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Jogesh Chandra Roy Vs. the Secretary of State for India in Council - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in24Ind.Cas.65
AppellantJogesh Chandra Roy
RespondentThe Secretary of State for India in Council
Excerpt:
land acquisition act (i of 1894), section 23 - acquisition of land--declaration, lease of property two years after--present rent, whether conclusive test as to market--value--noabad mahal--right, nature of--interest of government in noabad properties in hill lands, how to be valued. - .....1,000 per kani, specially when we find that another hill in the neighbourhood, known as tempest hill, was valued at rs 1,300 per leant. in our opinion, taking the evidence as a whole, the hill top and high flat lands should be assessed at rs. 1,350 instead of rs. 1,000 per kani, and we direct that the award be modified accordingly.4. in so far as the question of apportionment, is concerned, it has been stated that the property acquired is situated in a noabad mahal held by the claimant under the government.5. a noabad mahal it is well known, implies a hereditary and transferable title in perpetuity subject to payment of rent for all lands under cultivation. in so far as the taluk now in question is concerned, it has been pointed out that the rent has been nearly doubled in the course.....
Judgment:

1. This is an appeal by the claimant in a ease under the Land Acquisition Act. The property acquired is known as Lane's Hill and the substantial controversy between the parties at the present stage relates to two matters, namely, first, the valuation of what is described as hill top and high flat lands, and, secondly, the apportionment of the compensation between the claimant and the Government, as a considerable portion of the property under acquisition is included in a noabad mahal held by the claimant under the Government.

2. In so far as the value of the hill top and high flat lands is concerned, the award made by the Judge in affirmance of the award of the Collector is at the rate of Rs. 1,000 per kani. The materials placed before the Court to determine the market-value are of two descriptions, namely, first, evidence of the rent payable and, secondly, evidence of land acquisition awards made in respect of similar property in the locality The first class of evidence relates to what has been described as Good's Hill. This property was held in lease by Mr. Good for a period of 22 years at the rent of Rs. 63-12-0 per month and the Court below has based its award on the assumption that this indicated fairly the amount of rent payable in respect of that property. It has been pointed out to us, however, that the property was subsequently let out to Messrs. Turner Morrison and Co., at a much higher rate, namely, Rs. 130 per month. But it is worthy of note that Messrs. Turner Morrison and Co. took a lease of the property in 1905, that is, nearly two years after, the declaration had been made for the acquisition of the present property. The claimant cannot consequently contend that the present, rent furnishes a conclusive test as to the market-value of the property at the date of acquisition. But even if we assume that the fair rent at that time was the average of the rent paid by Mr. Good and the rent now paid by Messrs.

3. Turner Morrison and Co., that is to say, approximately Rs. 100 a month, it is clear that the value of the property should be assessed at about Rs. 1,500 a kani. Here, then, is some indication that the value assessed by the Court below is too low. This view is confirmed when we consider the second class of evidence on the record, namely, that derivable from the award made in respect of Parsonage Hill. With regard to this hill, it has been pointed out that the award was made at the rate of Rs. 1,364 per kani. No doubt, there is some evidence to indicate that the hill now acquired is not so convehiently situated for residential purposes as Parsonage Hill. But we are not prepared to hold that this circumstance alone would justify the reduction of the rate to Rs. 1,000 per kani, specially when we find that another hill in the neighbourhood, known as Tempest Hill, was valued at Rs 1,300 per leant. In our opinion, taking the evidence as a whole, the hill top and high flat lands should be assessed at Rs. 1,350 instead of Rs. 1,000 per kani, and we direct that the award be modified accordingly.

4. In so far as the question of apportionment, is concerned, it has been stated that the property acquired is situated in a noabad mahal held by the claimant under the Government.

5. A noabad mahal it is well known, implies a hereditary and transferable title in perpetuity subject to payment of rent for all lands under cultivation. In so far as the taluk now in question is concerned, it has been pointed out that the rent has been nearly doubled in the course of about half a century : and the learned Government Pleader has contended that it is possible that at the next Settlement the rent will be still further enhanced. This, however, does not justify the apportionment made by the Court below. The learned Judge has divided the compensation equally between the Government and the claimant on the ground that it has always been the practice to assess, in respect of noabad properties in hill lands, the Government interest at half, allowing the surplus over the capitalised value of the rental to represent the chance of enhancement. This mode of apportionment is manifestly fallacious. Let it be assumed that : the Government is entitled hereafter to enhance the rent : but there is no basis for the assumption that the nett income of the property upon which the valuation must be based would remain constant during this period. On the other hand, it is reasonably clear that the Government would not in ordinary course increase the assessment unless the assets of the property also increased.

6. In our opinion the value of the interest of the Government ought to be measured by capitalising the rent now payable. The question next arises, how this capitalisation is to be effected. The learned Government Pleader has invited our attention to a paragraph of the written statement of the claimant in which he admits that the rent ought to be capitalised on the basis of 20 to 25 years' purchase. We are of opinion that, in the case of Government, we may very well capitalise at 30 years' purchase on the assumption that the rate of interest is three and a half per cent. per annum : which is the rate ordinarily payable upon Government securities. We, therefore, direct that the interest of the Government be valued at 30 times the present rental, this will be deducted from the amount awarded and the remainder will belong to the claimant. We may add that it has been mentioned that there are some inaccuracies in the judgment of the Court below in so far as the area of the land is concerned. The error in this respect is merely arithmetical and will be corrected when the decree in this Court is drawn up. If upon calculation it is found that the amount due to the claimant exceeds Rs. 5,000 the decree will be limited to that sum only, as Court-fees have been paid to that extent. Under the circumstances of this case we direct each party to pay his own costs both in this Court and in the Court below.


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