1. These three appeals arise out of land acquisition proceedings in respect of lands acquired by Government for an extension of the Gun and Shell Factory at Ichapur in the 24-Perganas. The lands acquired which form the subject-matter of these three appeals extend to 255 bighas 15 cottas and three chittaks in all, the lands covered by Appeal No. 26 which, arises out of Case No. 88 of 1918 extend to 5 cottas 4 chittaks, those of Appeal No. 27 which arises out of Case No. 90 of 1918 to 12 bighas 4 corns and 13 chittaks, and those of Appeal No. 28 which arises out of Case No. 100 of 1918 to 243 bighas & cottas 6 chittaks. The appeals have all been heard together and are governed by one judgment in the Court below and the same questions arise in all of them.
2. The declaration for the acquisition of the lands was published on the 5th December 1917 and the declaration itself is dated the 3rd December 1917. The award of the Land Acquisition Deputy Collector is dated the 26th-July 1918, he had to deal with some 300 bighas of land but as already stated these appeals relate to some 255 bighas only out of this area which appertain to an estate Touzi No. 617.
3. The Deputy Collector valued the lands speaking generally at Rs. 850 per bigha for brick-field land on the river front, the homestead land fronting on Ferry Fund Road at Rs. 700 to Rs. 800 per bigha, that fronting on Eckford Street, Majherpara Road and the main Cross Road at Rs. 500 to Rs. 700 per bigha and that fronting on smaller roads and passages at Rs. 400 to Rs. 500 per bigha. It is not necessary to consider his valuation as regards structures, etc., on the land. The valuation was objected to by the respondents on the ground that the land should have been valued as a mill site and not as a residential area. The Special Land Acquisition Judge has accepted this contention. He has divided the land into three blocks which I will call A, B and C, The land comprised in block A is nearest to the River Hooghly and stretches therefrom to a line drawn from plot No. 18 on Ex. 14 to the north to plot No. 27 on the south and is valued by the Judge at Rs. 1,200 per bigha valued as a single clear mill site. Block B extends on the same map from the line AB to the line CD which runs from plot No. 1926 on the north to plot No. 183 to the south on the same map. This block the Judge considers would be influenced as to value by the demand for mill sites and on this basis he values it at Rs. 1,000 per bigha. The remaining block which extends from the line CD eastwards on the same map he thinks would be less influenced as to value by the demand for mill sites as there would be no need for a mill to go back as far as that and he accordingly values it at Rs. 800 per bigha. The values in both the latter cases are as in the ca33 of block A for what the Judge calls single clear sites which I take it to mean cleared of tenants.
4. The Judge having arrived at these figures which he states are the values in the Calcutta market proceeds to apply a further process of superimposition upon the figures of the Land Acquisition Deputy Collector which he accepts as correct for what he calls local market values in order to arrive at a valuation and as a result he has enhanced the awards by Rs. 51, 297-1-3 in Case No. 100 of 1918, by Rs. 3, 509-4-9 in Case No. 90 of 1918 and by Rs. 84-7-3 in Case No. 88 of 1918.
5. As 1 understand the learned Judge he considers that the lands have a value as a potential mill site and he values them accordingly and upon the basis which I have indicated. The judgment is attacked by the Secretary of State on three grounds: 34 C. 599 at p. 604. That the finding that the lands were available as a mill site is incorrect; (2) that accordingly the enhancement of the award allowed on this basis is incorrect; (3) that in any case the whole additional amounts allowed should not have been given to the respondents as part of the enhanced value would, it is said, belong to the tenants who have not appealed.
6. I can dispose of the 3rd point at once for there seems to me to be no substance in it. The learned Special Judge disputed the apportionment made in favour of the tenants and apportionment cases were instituted with the result that the tenants came to a settlement with the landlords accepting definite amounts of the compensation moneys. It accordingly seems to me that the tenants have no further interest and that the landlord if the enhancement stands is entitled to receive the compensation money in accordance with the decision of the Special Land Acquisition Judge.
