Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • The Government Pleader (Mr. P. Venkataramana Rao) for the Appellant.
  • Mr. B. Sitarama Rao for the Respondent.
Judges
  • Sir Vepa Ramesam Kt.
  • Offg. C. J.
  • Cornish, J.
Acts
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • The Government Pleader (Mr. P. Venkataramana Rao) for the Appellant.
  • Mr. B. Sitarama Rao for the Respondent.
Judges
  • Sir Vepa Ramesam Kt.
  • Offg. C. J.
  • Cornish, J.
Acts
See more information ...
Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

These are appeals from awards made by the District Judge of Salem in land acquisition proceedings taken pursuant to the Town Planning Act (VII of 1920). The planning scheme was called the Maravaneri Extension, intended to enlarge accommodation of Salem Town.

On 1 February 1921 the Madras Government published a notification in the Fort St. George Gazette (Ex. A) under Section 12 of the Town Planning Act fixing a period of three months within which the Municipal Council of Salem should submit a scheme. The Salem Municipal Council did not submit the draft scheme within three months; the draft was submitted on 28 August 1921 (Ex. B). The Government subsequently published a notification on 21 September 1923 under Section 14(3) (Ex. D), which the court treated as evidence that the Government accepted the late draft and condoned the Municipal Council's delay.

Under Section 34 of the Town Planning Act the notification under Section 14 operates as a declaration under Section 6 of the Land Acquisition Act, and further proceedings were taken under the Land Acquisition Act. An Acquisition Officer was appointed and he made an award on 2 September 1926. Several claimants required references to the Civil Court under Section 18 of the Land Acquisition Act, and the matter came before the District Judge of Salem. Appeals against the District Judge's award were filed by the Government and one claimant; cross-appeals (Nos. 226 and 443) relate to a particular property of R. Srinivasa Rao.

Legal Issues Presented

  1. Whether the notification published by the Government under Section 12 (Ex. A) remained operative for purposes of fixing the date for ascertaining market-value under Section 35(2)(a) of the Town Planning Act, despite the Municipal Council's failure to submit the draft scheme within the period fixed.
  2. Whether the Government's subsequent notification under Section 14(3) (Ex. D) or a later notification is the appropriate date to be used for calculating market-value under Section 35(2)(a) (and whether the Government can extend or re-fix the date and the legal effect of such action).
  3. Whether appeals lie from a decision of the Civil Court on a reference under Section 49 of the Land Acquisition Act (i.e., whether such decisions amount to a decree and are appealable), in light of amendments to Sections 26 and 54 by Act X of 1921 and the Privy Council decision in Ramachandra Rao v. Ramachandra Rao.
  4. Whether a claimant (specifically R. Srinivasa Rao) is precluded by delay or otherwise from insisting that the whole house be acquired under Section 49 of the Land Acquisition Act, and if not precluded, whether the part of the premises proposed to be taken is "reasonably required for the full and unimpaired use of the house" (the substantive question under Section 49).

Arguments of the Parties

Government Pleader's Arguments

  • Challenged the District Judge's choice of date for valuation and argued that the District Judge had no power to "go behind" the reference; cited cases to that effect (mentioned generally in the opinion).
  • Argued that the District Judge was incorrect in implying that the Government had no power to extend the time mentioned in its notification (the learned Government Pleader contested the District Judge's view on extension but also contended that even if extension is permitted the date of the original notification should still be adopted under Section 35(2)(a)).
  • Argued in the Section 49 context that Sub-clause (2) of Section 49(1) indicated that claims to have the whole building acquired should be made before the Collector's award, suggesting the claimant's late claim should be precluded.

Claimant's (or Claimants') Arguments and Contentions

  • Claimants (through counsel Mr. B. Sitarama Rao for the Srinivasa Rao claimant) cited English decisions (including Khairati Lai v. The Secretary of State for India in Council) to support the contention that the whole house ought to be acquired in certain circumstances.
  • Claimant contended that the statement of 29 September 1926 (seeking acquisition of the whole house) was timely and that he was not precluded by laches or estoppel from making the claim after the award; counsel also relied on authorities to show appeals under Section 49 have been entertained by High Courts.

