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Jogendra Chandra Mitter and ors. Vs. Rajendra Nath Mitter and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in9Ind.Cas.923
AppellantJogendra Chandra Mitter and ors.
RespondentRajendra Nath Mitter and ors.
Excerpt:
land acquisition - compensation--landlord and tenant--apportionment--lease, construction of--right of tenant to remove improvements after expiry of term--effect of term--deduction whether should he made for paying in advance for period of unexpired portion of lease. - .....the acquisition of land for public purposes, the one party being the landlords, and the other the tenants. the tenants are the appellants in this appeal.2. the tenants were in occupation of the land in question under a lease obtained from the opposite party. their contention is that this lease was a permanent and hereditary one, and that, therefore, a larger measure of compensation should have been allowed to them than the courts below have given them. it was further contended that even if the court should hold that their lease is not in itself a permanent one, it is one which was renewable at their option, and, therefore, was practically a permanent one; for they contend that it was renewable at the same rate of rent as is paid under it. their last contention is that at the least the.....
Judgment:

1. This is a dispute between two parties as to the apportionment of the compensation money awarded under the Act for the acquisition of land for public purposes, the one party being the landlords, and the other the tenants. The tenants are the appellants in this appeal.

2. The tenants were in occupation of the land in question under a lease obtained from the opposite party. Their contention is that this lease was a permanent and hereditary one, and that, therefore, a larger measure of compensation should have been allowed to them than the Courts below have given them. It was further contended that even if the Court should hold that their lease is not in itself a permanent one, it is one which was renewable at their option, and, therefore, was practically a permanent one; for they contend that it was renewable at the same rate of rent as is paid under it. Their last contention is that at the least the lower Appellate Court should have held that the tenants had a right of occupancy in the land under the Bengal Tenancy Act; and a further contention is made before us that the tenants having effected improvements in the land during their tenancy, that circumstance entitled them to the value of such improvements being counted in their favour in the apportionment of the compensation-money.

We have heard the lease read to us, and we think that the Court below was quite right in holding that it was not a permanent lease. Upon the face of it, it is an ijara lease for a period of fifty-one years, of which period thirty-one years had expired when the land was taken up for public purposes. There is nothing in the document which would justify us in holding that it conferred upon the tenants a mourasi tenure, as claimed by the appellants.

3. The contention that the lease upon its face is a renewable one on the same terms, that is, for the same period and the same rent, appears to be based upon the following passage: 'On expiry of the term, if you or your representatives be unwilling to take ijara of the above property, then you or your representatives shall be entitled to sever and remove whatever improvements you may have created at your own cost.' It is argued that this clause gives the tenant a right of renewal upon the same terms. We think that it does nothing of the kind, and that the lower Appellate Court was right in holding that this clause was merely inserted to enable the tenants on the expiry of their tenancy, should the lease not be renewed by mutual agreement, to remove any tenants' fixtures or other moveable improvements which they might have placed upon the land. There is nothing in this clause which gives the appellants a right to demand at the close of the term of fifty-one years, that a fresh lease for the same period and at the same rate should be granted to them.

4. Then, as to the contention that the tenant appellants have a right of occupancy in the land under the Bengal Tenancy Act, we think that this contention cannot be sustained. They do not show that they are raiyats at all. The lease upon the face of it would show that they were ijardars; and there is a finding that the reason for which the land was let to them was that they might be enabled to grant a lease of it or a portion of it to a Coal Company. We think, therefore, that their position does not come within the definition of occupancy-raiyat under the Bengal Tenancy Act.

5. As to the contention that the improvements effected by the appellants should have been taken into account in awarding heir share of compensation, it seems to us that the compensation awarded generally for the land taken up, as to which there was no dispute, does take into consideration the value of any improvement which may have been made by the appellants. The compensation is fixed upon an estimate of the present market-value of the land, and the present market-value of the land after improvements have been effected, must, of course, be greater than it was art the time the lease was granted. The power reserved by the lease to the appellants of removing their improvements at the termination of the lease has been taken away by the vis major of the proceeding under the Land Acquisition Act.

6. We think, therefore, that the compensation to which the appellants are entitled is really the yearly profits which they made upon the land multiplied by the number of years which their lease had to run. The Judge has adopted this principle, but he has deducted from the total so arrived at, a discount of six per cent. in consideration of payment being made now for the whole period of nineteen years. In our opinion, that discount ought not to have been deducted. We think that the appellants are entitled without any deduction to nineteen years' purchase of their pecuniary interest existing in the land at the time of the acquisition. It seems that the annual income of the area taken was Rs. 29-2-6. Of this amount, the tenants had to pay to the landlord Rs. 11-10-8, so that the leaseholders' annual profit was Rs. 17-7-10. We think that the appellants are entitled to that amount multiplied by nineteen years.

7. With this slight modification we affirm the decree of the lower Appellate Court. The appellant must pay the respondent's costs of this appeal.

8. Appeal dismissed: Decree modified.

9. An application was then made for a review of the said judgment, and a Rule was obtained.

10. Mr. J.T. Woodroffe and Babu Sham Lal, in support of the Rule.

11. Babus Mohini Mohan Roy and Kishori Lal Goswami, Contra.

Judgment.

12. This is an application for a review of our judgment in appeal from Appellate Decree No. 2088 of 1888, the subject of which was a dispute as to the apportionment of compensation awarded in respect of some land taken up for a public purpose under the Land Acquisition Act. The dispute relates to a portion only of the compensation money and is between the proprietors on the one side, and their lessees on the other. The latter were owners of one portion of the land and lessees tinder their co-owners in respect of the remainder. They were the appellants before us, claiming a larger share than the Court below had awarded to them of the compensation money. Their case was that they were permanent lease-holders at a fixed rent, or failing that raiyats, with a right of occupancy. The lower Appellate Court found that they were neither the one nor the other. Upon their appeal, we came to the conclusion that the lower Appellate Court had rightly construed the lease, holding it to be a temporary one for 51 years; and we were of opinion, that the appellants did not come within the definition of an occupancy-raiyat under the Bengal Tenancy Act.

13. Upon the application for review, we thought it right to take the latter question into further consideration, and granted a rule accordingly. The matter has been fully argued before us on both sides. The result is that I think we ought not to set aside the judgment and decree which we gave on hearing the appeal. It most be admitted that in some respects, it was difficult to distinguish the position of the appellants from that of raiyats as described in the Bengal Tenancy Act; and it may be doubtful whether the landlord would be able to oust them at the end of the term of the lease; but there are elements which I think warrant our original finding that they are not raiyats but tenure-holders, for there is the fact found that one of the objects with which they obtained the lease was to let a part of the land to the Coal Company, and that fact points to their being tenure-holders and not raiyats.

14. The lease was granted in 1856, before the term 'occupancy raiyat' had been formulated and recognised in Act X of 1859; and the use of the word ijara in that document as well as the period for which it was granted seem to me to indicate that it was intended to confer upon the lessees a status higher than that of raiyat, and that higher status they have claimed throughout the proceedings of the present case even in their application for review of the judgment. We considered the question in deciding the appeal and upon further consideration I do not think we ought to have come to a different conclusion. The rule must be discharged with costs two gold mohurs.


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