1. These two appeals, preferred by the State of West Bengal, are directed against a decision of the Tribunal constituted under Section 72 of the Calcutta Improvement Act, 1911, disposing of two references arising out of the acquisition of premises No. 36-B, Barrackpore Trunk Road under the Calcutta Improvement Trust Bustee Rehousing Scheme No. 1. The scheme was published under Section 43 (2) of the said Act on December 27, 1956 which is the material date for determination of the market value of the acquired land. Premises No. 36-B had been partitioned before acquisition and the demarcated portions relevant for the purpose of these two appeals are described as lot A and lots B and D. The two references before the tribunal, registered as cases Nos. 14 and 14-A of 1959 relate respectively to lot A and lots B and D. The claimants are, in respect of lot A, Asitendra Nath Mitter, and in respect of lots B and D, Asitendra Nath Mitter, F. A. 104 of 1960 arises out of case No. 14 and F. A. 105 of 1960 from Case No. 14-A. The area of lot A is 1 bigha 13 chittaks and 20 Sq. ft. and the total area covered by lots B and D measures 3 bighas 9 cottahs 9 chittaks and 33 Sq. ft. The location and the configurations of lot A and lots B and D appear from the two plans prepared by the two experts examined on behalf of the claimants and the State respectively. The plan prepared by Mr. H. C. Sarkar, witness No. 3 for the claimants, is exhibit 2, and the plan prepared by Mr. Bhabatosh Roy, witness No. 3 for the Government, is Exhibit A. It appears that premises No. 36-B abuts on Barrackpore Trunk Road which runs along the east of the premises. A little distance to the north of the premises, Barrackpore Trunk Road meets Kalicharan Ghose Road which is the northern limit of the Calcutta Corporation area. A twenty ft. wide common passage runs east to west between lot A and lots B and D demarcating the two portions. There are two tanks within lots B and D which cover a part of the common passage. A small portion of lot A is also covered by one of these tanks.
2. By his award dated March 31, 1958, the Acquisition Collector awarded Rs. 67,522.50 paise as compensation for the land of lot A at the rate of Rs. 3.240/- per cottah. The Collector also awarded Rs. 286/-for the structures and Rs. 40/- for the trees. The total amount of compensation came to Rs. 67,848,50 paise. The land of lots B and D was valued by the Collector at Rupees 1,22,510.67 n.p. at the rate of Rs. 1,760/-per cottah. To this was added Rs. 288/- for the structures and Rs. 40/- for the trees. The total amount of compensation for lots B and D came to Rs. 1,22,838.67 n.p. The Collector did not award the solatium of 15 per cent payable under Section 23(2) of the Land Acquisition Act, presumably in view of paragraph 9 (1) of the schedule to the Calcutta Improvement Act. From the award of the Collector the owners of both lot A and lots B and D applied for references under Section 18 of the Land Acquisition Act. Before the Tribunal the only point urged on behalf of the claimants was that the valuation of the acquired lands made by the Collector was unduly low. It appears from the Collector's award that the value of the acquired lands had been determined on the basis of sales and awards in respect of similar lands in the locality but the particulars of such sales and awards have not been mentioned.
3. Before the tribunal the claimants depended upon two transactions to prove that the Collector's valuation was too low; (1) the conveyance (Ext. 1) dated the 2nd November, 1957, relating to 22-B, Lock Gate Road and (2) the award (Ext. 4) relating to 26-A, Dum Dum Road. On behalf of the Stale reliance was placed upon (1) the award (Ext. c) relating to 35/2, Barrackpore Trunk Road; the acquisition in this case was made under the same Bustee Rehousing Scheme under which the premises in question in these two appeals have been acquired, (2) the conveyance (Ext. D) dated the 27th November, 1957 relating to 35/1, Barrack-pore Trunk Road, and (3) the award (Ext. B) relating to premises No. 58/7/1, Barrackpore Trunk Road. The land covered by the award, Ext. B, is contiguous to premises No. 26-A Dum Dum Road and is really a portion of the block of land part of which is numbered as 26-A Dum Dum Road. The tribunal on a consideration of the evidence assessed the market value of the land of lot A at Rs. 80,224/-, and of lots B and D at Rs. 1,28,945/-, thus enhancing the amount of compensation in both cases.
