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Secretary of State for India Vs. Breakwell and Co. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1928Cal761
AppellantSecretary of State for India
RespondentBreakwell and Co.
Excerpt:
- .....5 and 5-30 p.m. and as a matter of fact they vacated the premises on 31st january 1923. the land acquisition collector acquired out of the entire premises, which is said by the witness for the respondent company to be about 2 bighas in area, 9 cottas, 9 chattaks and 30 sq. ft. only, and for this paid compensation to the landlord one lakh of rupees. he did not apportion any compensation to the respondent company. thereupon the respondents asked for a reference to be made to the tribunal, and the tribunal on that reference passed an order allowing compensation to the respondents company of rs. 10,000, the order purporting to have been made under section 23(1), clause 5, land acquisition act 1894 prom that decision the secretary of state has preferred this appeal after obtaining the.....
Judgment:

B.B. Ghose, J.

1. This is an appeal from a decision of the President of the Tribunal under the Calcutta Improvement Act, 1911. The facts are these : The Collector under the Land Acquisition Act made a declaration dated 27th May 1921 published in the Calcutta Gazette of 1st June 1921 for the acquisition of certain lands. The owner of the premises with regard to which the declaration was made was one Banamali Mullick. The respondent company were the lessees under him. It appears that the respondents were in occupation as lessees under a lease which expired in 1911, and there was a renewal for another tea years and the renewed lease expired on 31st December 1920. Before the expiry of that lease the landlord gave notice to the respondent company that he was not prepared to grant any fresh lease to the respondents. Some offer was made on behalf of the respondents for granting a fresh lease to them, but the landlord was unwilling. The respondents, however, remained on the land and did not vacate it on the expiry of the lease on 31st December 1920. The landlord brought a suit for ejectment and mesne profits on 20th April 1921. That was it should be borne in mind, be fore the publication of the declaration. The suit, however, was not taken up for bearing for some time. On 2nd March 1922 the Collector issued notices for filing claims and one such notice was served upon the respondent company as persons interested. On 20th March 1922 the respondents preferred their claim to the Collector and they claimed altogether Rs. 55,000 or such sum a-t might be deemed to be a proper compensation for their loss and damages for removal as stated in the annexure to their petition. On 30th January 1923 the respondent company through their solicitors wrote a letter to their landlord that they were going to vacate the premises on 31st January 1923 and inviting the landlord to take possession on that day between 5 and 5-30 p.m. and as a matter of fact they vacated the premises on 31st January 1923. The Land Acquisition Collector acquired out of the entire premises, which is said by the witness for the respondent company to be about 2 bighas in area, 9 cottas, 9 chattaks and 30 sq. ft. only, and for this paid compensation to the landlord one lakh of rupees. He did not apportion any compensation to the respondent company. Thereupon the respondents asked for a reference to be made to the Tribunal, and the Tribunal on that reference passed an order allowing compensation to the respondents company of Rs. 10,000, the order purporting to have been made under Section 23(1), Clause 5, Land Acquisition Act 1894 Prom that decision the Secretary of State has preferred this appeal after obtaining the necessary certificate from the President of the Tribunal.

2. The first and the principal point in this case is whether the respondent company are entitled to the compensation awarded to them. The learned Government Pleader argues that the claimants were not compelled to change their place of business on account of the acquisition of the land and therefore they are not entitled to claim any compensation under the provisions of the section referred to above. His point is that the company were in occupation of the premises in question without any title whatsoever. The only claim which they made in reply to the demand of the landlord to vacate the premises after the expiry of their lease was that they were entitled to remain in possession under the provisions of the Calcutta Rent Act. The Calcutta Rent Act, as the learned President has observed' in his judgment, was to expire in May 1923; and at the time when the company vacated the premises in question in January 1923 they knew that under no circumstance would they be entitled to the occupation of the premises beyond the expiry of the Calcutta Rent Act. The Act, however, was extended by an amendment which was introduced in the Legislative Council on 14th March 1923 and which passed into law on 4th April 1923, by which the Rent Act was extended to the end of March 1924. At the time when the company vacated the premises there was no reason to suppose that the Rent Act would be extended till March 1924. It is contended by the learned Government Pleader that as a matter of fact the premises were vacated by the company in order to avoid the trouble of litigation with the landlord knowing that at least even if they succeeded in resisting eviction they could only do so up to May 1923. It is further urged on behalf of the appellant that the removal of the place of business on account of the acquisition could not have taken place before possession was taken by the Collector or at any rate before the making of the award on 18th September 1923. It is argued that under Section 48(1), Land Acquisition Act, the Government was at liberty to withdraw from the acquisition at any time if possession had not been, taken. Similarly under Section 78, Calcutta Improvement Act the acquisition might be abandoned in certain circumstances stated in detail in that section. As a matter of fact acquisition was made of about nine cottas only of the land as I have stated above. It appears from the evidence of one Mr. Hay, a partner of the company, that the area in their occupation was approximately two bighas. The new premises to which they reaioved at 44, Free School Street, were barely one bigha and a half in area. So the acquisition of the small area could not have been a sufficient-ground for their removal from their old premises to the new one.

3. These facts being taken into consideration it can hardly be said that the removal was on account of the acquisition of land giving rise to a right to compensation for change of the place of business under the Land Acquisition Act. The learned President has considered the question whether the removal should be on the taking of possession by the Collector or at any previous time. He states that the question is not free from difficulty. But he thought that it would be unreasonable to suppose that the legislature intended that a person who was residing or carrying on business on land which is acquired would lose all right to compensation for the expenses of his removal unless he waits and stays on the land till the last moment when the Collector comes to take possession. There may be something in what he says. On the other hand it would be unreasonable to suppose that a party can ask for compensation for removal simply upon a declaration having been made if the property is not acquired in the end or only such a small portion of the land is acquired which would not necessitate the removal of the place of business. In the present ease, however, there does not appear to be any reasonable doubt that the premises were vacated act on the ground of its being acquired, but because the company's lease had expired and they were anxious to avoid the expense of carrying on the litigation with regard to ejectment when the company knew that they could not stay on the land beyond a few months only. This is clear from the fact that they did not give notice to the Collector that they were going to vacate the land, but notice was given to the landlord by the letter which I have mentioned before.

4. It may be mentioned here that the landlord in his plaint in the suit for ejectment stated clearly in para. 10 that he was trying to get the Improvement Trust to release that portion of the premises which was not actually required for the execution of the improvement scheme on receiving a betterment fee from him. The company had full notice of the fact before they vacated the premises that only a small portion of the premises was likely to be acquired and the rest released under the provisions of Section 78, Calcutta Improvement Act, and knowing all that they vacated the premises in January. The removal therefore was not on account of the acquisition. Under these circumstances it must be held that the company was not entitled to receive any compensation under Section 23, Land Acquisition Act for changing their place of business, as this change was not in consequence of the acquisition of the land. In that view it is not necessary to consider whether the respondents are entitled to the amount given or less.

5. The appeal must therefore be decreed and the order of the Tribunal reversed with costs in both Courts.

Cammiade, J.

6. I agree.


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