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Secretary of State Vs. Bhupati Nath Dev - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1939Cal143
AppellantSecretary of State
RespondentBhupati Nath Dev
Cases ReferredMetropolitan Board of Works v. McCarthy
Excerpt:
- .....still unable to free himself of the notion of the plot 'being treated as being within the third belt land zone from beadon street.' mr. sarkar in other parts of his deposition in fact made it quite clear that he had made his valuation on the basis of beadon street frontage. it follows therefore, that in effect the president's valuation was also based on that method, though in expressing his conclusions he was careful to avoid all reference to it. this we hold was not the right way of dealing with the matter; the learned president really misdirected himself as much in that he applied a wrong basis of valuation as in that he failed to carry out the directions of this court. in view of the fact that the parties have come to a compromise, it is not necessary to examine the judgment of the.....
Judgment:

Biswas, J.

1. This appeal was fully heard and stood over for judgment. Meanwhile we are informed the parties have come to an agreement between themselves, and there will accordingly be a decree in terms of the settlement arrived at in lieu of the order made by the. Tribunal. This is a. satisfactory result : for, otherwise, we should have had seriously to consider whether there should not be a second remand. It is perfectly clear that the judgment of the learned President, even though it is concurred in by the two assessors, cannot be supported. There had been a remand already by order of this Court, but it does not seem to have produced a salutary result. In effect, the learned President thought it right, practically to re-affirm his previous valuation. On the last occasion his valuation was Rs. 66,800 and this time it is Rs. 66,605. Seemingly, his present conclusion is, arrived at on a different basis from that, adopted by him before, but reading between the lines, it does not appear that he was able altogether to get rid of his prepossession in favour of what has been described as the belting method of valuation.' Shortly put, that method, was one of valuing, the land in. question as a third belt plot on Beadon Street, although it is actually cut off from Beadon Street frontage by a large piece of land in different ownership.

2. We are of opinion that the President should have wholly discarded all notions of the plot being a third belt plot on Beadon Street, and valued it according to its actual disposition at the material date, which was simply that it was land approached by, what is called a sewered ditch from Nilmony Mitter Street and also by what is referred to as a common passage from Beadon Street, this common passage not however skirting, the plot along any of its. frontages, but merely debouching on it atone corner. The fact that the land lay in the proximity of these two streets was certainly a point to be taken into consideration, but it is one thing to take such proximity into account and a different thing to magnify it to the extent of treating the plot as lying within a certain belt or zone of land abutting directly on any such street. That the learned President actually followed the 'belting method' on the last occasion is obvious enough, and we are not much impressed by his attempt to show he had not. In his previous judgment the President no doubt purported to discard in terms the belting method which had been advocated by the claimant's expert Mr. Shrosbree, namely that the land should be valued on the basis of its being in the third belt of a property with a frontage on Beadon Street, (third belt value in his estimate being Rs. 3375 per cotta or half the value of the first belt), just as he also rejected the other method suggested on behalf of the Secretary of State that the land should be valued on the basis of having a frontage on the sewered ditch from Nilmony Mitter Street, without any reference to belting from Beadon Street. What the President actually did however was to give the land 75% of the 'belt value,' instead of the full value of a third belt plot on Beadon Street. This in our opinion was not discarding the belting method at all, but adopting it as the basis of valuation, only striking off a certain percentage from the full belt value. The statement made by the learned President in his present judgment that,

as the Tribunal is still of opinion that the direct bolting method cannot be adopted in this case, it rejects that method once again,

requires therefore to be accepted with qualification : all that was rejected was, not the belting method or method of treating the land as lying in a certain belt or division of land abutting directly on Beadon Street, but only the payment of the full value of land within such belt. The judgment of this Court remanding the case to the tribunal shows that the method of valuation which the President had followed on the last occasion was disapproved as being 'wholly unjustified,' neither 'based on any principle whatsoever' nor 'supported by evidence on record.' This, in our opinion was a clear indication that in valuing the land the belting method was to be put aside altogether and this is strengthened by certain observations which the learned Judges thought it fit to quote from the speech of Lord Penzance in a case before the House of Lords : Metropolitan Board of Works v. McCarthy (1874) 7 H.L. 243 at page 263. Those observations, we might point out, were not made with reference to valuation of land at all, nor did they purport to lay down any principle of valuation in that behalf. That was in fact a case of an entirely different description and concerned simply with the question of compensation for 'injurious affection.' The question was whether, when a highway is obstructed, the owners of lands which are situated in a sufficient degree of proximity to it to be depreciated in value by the loss of that access along that highway which they previously enjoyed, suffer special damage 'more than' and 'beyond' the rest of the public. It was in answering that question in the affirmative that Lord Penzance made certain observations from which the opening words were quoted, out of their setting, in the judgment of this Court. These were the observations of the noble and learned Lord:

The immediate contiguity to a highway, commonly called frontage, is a well-known and powerful element in the value of all lands in populous districts. Where frontage to a highway does not exist, propinquity and easy access to a high road are equally undoubted elements of value in such districts, distinguishing lands, which have them from those which have them not. If, then the lands of any owner have a special value by reason of their proximity to any particular highway, surely that owner will suffor special damage in respect of those lands beyond that suffered by the general public if the benefits of that proximity are withdrawn by the highway being obstructed.

3. In the present case, there is no question of any obstruction of any highway, nor of any injurious affection due to the obstruction of such highway. The observations quoted were therefore hardly apposite, but treating the words as applicable to a case of valuation, as the learned Judges evidently intended they should be treated, however elementary the proposition they might be supposed to enunciate from that point of view, there can hardly be any doubt as to the principle which this Court desired the President to follow on remand, namely that 'propinquity' and 'easy access,' rather than frontage on Beadon Street, were the elements to be taken into account in valuing the land. In his present judgment, the learned President, it is true, discards any express reference to Beadon Street frontage or belting from Beadon Street, but looking into the judgment closely and reading it with the evidence on which it is based, it is clear enough that she still allowed the element of 'frontage' or 'belting' to influence his valuation. The president relied mainly on the evidence of Mr. C.K. Sarkar, the expert whom the claimant examined on this occasion, as set out at pp. 19 and 20 of the paper book. This evidence was given in the shape of written answers to certain interrogatories put to the witness by the President the previous day, and these questions will show that the President was still unable to free himself of the notion of the plot 'being treated as being within the third belt land zone from Beadon Street.' Mr. Sarkar in other parts of his deposition in fact made it quite clear that he had made his valuation on the basis of Beadon Street frontage. It follows therefore, that in effect the President's valuation was also based on that method, though in expressing his conclusions he was careful to avoid all reference to it. This we hold was not the right way of dealing with the matter; the learned President really misdirected himself as much in that he applied a wrong basis of valuation as in that he failed to carry out the directions of this Court. In view of the fact that the parties have come to a compromise, it is not necessary to examine the judgment of the learned President any further, nor to comment on the unusual procedure which he had permitted himself to adopt in putting written interrogatories to the expert witness for submission of written answers later on.

Costello, J.

4. I agree.


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