Court's Remarks About Parties' Arguments

  • The court observed that the English decisions cited were based on earlier statutes and did not address the particular clause now present in Section 49(1); the court considered those English decisions of little value in the Indian context given the differing statutory language.
  • The court also addressed the Government Pleader's contention that the claimant should have made his Section 49 claim before the Collector's award, finding that neither Section 49 nor the statutory scheme required such a timing as a bar.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Ramachandra Rao v. Ramachandra Rao (1922) L.R. 49 I.A. 129; I.L.R. 45 Mad. 320; 43 M.L.J. 78 (P.C.) Privy Council held that when a Civil Court decides any question other than only the amount of compensation after a reference under the Land Acquisition Act, the order of the Civil Court amounts to a decree and is appealable and res judicata. Used to conclude that decisions on references, including under Section 49, are to be treated as decrees and therefore appealable; this change (together with statutory amendment) overrules earlier views that awards were not decrees.
Rangoon Botatoung Co., Ltd. v. The Collector, Rangoon (1912) L.R. 39 I.A. 197; I.L.R. 40 Cal. 21; 23 M.L.J. 276 (P.C.) Privy Council decision which had earlier held that awards under the Land Acquisition Act were not decrees and that, apart from an award, there could be no decree making the matter res judicata. Referred to as representing the pre-amendment view which has been superseded by the amendments and by Ramachandra Rao; relied upon to explain why earlier decisions are of diminished value.
Venkataratnam Naidu v. The Collector of Godavari (1903) I.L.R. 27 Mad. 350 Discussed the insertion of a clause in the Indian Act intended to meet English decisions (i.e., showing statutory difference from English law). Relied upon to explain that English decisions based on a different statutory text are of little value regarding Section 49(1) in the Indian Act.
Khairati Lai v. The Secretary of State for India in Council (1899) L.L.R. 11 All. 378 English decision cited by claimant counsel concerning compulsory acquisition of whole houses in some circumstances (authority relied upon by claimant). Cited by claimant's counsel but the court treated such English decisions as not directly applicable because the Indian statutory provision (Section 49(1)) contains a clause intended to meet those decisions; therefore the decision was of limited value in the present context.
Venkatareddi v. Adhinarayana Rao (citation not expanded in the opinion) Cited as authority that was followed in turn by Ramachandra Rao; invoked in relation to whether decisions on reference under Section 49 are decrees. Used as part of the line of authority supporting the proposition that the Court's decision on a reference under Section 49 is a decree and therefore appealable.

Court's Reasoning and Analysis

The opinion contains multi-faceted reasoning addressing procedural, statutory-interpretive and factual questions. The court's analysis can be summarized step-by-step as follows, closely following the text:

  1. Interpretation of Sections 10–14 of the Town Planning Act:
    • The court examined the interplay between Section 12 (Government inviting the Municipal Council to submit a scheme within a fixed date), Section 11 (municipal initiation and publication), and Section 14 (government approval and publication of draft scheme).
    • It was noted that Section 12 originally lacked an express provision for publication of a draft scheme as Section 11 contained, creating a textual difficulty when Section 14 refers to "the date of the publication of a draft scheme." The court accepted the view (adopted by the District Judge and argued by the Government Pleader) that Section 14(3) could apply to drafts under either Section 11 or Section 12.
    • The textual defect in Section 12 was observed to have been remedied by a subsequent amending Act, but the court resolved the interpretation issue on the basis that Section 14(3) can apply to a draft scheme submitted under Section 12 as well as to one published under Section 11.
  2. Whether the original Section 12 notification (Ex. A) remained operative or was "spent":
    • The District Judge had held that because the Municipal Council failed to submit the draft within three months, the original notification was spent and that the Government had no power to extend the time fixed in Ex. A; nevertheless the District Judge found subsequent proceedings under Section 14 were valid and adopted the date of the Section 14 notification (Ex. D, 21 September 1923) for valuation.
    • The High Court reviewed this and observed that the Act does not itself fix a mandatory, unchangeable period; the date is to be fixed by Government and a later notification can validly fix a new date (the court characterized such an act as effectively a fresh notification rather than an impermissible "extension" of the first notification).
    • The court rejected the Government Pleader's argument that an extension of the original date (if given) nonetheless leaves the original date as the operative date for Section 35(2)(a). The court reasoned that Section 35(2)(a) contemplates "the date of a notification which prescribes a date within which the Municipal Council should act and has acted," and if the Government publishes a second notification condoning delay, the later notification's date is the one to be adopted.
    • Nevertheless, the court acknowledged that by "some straining of language" the final notification of 21 September 1923 might be regarded as a Section 12 notification merged with Section 14 proceedings and held that, on this view, proceedings validly continued under the Town Planning Act and the date to be used under Section 35(2)(a) is 21 September 1923. The court observed that, if that view were impermissible, the alternative would be the District Judge's approach.
  3. Practical valuation:
    • The court stated that the date-dispute was largely academic in the present case because there was documentary evidence indicating that on 1 February 1921 the rate of 0 annas 2 pies 3 a pie (described in the opinion as "0-2-3 a sq. ft.") should be adopted as the value of the lands. (The opinion later records evidentiary analysis supporting a rate a little over 2 annas per sq. foot for February 1921.)
  4. Whether appeals lie from decisions on reference under Section 49:
    • The court traced the prior position (cases decided before the amendment and the Privy Council decision) in which awards under the Land Acquisition Act were treated as non-decrees. It then explained that the amendment of Sections 26 and 54 by Act X of 1921 and the Privy Council decision in Ramachandra Rao effected a change: decisions of the Civil Court on references (other than mere quantification of compensation) are to be treated as decrees and are appealable.
    • Applying that line of authority and statutory amendment, the court held that appeals lie from decisions on reference under Section 49.
  5. Whether claimant's late request (29 September 1926) for whole-house acquisition under Section 49 precluded by delay or estoppel:
    • The court found no laches or estoppel in the claimant's conduct. It also held that Section 49 does not, by implication, require that an owner make a claim for whole-house acquisition at any particular stage (for example, prior to the Collector's award). The court rejected the Government Pleader's implied-timing argument as unjustified by the statute.
    • The court noted ambiguities in the Acquisition Officer's conduct—particularly whether the officer deferred his own enquiry pending municipal action and whether he gave any notice to the claimant that further adjournment would be useless—but concluded that the claimant's request was not made too late.
  6. Merits under Section 49 — whether the part taken is reasonably required for full and unimpaired use of the house:
    • The court considered the factual situation: a small slice of the backyard (affecting a thatched fuel shed and part of a latrine) was to be taken by the proposed road. The claimant had extended the house with a kitchen in about May 1925; the proposed road did not encroach on the kitchen but ran alongside it.
    • The court reasoned that a latrine and fuel shed are necessary for the enjoyment of a house but held that there was "ample space within the backyard" to build a latrine of the previous size and to erect a fuel shed without particular inconvenience. The court rejected the idea that such conveniences must be in their exact former locations to render the land "reasonably required" for the house's enjoyment.
    • Accordingly, the court agreed with the District Judge that the claimant could not insist on acquisition of the whole house merely because a small, relocatable portion was taken; therefore the claimant's demand for whole-house acquisition failed on the merits.
  7. Damages for severance and other relief:
    • The District Judge had allowed Rs. 500 as damages for severance because the amenities of the house suffered by taking away a substantial portion of the backyard. The High Court saw no reason to differ and therefore upheld the award of Rs. 500 for severance in the relevant appeal.

