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TMI Blog1946 (2) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... ands of the northern block are surplus lands of Scheme No. 47 laid out by the Board as building sites and intended for sale, with the exception of an area of 43 cottas called an island or round-about at the junction of four cross roads which was intended by the Board to be kept open for ornamentation and for regulating vehicular traffic. Scheme No. 47 was a general improvement scheme as defined in S. 36, Calcutta Improvement Act, (Bengal Act 5 [v] of 1911). This scheme had not been fully executed at the date of the requisitions. 2. The southern block of land had been acquired by the Provincial Government for the Board not for the purpose of any improvement scheme, such as a General Improvement Scheme, or a Street Scheme, or a Rehousing Scheme but for a purpose which was incidental to and necessary for enabling the Board to carry out improvement schemes in other localities. One of declarations for acquiring lands in the southern block was made on 14th December 1915 under S. 6, Land Acquisition Act (1 [I] of 1894). It is Ex. B (Part 2, p. 110). Other declarations were to the same effect. The material portion of Ex. B runs thus: Whereas it appears t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt on the amount of compensation five references were made under S. 19 (1) (b), Defence of India Act, to Mr. De, who was the then Additional District Judge of 24 Parganas. They were numbered as Land Acquisition Cases Nos. 30 to 34, and 72 and 79 of 1944, which correspond to appeals from original Decrees Nos. 71 to 75, 162 and 163 of 1945 respectively. Cases Nos. 30, 31, 33 and 72 relate to the northern block of land, of which case No. 33 is in respect of the round about and some surplus lands to the north thereof intended to be sold as building sites. Cases Nos. 32, 34 and 79 relate to the southern block, of which case No. 32 relates to the lake, No. 34 to the Park to the south of the lake and No. 79 to the Excavation Area. Some of the lands of the northern block had been fully developed as building sites and were ready for sale at the dates of the requisitions and the others had also been plotted as building sites to which access roads had been made, but the roads had not been metalled or sewered and no water and gas mains had been laid out, and those works could not be completed for lack of materials on account of war conditions. The arbitrator appointed under S. 19 (1) (b), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich is transferred to the requisitioning authority. Requisition in relation to land without more is thus the acquisition of an interest in land for a time or for an uncertain period as the case may be. 6. Section 19, Defence of India Act, does not in terms speak of requisition. It however contemplates the case of temporary acquisitions, see cl. (e), sub-cl. (ii). In view of that provision in the Defence of India Act, and of the provisions of S. 299, sub.s. (2) read with sub-s. (5), Government of India Act, we hold that S. 19, Defence of India Act, governs requisitions also and by reason of cl. (e) thereof compensation has to be awarded to the owner of the land requisitioned and that on the basis of S. 23 (1), Land Acquisition Act, of 1894 with such adaptations as the nature of the case may require. As sub-s. (2) of S. 23, Land Acquisition Act, has not been made applicable the owner would not be entitled to the statutory compensation of fifteen per cent. Leaving aside clauses secondly to sixthly of S. 23 (1) which are not material to the case before us, the position is that where land has been acquired out and out under the Defence of India Rules the owner must ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the notifications of the Provincial Government under which the Excavation Area, the park and the land on which the lake was subsequently dug were acquired for the Board. We have in the earlier part of our judgment set out at some length the substance of those notifications. 9. Mr. Parks' evidence bearing upon the point is as follows. That the surplus lands of the northern block have been divided into building sites, except the round-about, that some of them had been fully developed and were ready for sale at the dates of the requisitions and the others were not as water mains, gas mains and drains had not been completed in the adjoining streets and those works could not be completed because materials could not be had on account of the War, that the Board generally disposes of the surplus lands of an improvement scheme by selling them as building sites, not all at once but in blocks in order to control the market, that those building sites would have been offered to sale according to usual practice if there had not been the requisitions, that the round-about was never meant for sale, it was to be kept open and to serve the purpose of regulating vehicular traffi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he market value of the interest in the land that is requisitioned. In a sense reasonable interest for the period of the requisition on the market value would be compensation on the basis of market value, but it is not the market value of the interest. The contention of the Advocate-General, besides, proceeds on the basis of the actual user or of one of the modes of intended user but those are not the only criterion. The question must be answered as we have already held, with reference to what the Boards could in law have done with the lands. 