The Judgment of the Court was as follows:

1. Under five notifications of diverse dates the Province of Bengal requisitioned a large area of land in what may be termed the Lake Area, one of the beauty spots in the town of Calcutta, under r. 75A of the rules framed under the Defence of India Act (XXXV of 1939). The said lands which are depicted in different colours in Map No. 19 are vested in the Respondent, the Board of Trustees for the Improvement of Calcutta (hereafter called the Board). They fall roughly in two blocks—one to the North of a broad road constructed by the Board called the Southern Avenue and the other to the South thereof. No claim has been made by the Board for the roads running within the area requisitioned.

2. The lands of the Northern Block are surplus lands of scheme No. XLVII 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. XLVII was a general Improvement Scheme as defined in sec. 36 of the Calcutta Improvement Act (Bengal Act V of 1911). This scheme had not been fully executed at the date of the requisitions.

3. 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 Scheme in other localities. One of the declarations for acquiring lands in the southern block was made on 14th December, 1915, under sec. 6 of the Land Acquisition Act (I of 1894). It is Exhibit B (Part II, page 110); other declarations were to the same effect. The material portion of Exhibit B runs thus:

“Whereas it appears to the Governor in Council that land is required to be taken by Government at the expense of the Calcutta Improvement Trust for a public purpose, viz., for the purpose of obtaining a sufficient supply of earth for the operations of the Trust and for the construction of a Park and Lake in villages Mudiali, etc. ….. it is declared that for the above purpose a piece of land measuring more or less 412 bighas of standard measurement bounded on the ….. is required within the aforesaid villages of Mudiali, etc.”.

4. The purpose of excavating a lake was for getting earth which would be required to raise the level of lands in improvement schemes. At the time of the requisitions under r. 75A a portion of the southern block had been converted into a lake, the earth taken out having been used for raising the level of lands in improvement schemes. A portion called the “Excavation Area” has been reserved for a lake to be dug in future for a like purpose in view, but was being then used as a park and the rest had been made a park. The park is to the south of the lake and north of the railway embankment of the Budge Budge line of the Bengal and Assam Railway.

5. In view of the provisions of sec. 19 of the Defence of India Act, the Board claimed substantial compensation for every description of land requisitioned. The claim was a claim of monthly rent calculated on the basis of 5 per cent. return on the “market value” of the land plus occupier's share of municipal rates. The Collector of Twenty-four Parganas who represented the Government in the negotiations with the Board recommended acceptance of the Board's terms, but the Province of Bengal did not accept his recommendations. The position that the Province of Bengal took up in all the cases was that only a symbolic compensation in the shape of rent at the rate of Re. 1 per cotta per month was payable. The reason in support of symbolic compensation is stated in the several references made by the Collector to the arbitrator appointed under sec. 19 of the Defence of India Act in the following words:

“Prior to the requisition the property was lying vacant for which the owners derived no income whatsoever. They have therefore suffered no loss for which they can claim compensations. For this reason a symbolic compensation of Be. 1 per kata per mensem has been assessed.”

6. There being no agreement on the amount of compensation five references were made under sec. 19(1) (b) of the Defence of India Act to Mr. De, who was the then Additional District Judge of 24-Parganas. They were numbered as Land Acquisition cases 30 to 34, 72 and 79 of 1944, which correspond to appeals from Original Decrees Nos. 71 to 75, 162 and 163 of 1945 respectively.

7. 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 excess 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 sec. 19(1) (b) of the Defence of India Act held that the claim to pay only symbolic compensation was not admissible. We assessed compensation in the shape of monthly rent calculated at five per cent, on the market or sale value of the lands which he valued at different rate ranging from Rs. 2,800 to Rs. 3,000 per cotta. For the lake he took Rs. 1,000 per cotta. The Board claimed no compensation for the roads which had been requisitioned and so no compensation was given for them. There is no controversy before us relating to the figures at which market-value of the requisitioned lands has been assessed by the Arbitrator. The contentions in support of the appeals are

(i) that only symbolic compensation is permissible for everything that has been requisitioned;

(ii) alternatively, that no compensation ought to be given for anything except for the fully developed building sites in the northern block and that with regard to them the measure of compensation should be the interest at 3 per cent, per annum on the market-value, and

(iii) that in any event the amount of compensation awarded by the Arbitrator is excessive.