Holding and Implications

Core rulings:

  • On the statutory-date issue: The court concluded that proceedings under the Town Planning Act validly continued and that the notification dated 21 September 1923 (Ex. D) could be utilised as the date under Section 35(2)(a) for valuation purposes. The court also explained an alternative perspective (adopted by another judge, Cornish, J.) that 1 February 1921 could be treated as the valuation date; but the court observed the dispute was largely academic in this case because documentary evidence supported the February 1921 valuation in any event.
  • On appeals from references under Section 49: The court held that decisions of the Civil Court on reference under Section 49 amount to decrees and are appealable (the preliminary objection that no appeal lies was overruled), in reliance on the amendments effected by Act X of 1921 and the Privy Council decision in Ramachandra Rao v. Ramachandra Rao.
  • On the claimant's Section 49 claim (Srinivasa Rao): The court held that the claimant was not precluded by delay or estoppel from making the Section 49 claim, but on the merits the court agreed with the District Judge that the portion proposed to be taken did not form part of the house in the sense required by Section 49(1); the claimant therefore could not compel acquisition of the whole house. Appeal No. 443 was dismissed with costs.
  • On severance damages: The District Judge's award of Rs. 500 as damages for severance (for loss to amenities from the taking of part of the backyard) was upheld; Appeal No. 226 was dismissed with costs.
  • Other dispositions: Other appeals in which special points were raised were dismissed with costs; Memorandum of Objections in A.S. No. 227 was not pressed and was dismissed with costs.

Implications:

  • The court's rulings confirm that, in the present statutory framework (after the 1921 amendments and the Privy Council's Ramachandra Rao decision), Civil Court decisions on references in land acquisition matters (including Section 49 references) are to be treated as decrees and are appealable. That represents a change from the earlier view (as reflected in Rangoon Botatoung) that awards were not decrees.
  • The court's interpretation of the interplay of Sections 10–14 and Section 35(2)(a) indicates that when the Government publishes a later notification condoning delay (or publishes a fresh notification), that later notification may be the operative date for valuation under Section 35(2)(a); however, in the facts of this case the valuation evidence produced yielded essentially the same practical result whether February 1921 or September 1923 were selected.
  • The immediate practical consequences for the parties are: the appeals (including No. 226 and No. 443) were dismissed with costs; the claimant (R. Srinivasa Rao) cannot compel acquisition of the whole house; severance damages of Rs. 500 awarded by the District Judge were upheld. The opinion does not state that the court created any wider binding precedent beyond the statutory and Privy Council authorities it applied.

