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Secretary of State for India in Council Vs. Sham Bahadoor and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Judge
Reported in(1884)ILR10Cal769
AppellantSecretary of State for India in Council
RespondentSham Bahadoor and anr.
Excerpt:
land acquisition act (x of 1870), sections 27, 28, 30 and 35 - construction--appeal from decision of judge and assessors, right of--collection charges, amount of, to be deducted in cases of mokurrari lease. - .....differed as to the amount of compensation, an appeal will lie under section 35, and in that appeal all questions decided by the lower court, whether the opinion of the assessors coincided with that of the judge upon these questions or not, would be open to the parties in the appellate court. for instance, there might be a difference of opinion between the judge and the assessors on a question of law, but ultimately they might agree as to the amount of compensation; there section 28 would have full operation, and no appeal would be allowed; but if this difference of opinion on a question of law ultimately results in a difference of opinion as to the amount of compensation to be awarded, section 35, coupled with section 30, would allow the aggrieved party a right of appeal. we think.....
Judgment:

Mitter, J.

1. This is an appeal against a decision passed under Section 35 of the Land Acquisition Act of 1870. The Assessors disagreed with the Judge as to the amount of compensation to be allowed. The District Judge has allowed Rs. 5,129, whereas the Assessors were of opinion that the claimants, the respondents before us in this case, were entitled to a sum considerably less than this. This difference of opinion between the Assessors and the District Judge has arisen in the following way: The land, which is sought to be taken for public purposes on behalf of Government under the Act in question, according to the Deputy Collector, who made the reference to the District Judge, measures 13 bighas odd cottahs. The Deputy Collector was of opinion that the whole of this land is covered by a mokurrari lease granted by the predecessors in title of the claimants on the 1st January 1808 in favour of Government. On the other hand, the claimants contended that out of the aforesaid lands only 7 bighas are covered by the said lease, and the residue, viz., 6 bighas odd cottahs, were not covered by the lease. The Assessors being of opinion that the whole of the land was covered by the lease awarded compensation calculating the profits of the land in question upon the basis of the mokurrari rent, whereas the District Judge calculated the compensation receivable by the claimants, as regards 9 bighas, upon the basis of the mokurrari rent, and as regards the remaining 4 bighas odd cottahs upon the amount of rent which, according to the evidence, the claimants would be entitled to realize if the said lands were let at a reasonable rent. Therefore, one of the questions which we have to decide, and which is also, it seems to us, the main question upon the merits, is whether the whole of the 13 bighas odd cottahs is covered by the mokurrari lease mentioned above, or only a portion of it; but a preliminary question as to whether or not in this case there is a light of appeal was discussed in the course of the argument. That question arises in the following way: Under' Section 27 of the Land Acquisition Act of 1870 the Assessors are to record their opinion upon the whole case; then Section 28 says: 'Incase of a difference of opinion between the Judge and the Assessors, or any of them, upon a question of law or practice or usage having the force of law, the opinion of the Judge shall prevail, and there shall be no appeal therefrom.' Section 39 is to the effect that, 'in case of difference of opinion between the Judge and both of the Assessors as to the amount of compensation, the decision of the Judge shall prevail, subject to the appeal allowed under Section 35.' Then Section 35 says: 'If the Judge differs from both the Assessors as to the amount of compensation, he shall pronounce his decision, and the Collector or the person interested (as the case may be) may appeal therefrom to the Court of the District Judge, unless the Judge, whose decision is appealed from, is the District Judge, or unless the amount which the Judge proposes to award exceeds Rs. 5,000, in either of which cases the appeal shall lie to the High Court.' We entertained some doubt whether, having regard to the provisions of Section 28, there was any right of appeal to either party in this case. It may be mentioned here that both the claimants and the Government being dissatisfied with the award in the lower Court have preferred appeals. No doubt at first sight it seems that if the difference be on a question of law, Section 28 prohibits an appeal; it says that in that, case the opinion of the Judge shall prevail, and there shall be no appeal therefrom. But then again Section 30 says: That in case of difference of opinion between the Judge and both the Assessors as to the amount of compensation, the decision of the Judge shall prevail, subject to the appeal allowed under Section 35.' Section 35 also lays down without any restriction that an appeal will lie if there is a difference of opinion between the Judge and both the Assessors as to the amount of compensation. In this case there was a difference of opinion between the Judge and both the Assessors as to the amount of compensation; and, therefore, if we give effect to Section 35 we must come to the conclusion that there is an appeal. On the other hand, Section 28 provides that no appeal shall lie in any case in which there is a difference of opinion on a question of law between the Judge and the Assessors. We have to construe these sections in a way in which they may be reconciled with one another; we must construe them in some way in which all these sections may have full effect given to them; and that can be done by putting this construction upon Section 28, viz., that if there be a difference of opinion between the Judge and the Assessors, or any of them, upon a question of law or practice or usage having the force of law, but ultimately they agree as to the amount of compensation, no appeal will lie against the decision of the Court with reference to the point upon which they differed; but if, on the other hand, they ultimately differed as to the amount of compensation, an appeal will lie under Section 35, and in that appeal all questions decided by the lower Court, whether the opinion of the Assessors coincided with that of the Judge upon these questions or not, would be open to the parties in the Appellate Court. For instance, there might be a difference of opinion between the Judge and the Assessors on a question of law, but ultimately they might agree as to the amount of compensation; there Section 28 would have full operation, and no appeal would be allowed; but if this difference of opinion on a question of law ultimately results in a difference of opinion as to the amount of compensation to be awarded, Section 35, coupled with Section 30, would allow the aggrieved party a right of appeal. We think that this is a reasonable construction of the sections cited above. Putting that construction we think that both the Government and the claimants are entitled to appeal against the decision of the lower Court. As regards the merits of these two appeals we find that the claimants do not question the rate of valuation adopted by the Judge, which is twenty-three years' purchase; we may, therefore, dismiss that point from our consideration. The claimants in their appeal urged that the lower Court is in error in allowing collection charges at the rate of 5 per cent. It seems to us that, so far as the collection of the mokurrari rent is concerned, this deduction of 5 per cent, for collection charges appears to be too high. We disagree, therefore, with the Judge upon this point. At the same time we are of opinion that some charge, no doubt, would be incurred in collecting the mokurrari rent, and will hereafter consider as to what deduction should be made for collection charges.