8. The first two questions depend upon the construction of sec. 19, sub-sec. (1), cl. (e) of the Defence of India Act and as that has been modelled, as it must be, on sec. 299 of the Government of India Act of 1935 its construction must be made in the light of the provisions of the last-mentioned section of the Government of India Act.

9. The relevant portion of sec. 299 requires that land [which includes immovable property of every kind and any right in or over such property (sub-sec. 5)] can only be acquired under the authority of law and only under a law which provides for the payment of compensation and . . . specifies the principles on which and the manner in which it is to be determined.

10. Rule 2(ii) of the Defence of India Rules defines the term “requisition” and r. 75A deal with requisition of movable and immovable property. According to its definition requisition means taking over of possession by the requisitioning authority—the Central and Provincial Government as the case may be—and in relation to the owner of immovable property the effect is that the owner is deprived of his possession, though not of his ownership, unless under sub-r. (2) of r. 75A the requisitioning authority chooses to acquire the property out and out. On requisition the owner loses his possession only which 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.

11. sec. 19 of the Defence of India Act does not in terms speak of requisition. It, however, contemplates the case of “temporary acquisitions” also [cl. (e), sub-cl. (ii)]. In view of that provision in the Defence of India Act and of the provisions of sec. 299, sub-sec. (2) read with sub-sec. (5) of the Government of India Act we hold that sec. 19 of the 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 sec. 23(1) of the Land Acquisition Act of 1894 with such adaptations as the-nature of the case may require. As sub-sec. (2) of sec. 23 of the 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 sec. 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 have the “market-value” thereof, which means the fair price which a willing seller not obliged to sell, would have got from a willing purchaser at the date of the notification for acquisition; and that where only an interest in land has been acquired under these rules, as for instance, only possession, the owner must have the “market-value “of that interest, if by its nature it has a market-value. If by its nature it has a value there is no escape, as there is the statutory liability under sec. 19(1) (e) of the Defence of India Act to pay compensation on the basis of the “market-value” of the interest acquired. The ground given by the Province of Bengal as stated in the Collector's references in support of its contention for symbolic compensation is in our judgment unsubstantial, for if pushed logically, it would mean that no compensation would have to be paid to the owner in the case of an out-and-out acquisition where the land was at the time of the acquisition lying vacant. The true test seems to us to be not what the owner was doing with it at that time but what he could have done at that time if he so wished or in other words what right he had then. The general principle as was conceded in Ujagar Lal v. Secretary of State for India in Council(1) and laid down in many other cases is that the value of the land should be calculated with reference to the most lucrative and advantageous way in which the land might be used. One aspect of this principle is the concept of “potential value” as explained in In re: Lucas(2), Cedars Rapids, etc.(3) and Raja Vyricherla v. The Revenue Divisional Officer, Vizagapatam(4). For the aforesaid reasons we cannot accept the contention of the Province of Bengal that for all that has been requisitioned only symbolic compensation is payable.

12. The foundation on which the alternative contention of the learned Advocate-General has rested is the evidence of Mr. Parks, the then Chief Valuer of the Board, 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.

13. 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 traffic and for ornamentation, that the lake brought no income, and that the park and the lands of the Excavation Area could have been readily let out at the material point of time, if the Board was so minded. On these facts the learned Advocate-General has urged that so far as the lands of the southern block and of the round-about are concerned no question of sale or lease can arise, as the Board has in law no power to offer them for sale or for lease or for letting them for hire even if it was so minded, and that the only disadvantage from a practical point of view at which the Board had been placed by reason of the requisitions is that it was unable to sell only those building sites in the northern block which were ready for sale at the dates of the requisitioning notifications; that the only likely loss to the Board is therefore the loss of interest on the price of those plots only. The compensation therefore, according to him, can be claimed by the Board in respect of those plots only and of no others, even not of the undeveloped building sites, and as 3.64 per cent, per annum was the rate of interest on Government securities at the relevant time the amount of compensation should not be more than 3.64 per cent, per annum on the market-value of the developed plots to be paid as long as those lands were not released. He admits that cls. (b) and (c) of the requisition notifications are not strictly according in the provisions of r. 75A, for the furnishing of information's and the restrictions on the owner in the matter of disposal of the land relate, according to sub-r. (5) of the rule, to a period before the requisition is actually made. Those clauses of notifications can therefore be disregarded: Cl. (a) which is in accordance with r. 75A required the Board to place the lands at the disposal of the Land Acquisition Collector from a stated date till six months after the termination of the war unless relinquished earlier. The requisitions were therefore for an uncertain period.