This summary faithfully reproduces the issues, arguments, reasoning and holdings as set out in the provided opinion and does not add or infer facts or legal propositions not contained therein.

Show full summary ...

    Secretary Of State For India In Council v. R. Narayanaswamy Chettiar

    1. These are appeals against the award of the District Judge of Salem made in certain land acquisition proceedings which vvere taken pursuant to the Town Planning act (vii of 1^20). The scheme was generally known as Maravaneri Extension and was intended to enlarge the accommodation of Salem Town. The facts of the case may now be stated.

    2. On 1st February, 1921, the Madras Government invited the Municipal Council of Salem by a notification published in the Fort St. George Gazette to submit for their sanction within three months from the date of the publication of the notification a scheme in respect of the area now in question (Ex. A). This was under Section 12 of the Town Planning Act. That section authorises the Government to fix a date within which the Municipal Council should submit the scheme and the Government fixed three 'months as the period. The Salem Municipal Council did not submit their scheme within three months. The draft scheme was submitted on 28th August, 1921 (Ex. B). Seeing that the Government ultimately published a notification on 21st September, 1923, under Section 14(3) of the Act {vide Exhibit D) we must assume that the Madras Government has accepted the draft scheme though it was submitted late and condoned the delay of the Municipal Council. Section 34 of the Town Planning Act provides that a notification under section 14 of that act shall operate in respect of any land covered by it as a declaration under Section 6 of the Land Acquisition Act. So further proceedings were taken under the Land Acquisition Act. An Acquisition Officer was appointed and he made an award on 2nd September, 1926. Many of the claimants were not satisfied with it and required a reference to the Civil Court under Section 18 of the Land Acquisition Act. It was thus that the matter came up before the District Judge of Salem and against his award these appeals are filed by the Government and one claimant.

    3. The District Judge held that, as the Salem Municipal Council had not complied with the notification of the Government within three months as required in Ex. A, the notification became spent as it were and any action taken by the Municipal Council subsequently for the purpose of settling a scheme and getting the approval of the Government could not be regarded as one under Section 12 of the Town Planning Act. He then observed that the Government had no power to extend the time mentioned in the notification and therefore the notification, Ex. A, had no legal effect whatever; but he also held that the subsequent proceedings taken under the Act were still valid. He pointed out that, apart from the notification under Section 12, the Municipal Council could suo mo tit frame a scheme under Section 10(3) or Section 11 and the Government may approve of the scheme under Section 14(3) and further proceedings can follow a notification by the Government under Section 14 of the Act. He finally held that though the notification under Section 12 lapsed and there was no notification under Section 10(1), and therefore Section 35(2)(a) of the Town Planning Act could not be applied, the notification under Section 14 could still be utilised for a date to calculate the values. Under Section 23 of the Land Acquisition Act the market-value of the land on the date of the publication of the declaration under Section 6 must be taken into consideration. Under Section 34 of the Town Planning Act the notification published under Section 14 of the Town Planning Act is itself deemed to be a declaration under Section 6 of the Land Acquisition Act. He therefore held that 21st September, 1923, the date of Ex. D, the final notification under Section 14, must be taken to be the date at which the value of the plots belonging to the claimants should be ascertained, and he proceeded to give his award. This conclusion is challenged by the learned Government Pleader. He cited some cases before us to show that the District Judge had no jurisdiction to go behind the reference. But I do not think that this point arises before us. The learned District Judge did not say that the reference to him was invalid, nor is any such proposition contended for by the respondents. The District Judge held that the notification under Section 14 was a valid notification and the further proceedings were valid. All that he said was that there was no notification utfder Section 10(1), nor any operative notification under Section 12 of the Town Planning Act, and therefore Section 35(2)(a) could not be applied. He therefore chose the notification under Section 14 which is equivalent to a declaration under Section 6 of the Land Acquisition Act and proceeded to estimate the value as on that date. It is therefore unnecessary to consider the cases cited hy the learned Government Pleader.