4. In the two appeals before us, the State of West Bengal, questions the correctness of the tribunal's decision enhancing the amount of compensation in each case. In view of the provisions of Section 77-A(2) of the Calcutta Improvement Act, 1911, the appeals are limited to grounds of error of law and substantial error or defect in the procedure which may possibly have produced error or defect in the decision upon the merits. The claimant in each case has also filed a cross-objection challenging, inter alia, the vires of paragraph 9 (I) of the Schedule to the Calcutta Improvement Act.
5. The tribunal appears to have relied entirely on Ext. 1, the sale deed in respect of 22-B Lock Gate Road in determining the market value of the acquired property. 22-B Lock Gate Road is about a mile south of the acquired plot and is near the junction of two streets, Barrackpore Trunk Road and Lock Gate Road, having a frontage on both. The Tribunal found that premises No. 22-B Lock Gate Road enjoys a more advantageous position and allowed certain deductions on that account to assess the market value of the acquired premises. On behalf of the State it was contended that 22-B Lock Gate Road cannot be taken as a comparable unit for two reasons: (a) this plot was sold for a special purpose and the purchaser was forced to pay a higher price than the normal market value, and (b) it is a considerable distance away from the acquired premises and is situated in altogether a different locality which has a commercial importance that the acquired premises lack. So far as the second objection is concerned, the tribunal notes the fact that there is a market near premises No. 22-B and the area around the premises is more thickly populated. From this however it cannot be said, as the tribunal has rightly pointed out thai the area is a commercial area. It has been found on evidence that the entire area in which both the acquired premises and premises No. 22-B are situated is mainly a residential area. It is true that the two premises are about a mile apart, but we do not think that in the circumstances of the case it can be said that 22-B Lock Gate Road is in a different locality and cannot serve as a comparable unit. It appears that the area in the immediate vicinity of the acquired premises is sparsely built up and is not very thickly populated but it has been found on evidence that the conditions are not materially different. There cannot be any hard and fast rule that beyond a fixed distance no land should be taken as a comparable unit; the matter depends upon the circumstances of each case. Here both plots are on the northern fringe of the Calcutta Municipal area and the tribunal has allowed reasonable deductions in view of the more advantageous position of premises No. 22-B Lock Gate Road. The tribunal has given reasons, which we will presently examine, why the transactions concerning lands nearer the acquired premises are not reliable guides. We do not think that in these circumstances the tribunal committed any error of law in treating 22-B Lock Gate Road as a comparable unit.
6. The other objection is based on the fact that 22-B Lock Gate Road was purchased by Standard Vacuum Oil Company for maintaining a petrol pump on the land. The petrol pump was there before the sale, installed by the company who had been in possession of the land as a sub-lessee. The tribunal relied on the evidence of witness No. 3 for the claimants, Mr. H. K. Sarkar, who was examined as an expert, to hold that the lands on Barrackpore Road are usually sold for residential purpose and their market value is determined on that basis. There is no evidence, nor was it argued, that a petrol pump cannot be installed on a plot which is suitable as a building site. We are therefore, unable to agree that the purpose for which the plot was sold made any difference to the basis of valuation. There is also no evidence whatsoever to justify the claim that the purchaser was under a compulsion to buy this plot of land and therefore paid a price higher than the normal market value.
7. On behalf of the State Mr. Chatterjee further contended that the market value of the acquired premises should have been determined on the basis of the transaction evidenced by Ext. D. This is a conveyance dated November 27, 1957 by which premises No. 35/1, Barrackpore Trunk Road was sold for Rs. 55,281-4 annas. Of this transaction the rate per cottah works out to a figure which is not only less than the rate at which the Collector valued the acquired premises but is also lower than the rate at which witness No. 3 for the State, Mr. Bhabatosh Roy, who was examined as an expert, valued the acquired premises. In these circumstances it cannot be said that the tribunal was wrong in declining to accept the transaction proved by Ex. D as the correct basis of valuation. Mr. P. N. Mitter for the appellants argued relying on a decision of this Court reported in : AIR1972Cal225 , (State of West Bengal v. Secretary, Union Club, Purulia), that as the Collector apparently did not rely on this transaction, Ext. D was not admissible in evidence. We find it difficult to see why Ext. D should be altogether inadmissible for that reason, but it is not necessary to go into this question further as we hold that the tribunal was not in error in discarding Ext. D.
