Decided on December 07,1983



- (1.) THE State of West Bengal for the purposes of construction of branch canal in connection with kangsabati Reservoir Project, under the provisions of the land Acquisition Act, 1894, had acquired Plot Nos. 31, 32, 33, 34, 35 and 37 of mouza Bhaghushole, p. S. Garhbeta, District Midnapore measuring 7. 44 acres. The respondents of these two appeals were owners of the said plots------having moiety share. Plot no. 31 measuring 62 decimals was a tank (bundh) which was being used for rearing fishes and spawning. Plot Nos. 32, 33 and 35 measuring 2. 25 acres were recorded as Dhani Chharam (paddy lands ). Plot Nos. 34 and 37 measuring 2. 89 acres were recorded as Danga Patit. The trial court has not believed the claim of the respondents that jute used to be cultivated upon the said lands.
(2.) THE Collector had awarded to each of the claimants Rs. 7098. 50 p. as total compensation. At the instance of both the claimants, references under section 18 of the Land Acquisition Act were made to the Land Acquisition Judge, midnapore. The learned Additional District Judge, 2nd Court, Midnapore by the judgment under appeal allowed both the cases in part and enhanced the compensation payable to each of the petitioners by a sum of Rs. 6974/- with interest at the rate of 6% per annum from the date of his order till payment. Being aggrieved thereby the State preferred these two appeals. The claimants have also filed two memoranda of cross-objections. We dispose of the two appeals and the two cross-objections in the following manner.
(3.) WE reject the extreme submission made by Mr. Tapan Kumar Sengupta, learned Advocate for the State, that the learned Judge of the court below had erred in determining compensation for the Plot No. 31 which was recorded as a tank, on the basis of the net annual income of the said tank for 12 years. In the case of Raja Shyam Chunder Mardraj and others v. The Secretary of State for India in Council 12 C. W. N. 598 the court had rejected the claim for compensation for incorporeal rights of fishery which had detatched from the land, within which they arose and were not subjects for acquisition. The Division bench in Raja Shyam Chunder Mardraj v. The Secretary of State (supra), had recognised that the land including the rights arising out of it could be the subject matter of acquisition under the land Acquisition Act. A right to catch and carry away fish in specific portion of a tank or lake is a licence coupled with a grant, i. e. , it is a profit as prendre, which is regarded in India as a benefit that arises out of the land and as such 'is immovable property (vide Ananda Behara and another v. State of Orissa and another A. I. R. 1956 S. C. 17 ). The purpose of compulsory acquisition is to acquire all interests which clog the right of the Government to full ownership of the land subject to payment of compensation of those interests in the acquired land (see State of Kerala v. P. P. Hassan Koya A. I. R. 1968 S. C. 1201 ). As part of value of owner all advantages which the land possesses, present or future, in the hands of the owner may be taken into consideration, and the owner is entitled to have the price assessed in reference to those advantages which will give the land the greatest value (see Cripps on Compensation, 10th Edition, paragraphs 4-013 at pages 680-81 ). When a tank or a reservoir was being used as a fishery it would be wrong to assess compensation for acquiring the same at half the rate of compensation payable for solid lands. Such method of determining compensation for an acquired tank may be relevant when an acquired tank may have to be filled up with earth for making it fit for building site. In a case like the present one, in awarding compensation, the court is bound to take into consideration the special advantage of earning income by the owners by its use as a fishery and also its future potentialities to yield such return. The officers of the Land Acquisition Department of the State in their rate report (Ext. B) and also at the trial did not seriously dispute that the tank or bundh in Plot No. 31 was being used for purpose of spawning and their net earning per year was Rs. 1415/ -. The Kanungo, Jnan Ranjan Bhattacharyya, opposite party's witness No. 1, admitted that he did not note in his report (Ext. B) that the said tank dried up in December and, therefore, the court below rightly rejected the said claim. The evidence given by the claimant's witnesses that the tank never used to get dry was. more trustworthy.;

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