    4. The next question is whether there was an operative notification under Section 12 so that we might take its date as the date with reference to which the lands have to be estimated under section 35(2)(a) of the Town Planning Act. Now, taking Section 14 of the Act, Clause (1) refers to the date of the publication of a draft scheme. It is clear that there are two draft schemes referred to in the prior sections of the Act, one published by the Municipal Council under Section 11 suo motu and another prepared by the Council under Section 12 on the invitation of the Government. It seems as if both the Sections 13 and 14 were intended to apply to both kinds of draft schemes. But unfortunately Section 12 did not make any provision for the publication of the draft scheme as Section 11 did, with the result that the words "the date of the publication of a draft scheme" cannot refer to the publication of a scheme under Section 12. Nevertheless Section 14(3) may refer to a draft scheme under Section 11(1) or a draft scheme submitted under Section 12. This is the view adopted by the learned District Judge, and also contended for before us by the learned Government Pleader. I agree with this contention. This defect in Section 12 has since been remedied by an amending Act and now it is clear that Section 14(1) applies to draft schemes under Section 11 or Section 12 and the original intention is now properly carried out. But this conclusion that Section 14(3) applies even to a draft scheme prepared suo motu by the Municipal Council and therefore the proceedings under the Town Planning Act are valid does not solve the question of the date of the notification which has to be adopted under section 35(2)(a). The District Judge thought that the Government had no power to extend the time mentioned in its notification of February, 1921. The learned Government Pleader argues that this view is not correct. To this extent 1 agree with the learned Government Pleader. In the first place, the Act itself does not fix any period of time before which the scheme must be submitted by the Municipal Council. The date was to be fixed by the Government. The Government had so fixed the date, but the Municipal Council did not submit its scheme within that date. If at this stage the Government sent another communication to the Municipal Council fixing another date and published it by a notification, it will be perfectly valid. Only in such a case the date of the second notification would be the date to be adopted under section 35(2)(a). Whether we call it an extension of the original date or whether we call it a. fresh notification it matters little. But what the learned Government Pleader requires for his argument is that while an extension of the original date may be made by the Government, the date of the first notification, the time prescribed in which is extended, is still the date to be adopted under section 35(2)(a). I am unable to agree with this contention. The whole policy of the Act is that a reasonable date should be fixed within which the Council should submit its scheme and this date should be notified by the Government. If the Council submits its scheme within that date, the proceedings will continue with reasonable speed and the owners of lands will have the satisfaction of their lands being acquired and prices given to them corresponding to a date not unreasonably remote from the actual acquisition; but if delay is committed by the Municipal Council and if the Government extends the time, for the same reason for which the first notification mentioning a date for the submission of the scheme by the Municipal Council should be published, there must be a notification containing the second date and this notification should be equally published. What the Act contemplates under section 35(2)(a) is the date of a notification which prescribes a date within which the Municipal Council should act and has acted. The date of Ex. A does not satisfy this condition. The Act does not expressly speak of any power in the Local Government to extend. As the sections are worded the Act contemplates that the Council has to take action within the time mentioned by the Government, but as I said an extension can always be granted by a further notification. If so, the date of the further notification will be the date to be adopted under section 35(2)(a). Now, the final notification of the Government of September, 1923 (Ex. D) certainly shows that the Government was willing to condone the delay of the Salem Municipal Council and accept the scheme submitted by the Council and by some straining of language it may be regarded as a notification under Section 12, though in such a view we have got a merger of the notification under Section 12 and the notification under section 14(4) ; but I do not see anything illegal in it, though this was not what was contemplated by ,the Act. In this view I am willing to say that tlie proceedings validly continued under the Town Planning Act and the date to be utilised under section 35(2)(a) is 21st September, 1923, and we need not fall back upon the date fixed by the Land Acquisition Act. I might add that, if this view of mine is not permissible, the only alternative view, in my opinion, seems to be that adopted by the District Judge.

    5. But it seems to me that the whole discussion is academic. In my opinion there is plenty of documentary evidence in the case showing that on 1st February, 1921, the rate of 0-2-3 a sq. ft. should be adopted as the value of the lands.

    6. [After discussing the evidence regarding the rate, His Lordship proceeded:]

    7. This disposes of all the appeals in which special points were raised except Appeals Nbs. 226 and 443 which are cross-appeals in the same case, namely, L.A.C. No. 37. It will be convenient to take up these two appeals separately. The other appeals are dismissed with costs.

    8. In these two appeals (Nos. 226 and 443) the facts arc these: One of the suggested roads according to the Town Planning Scheme cuts off a corner of the house of Mr. R. Srini-vasa Rao, an Advocate. The frontage of the house is on the western side and the road cuts off a slice in the backyard on the eastern side. When the proposal originally became known, the claimant pointed out the inconvenience caused to the house, and it was then thought that the Municipal Council should address the Government for a diversion of the proposed road. It may be mentioned here that an extension was made to the main building in about May, 1925, by the addition of a kitchen. The proposed road does not encroach on the kitchen but runs by the side of it. When the Municipal Council recommended a diversion of the road to the Local Government, the owner of another plot objected to the diversion as it caused him considerable inconvenience. The Government passed orders to the effect that unless the Municipal Council enters into an agreement with all the persons affected by the diversion the Government cannot approve of the diversion proposed. This was on 8th December, 1926. The claimant apparently anticipating that the Government would not sanction the diversion, filed his statement on 29th September, 1926, before the Land Acquisition Officer in which he,prayed that his whole house might be acquired under Section 49 of the Land Acquisition Act. The Land Acquisition Officer deals with this matter in paragraph 24 of his award. He says:

