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Collector Vs. Hans Raj and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Misc. First Appeal Nos. 31, 33, 37, 40, 45, and 48 of 1959
Judge
Reported inAIR1961HP25
ActsLand Acquisition Act, 1894 - Sections 3 and 23(1)
AppellantCollector
RespondentHans Raj and ors.
Appellant Advocate Shankar Nath, Adv.
Respondent Advocate S.D. Ahluwalia, Adv. in all cases except in M.F.A. No. 40 of 59 and; H.C. Anand, Adv. in M.F.A. No. 4
DispositionAppeal partly allowed
Cases Referred and State of West Bengal v. T.N. Gupta
Excerpt:
.....tenants of shops acquired for construction of bhakra reservoir lake - appellant contended that as 'person interested' in section 23 means owner of land and not tenant so respondents were not entitled to compensation - expression 'person interested' covers not only owner of land but also person who may have possessory interest - tenant in land has interest in land and as such is person interested within meaning of said expression - tenant of land acquired under act is entitled to compensation for loss of earnings.;(ii) enhancement of compensation - whether additional district judge not justified in increasing amount of compensation - appellant urged that there was no justification for courts below to have increased amount of compensation - fact that whole of town has been acquired by..........take into consideration....... ... ... ... ... fourthly, the damage (if any) sustained by the person interested, at the time of the collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property movable or immovable in any other manner, or his earnings,''8. the contention advanced on behalf of the appellant has been that the expression 'the person interested' in the aforesaid clause means the owner of the land and not the tenant thereof.9. the expression 'the person interested' according to section 3, clause (b) of the act'includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this act; a person shall be deemed to be interested in land, if he is interested in an easement.....
Judgment:

C.B. Capoor, J.C.

1. This appeal and Misc. First Appeals Nos. 33, 37, 40, 45 and 48 of 1959 are directed against orders made by the learned Additional District Judge, Bilaspur, in references made by the learned Collector, Bilaspur, under Section 18 ot the Land Acquisition Act, 1894, hereinafter to be referred as the Act. A common question of law arises in all the appeals and for the sake ot convenience I propose to dispose of all of them by this order.

2. The respondents were tenants of shops acquired for the construction of Bhakra Reservoir Lake and were awarded by the learned Collector their earnings for a period of three months as compensation. They were not satisfied by the award and required the Collector to make references under Section 18 of the Act. Their contention was that the learned Collector had underestimated their monthly income and had erred in awarding three months' earnings only as compensation.

3. The learned Additional District Judge did not interfere with the finding recorded by the learned Collector as to the monthly income ot the respondents. He, however, awarded to them one year's income as compensation.

4. On behalf of the appellant it has been contended that (i) the compensation granted by the learned Collector was ex gratia and that legally the respondents were not entitled to be awarded any compensation for loss of earnings and that (ii) in any case the increase made by the learned Additional District Judge in the amount of compensation was unjustified.

5. The following points arise for determination:

1. Whether the compensation awarded by the Collector was ex gratia?

2. Whether legally no compensation could be awarded to the respondents on account of their earnings having been injuriously affected by reason of the acquisition of the shops in which they carried on their business?

3. Whether the learned Additional District Judge was not justified in increasing the amount of compensation?

FINDINGS.

6. Point No. 1. A perusal of the relevant paragraphs of the award made by the learned Collector would bear out that it was not ex gratia that he had granted compensation to the respondents. He has quoted copiously from the various commentaries on the Act and it was on a judicial con-sideration of the question that compensation was granted by him.

7. Point No. 2. The relevant portion of Section 23 of the Act runs as below:

'23(1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration....... ... ... ... ... Fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property movable or immovable in any other manner, or his earnings,''

8. The contention advanced on behalf of the appellant has been that the expression 'the person interested' in the aforesaid clause means the owner of the land and not the tenant thereof.

9. The expression 'the person interested' according to Section 3, Clause (b) of the Act

'includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act; a person shall be deemed to be interested in land, if he is interested in an easement affecting the land''.

10. It would thus appear that the expression 'the person interested' is of wide amplitude and covers not only the owner of the land but also a person who may have a possessory interest therein. A tenant of land, it cannot be gainsaid, has an interest in the land and as such is a person interested within the meaning of the expression as used in the aforesaid clause of Section 23.

11. On behalf of the appellant my attention was invited to the words 'by reason of the acquisition injuriously affecting his other property' as used in the aforesaid fourth clause and it was contended that as it is only the other property of the owner of the land which can be injuriously affected by reason of. the acquisition the expression 'the person interested' as used in the aforesaid clause means the owner only. Assuming but not deciding that the words 'his other property' as used in the aforesaid clause refer to the other property of the owner of the land acquired there is no justification for construing the words 'his earnings' also in that restricted manner.

The word 'his' as used in the expression 'his earnings' is a pronoun and stands for the person interested and not for the word 'his' as used in the expression 'his other property'. It is obvious that the earnings of a person interested in land such as a tenant may also be injuriously affected by reason of the acquisition of the land and the expression 'the person interested' must be construed in the wider sense which has been assigned to it in Section 3.