7. The other two points are interconnected and can be dealt with together.
8. I confess that I feel a difficulty in accepting the methods and calculations of the Special Land Acquisition Judge for it seems tome that either the site must be valued as a mill site or the potentiality must be disregarded as being non-existent and the land must be valued as the Land Acquisition Deputy Collector has valued it. It will, I think, be a convenient course to indicate at this point the position of the land. As appears from the map Ex. 14 to which I have already referred the Ichapur Gun and Shell Factory lies immediately to the south. From Ex. 15 the sketch map of the River Hooghly the land appears to lie in a mill area. Three miles to the north lie the Waverley and Craig Jute Mills and immediately to the north of this mill lie some 12 other mills close together about one mile directly to the north of Ichapur lie the Shamnagar Jute Mill and the Dunbar Cotton Mill. South of the Ichapur Gun and Shell Factory lie the water-works the land near which it is said would not be allowed to be used for mill sites, and south of the waterworks lies Barrackpore south of this again lie some 10 or 12 mills close together including Kelvin and Kerrison which are referred to in the evidence and which are some four miles distant from the land in dispute. Upon the evidence the land in question with its river frontage to the west and the Railway in close proximity on the east is suitable for the erection of a mill.
9. It is urged, however, that the land being in close proximity to the Gun and Shell Factory has no potential value as a mill site as the Military Authorities would never have allowed a mill with the necessary buildings attached thereto to be erected in close proximity to the Gun and Shell Factory and reliance is placed on the evidence of Major Winlaw, Director of Ordinance Factories. He states that the Military Authorities would have objected to any mill being erected on the land in suit during the War and that apart from the War there would always be the same objection to such a proposal. He stated that the Factory was second class Fort and that under the Army Regulations restrictions had been imposed on the erection of buildings in the neighbourhood of second class Forts and under these Regulations there would be objection on the part of the Military Authorities to the erection of buildings on the land acquired. In cross-examination he stated that the necessary declaration referred to in the Regulations must have been published.
10. It turns out, however, that this is not the case. The Regulations to which the witness refers and which have been placed before us are merely extracts from the Indian Works of Defence Act (VII of 1903) as amended by Act V of 1909.
11. Clause 3 of the main Act empowers a Local Government to impose restrictions by a declaration upon the use and enjoyment of land in the vicinity of any work pf defence in order that it may be kept free from buildings and other obstructions-Clause 7 sets out the restrictions which may: be attached and the limits thereof. Clause 9 provides for notices to persons whose interests [in the land may be affected by the declaration and Clause 12 provides for an inquiry by the Collector into any decrease in the value of the land and for an award of compensation.
12. I do not see, therefore, how this assists the appellant. In the first place there was no declaration and had there been one compensation was payable for any decrease in the value of the land arising from the declaration. The fact that the land could never have been made available as a mill site owing to the proximity of the Gun and Shell Factory does not, in my view, disentitle the persons affected by the declaration from claiming compensation on the basis that but for the existence of the Gun and Shell Factroy the site might have been disposed of as a mill site unless possibly it can be shown that they purchased-the land knowing of the disability under which it laboured which is not the case suggested here.
13. To hold otherwise would, I think, produce a strange result. Suppose A to have a site suitable for a mill site and which is on the market as such then if the appellant's contention is correct as soon-as any military work is constructed on adjoining land in favour of which a declaration under Act VII of 1903 might be made the value as a mill site is no longer the subject-matter of compensation but the owner must be content with such other compensation to which he may be entitled owing to the restricted user imposed on the land. I find it difficult to see how this can be the case and why he is not also entitled to compensation for such value as the land may have as a mill site. But so far as this particular site in suit is concerned reliance was placed by the appellant on a passage in Fink v. Secretary of State for India 34 C. 599 at p. 604. as showing that this site was not available as a mill site but the view there expressed is not based upon any statutory provision preventing such user but merely on its proximity to the Gun and Shell Factory.
14. I agree with the finding of the learned Special Land Acquisition Judge that upon the evidence the land acquired had potential value as a mill site and that in fixing the compensation this should be taken into account. This disposes of the appeals which accordingly fail and are dismissed with costs. We assess the hearing, fee in Appeals Nos. 26 and 27 at five gold mohurs in each case.
