GOVERNMENT OF BOMBAY Vs. NHMOOS

JUDGEMENT

(1.) [His Lordship after setting out the facts, proceeded :] In his application the claimant sets out seven grounds of objection to the award, which may be grouped together under the following heads, namely,- (i) That Government not being a "person interested" within the meaning of Section 4(b) of the Land Acquisition Act they are not entitled to any portion of the compensation, (ii) That in any event the amount awarded by the Land Acquisition Officer to Government is excessive. (iii) That the Land Acquisition Officer ought to have added 15 per cent. not merely to the balance of the compensation after deducting the amount awarded to Government, but to the aggregate compensation namely, Rs, 82,260. 6. The Government claim was valued by the Land Acquisition Officer on a particular basis. After the award was made a Divisional Bench of this Court laid down in Moos V/s. Government of Bombay (1925) 27 Bom. L.R. 1237 the principles on which Government claim for toka should be valued. If those principles were accepted in the present case, the Government claim would be reduced from Rs. 38,908-7-8 to Rs. 29;244. Government accordingly agreed to refund the difference, namely, Rs. 9664-7-8 to the claimant, and tney refunded the same with fifteen per cent, added thereto and interest thereon at 6 per cent, per annum. 7. At the hearing before me, Mr. Mulla for the claimant abandoned the first ground of objection. No question arises now under the second ground of objection as the parties are agreed as to the valuation of the Government claim. The only point, therefore, that remains to be considered is that raised by the third ground of objection. 8. To appreciate the points raised by the parties under the third ground, it is necessary to refer to certain provisions of the Land Acquisition Act. 9. The first section to be noted is Section 11 by which it is provided that the Collector after making the inquiry, prescribed by the section, shall make an award under his hand of- (i) the true area of the land; (ii) the compensation which in his opinion shall be allowed for the land; and (iii) the apportionment of the compensation among all the persons known or believed to be interested in the land... 10. Before passing further it may be observed that the expression "compensation" necessarily includes the value of all interests in the land, for, the same has to be apportioned among all persons interested in the land. The Land Acquisition Officer, in the present case, does not state in his award the value of all interests, which is Re, 82,260. To this extent his award does not comply with the provisions of Clause (ii). It is also to be observed, and it was conceded by the Advocate-General, that Government are not "a person interested in the land" within the meaning of Section 11(iii). 11. The next section to which reference may be made is Section 23. That section applies in terms to the Court; but its provisions have been made applicable to proceedings before the Land Acquisition Officer, by virtue of Section 15 of the Act. Section 23 says that :- In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration," six matters, being those comprised in the six clauses to that section. The matter comprised in the first clause is "the market-value of the land. Sub-clause (2) of Section 23, which is most material to the present case, is as follows: - In addition to the market value of the land as above provided, the Court shall in every case award a sum of fifteen per centum on auch market- value, in consideration of the compulsory nature of the acquisition. 12. Pausing here for a moment it may be observed that the compensation to be awarded under Section 23(1) may be the market value only or that it may consist of the market value and the remaining five items or some or one of them. The fifteen per centum provided for in Section 23(2) has to be added only to the market value and not to any other item. Moreover, it has to be added to the market-value of "the land" and the whole question in this case is what is meant by the expression "the land" in Section 23(2). 13. It has been contended by the claimant that the words "the land" mean the market value of all interests in the land under acqnisition which, he says, in the present case, is Rs. 82,260, and that the Land Acquisition Officer ought to have added the fifteen per cent, in the first instance to Rs, 82,260, that he should have then deducted Rs. 29,244 being the amount of the Government claim from Rs, 82,260 + 15 per cent., and awarded the balance to the claimant. The first because this contention is borne out by the decisions in the Collector of Belgaum V/s. Bhimrao (1908) 10 Bom. L.R. 657 and Bombay Improvement Trust V/s. Jalbhoy (1909) 11 Bom, L.R. 674, which were cited for the claimant. 