12. Lands acquired for the Board under the provisions of S. 69, Calcutta Improvement Act, vest automatically in the Board by reason of S. 17A, Land Acquisition Act, which has been added to the last mentioned Act by reason of the provisions of S. 71 (b) of the former Act, and prima facie the Board would have right, in view of S. 81, Calcutta Improvement Act, to sell, lease or let them on hire. It has not been contended before us, and cannot reasonably be, that the Board had no power to lease or let on hire the developed or the undeveloped building sites and Mr. Parks' evidence is that there was a good demand for lease of all va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been taken away by necessary implication in regard to the lands of the Excavation Area and of the lake the general scheme of the Act and some of its detailed provisions will have to be examined in the light of well established principles. One of such principles is what we have already noticed namely that a corporation has all the powers which may be necessary to carry out the purpose for which it was created. 15. The general purpose of the Calcutta Improvement Act, which, has been expressed in the preamble is, for the improvement and expansion of the town of Calcutta, and those are to be effected through the Board. Sections 41 and 42 of the Act enact that an improvement shall provide not only for the acquisition of land in the area comprised in the scheme, and which will be required for the execution of the scheme and land which will be affected by the execution of the scheme but also for raising the level of any land in the area comprised in the scheme. One of the objects of S. 81 is obviously for the purpose of enabling the Board to dispose of surplus lands, lands which have been improved after the execution of the improvement scheme and lands which were within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cquired for the Board for the express purposes of a park. The Board became the owner and so had possession. Its ownership, however, is restricted ownership. In Brice on Ultra Vires, the law has been summarised thus : If corporations acquire lands, easements or other proprietary rights to be devoted to certain specified purposes, their ownership thereof will be pro tanto restricted, so that they cannot employ them in or towards the furtherance of other purposes (Part 3, Chap. 1, Sub-s. (6), Art. 21, page 121, 2nd edition). 18. Dealing the case brought by the vendor for injunction, whose lands had been acquired for a special purpose by a railway company under compulsory powers Campbell L. C. J. observed in (1855) 24 L. J. Q. B. 225 Bostock v. North Staffordshire Railway Co. (1855) 24 L. J. Q. B. 225 that nothing so unjust could have been contemplated as that when the land had been purchased professedly to enable the company to make a lake, they might have erected upon it a soap manufactory or alkali works utterly destroying the amenity of the residence of the grantor, although not amounting to an indictable or actionable nuisance. 19. This rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on being removed cannot be taken into consideration in assessing compensation, as that would not be a reasonable possibility. 21. In (1850) 10 C. B. 327 Hilcoat v. Archbishop of Canterbury York (1850) 10 C. B. 327 : 19 L. J. C. P. 376 : 138 E. R. 132 judgment on the second point raised therein was based on two reasons. There the plaintiff had dedicated his land to a Church. That land was acquired by a railway company under a private Act of Parliament giving the company powers of acquisition. The Act required the value of the land acquired to be paid to all persons having interest therein. The plaintiff contended that he was entitled to have the same value of the land, which it would have had in the normal market as if it was not consecrated land. The contention of the defendant was that as the land had been irrevocably appropriated to spiritual purposes the plaintiff could make no pecuniary advantage and so he cannot be awarded the sum of money he had claimed. It was contended that the jury had been misdirected by the Judge in that they had been told that they were not bound to estimate the value as of land irrevocably appropriated to spiritual uses. Wilde C. J. held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. 