15. We next come to the cross-objection filed on behalf of the respondents who object to the method of valuation adopted by the Special Judge and claim Rs. 1,500 for firm land over the whole area and Rs. 750 for tank land so far as the 243 bighas are concerned and Rs. 2,000 and Rs. 1,000 respectively for the firm and. tank land of the other areas. They say that the Special Judge 34 C. 599 at p. 604. has not given proper weight to the prices paid by the Kelvin and Kerrison Mill and by Carig Mill, (2) that he has wrongly rejected the evidence of Mr. Shrosbree, (3) that he should have accepted the offer of the Maharaja of Darbhanga as a genuine offer at any rate for the purpose of showing that the land was on the market as a mill site, (4) that he should have held that the Heilger's offer was a firm one.
16. As to Mr. Shrosbree the Judge says that his real experience of land outside Calcutta began in 1918 and that he only valued the land four years after the acquisition. As to the Maharaja of Darbhanga's offer he doubts the authority of some of those engaged in the transaction and considers the price of Rs. 1,500 a bigha collusive. As to the Kelvin and Kerrison's price of Rs. 2,000 to Rs. 3,400 per bigha he says the lands are not comparable as they were in a highly developed mill area, as to the Carig price of Rs. 2,000 to Rs. 3,000 per bigha he says that reliance cannot be placed on this price as an index of market value owing to the fact that the' transactions were by the Managing Agents.
17. Turning, to the evidence and I do not think that the Kelvine and Kerrison purchase can be taken as a safeguide having regard to the small areas acquired see Book B, Exs. 7, 6 and 19 so this price of Rs. 3,000 per bigha can be disregarded. The Carig and Waverley purchases were made in lwl5, 1916 and 1917 of about 320 bighas and Exs. 1, 2 and 3 show a price of Rs. 2,000 to Rs. 3,000 per bigha for these purchases but this land is some distance away and I am not prepared to rely on these prices as a safeguide.
18. Mr. Shorsbree whose evidence is, I think, entitled to more weight than the Special Judge assigns to it puts the price at Rs. 2,000 per bigha in normal times and Rs. 1,200 for the land which had been used as a brick-field.
19. Next comes the Maharaja of Darbhanga's offer of 1910 (see Exs. 16 and 8) which shows varying prices of Rs; 2,200, Rs. 1,500 and: Rs. 750 per bigha for an area of 200 bighas free of tenants.
20. Lastly comes the Heilger's offer the negotiations over which extended from 1913 to 1916, Mr. Simpson puts the price at Rs. 1,000 per bigha for the back land and rather more for the river side land, the area to be acquired was 300 bighas. la examination-in-chief he says that this did not include compensation to tenants, in cross-examination he says it covered all interests and was; an offer for the land free of permanent rights. The Judge feels some difficulty as to this evidence owing to the somewhat conflicting evidence of Asutosh Banerjee.
21. I am inclined, however, to accept Mr. Simpson's evidence. It was an actual offer for the actual land and it seems to me the safest guide to take. I would, therefore, value the whole area in dispute at Rs. 1,000 per bigha so far as the land is concerned, I am aware that Mr. Simpson says that the Rs. 1,000 per bigha was for the back land and that river side land would fetch rather more but I think taking the evidence as a whole that it would be fair to take a mesne figures of Rs. 1,000 per bigha for the entire site back and front land as well having regard, to the fact that I think Rs. 1,000 per bigha is perhaps a little excessive for some of the land furthest from the river side.
22. The result is that the cross-appeal succeeds to the extent that for the method adopted by the Special Judge to arrive at the value we substitute an inclusive figure of Rs. 1,000 per bigha for the entire area so far as the land is concerned including statutory allowance and the figures must be worked out on this basis. We are only concerned here with the question of value and not with any question of apportionment.
23. The respondent will be entitled to his costs in the cross-objection in proportion to his success. Hearing fee in No. 26 two gold mohurs.
24. I agree.