14. We have already held that compensation had to be paid in every case where the subject-matter by its nature has a value. Sub-r. (4) of r. 75A expressly provides that compensation has to be given in the case of requisitions also. The measure of compensation is not indicated in that sub-rule, but that is to be found in sec. 19 of the Act. It must be “the 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.

15. Lands acquired for the Board under the provisions of sec. 69 of the Calcutta Improvement Act vest automatically in the Board by reason of sec. 17A of the Land Acquisition Act which has been added to the last-mentioned Act by reason of the provisions of sec. 71(b) of the former Act, and prima facie the Board would have the right, in view of sec. 81 of the 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 vacant lands in that area. Compensation will have to be paid, therefore, for the undeveloped building sites also on the same basis as for the developed building sites.

16. The next question is whether the round-about stands on the same footing. The land is vested in the Board as its owner, but it being part of an “improvement scheme,” there are limitations on the Board's powers. Those limitations are defined in sec. 50 of the Calcutta Improvement Act. As Scheme No. XLVII, of which it is a part, has not yet been fully carried into execution, the Board has power to alter the Scheme without the sanction of the Local Government, if the alterations be not hit by any one of the three provisos to that section, and it would not be hit if the Board were to determine that only the lands of the round-about be plotted into building sites. At the time of the requisitions there was no legal restriction on the Board by reason of which it was deprived of the power to put the same to any beneficial use. Even if there be restrictions in law, for the reasons which we would state in dealing with the park, we hold that the Board is entitled to adequate compensation for the round-about.

17. We will now consider the position in relation to the “Excavation Area” and the lake.

18. A Corporation is the creature of statute. It will have only those powers which have been expressly conferred on it by the Statute which has created it, and also all such other powers which may be necessary for effectively carrying out the purpose for which it was created, and also all such powers as may be incidental and necessary to the exercise of the powers expressly conferred on it. A Corporation which has been given the right to own land would necessarily have the power to alienate it for any interest it may deem fit, unless restrained therefrom either expressly or by implication, provided, however, such alienation be in the ordinary mode of conducting its business or operations. [Brice on Ultra Vires, Part III, Chapter I, sub-sec. (vi), Article XXV at page 128, 2nd Edition]. In the case before us the power, of alienation by way of sale, lease, etc., has been given expressly by sec. 81 of the statute. There is no express provision in that statute, which has taken away from the Board those powers in respect of any particular class of land that it may be owning. To determine whether the power of alienation has 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.

19. The general purpose of the Calcutta Improvement Act, which has been expressed in the preamble is, for the improvements and expansion of the town of Calcutta, and those are to be effected through the Board. Secs. 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 sec. 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 the area comprised in the scheme but which were no longer necessary for the Board's operation after the scheme had been completely executed. The power to raise the level of land in an area comprised in an improvement scheme necessarily carries with it the power to get earth for raising the level. It is common knowledge that the immediate suburbs of Calcutta, to which the town was to be extended, as it was in 1911, consisted mostly of low lying paddy lands and of tanks and dobas (small tanks) and a part of Calcutta itself, namely Bhowanipore, which required improvement was full of tanks and dobas. Acquisition of land in an area outside the area of a particular improvement scheme, for the purpose of getting earth therefrom by excavation for the purpose of raising the lands of the area of any improvement scheme is therefore a necessary and ancillary purpose and after that ancillary purpose has been fulfilled the Board in our judgment has under the provisions of sec. 81 the option of either retaining the used-up land or of disposing it of by sale, lease or by letting it on hire. The Board had therefore the right to lease the lake.

20. As acquisition of land for getting earth is an incidental purpose the Board therefore has the option of not using it for that purpose, if it later on and after the acquisition came to the conclusion that earth may be obtained and carried more cheaply to an improvement area from other localities. In that event it can abandon its intention of getting earth from the plot so acquired and consequently dispose it of in any manner it likes. Even if the Board has no such option to abandon and so to dispose it of, we hold that there is no restriction on its power to put it to any beneficial use and more so till the time when it would require it to be dug up. During that period it has the right to let it on lease or hire, We accordingly hold that compensation is payable for the lake and the “Excavation Area.” Even if the Board had not the power to sell, lease or let on hire these items of property for the reasons which are giving for the park would apply to them.