24. The fact, which was the case in (1850) 10 C. B. 327 Hilcoat v. Archbishop of Canterbury York (1850) 10 C. B. 327 : 19 L. J. C. P. 376 : 138 E. R. 132, of voluntary sacrifice of pecuniary interest by the owner, is not in our judgment the essence of the thing, and the principle would apply equally to the case where the restriction on ownership has been placed not by a voluntary act on the part of the owner but from an outside but competent authority or by rules of law. This, in our judgment, is also the effect of Lord Shand's award in the Princes Gardens case. A part of the relevant passage in that award runs thus : They further agreed that the gardens, having regard to their situation in the city, should in this way be looked at as a feeing or building subject, and that as the Corporation had used the grounds for a purpose more valuable to them and to the community they represent than building purposes, at least 'its fair and full value' (to use the words of Mr. Blyth, one of the leading witnesses of the company) or 'the highest value of the land,' as Mr. Barr suggests, 'as building ground,' should be allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e public park which we have before us. 26. The proposition laid down in (1870) 6 Q. B. 37 Stebbing v. Metrapolitan Board of Works (1870) 6 Q. B. 37 : 40 L. J. Q. B. 1 : 23 L. T. 530 : 19 W. R. 73 that compensation, or which is the same thing as loss to the owner, must be tested not by what would be its value to person acquiring it is well settled. Some passages in the second reason given by Wilde C. J. in (1850) 10 C. B. 327 Hilcoat v. Archbishop of Canterbury York (1850) 10 C. B. 327 : 19 L. J. C. P. 376 : 138 E. R. 132 may at first sight appear to go against that test. The learned Chief Justice, however, used those expressions to emphasise the justice of the case. The observations in the later decisions which we have reviewed and in Lord Shand's award do not appear to us to militate against the aforesaid test formulated in (1870) 6 Q. B. 37 Stebbing v. Metrapolitan Board of Works (1870) 6 Q. B. 37 : 40 L. J. Q. B. 1 : 23 L. T. 530 : 19 W. R. 73. The compensation must be tested no doubt by the loss to the owner, but in estimating his loss it is legitimate to disregard the restrictions on owner ship which were existing at the time of acquisition. If restrictions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of ₹ 6-8-0 per cotta per month. The back portion after division among the two tenants became a tandem plot (map No. 12). The evidence is that its market value would be ₹ 1600 and the front portion ₹ 2400 per cotta. The return for the back portion thus comes to 4.9 per cent, and of the front portion at about 3.25 per cent, of the market value plus all municipal taxes, both the owner's and the occupier's (EX. 33). Premises Nos. 68/3-A, 68/3-B and 68/3-C, Monoharpukur Road are lands adjoining premises Nos. 68/2-B and 68/2-A. At the material point of time, rent paid for each one of those plots was ₹ 6 per cotta per month. The price of those plots would be a little less than that of No. 68/2-A, Monoharpukur Road. Taking it to be about ₹ 1500 per cotta, the return on the market value would be 4.8 per cent, plus all municipal taxes. 29. Premises No. P-86 Lake Road, gave a return of 9.7 per cent (Ex. 30). It is a very small plot of land, a little more than half a cotta, with a tin hut, which had been let out to a cabinet maker. By reason of the smallness of the size and the fact that it was not a case of lease of bare land, this case m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition. (part I, p. 116). 31. Premises No. 19, Gariahat Road, is shown in map No. 28 and in relation to the requisitioned land in map No. 27. One portion was occupied by Babu Lal Dass (D. W. 1) alias Jiban Krishna Das and the other by his brother Akhoy Kumar Das. The former paid at the rate of ₹ 5-5-3 per cotta per month and the latter at the rate of ₹ 7 per cotta per month plus occupier's share of the municipal taxes (Exs. F and F 2). The plot was within Improvement Scheme No. 47 but the adjoining road had not been completed. Mr. Park's evidence is that price would be ₹ 3000 a cotta after the completion of the road. On the basis of ₹ 3000 a cotta, the return works out 2.6 per cent, but the price of the land would be much less than ₹ 3000 a cotta in its present condition. A good part, namely the back portion, was a foot lower than the road level (D. W. 2 p. 122). The sub-letting return was high. The occupier's share of municipal taxes was ₹ 21 per quarter and so with the owner's share of taxes it comes up to ₹ 42 per quarter, that is, ₹ 168 a year. The annual value, as defined in the Calcutta Municipal Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the effect that the Board lets out its surplus lands all over Calcutta on the basis of about 5 per cent, return plus the occupier's share of municipal rates. 34. The third item of evidence consists of rents accepted by the Province of Bengal in respect of other requisitioned lands in this very area and within the same scheme-scheme No. 47-and in the adjoining scheme -scheme No. 48-and in respect of lands which adjoin those now in suit. Those plots are marked in map No. 19. They are plots Nos. 171 to 197 coloured orange and marked with the price ₹ 2650 per cotta, plots Nos. 198 to 202 coloured yellow and marked with the price ₹ 3470 per cotta, plots Nos. 204 to 207 coloured brown and marked with the price ₹ 3020, plots Nos. 283 to 296 coloured green and marked with the price ₹ 2800 per cotta and plots Nos. 8, 9, 10 and 15 hatched in red and marked some with the price ₹ 3500 and others with the price ₹ 3250. The Province of Bengal agreed to pay to the Board and other private proprietors rent on 6 per cent, basis, plus occupier's share of municipal taxes. The relevant documents are Exs., 19-D, 19, 19-E, 19-B, 19-G, 19-C and 2 ..... 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