14. The answer given to this by the Advocate General on behalf of Government, is, first, that in cases where Government have an interest in the land under acquisition, the words "the land" mean the claimant's interest alone in the land, and, secondly, that if the claimant's arguments were to be accepted by the Court, the claimant would be receiving 15 per cent, on the amount of the Government claim,-a result which on the face of it is inequitable. In support of the first branch of the argument reliance was placed on a ruling of a Divisional Bench of this Court in Government of Bombay V/s. Esufali (1909) 12 Bom, L.R. 34. In that case the relation between Government and the claimant was that of landlord and tenant and the question for the determination of the Court was whether Government were entitled to any portion of the compensation. It was held by Macleod J. that they were not. But the decision was reversed in appeal. In the course of his judgment Batchelor J. observed as follows (p. 51) :- In Bombay Improvement Trust V/s. Jalbhoy, following Collector of Belgaum V/s. Bhimrao, I expressed the opinion that the Act contemplates an inquiry to ascertain the value of the land itself considered as if all interests combined to sell; and I see no reason at present to alter that opinion as to the general scheme of the Act, It is, however, admitted that the point now before us was not decided in Jalbhoy's case, but is resinlegra for onr decision now ... But ... there is nothing in the Act which excludes from its operation cases where Government hold some interest in the land to be acquired. The case was remanded to the trial Judge for the determination of the following issues:- (i) At the material time what interest had the respondent {claimant) in the land (apart from the building itself) ? (ii) To what compensation is he entitled in respect of that interest ? 15. This decision is an authority for the proposition that where Government, have some, interest in the land to be acquired, all that the claimant is entitled to is the value of his interest in the land, and it is this value alone that has to be determined by the Court. This case was followed in Mangaldas V/s. Assistant Collector, Ahmedabad (1920) 23 Bom, L.R. 148, and the ruling was accepted, by Macleod C.J. in Moos V/s. Government, of Bombay, cited above. 16. It was pointed out by Mr. Mulla for the claimant that both in Esufali's case and Mangaldas case the relation between Government and the claimant was that of landlord and tenant, while in the present case Government claimed no proprietary interest in the land under reference, but had only a right to levy toka assessment, with the additional right to increase the assessment in 1929-30. But in Moos's case also the only claim of Government was for toka assessment, as in the present case, and Macleod C.J. accepted the principle of the decision in Esufali's case though it was a reversal of his own judgment delivered while he was a puisne Judge. 17. I think that prima facie the expression "market value of the land" in Section 23(2) means the market value of all interests in the land. But in cases where Government have an interest in the land, that expression must mean claimant's interest alone, that interest being the only interest that is acquired by Government. In the present case, Government have admittedly an interest in the land, though it is an interest limited to their toka claim. The Land Acquisition Officer, it seems, followed the decision in Esufali's case and he determined the market value of the claimant's interest alone and added fifteen per cent, to it. 18. As regards the contention that it would be inequitable if the claimant were to get 15 per cent, on the amount of the Government claim, I think that the Court has to determine the meaning of the section in question, and if the plain meaning of the section involved such a result, the Court must give effect to it, leaving it to the Legislature to remedy the defect. In the present case, however, the question of inequity does not arise in view of the interpretation I put upon this section. 19. The reference must, therefore, be dismissed. 20. As regards costs, it is to be observed that after the reference was filed, Government paid to the claimant Rs. 11,114-3-8 in all, thus admitting the validity of the claimant's objection that the amount awarded by the Land Acquisition Officer to Government was too much. At the same time the only point argued before me was as to the 15 per cent, and on this Government haye succeeded. 21. The order for costs, therefore, will be- (i) Government to pay claimant's costs of the correspondence between the parties from July 18, 1925, to May 4, 1926, including the correspondence between the claimant's attorneys and the claimant's engineers between those dates in connection with the toka claim of Government. (ii) Claimant to pay costs of Government up to July 8, 1925, and also costs of Government after May 4, 1925, up to February 27, 1927, including costs of all postponements. (iii) As to costs after February 27, 1927, up to and including to-day, each party to bear his own. (iv) Claimant to pay costs of Government after today.