21. We will now take up the case of the park. One of the purposes of the Calcutta Improvement Act is the providing of open spaces for purposes of ventilation and recreation. It is the common case of the parties that the lands of the park had been acquired for the Board for the express purpose of a park. The Board became the owner and so had possession. Its ownership, however, is restricted ownership.

22. In Brice on Ultra Vires the law has been summarised thus:

“If Corporations acquire lauds, easements or other proprietory 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 III, Chapter I, Sub-section VI, Article XXI, page 131, 2nd edition).

23. Dealing with the case brought by the vendor for injunction, whose lands had been acquired for a special purpose by a railway company under compulsory powers, Lord Chief Justice Campbell observed in Bostock v. North Straffordshire Railway(5) 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.”

24. This rule would in our judgment equally apply to a case where the special purpose is set out in the instrument or notification of acquisition, and so any user by the Corporation for a purpose other than that specified would be unlawful and may be restrained by persons interested or affected by the deviation. It would follow that the right conferred on the Board in general terms by sec. 81 of the Calcutta Improvement Act to sell, lease or let for hire the lands vested in it has been taken away by necessary implication in respect of lands acquired by the Government for the Board for the express purpose of providing an open space for ventilation and recreation, for the exercise of the power of sale, lease, etc., would defeat the purpose for which the said land had been acquired.

25. The position then in regard to the park is as follows:

(a) that the Board is the owner;

(b) that it has possession;

(c) that it holds it for the benefit of the public;

(d) that it cannot in law put it to any other use, and

(e) it has no right to sell, lease or let on hire the same or any portion thereof.

26. In these circumstances the question is whether it is entitled to get compensation for losing its possession by reason of the requisition. The question is not free from difficulty. So far as we are aware there is no precedent in the Indian High Courts and the cases decided in England, which have a bearing on the question, do not speak with one voice. The case of Manmatha Nath Mitter v. Secretary of State for India in Council(6) related to the lands of a public highway. The important cases for consideration are Hilcoat v. Archbishop of Canterbury and York(7), Stebbing v. Metropolitan Board of Works(8), In re: City and South London Railway(9) and Corrie v. MacDermot(10) and Lord Shand's award in respect of the Prince's Street Gardens in Edinburgh. The award is given in full in Cripps on Compensation, page 916, 8th Edition. (As the case before us is of requisition, which is not to last long, the possibility of the restrictions on alienation being removed cannot be taken into consideration in assessing compensation, as ithat would not be a reasonable possibility.

27. In Hilcoat's case 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 that there was no misdirection. The first reason for so holding was stated by him in the following words:

“The owner is to be paid the value.” That enactment (the private Act of Parliament under consideration) is unaccompanied by any words of qualification or restrictions; and there seems to be no reason for construing the words in any other than their ordinary sense and meaning.

“The Act of Parliament was passed for the purpose of withdrawing the Church, ground and buildings from spiritual appropriation and applying them to secular uses; and in connection with that determination, the duty was imposed of paying the owner the value of the ground and buildings not forming the site of the Church and in the absence of any peculiar rule being prescribed for ascertaining such value, it is reasonable to infer that the value was to be ascertained in relation to the nature and the situation of the property generally, and its applicability to ordinary purposes discharged of any prescribed appropriation.” The second reason was formulated thus:—

“By the appropriation of property to ecclesiastical or spiritual purposes, the owner voluntarily sacrifices the pecuniary value of the property so appropriated; but he makes that sacrifice to obtain an object which he estimates of greater value than the pecuniary value. But when the object is entirely withdrawn from him, by the application of the property, against his will, to secular uses, and these uses connected with pecuniary profit, it does not seem consistent with justice to estimate the value to the owner upon the footing of its irrevocable appropriation to these spiritual purposes from which it has already been withdrawn”.

28. It is not necessary for us to invoke the second reason but it may not be out of place to note that the second reason was quoted by Vaughan Williams, L.J, in City and South London Railway's case, the learned Lord Justice observ ing that the said reason was equally applicable

“to every sort of property which is devoted to such purposes that it cannot be sold, and that a person or corporate body which has obtained power to acquire the land, as if there was no such restriction, cannot acquire the land and then ask that the price should be assessed on the basis that the property is still subject to the restriction.”

