider what was the intention of the society at the requisite time with regard to these lands, if they had not the information that the improvement trust was going to acquire a portion of the land 100 feet in with. That would appear from one of the documents which has been referred to more than once by both sides and the oral evidence given on behalf of the society. The document, I, refer to, is Ex. E, dated 10th August 1918, which contains the proceedings of a meeting of the directors of the soceity. From that document it appears that they became aware of the scheme of the improvement trust for building a road which was to run partly through the society's property and the construction of which was to be taken up as an urgent matter. Then it proceeds thus:

This might have operated as a bar to the immediate sale of a considerable number of the society's proposed plots. It was, however, found possible to avoid this contingency by making this society's proposed development road in Scheme No. 2 follow the slightly different line of a road projected by the trust (thus avoiding all cross roads in this scheme) and leaving out of the scheme a strip of along side the improvement trust drainage road alignment to which the chairman of the trust agreed.

9. From this document, as well as the evidence of the Secretary of the Society,. Mr. S.N. Tagore, and that of Mr. C.K. Sarkar, an engineer examined on behalf of the soceity, it is apparent that it was their intention to drive a 40 feet broad road at or about the place which they knew was going to be acquired by the trust. The disposition of the property should, therefore, be held to be building sites with a road 40 feet wide for allowing access to the sites that were going to be sold. The knowledge of the fact that the improvement trust was going to build a hundred feet road by acquiring a part of their property induced the society to keep vacant a 100 feet broad plot of land. But that, as I have already said, cannot be taken as the present disposition of the land.

10. The question now is what should be the valuation of the land acquired. Sir Benode Mitter, on behalf of the Secretary of State, argued that the matter should be sent back to the tribunal for working out the valuation. We are unable to agree with that suggestion in the particular case. The learned Advocate-General, on behalf of the appellant, pointed out that the valuer on behalf of the Secretary of State has worked out the market value of the land according to the scheme as given by Mr. C.K. Sarkar on behalf of the society, and we are of opinion that, if that be taken as the proper valuation of the land acquired, the respondent has no right to complain. The valuation cannot, in any case, be lower than what was stated by the respondent's valuer, Satyaprakosh Sarkar. After deducting the value of land for a 40 feet road and the cost of making the roadway, he has put the value of the land at Rs. 94,330, and it seems to me that that is the most equitable way of valuing the land acquired. It was contended, on behalf of the appellant, that this valuation was increased by that witness during his cross-examination to one lakh odd. We have gone through his cross-examination, and it seems that that increase was made on a hypothetical basis and cannot be taken as a proper valuation.

11. The appeal is, accordingly, allowed in part, the award of the Collector and the tribunal is varied and the society is allowed Rs. 94,000 as the market value according to the disposition of the land at the time of the declaration plus the statutory allowance and damages at the rate allowed by the Collector. Having regard to the fact that there has been a partial success on both sides, there will be no order as to costs in either of the Courts.

Panton, J.

12. I agree.


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