8. There are three awards filed by the parties in support of their respective claims. Of them, Ext. 4, the award in respect of 26-A Dum Dum Road, was filed on behalf of the claimants, and exhibits B and C relating to premises Nos. 58/7/1 Barrack-pore Trunk Road and 35/2, Barrackpore Trunk Road respectively were filed on behalf of the State. The tribunal refused to rely on any of them on the view that none of these awards was expressly accepted by the claimant in the cases concerned. The tribunal rightly pointed out that an award when accepted by the claimant can be said to be evidence of proper market value because acceptance means that the price offered by the Collector is admitted to be fair, but an unaccepted award does not show any such concurrence of minds and has therefore very little evidentiary value. On behalf of the claimants no grievance has been made on account of exhibit 4 being left out of consideration. No serious complaint about the rejection of Exhibit B was also made on behalf of the State, but Mr. Chatterjee on behalf of the State strenuously contended that Exhibit C should not have been excluded from consideration. None of these awards as stated already was expressly accepted by the claimant in any of these cases. In the course of arguments before us a question arose, whether the mere fact that the party concerned did not ask for a reference proved that the award had been accepted. We do not think it necessary to answer the question for the purpose of these appeals because in our view it is clear that the award. Exhibit C, cannot be said to have been accepted by the claimant. Witness No. 4 for the claimant, Bhubaneswar Banerjee, an Advocate for the Calcutta High Court, says in his deposition that his clients did not accept the award, Exhibit C, that they asked for a reference claiming higher value for the land but as they 'had no sufficient money in their hands' they advised the witness to withdraw the reference and the witness did as he was instructed. In view of this evidence it is clear that Exhibit C was not an accepted award and the tribunal appears to have rightly left it out of consideration.
9. From the foregoing discussion it does not appear that the decision of the tribunal suffers from any such error of law or procedure as would justify scaling down the valuation of the acquired premises.
10. The cross-objections filed by the respective claimants in the two appeals now remain to be disposed of. As already stated, the land in these cases was acquired for Calcutta Improvement Trust Bustee Rehousing Scheme No. 1. Section 69 of the Calcutta Improvement Act, 1911 provides that the Board of trustees for the improvement of Calcutta may with the previous sanction of the State Government, acquire land under the provisions of the Land Acquisition Act, 1894 for carrying out any of the purposes of the Calcutta Improvement Act. Section 71 of the Calcutta Improvement Act provides that for the purpose of acquiring land for the Board, the Land Acquisition Act, 1894 shall be subject to certain modifications indicated in that section and in the schedule to the Act. For our present purpose we need refer only to paragraph 9 (1) of the schedule which says 'Sub-section (2) of Sec-tion 23 (of the Land Acquisition Act, 1894) shall be deemed to be omitted'. Paragraph 9 was inserted by Section 74(e)(i) of the Calcutta Improvement (Amendment) Act. 1955 (West Bengal Act XXXII of 1955). Sub-section (2) of Section 23 of the Land Acquisition Act provides that in addition to the market value of the land the court shall award to the owner of the land whose land is acquired a sum of 15 per cent on the market value in consideration of the compulsory nature of the acquisition. In view of paragraph 9 (1) of the schedule to the Calcutta Improvement Act, the tribunal in the instant case has not awarded the solatium of 15 per cent. On behalf of the cross-objectors it was contended that paragraph 9 (1) of the schedule infringes the guarantee under Article 14 of the Constitution and is as such ultra vires and void.