    In response to the notice under Sections 9 and 10 of the Act, Vakil. R. Srinivasa Kao states that he has moved the Municipal Council about diverting the road at this spot and that the question of acquisition may be deferred till the Municipality decides the matter.

    9. It does not appear when this statement was made. The Land Acquisition Officer then says that the Council have since approved of the deviation. But the statement of the claimant and the approval of the Council must have been prior to the date of the award, namely, 2nd September. The Land Acquisition Officer then observes:

    As however it involves a variation of the scheme sanctioned by Government the deviation cannot be acted upon without Government sanction.

    10. Then he proceeds to dispose of the matter. The award of the Land Acquisition Officer does not clearly show whether he passed any order deferring the question of this particular acquisition till the Municipality decided the matter as vvas requested by the claimant. The next sentence of the Officer suggests that he did defer his own enquiry until the Municipality decided the question. If so, it is not clear whether he gave a further notice to the claimant saying that there was no use of a fresh adjournment as the deviation cannot be acted upon without Government sanction. The sanction of the Government has been applied for by the Municipal Council on 21st November long after the award (Ex. III). So at the time of the award there was no application made by the Municipal Council to the Government. But it seems to me that the Land Acquisition Officer ought at least to have informed the claimant that further adjournment of the matter would be useless and he would proceed with it. It does not appear that he has giyen any such notice. It cannot therefore be said that the request of the claimant in his statement of 29th September was made too late. On the request of the claimant the matter was simply forwarded by the Land Acquisition Officer to the District Judge. The learned District Judge held that this was not a case in which the whole house should be acquired and he gave Rs. 500 as damages for severance besides the price of the land.

    11. The first question that arises in this case is whether an appeal lies. Two sets of cashes have been cited by the advocates on both sides. One set of cases cited by,Mr. B. Sitarama Rao, advocate for the claimant, shows that appeals under Section 49 have been entertained and considered by the High Court without any objection. The cases cited by the Government Pleader show that some Courts have held that no appeal lies. All these cases were decided before (1) the amendment of Sections 26 and 54 of the Land Acquisition Act by Act X of 1921, and (2) the decision of the Privy Council, Ramachandra Rao v. Ramachandra Rao (1922) L.R. 49 I.A. 129 : I.L.R. 45 Mad. 320 : 43 M.L.J. 78 (P.C.), dated 31st January, 1922. Prior to the said amendment and the said decision, the view generally prevailing was that awards under the Land Acquisition Act were not decrees, for it was so decided by the Privy Council in Rangoon Botatoung Co., Ltd. v. The Collector, Rangoon (1912) L.R. 39 I.A. 197 : I.L.R. 40 Cal. 21 : 23 M.L.J. 276 (P.C.) and secondly apart from an award there could be no decree under the Act so as to make the matter res judicata between the parties. Now, the amendment and the decision of the Privy Council in Ramachandra Rao v. Ramachandra Rao(1922) L.R. 49 I.A. 129 : I.L.R. 45 Mad. 320 : 43 M.L.J. 78 (P.C.) have effected a change in both these matters. In Ramachandra Rao v. Ramachandra Rao (1922) L.R. 49 I.A. 129 : I.L.R. 45 Mad. 320 : 43 M.L.J. 78 (P.C.)the Privy Council held that if any question other than the amount of compensation was decided under the Land Acquisition Act by the Civil Court after reference, the order of the Civil Court amounts to a decree and an appeal lies and the decision would be res judicata. In that case reference to the Civil Court was made under Section 31(2) ; but there is nothing in the judgment of their Lordships which shows that the decision turned upon anything peculiar to Section 31. Section 31(2) refers to the Court to which a reference under Section 18 would be submitted. In Section 49 of the Act the language used is, ...the Collector shall refer the determination of such question to the Court...In deciding on such a reference the Court shall have regard to the question....

    12. This shows that the conclusion of the Court on a reference under Section 49 is regarded as a decision and if the conclusion on a reference under Section 31 is a decree there is no reason why a decision under Section 49 should not be regarded as a decree. In the present condition of the Act all awards are decrees and all decisions of the Civil Court other than awards on a reference under Section 31(2) are also decrees. I do not see any reason why decisions on reference under Section 49 should not also be decrees. The earlier decisions therefore are of no value now. The whole scheme of the Act from the point of view of the question whether decisions of Court are decrees and whether appeals lie therefrom has entirely changed. The preliminary objection is therefore overruled and I hold that both the appeals lie.