2. [His Lordship then proceeded to deal with the facts of the case and with the construction to be put upon the mokurrari lease, and after coming to the conclusion that the view taken by the Assessors was the correct one, proceeded.] In this view, although with some hesitation, my brother Norris concurs. Having disposed of this point, we have now to determine the amount of compensation to which the claimants are entitled. We have now come to the conclusion that the whole of the land, which the Government now seek to take for public purposes, is covered by the mokurrari lease, and, therefore, we have the fact established that Rs. 85-4 is the amount of rent which the claimants derive from the Government annually. Having regard to the fact that this amount is collected once a year, we think that annas 4 would be a sufficient deduction to make for collection charges, and we, therefore, come to the conclusion that the claimants receive Rs. 85 nett from Government. We do not make any deduction on account of Government revenue. The claimants will have in future to pay the whole of the Government revenue of the mehal, and will not be entitled to any deduction on that account, as we capitalise also the Government revenue payable by the claimants in respect of the lands now taken. The District Judge is of opinion that twenty-three years' purchase is quite sufficient compensation, and there being no appeal upon that point we must take that figure. Then we have the value of the land at twenty-three years' purchase Rs. 1,955, to which shall be added 15 per cent. or Rs. 293-4, the whole making Rs. 2,248-4. We accordingly award the said amount of compensation to the claimants. As we find that the amount tendered by Government was Rs. 1,331-6, and as we award Rs. 2,248-4, under Section 33 of the Land Acquisition Act of 1870, we think that the Government must bear the costs of the lower Court as well as of this Court.

Norris, J.

3. I am not, as at present advised, quite certain that there is a right of appeal in this case. Upon all other points I fully agree with the judgment of my learned brother.


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