29. The fact, which was the case in Hilcoafs case 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' Street Gardens case(11). 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 feuing or building subject, and that as the Corporation have 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. I entirely concur in this view.”

30. The facts of that case are very similar to the case of the park we have before us. Till the time contemplated by sec. 177 of the Calcutta Improvement Act arrives the Board would be using it for the citizens of Calcutta. The reason given in Lord Shand's award was referred to with approval in Corrie's case where Monmatha Nath Mitter's case was cited at the Bar by Sir Robert Finlay. The case of Manmatha Nath Mitter v. Secretary of State for India in Council in our judgment is distinguishable. It was assumed by their Lordships of the Judicial Committee in favour of the Appellant that the sub-soil remained the property of the Zemindar (Monmatha Nath Mitter) after his grand-father had dedicated the lands to public use to be used as public highways. The lands subject to public user as highway as they were at the date of the acquisition had by their nature as market-value. In a way this was accepted by the Appellant's Counsel but his argument was that when compensation was actually awarded the road had been broken up and the land thus freed from the burden of the road was capable of being used for any purpose. This argument was repelled by Lord Hobhouse who pointed out that the material point of time at which the rights of the owner, whose land has been acquired under the Land Acquisition Act was when his land was acquired and not when the award for compensation was made, and that the principle was that no increase in the value of the land that is likely to accrue from the use to which it may be put after acquisition can be taken into consideration in assessing compensation. In that case, unlike the case of Princes' Gardens Edinburgh, the Zemindar was not representing the public holding and using the land for the benefit of the public. The case before us is like the case of Princes' Gardens and the observations of Lord Shand that compensation on the basis of building sites had to be paid to the Corporation of Edinburgh for the reason that the said Corporation was using it for the community it represented would in our judgment be applicable to the case of the public park which we have before us.

31. The proposition laid down in Stebbing's case 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 Hilcoat's case 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 Stebbing's case. 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 ownership which was existing at the time of acquisition. If restrictions on the power of the owner to alienate at the time of the acquisition be taken to be a material factor in assessing compensation payable on an acquisition under the Land Acquisition Act, the amount of compensation would be different according as the property at the time of the acquisition belonged to a Hindu widow or a full owner, for a Hindu widow has only a limited power of alienation. She can alienate only for legal necessity. But sec. 32 of the Land Acquisition Act indicates otherwise. We accordingly hold that the Board is entitled to get compensation for the park on the same basis as building sites.

32. We have already held that the effect of a requisition under the Defence of India Rules is to deprive the owner of his possession. He must therefore get the value of his possession. Looking from another aspect, the requisitioning authority gets the possession from the owner and becomes, so to say, a statutory tenant. The basis of compensation must therefore be fair rent, and we hold accordingly. The question therefore is what amount should be regarded as fair rent.

33. No instance of letting of approximately similar land in the area requisitioned has been proved.

34. The six instances of letting of lands on which the learned Advocate-General has relied are in respect of

(1) 68/2 A and 68/2 B, Monoharpukur Road.

(2) 68/3 A, 68/3 B and 68/3 C, Monoharpukur Road.

(3) P. 86, Lake Road.

(4) P. 665, Rash Behary Avenue.

(5) 698 C, Gariahat Road, and

(6) 19, Gariahat Road.

35. Those plots are shown in the Key Map—Map No. 27. The first five plots of land are in different localities and at some distance from the requisitioned area. The last mentioned plot, though within Scheme No. XLVIII and very near the requisitioned area, is not within the area which has been improved yet.

36. We will first analyse the leases in respect of these properties and find out the percentage of return.

37. Plots Nos. 68/2 A and 68/2 B, Monoharpukur Road were leased out together to two joint tenants for a term of 5 years in 1938 by Exhibit 1(a). The rate per cotta was Rs. 5-8 per month. The two tenants occupied different portion, one of them, Nalini Sarkar, the back portion (No. 68/2 A) and the other, Uttama Sundari, the front portion (No. 68/2 B) and paid rent separately at the same rate even before the expiry of the lease. On the expiry of the lease and at the material time each paid at the rate of Rs. 6-8 per cotta per month. The back portion after division among the two tenants became a tendem plot (Map No. 12). The evidence is that its market-value would be Rs. 1,600 and the front portion Rs. 2,400 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 owners' and the occupiers' (Ex. 33).