12. It was held in the case, Secretary of State v. Rawat Mull Nopany, AIR 1938 Pat 618, that the loss of income which is contemplated in the 4th clause of Section 23 is the loss of personal income to the owner of the land, and on behalf of the appellant reliance was placed upon the aforesaid observation. In that case their Lordships were not concerned with the question as to whether the expression 'the person interested' as used in the4th clause was confined to the owner of the land only and did not include any other person who may be interested in the land.

The person who had claimed compensation for loss of earning in that case was the owner of the land acquired and the observations made by their Lordships should be confined to the facts of the case and it would not be correct to say that their Lordships laid down that the words 'the person interested' as used in the 4th clause meant the owner of the land only.

13. In the case of Narain Chunder v. Secretary of State, ILR 28 Cal 152, it was specifically held that a lessee of a tank was entitled to receive compensation for loss of earnings on the acquisition of the tank. The learned counsel for the appellant tried to distinguish the aforesaid case on the ground that compensation was awarded to the lessee of the tank by virtue of Clause 2 and not. of Clause 4 of Section 23. A perusal of the judgment will, however, indicate that it was by virtue of the 4th clause that the lessee of the tank was considered to be entitled to compensation for loss of earnings. Maclean, J., had in the course of his judgment observed as below:

'This seems sufficiently clear from the definitions of 'land' and 'person interested' in the Act coupled with sub-sec. (4) of Section 23.'

14. On behalf of the appellant reliance was also placed upon the ruling of Bombay High Court reported in District Deputy Collector, Panch Mahals v. Mansangji Mokhamsangji, AIR 1928 Bom . 306, wherein the following observation was made:

'The ordinary rule that has been adopted in England in the case of compulsory acquisition of land occupied by tenants, whose tenancies are determined by notice or efflux of time is that they cannot claim compensation for loss of profits, even though they had reasonable expectation of continuing in possession or having the lease renewed.'

15. By reason of the Himachal Pradesh Merged States Application of Laws Act, 1954, the East Punjab Rent Restriction Act was applicable to Bilaspur at the time when the Collector made his award and in accordance with the provisions ot that Act a tenant of residential or non-residential building is not liable to be evicted merely by a notice for eviction and the tenure of tenants ot residential or business premises in the town of Bilaspur was not so frail as was of the lease-holders in the Bombay case, The observations made in that case, therefore, would not apply to the instant case.

16. For the foregoing reasons the contention advanced on behalf of the appellant that a tenant of the land acquired under the Act is not entitled to any compensation for loss of earnings is repelled.

Point No. 3, On behalf of the appellant it has been urged that there was no justification for the Court below to have increased the amount of compensation and reliance was placed upon the case 39 Pun LR Sup 1904 p. 99, Parma Nand v. Secy, of State, wherein less than 3 months' earnings were awarded as compensation to a tenant.

On behalf of the respondent on the other hand two rulings of the Calcutta High Court re-ported in Province of Bengal v. P.L. Nun, AIR 1945 Cal 312, and State of West Bengal v. T.N. Gupta, AIR 1959 Cal 65, were relied upon. In the former case one year's earnings and in the latter two years' earnings were allowed as compensation. It would thus appear that the decided cases do not furnish any definite guidance.

Indeed, in the very nature of things it is not possible to lay down an inflexible rule as to the measure of compensation in such cases. The time which an oustee businessman may take in reestablishing his business depends upon a variety ot circumstances which cannot be easily foreseen and a rough and ready measure has more often than not to be adopted for the determination of the amount of compensation. Further, compensation in such cases, as was aptly observed in 39 Pun. LR Sup 1904 (supra), is seldom a complete recoupment of loss actually sustained.

17. The learned Collector had in the course of his award observed as below:

'The number of plots for shops in the New Township ig much smaller as compared to the number of shops in the existing township so the tenants are not going to get shops on rent easily. Besides, in the first instance the owners will build fof themselves and the tenants will have to wait their turn for some time. I am afraid some of the existing shopkeepers will have to combine with each other to find place or even to quit the District head-quarters for villages nearby. So the business of the tenant shopkeepers will also suiter and be dislocated'.

18. Keeping the aforesaid observations in mind as also the fact that the whole town has been acquired by Government as a consequence ot which there will be displacement of the whole population, the period of three months' fixed by the learned Collector for awarding compensation for loss of earnings was inadequate. At the same time the learned Additional District Judge appears I to have erred on the side of liberality. In a normal case the ends of justice will be amply met if six months' income is awarded as compensation. None of the cases under consideration has any special or peculiar features and the measure of compensation to the respondents may reasonably be fixed at six months' earnings.

19. In conclusion the appeals are accepted in part and the award made by the learned Additional District Judge modified to this extent that the amount of compensation awarded by him to the respondents for the injurious affection of their earnings is reduced by 50 per cent. In view of the peculiar circumstances of the case no order is. made as to costs.

20. Let a copy of this order be placed on the record of appeals Nos. 33, 37, 40, 45 and 48 of 1959.


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