Maclean, C.J:— This appeal must succeed. Speaking with all deference I feel some difficulty in appreciating the principle of the judgment of the lower Court. The learned Judge seems to me to have missed the real point in the case, which shortly is this:— The Secretary of State has, under the provisions of the Land Acquisition Act, taken the requisite steps to acquire certain land including two tanks in the neighbourhood of Calcutta. The present Appellant says that he is a yearly tenant, at an annual rent of Rs. 125 of those tanks, and has been many years in possession of them as such yearly tenant. He is a fisherman by trade, he takes leases of tanks for the purpose of fishing, and makes, as he says, a substantial profit by his trade. He tells us in his petition how he makes a considerable profit by stocking the tanks with fish, catching the fish and then selling them. Under these circumstances, he says, he is an annual tenant of these tanks and claims to be compensated by the Government for their compulsorily taking them. I think he is right. The Judge in the Court below is of opinion that he is entitled to nothing: I think the Judge is wrong. The Appellant as a yearly tenant of these tanks, is, for the purposes of the Land Acquisition Act, in the same position as a yearly tenant of the agricultural land, and equally as much entitled to compensation. This seems sufficiently clear from the definitions of “land” and “person interested” in the Act, coupled with sub-sec. 4 of sec. 23. It would be a strange thing to say that, if instead of an annual tenancy it had been one for a term of years, the tenant was entitled to no compensation. I do not propose to say what, in this case, the amount of compensation ought to be; but the case must be remanded to the learned Judge in the Court below to ascertain, upon the evidence, what is the amount of compensation to be paid. The Appellant is clearly entitled to something: the Collector took that view.
The Appellant must have his costs of this appeal, 2 gold mohurs.
Banerjee, J.:— I am of the same opinion. The learned Judge in the Court below has held that the Appellant is not entitled to claim any compensation under the Land Acquisition Act, because he is not a person interested within the meaning of sec. 23 of the Act, and his reason is thus stated in his judgment:— The definition of “person interested” [sec. 3(b)] does not apply to the claimant who has not even an easement affecting the land acquired. A jalkar no doubt, is an easement, and immoveable property, but a fishery right differs from the fish captured in the exercise of that right. But the learned Judge overlooked the position that the claimant was admitted to have in the very objection of the Government pleader to which he gave effect. For this is how he states that objection in his judgment:—“To-day the Government pleader raises the legal difficulty that, as claimant was a yearly tenant of the tanks in suit, this Court cannot under the Act, decide the point above-mentioned.” If the claimant was a yearly tenant of the tanks he was a person clearly interested in the land covered by the tanks. It is quite true that it is not every person whose earnings are injuriously affected by the acquisition of land that is entitled to compensation under cl. 4 of sec. 23 of the Land Acquisition Act. That is clear from the decision of the Privy Council in the case of the Secretary of State for India in Council v. Shanmugaraya Mudaliar(1). But the case with reference to which their Lordships held that no claim for compensation could arise under cl. 4 of sec. 23 was different from the present. That was a case of quarrymen who claimed compensation on the ground of their earnings being affected, though they had no interest in the land. Here the claimant claimed an interest in the land which had been acquired, and the very objection to their claim admitted that they had that interest.
S.C.S
Appeal allowed: Case remanded.
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