38. Premises No. 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 Rs. 6 per cotta per month. The price of those plots would be a little less than that of 68/2 A, Monoharpukur Road. Taking it to be about Rs. 1,500 per cotta the return on the market-value would be 4.8 per cent, plus all municipal taxes.

39. 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 must be left out of con- sideration. The rent was clearly abnormal rent.

40. Premises No. P. 665, Rash Behary Avenue, was let out at Rs. 4 a cotta per month (Ex. A) to one Anil Krishna Roy Chowdhury on the 1st March, 1943. The value of the land may be taken at Rs. 3,000 per cotta (Ex. 34). The return was therefore 1.6 per cent, plus all municipal taxes. A portion, which was sub-let, gave a return of 11.8 per cent. Anil has deposed. He said that he got the lands at very low rent, as there was then an exodus from Calcutta. In his cross-examination he said that there was no exodus from Calcutta in 1943 due to war panic. The matter rested there. It ought to have been cleared up in re-examination. It is, however, common knowledge in Calcutta that the exodus from war panic was in the early part of 1942 when the Japanese invaded Burma, but there was another exodus later on due to the bombing of Calcutta. That exodus began shortly after the first bomb fell. That was about the 22nd December, 1942 and Calcutta had a deserted look till about June or July, 1943. Be that as it may, this would not be of much assistance, for no other instance has been proved where rent was so low. The rent paid in this instance cannot be considered to be fair, especially when there is so great a disparity between what the lessee paid to his superior landlord and what his sub-lessee paid to him.

41. The rent paid for the land at 698 C, Gariahat Road was Rs. 9 per cotta per month (see evidence of Pramatha Nath 195) plus occupier's share of taxes. Mr. Parks in his calculation takes the value of the land at Rs. 3,000 per cotta this basis the return comes to 3.25 per cent. The return from the sub-tenants were, however, very high. For the reasons we have given in respect of P. 86, Lake Road, the high rate of rent paid by the sub-tenant should not be taken into account. The value of the land, according to the Appellant, is to be taken at a much higher figure than Rs. 3,000 a cotta. Two of the adjoining plots (Nos. 8 and 9 of Scheme No. 48) were sold at Rs. 4,400 and Rs. 5,100 per cotta (Exhibit E). Taking the price at Rs. 4,400 per cotta the return is about 2¼ per cent. Mr. Parks, the Chief Valuer of the Board, whose evidence we believe, however, states in his oral evidence that the sale price of the Plots Nos. 8 and 9 of Scheme 48 was not fair as the price was pushed up by competition. (Part I, page 116).

42. 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 Babalal Das (D.W 1) alias Jiban Krishna Das and the other by his brother Akhoy Kumar Das. The former paid at the rate of Rs. 5-5-3 per cotta per month and the latter at the rate of Rs. 7 per cotta per month plus occupier's share of the municipal taxes (Exhibits F and F 2). The plot was within Improvement Scheme No. 47 but the adjoining road had not been completed. Mr. Parks evidence is that price would be Rs. 3,000 a cotta after the completion of the road. On the basis of Rs. 3,000 a cotta the return works out 2.6 per cent, but the price of the land would be much less than Rs. 3,000 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 Rs. 21 per quarter and so with the owner's share of taxes it comes up to Rs. 42 per quarter, that is Rs. 168 a year. The annual value, as defined in Calcutta Municipal Act, assessed by (the Municipality would be at least Rs. 840 in view of the provisions of sec. 127(a) of the Calcutta Municipal Act. That would work out at Rs. 70 per month as fair rent, whereas the actual rent that was being paid by the two tenants together, namely, Jiban and Akhoy, was Rs. 51 per month only. This shows that the rent that was being actually paid by those two was much below fair rent. On the analysis of those cases on which reliance can possibly be placed the return varies round the figure 4.8 per cent. With the owner's share of Municipal taxes the percentage of return would be above five. We are, however, of opinion that none of these cases should be taken as guides and our reasons are as follows:—

(1) that the lands, except No. 19, Gariahat Road, were in different localities;

(2) that they were much too small in area in comparison with the requisitioned lands;

(3) that the evidence does not satisfy us that the rents paid for these plots by the lessees were fair, one of the reasons for so holding is the great disparity between the rate of rent paid by the lessees and the rate of rent paid by their subtenants;

(4) that the rents were erratic, there being no fair degree of uniformity in relation to the price of the lands.