11. The Land Acquisition Act, 1894 provides for the acquisition of private property for public purposes. The Calcutta Improvement Act, 1911 makes provision for file improvement and expansion of Calcutta inter alia, by opening up congested areas, laying out or altering streets, providing open spaces for purposes of ventilation or recreation, demolishing or constructing buildings, clearing bustees, executing housing schemes and schemes for the rehousing of persons displaced by the execution of improvement schemes, acquiring land for the said purposes and all works relating thereto. Mr. Mitter appearing for the cross-objectors submitted that paragraph 9 (1) of the schedule to the Calcutta Improvement Act, 1911 is violative of Article 14 of the Constitution because the same land or similar lands in the city of Calcutta could have been acquired for the same purpose or for some other public purpose under the Land Acquisition Act, 1894 and in either case the claimant would have been entitled to the 15 per cent solatium under Section 23(2) of the Land Acquisition Act. Mr. Mitter argued that there was no reasonable basis for denying to the owner of a land acquired for any of the purposes of the Calcutta Improvement Act the additional amount under Section 23(2) of the Land Acquisition Act to which he would have been entitled if the land were acquired under the Land Acquisition Act. In support of his contention Mr. Mitter relied on the decision of the Supreme Court in Balammal v. State of Madras, : 1SCR90 . In this case the Supreme Court held that Clause 6, Sub-clause (2), of the schedule read with Section 73 of Madras City Improvement Trust Act (37 of 1950) which deprives the owners of land of the statutory right to solatium at the rate of 15 per cent on the market value of the land is violative of the equality clause of the Constitution and is on that account invalid, and the owners are entitled to the statutory solatium under Section 23(2) of the Land Acquisition Act. Shah, J., delivering judgment of the court observed on page 1428 of the report: 'If the State had acquired the lands for improvement of the town under the Land Acquisition Act, the acquiring authority was bound to award in addition to the market value 15 per cent solatium under Section 23(2) of the Land Acquisition Act. But by acquiring the ands under the Land Acquisition Act as modified by the schedule to the Madras City Improvement Trust Act 37 of 1950 for the Improvement Trust which also is a public purpose, the owners are, it is claimed, deprived of the right to the statutory addition. An owner of land is ordinarily entitled to receive the solatium in addition to the market value for compulsory acquisition of his land if it is acquired under the Land Acquisition Act, but not if it is acquired under the Madras City Improvement Trust Act. A clear case of discrimination which infringes the guarantee of equal protection of the law arises and the provision which is more prejudicial to the owners of the lands which are compulsorily acquired must on the decisions of this Court, be deemed invalid'. Mr. Mitter took us through the relevant provisions of the Madras Act which do not materially differ from the provisions of Calcutta Improvement Act upon which the validity of the provision of the Calcutta Act is questioned.
12. Among the other decisions of the Supreme Court referred to in Balammal's case : 1SCR90 is, Vajaravelu Mudaliar v. Special Deputy Collector, Madras, : 1SCR614 , on which also Mr. Mitter relied. In Vajravelu's case the Supreme Court found on a comparative study of the Land Acquisition Act, 1894 and the Land Acquisition (Madras Amendment) Act (23 of 1961) that if a land is acquired for a housing scheme under the Amending Act, the claimant gets a lesser value than he would get for the same land or a similar land if it is acquired for some other public purpose under the Land Acquisition Act and held that the Land Acquisition (Madras Amendment) Act (23 of 1961) therefore, infringes Art. 14 of the Constitution and is void. To ascertain whether the impugned Act can be upheld on the ground of reasonable classification, the Supreme Court posed three questions, namely, (1) What is the object of the Act? (2) What are the differences between persons whose lands are acquired for the housing schemes and those whose lands are acquired for purposes other than housing schemes or between the lands so acquired? and (3) Whether those differences have any reasonable relation to the object of the Act. It was found that the land could have been acquired under the Land Acquisition Act, 1894 for all the purposes for which housing schemes under the Amendment Act can be framed. Subba Rao, J. speaking for the Court answers the questions posed and clarifies the position on pages 1027 to 1028 of the report:
'Now what are the differences, between persons owning lands in the Madras City or between the lands acquired which have a reasonable relation to the said object. It is suggested that the differences between people owning lands rested on the extent, quality and the suitability of the lands acquired for the said object. The differences based upon the said criteria have no relevance to the object of the Amending Act. To illustrate; the extent of the land depends upon the magnitude of the scheme undertaken by the State. A large extent of land may be acquired for a university or for a network of hospitals under the provisions of the Principal Act and also for a housing scheme under the Amending Act. So too, if the housing scheme is a limited one, the land acquired may not be as big as that required for a big university. If waste land is good for a housing scheme under the Amending Act, it will equally be suitable for a hospital or a school for which the said land may be acquired under the Principal Act. Nor the financial position or the number of persons owning the land has any relevance, for in both the cases land can be acquired from rich or poor, from one individual or from a number of persons. Out of adjacent lands of the same quality and value, one may be acquired for a housing scheme under the Amending Act and the other for a hospital under the Principal Act; out of two adjacent plots belonging to the same individual and of the same quality and value, one may be acquired under the Principal Act and the other under the Amending Act. From whatever aspect the matter is looked at, the alleged differences have no reasonable relation to the object sought to be achieved ..... We, therefore, hold that discrimination is writ large on the Amending Act and it cannot be sustained on the principle of reasonable classification.'