    13. The next question is whether 'the claimant has precluded himself from insisting on the whole house being acquired by any delay in making his claim. I have already set forth the circumstances under which he made his claim on 29th September, that is, after the award, and I think there is nothing in his conduct amounting to laches or estoppel. But apart from this, there is nothing in Section 49 requiring the claimant to put forward this particular claim, namely, that the whole house should be acquired, at any particular stage of the proceedings. The learned Government Pleader argued that this Sub-clause (2) of Section 49(1) shows that it should.be made before the Collector made his award. But I do not think it shows anything of the kind. It only shows that in a case where it was made before the award the owner may withdraw or modify his desire. I cannot imply from this clause that such claims should be ma'de before the Collector made his award. I do not think that legislation by implication of this kind is justified, and apart from this clause there is no other clause which could be relied on to show that the owner should make this kind of claim before the award is made.

    14. The third question that arises in the case is with reference to the merits. The question is whether the land proposed to be taken is reasonably required for the full and unimpaired use of the house under the last clause of section 49(1). Mr. Sitarama Rao, the learned advocate for the claimant, referred to a number of English decisions and also the decision in Khairati Lai v. The Secretary of State for India in Council (1899) L.L.R. 11 All. 378 The English Act and the Indian Act (X of 1870) on which these decisions were based dicLnot contain a clause similar to that in Section 49(1). As was pointed out in the decision in Venkataratnam Naidu v. The Collector of Godavari (1903) I.L.R. 27 Mad. 350 at 354 the clause was inserted to meet these decisions. I do not therefore think that these decisions are of any value to us. In the present case a small slice of the backyard is taken away for the road. It cuts off a small fuel shed which is a thatched structure. It also cuts off a portion of a latrine at the north-east corner of the compound. It is true that a latrine is,.necessary for the enjoyment of a house. If there is no other "place within the compound where a latrine can be built for the use of this house, I think the owner can reasonably insist on trie whole house b eing acquired. I do not think it is prpper to point out to him that he'should build a latrine beyond the compound by purchasing some other site outside the present compound.' But it seems to me that the District Judge is right in holding that there is ample space within the backyard in which a latrine of the, former size, namely, 8 ft. 9 inches by 10 ft. 3 inches, can be built without any particular inconvenience to the use of the house. Similarly a fuel shed can be put up. It cannot be successfully argued that a latrine and a fuel shed can be put up only at the places at which they stood at the time of the acquisition. Only then, can it be successfully argued that the land acquired is reasonably necessary for the enjoyment of the house. I therefore agree with the view of the District Judge that this is not a case in which the claimant can insist on the acquisition of the whole house. The result is that Appeal No. 443 should be dismissed with costs.

    15. The District Judge thinks that the amenities o f the house have somewhat suffered by taking away a substantial portion of the backyard and for this he gives damages for severance - Rs. 500. We do not see any reason why we should differ from the view of the District Judge. I think therefore that Appeal No. 226 should also be dismissed with costs.

    16. Memorandum of Objections in A.S. No. 227 is not pressed and is dismissed with costs.

    Cornish, J.

    17. In the Appeals Nos. 217 to 229 I entirely agree with the judgment just delivered, except upon one point, namely, the date for ascertaining market-value for the purpose of compensation.

    18. In my opinion, 1st February, 1921, the date of publication in the Fort St. George Gazette, of the Government's notification under Section 12, is the date at which the market-value is to be determined. In the Lower Court it appears to have been thought that, because the Government was empowered by Section 12 to fix a date for the preparation and submission of a draft scheme by the Municipal Council, the date when once fixed was unchangeable. But the date is not fixed by the Act. Section 12 says that the Local Government maji require the Municipal Council " befofe a fixed date." to prepare afid submit a scheme. This clearly means that the Government is to fix a date, and a power to fix a date carries with it a power to extend the date originally fixed, unless fliere is anything in the Act to the contrary.^ On the other hand, when a Municipal Council, proceeds under Sections 9 and 10 to initiate a scheme, Section 11 fixes the time, within which the draft scheme is to be prepared and published, and the power of the Local Government to extend this period is expressly limited by Section 11. But the provision made by Section 12 is " notwithstanding anything contained in Sections 8 to 11 ", and this means that the power of the Government to fix a date under Section 12 is free from the limitation imposed by Section 11.