43. We must therefore fall back upon the other evidence that has been adduced to assess the compensation for the firm lands.

44. The first item of evidence which is also supported by authoritative text-books is that the best security is Government security, the next best is secured ground rent and third best is unsecured ground rent, that the fair return in the case of secured ground rent should be half to one per cent, above the return from Government securities. Alt the relevant dates the return from Government securities was 3.64 per cent. Even if the cases before us are to he considered to be cases of secured ground rent, the fair percentage of return would be from 4.14 to 4.64 and with the owner's share of Municipal taxes added the percentage would be about 4.64 to 5.14 On this evidence the percentage given by the learned arbitrator which is 5 per cent., the owner's share being included, does not seem to us to be excessive.

45. There is also documentary evidence 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.

46. 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.

47. Those plots are marked in Map. No. 19. They are Plots Nos. 171 to 197 coloured orange and marked with the price Rs. 2,650 per cotta, Plots Nos. 198 to 202 coloured yellow and marked with the price Rs. 3,470 per cotta, Plots Nos. 204 to 207 coloured brown and marked with the price Rs. 3,020, Plots Nos. 283 to 296 coloured green and marked with the price Rs. 2,800 per cotta and Plots Nos. 8, 9, 10 and 15 hatched in red and marked some with the price Rs. 3,500 and others with the price Rs. 3,250. The Province of Bengal agreed to pay to the Board and other private proprietors rent on 5 per cent, basis, plus occupier's share of municipal taxes. The dates of the agreement are noted on the plots. The relevant documents are Exhibits 19 D, 19 E, 19 B, 19 G, 19 C and 22 and Mr. Parks' evidence is at page 111, Part I. There is no suggestion by the Province of Bengal that the rents which it had agreed to pay for those plots were not fair but excessive. We accordingly hold that the Board is entitled to get compensation on the basis of 5 per cent, of the price of the lands. We have already observed that there is no controversy before us regarding the price. The learned Arbitrator has, however, added 10 per cent, more on account of occupier's share of municipal tax. This is wrong in view of the provisions of sec. 128 of the Calcutta Municipal Act. The annual value has to be calculated at 5 per cent, of the costs of acquisition by the Board and on the basis of that annual value the consolidated rate would have to be determined. As there is no evidence about the said cost there would have been the necessity of a remand to the arbitrator in order that evidence may be led to prove what the cost of acquisition by Board per cotta was, and the occupier's share of the tax determined on the basis of annual value as indicated in sec. 128 and added to the figure which would represent 5 per cent, of the price of land as determined by the arbitrator. But the Board has agreed to forego its claim for the occupier's share of municipal taxes.

48. Regarding the lake, that is to say, the watery portion only, the assessment of compensation would have been more or lets a matter of guess work. There is, however, one piece of evidence on which we can proceed in the absence of better materials. A portion of the lake forming part of Block D marked in Exhibit B (Map No. 9) and of the adjoining park to its south had been requisitioned before under the r. 75A of the Defence of India Rules. There was an agreement between the Board and the Governor-General in Council in regard to compensation. That agreement, which is Ex. Cl, is dated 20th July, 1944. The compensation was on the basis of 1.25 per cent, of the estimated price. The amount of rent as stated in the memorandum of agreement is Rs. 2,500 per month. Mr. Parks analysed the figure and stated that it was 1.25 per cent, of the price (Part I, p. 28. 1.23). We have corrected the slips and mistakes which occur in the printed record in that part of his deposition by comparing it with the original. For the lake, which is the subject-matter of Case No. 32 of 1944 (First Appeal No. 73 of 1945), we hold that the price of land is to be taken at Rs. 1,000 per cotta and the compensation payable is to be on the basis of 1.25 per cent. thereof. The figure thus arrived at, divided by twelve, would represent the monthly compensation. The amount awarded by Mr. De in respect of the lake is reduced accordingly.

49. The result is the award given by Mr. De is affirmed subject to two variations, namely, (1) the amount representing the occupier's share of municipal taxes is disallowed, and (2) the compensation for the watery portion of the lake is reduced to one-fourth the amount awarded for it by Mr. De.

50. As the appeals have failed substantially, the Province of Bengal must pay the costs to the Respondent, hearing-fee, five gold mohurs in each of the appeals valued below Rs. 5,000 and in the other appeals valued above Rs. 5,000, the hearing-fee in each will be according to scale.