It is also not claimed in this case that land of a special kind or quality is needed for carrying out any of the purposes under the Calcutta Improvement Act, Mr. Mitter for the cross-objectors argued that the land concerned in the present case could have been acquired and similar lands in the city of Calcutta can be acquired for the purpose of improvement and expansion of Calcutta directly under the Land Acquisition Act or such land can be acquired for other public purposes under the Land Acquisition Act, and in all such cases the owners of the lands would get the solatium of 15 per cent. under Section 23(2) of the said Act. In this connection Mr. Mitter also referred to Chapter XXXE of the Calcutta Municipal Act 1951 which provides for the acquisition of land for purposes of the Calcutta Corporation and drew our attention to Sections 361 and 517 of that Act to show that they specify purposes which are identical with some of those of the Calcutta Improvement Act, Section 524 of the Calcutta Municipal Act, 1951 states that the provisions of Land Acquisition Act as modified by the Calcutta Municipal Act will appiy for acquisition of land for the purpose of Calcutta Corporation but the said modifications leave untouched Section 23(2) of the Land Acquisition Act. Mr. Mitter submitted that this proved that for an identical purpose land could be acquired directly under the Land Acquisition Act or under that Act as modified either by the Calcutta Municipal Act or the Calcutta Improvement Act, but the owner of the land would be denied the solatium of 15 per cent, over the market value only in the last mentioned case. Mr. Mitter submitted on the strength of the two decisions of the Supreme Court referred to above that paragraph 9 (1) of the schedule to the Calcutta Improvement Act 1911 which precludes the application of Section 23(2) of the Land Acquisition Act in the case of acquisition of land for the purposes of the Calcutta Improvement Act cannot be justified on the ground of reasonable classification and is, therefore, ultra vires and void.
13. In view of the law laid down by the Supreme Court in : 1SCR90 and : 1SCR614 we are of opinion that Mr. Milter's contention must be accepted.
14. Mr. B. Das appearing for the State however submitted that no question of differential treatment and discrimination really arises in this case. Mr. Das contended that the assumption that the land in question could have been acquired for the same purpose also under the Land Acquisition Act or under the Calcutta Municipal Act is unwarranted. He pointed out that a proceeding for acquisition of land for any of the purposes of the Calcutta Improvement Act is initiated only after an improvement scheme is framed under Chapter III of that Act, and argued that after the scheme has been framed, for the purpose stated in the scheme land can be acquired only under the said Act and no other. Mr. Das contended that the provisions of the Land Acquisition Act applied for acquisition of land for the purposes of the Calcutta Improvement Act must be deemed to be incorporated in and forming a part of the latter Act It was submitted that Calcutta Improvement Act is a selfcontained Act and being a special statute designed to meet a special object alone holds the field for the acquisition of land for any of the purposes specified in that Act to the exclusion of the Land Acquisition Act and that no question of differential treatment among owners of lands acquired for any such purpose could therefore, arise. We find it difficult to accept this contention. Calcutta Improvement Act is not a statute for the acquisition of land. Sections 69, 70 and 71 of that Act indicate that it is under the Land Acquisition Act that land is acquired for the Board of Trustees for the improvement of Calcutta, and it cannot be said that the provisions of the Land Acquisition Act are incorporated in the Calcutta Improvement Act. The position will appear beyond doubt from a look at Section 17-A of the Land Acquisition Act which has been inserted by paragraph 5 of the schedule to the Calcutta Improvement Act. Before, however, we turn to Section 17-A, it is necessary to refer briefly to Sections 16 and 17 of the Land Acquisition Act. These two sections respectively empower the Collector to take possession of the land in ordinary cases and in cases of urgency and both provide that on possession being taken, the land vests absolutely in the Government. Section 17-A which bears the heading Transfer of land to Board', provides: 'In every case referred to in Section 16 or Section 17, the Collector shall, upon payment of the cost of acquisition, make over charge of the land to the Board; and the land shall thereupon vest in the Board, subject to the liability of the Board to pay any further costs which may be incurred on account of its acquisition.' This makes it clear that the land is acquired under the Land Acquisition Act and then made over to the Board on payment of cost of acquisition. The view we take finds support from the decision of a Division Bench of this Court in Radhanath Maity v. Krishna Chandra Mukherji, 40 Cal WN 722 at p. 728 = (AIR 1936 Cal 249).
