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Judgment
Vepa Ramesam, Kt., Offg., C.J.—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.
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 u/s 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, u/s 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 u/s 14 of that Act shall operate in respect of any land covered by it as a declaration u/s 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 u/s 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.
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 u/s 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 u/s 12, the
Municipal Council could suo mo tit frame a scheme u/s 10(3) or Section 11 and the Government may approve of the scheme u/s 14(3) and further
proceedings can follow a notification by the Government u/s 14 of the Act. He finally held that though the notification u/s 12 lapsed and there was
no notification u/s 10(1), and therefore Section 35(2)(a) of the Town Planning Act could not be applied, the notification u/s 14 could still be utilised
for a date to calculate the values. u/s 23 of the Land Acquisition Act the market-value of the land on the date of the publication of the declaration
u/s 6 must be taken into consideration. u/s 34 of the Town Planning Act the notification published u/s 14 of the Town Planning Act is itself deemed
to be a declaration u/s 6 of the Land Acquisition Act. He therefore held that 21st September, 1923, the date of Ex. D, the final notification u/s 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 u/s 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 u/s 12 of the Town Planning Act, and therefore Section 35(2)(a) could not be applied. He therefore chose the notification u/s 14 which
is equivalent to a declaration u/s 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.
The next question is whether there was an operative notification u/s 12 so that we might take its date as the date with reference to which the
lands have to be estimated u/s 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 u/s 11 suo motu and another prepared by the Council u/s 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 u/s 12. Nevertheless Section 14(3) may refer to a draft scheme u/s 11(1) or a draft scheme submitted u/s 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 u/s 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 u/s 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 u/s 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 u/s 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 u/s 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 u/s 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 u/s 12, though in such a view we have got a merger of the notification u/s 12 and
the notification u/s 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 u/s 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.
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.
[After discussing the evidence regarding the rate, His Lordship proceeded:]
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.
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 u/s 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.
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.
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.
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 u/s 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, 26 CWN 713 (Privy Council) , 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 IndAp 197 : ILR 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 26 CWN 713 (Privy Council) have effected a change in both these matters. In 26 CWN 713 (Privy Council) 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 u/s 31(2) ; but there is nothing in the judgment of their Lordships which shows that the decision turned upon anything peculiar to Section
Section 31(2) refers to the Court to which a reference u/s 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....
This shows that the conclusion of the Court on a reference u/s 49 is regarded as a decision and if the conclusion on a reference u/s 31 is a
decree there is no reason why a decision u/s 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 u/s 31(2) are also decrees. I do not see any reason why decisions on reference u/s
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.
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.
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 ILR (1903) 27 Mad. 350 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.
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.
Memorandum of Objections in A.S. No. 227 is not pressed and is dismissed with costs.
Cornish, J.
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.
In my opinion, 1st February, 1921, the date of publication in the Fort St. George Gazette, of the Government''s notification u/s 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 u/s 12 is free from the limitation imposed by Section
11.
The question is, does the fact of the Local Government altering the date originally fixed for submitting a scheme u/s 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 u/s 10(1) when a Municipal Council has in the exercise of its
powers u/s 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 u/s 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 u/s 10(1) the Municipal Council obtained an extension of time from the Local
Government u/s 11(1) for the preparation and publication of the draft scheme, the date for determining the market-value u/s 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 u/s 10(1), but the date when time was finally extended u/s 11(1). And I see no reason why an extension of
the time originally fixed by Government u/s 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).
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.
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 u/s 9 of the Land Acquisition Act furnished the proper opportunity to the appellant to make a claim u/s 49. But
the particulars required to be put forward u/s 9 are quite different from a claim u/s 49. It is not necessary to decide whether, when a draft scheme
is published u/s 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 u/s 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 u/s 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 u/s 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.