    19. The question is, does the fact of the Local Government altering the date originally fixed for submitting a scheme under Section 12 affect the date of the notification for the purpose of Section 35(2)? It seems to me that the fixing of a date for the submission of a scheme is subsidiary to the main object of the publication of the notification, which is to give public intimation of the Government's, resolve that a town-planning scheme shall be made by the Municipal Council. This also appears to be the main object of the notification under Section 10(1) when a Municipal Council has in the exercise of its powers under Section 9 resolvedjjOk, make a town-planning scheme. That is the reason, I think", why Section 35(2) provides that, "in determining the amount of compensation to be awarded for land required under the Act, the Collector and the Court shall take into consideration (a) the market-value of the land at the date of publication of the notification under Section 10(1) or Section 12, as the case may be." It could not, in my opinion, be successfully contended that, if after publication of a notification under Section 10(1) the Municipal Council obtained an extension of time from the Local Government under Section 11(1) for the preparation and publication of the draft scheme, the date for determining the market-value under Section 35(2) would be correspondingly shifted, (and more than one extension might be granted) for, that would be to make the date for determining the market-value not the date of publication of the notification under Section 10(1), but the date when time was finally extended under Section 11(1). And I see no reason why an extension of the time originally fixed by Government under Section 12 should have any different result. In neither case does the Act require the publication of a fresh notification when an extension of time i% given, and inihe absence of such statutory requirement it appears to me that there is, no foundation for the argument that the extended date for the submission of the draft scheme must be treated as the date of publication 'of the notification for the purpose of section 35(2)(a).

    20. But, as my Lord has pointed out, the question is not of practical importance in this tase. The evidence of sales of plots between November, 1919 to May, 1920 and May, 1921 - excluding the 6 pies plot which was obviously exceptional and should not be taken into account in striking an average - shows that a rate of a little over 2 annas per sq. foot would be a fair market-value for February, 1921.

    21. With regard to Appeal No. 443 of 1929 I agree that this appeal should be dismissed, not on the two preliminary objections taken by the learned Government Pleader, but on the ground that the District Judge has rightly held that the appellant is not entitled to compel the Municipal Council to acquire the whole of his premises. Section 49 of the Land Acquisition Act cannot, in my opinion, be construed as requiring that an owner must before the award has been made express his desire to have the whole of the house or building acquired; though that would be the normal procedure. No doubt the section provides that an owner may withdraw or modify his expressed desire before the award is made. But that does not imply that an owner who has not made his claim prior to the award can in no circumstances make it afterwards. It has been suggested that the Acquisition Officer's notice under Section 9 of the Land Acquisition Act furnished the proper opportunity to the appellant to make a claim under Section 49. But the particulars required to be put forward under Section 9 are quite different from a claim under Section 49. It is not necessary to decide whether, when a draft scheme is published under Section 14(1) of the Town Planning Act, the objections and suggestions relatin g to the scheme which have to be made within the period of sixty days would include a claim of an owner under Section 49 to have the whole of his premises acquired when the scheme proposes to take only a part, or whether, if an owner neglected to put forward this claim within the prescribed period for making objections and suggestions, lie would be precluded from doing so thereafter. The question does not arise, because there was no publication of the draft scheme here. It is dear that the appellant is not otherwise estopped by anything he did or failed to do. At the time when the award was made there was no occasion for him to put for.vPard a claim under Section 49. The Municipal Council had agreed with him to divert a road, and if this deviation from the scheme had been carried out there would have been no necessity for the taking of any portion of his premises. Unfortunately, the Government refused to concur in this arrangement and only signified their refusal after the award had been made. In this state of facts I do not think that the appellant was debarred from having the question whether the Municipal Council should take the whole of his premises referred to the Court. On the authority of Venkatareddi v. Adhinarayana Rao which in turn followed the Privy Council's ruling in Ramachandra Rao v. Ramachandra Rao% the decision of the Court upon this reference under Section 49 must be held to be a decree and therefore appealable. But I think that the appeal fails on the merits. The appellant can only insist on the whole of his house being acquired if the parts proposed to be taken " form part of the house ". This is entirely a question of fact which the Court in deciding is required by Section 49 to " have regard to the question whether the land proposed to be taken is reasonably required for the full and unimpaired use of the house". Looking at the plan of the appellant's premises it appears to me that there are good reasons for the District Judge holding that the portion taken under the scheme is not reasonably required for the full and unimpaired use of the appellant's house, and consequently the appellant cannot compel the Municipal Council to acquire the whole.

    Use AI to get other relevant cases.
    Try AI Pro free for 7 days Upgrade to AI Pro

    Comments

    Secretary Of State For India In Council v. R. Narayanaswamy Chettiar
    (Aug 11, 1931)