15. Mr. Mitter drew our attention to two notifications under the Land Acquisition Act both dated the 30th September, 1966 which show that the Government proposed to acquire certain lands in Calcutta for housing schemes which is also a purpose specified in the Calcutta Improvement Act. We have already referred to the provisions of the Calcutta Municipal Act which show that land can be acquired for the Corporation of Calcutta under the Land Acquisition Act for purposes some of which are similar to those mentioned in the Calcutta Improvement Act. We do not therefore find it possible to hold that the Calcutta Improvement Act is a self-contained statute and that for acquiring lands for the purposes specified therein, it operates to the exclusion of the Land Acquisition Act.
16. Even assuming that the Calcutta Improvement Act alone holds the field for acquisition of land for the purposes specified in that Act, we do not see why the questions of differential treatment or discrimination cannot arise. In Deputy Commr. and Collector, Kamrup v. Durganath Sarma, : 1SCR561 , the Supreme Court held Assam Acquisition of Land for Flood Control and Prevention of Erosion Act (6 of 1965) to be discriminatory and violative of Art. 14. Assam Act 6 of 1955 provided for speedy acquisition of land for the public purpose of carrying out works or other development measures in connection with Flood Control or Prevention of Erosion on payment of a nominal compensation. The Supreme Court pointed out that an adjoining land may be taken for other public purposes under the Land Acquisition Act on payment of adequate compensation and observed on page 404 of report:
'The question is whether this differential treatment of land acquired under the two Acts is permissible under Art. 14. The constitutional guarantee of Art. 14 requires that all persons shall be treated alike in like circumstances and conditions. The Article permits reasonable classification and differential treatment based on substantial differences having reasonable relation to the objects sought to be achieved. It is not possible to hold that the differential treatment of the lands acquired under the Land Acquisition Act, 1894 and those acquired under Assam Act No. 6 of 1955 has any reasonable relation to the object of acquisition by the State ..... In our opinion, the classification of land required for works and other measures in connection with flood control and prevention of erosion and land required for other public purposes has no reasonable relation to the object sought to be achieved, viz., acquisition of the land by the State. In either case, the owner loses his land and in his place the State becomes the owner. There is unjust discrimination between owners of land similarly situated by the mere accident of some land being required for purposes mentioned in Assam Act No. 6 of 1955 and some land being required for other purposes. We hold that Assam Act No. 6 of 1955 is violative of Article 14.'
17. If the Calcutta Improvement Act is a statute for the acquisition of land, we find no intelligent differentia between a purpose mentioned in that Act and a public purpose for which land can be acquired under the Land Acquisition Act that can be said to justify the differential treatment to the owners of the lands under the two statutes. We hold that Clause (1) of paragraph 9 of the Schedule to the Calcutta Improvement Act, 1911 infringes the equality clause in Article 14 and is therefore void. The claimants are accordingly entitled to the solatium of 15 per cent, under Section 23(2) of the Land Acquisition Act. The other grounds taken in the memorandum of cross-objection in either case were not pressed.
18. In the result, both the appeals are dismissed and the cross-objections are allowed. The tribunal will award a further sum of 15 per cent, on the market value in each case. There will be no order for costs.
19. I agree.