Lancelot Sanderson, C.J.
1. This is an appeal from the judgment of Mr. Duval sitting as the Special Land Acquisition Judge, by Mr. Grey who is the Official Trustee of Bengal acting as the Trustee to the estate of Manik Lal Seal, and the property which is the subject-matter of this valuation was used as a bazar. It comprised two plots, one was 129 Maniktola Street, and the other was of Bethune Row, As regards the Manicktola Street land, part of it was held under a lease for twenty years commencing from 1910, the rent of which at the time of this acquisition was Rs. 200 per month. By the terms of the lease the rent would have increased in 1920 to Rs. 225, and it would have remained at Rs. 225 until the termination of the lease in 1930, That lease applied to 12 cottas of the plot No. 129 Maniktola Street. The other 10 cottas of that plot are alleged to have been the property of the Trustee. As regards the other plot No. 9 Bethune Row, the Trustee was a tenantat-will. There was no tenancy agreement with regard to it, and a monthly rent of Rs. 34-6-0 was paid to two sets of people, the Dutts who were owners of 11/16ths, and Narendra Nath Bose the was the owner of the remaining 5/16ths of the plots.
2. The Deputy Collector valued the land at a total value of Rs. 1,39,667. Then he added the amount of Rs. 70 odd in respect of a hut and additional compensation of Rs. 20, 960 odd, making a total of Rs. 1,60,698 odd. I ought to mention that he awarded nothing in respect of damages under Clauses 3, 4 and 6 of Section 23(1) of the Land Acquisition Act of 1894. The valuation was based upon the net income of the market, for the years 1914 and 18-2/11 years’ purchase on that amount was allowed.
3. The first observation which I wish to make about this case is,–whether it was the fault of those who put this claim before the Deputy Collector I cannot say; but it is clear to me that the provisions of the Statute have not been followed, and the result has been that we have had a considerable amount of trouble in dealing with the case, which would have been avoided if the provisions of the Statute had been followed. The largest claim in this case is by the Trustee of the proprietors of the bazar. The profits in respect thereof were based no doubt to some extent upon rents from shops in the main building of the bazar, but they were also based upon tolls which were received from people who came to the bazar. Such profits were of a varying nature, because we were told that the tolls varied according to the number of baskets brought by the sellers to the bazar; and, it must be obvious that the number of baskets and the numbers of people carrying them must vary from month to month and perhaps from day to day. Therefore, the nature of the Trustee’s claim ought not to be treated as upon a rental basis merely, and, further it seems that his claim, in whatever form it was put in the original application, must have been to some extent for loss of earnings in respect of the business which he was carrying on in the bazar. Section 23 of the Act provides that in determining the amount of compensation to be awarded for land acquired under the Act the Court shall take into consideration “first, the market value of the land at the date of the publication of the declaration relating thereto under Section 6…”; then, fourthly, “the damage (if any) sustained by the person interested, at the time of the Collector’s taking possession of the land, by reason of the acquisition injuriously affecting his; other property, moveable or immoveable, in any other manner, or his earnings.”
4. It was admitted by the Senior Government Pleader that the valuation had not been made in accordance with the provisions of the Act, and this is obvious when we look at the facts The lessors of part of 129 Maniktola Street have been awarded a sum based upon the rent of the premises: 18-2/11 sears’ purchase was given by the Deputy Collector but the amounts awarded by the learned Judge, without the statutory additions, represent 25 year’s purchase of the rent paid in respect of part of 29 Maniktola Street at the time of the acquisition and about 25 years’ purchase of the Rs. 34-6-0, the annual rent paid in respect of Bethune Row. These sums comprise the value of the land except the small portion. of 29 Maniktola Street alleged to belong to the Trustee, which by itself and apart from the adjoining land must be of little value. But the Trustee has been awarded by the Deputy Collector Rs. 98,674-3 0,. and by the learned Judge Rs. 79,912. and this has been awarded in respect of the value of the land. This cannot be correct. This sum, I assume, must be taken to represent the Trustee’s interest in the land and loss of earnings caused by the acquisition of the bazar. But the amount has not been arrived at on that basis, for the Trustee’s claim was treated in the first instance on the same footing as the claim of the owners of the land and the same number of years’ purchase was given, though the nature of one claim was different from that of the other and though in one case the profits must have been of a fluctuating nature while in the other there was a fixed and ascertained rent upon which the valuation was based. I have drawn attention to this matter for two reasons, first, in the hope that, what I have said will have some effect upon the proceedings in future in land acquisition cases and that the claimants will endeavour to assist the authority by placing their claim in a proper form before the Collector; and also in the hope that the award may be made in accordance with the provisions of the Act. My second object is to point out that this case cannot be taken as a precedent for other cases, because of the matters to which I have already referred. Having said so much, I shall now proceed to deal with the case as well as I can. I may add that I am not at all certain that the proper course to adopt in this case would not have been to send the case back in order that the award might be made in the manner contemplated by the Act. But if we had done so, I quite see, as the learned Senior Government Pleader mentioned in the course of his argument, that the parties would have been put to a considerable extra expense. Besides our opinion is that there is a considerable probability that the amount which would be awarded to the Trustee would not exceed that already awarded to him and consequently we have endeavoured to make the best of the case that we can, and I think we have been able to come to a final conclusion upon it without sending it back to the Collector for a further award, 4. Now, the first point that the learned Counsel on behalf of the appellant made was that taking the valuation upon the basis upon which the Collector has dealt with this Base, a sufficient number of years’ purchase has not been allowed. He argued that at least twenty-five years’ purchase of the net profits ought to be allowed. I do not think that that argument ought to be acceded to for these reasons, first of all I think that the bazar must be looked upon as of a somewhat unstable nature–it was liable to competition and as we have heard in the course of this case–in fact it was affected by competition from a bazar which was started in the neighbourhood and one year’s profits were thereby considerably reduced and it is quite possible that the competition might be increased in future years and other bazars might be set up, and consequently the profits of such a business, as this, cannot be called a stable element. In addition to that, as I have already pointed out, the profits are not dependent solely upon the permanent rents of the shops in the main building but are based upon the fluctuating element of people who come to the bazar and the land adjoining the bazar in varying numbers, and with a varying number of baskets. Further, we have to remember, as regards the position of the Trustee, that he was holding part of the land under a lease which had 15 years to run, that he was holding 10 cottas only as owner subject to revenue payable to Government, and that as regards the second plot he was a mere tenant at-will, from which he might be turned out after fifteen days’ notice. These reasons, to my mind, are sufficient to justify the Collector’s and the Special Judge’s conclusions, viz., that assuming the method adopted was applicable to this case, that 18-2/11 years were a sufficient number to take as the years of purchase.
5. The next point the learned Counsel took was that the amount which had been deducted in respect of the Municipal taxes for No. 129 Maniktola Street was not correct, and that the actual amount of taxes ought to have been taken and not the 19 1/2 per cent, upon the figure Rs. 9,780. That was done in this case because the annual value had been reduced in consequence of the loss of profits which occurred in consequence of the competition which had arisen from the rival bazar and, the case of the Trustee himself being that their profits would increase in the years to come, the learned Judge thought it only fair that the Municipal taxes ought not to be taken at the sum which had been fixed upon the reduced annual value of this land. I think he was right. Therefore, the second point taken by the learned Counsel fails. I think that exhausts the two points which were taken by the learned Counsel as regards the total amount, and the result of it is that in my judgment the appeal, as far as the total amount is concerned, fails.
6. Then I come to the appeal as regards the apportionment (No. 431).
7. The learned Judge has upset the apportionment arrived at by the Collector. The Collector had apportioned the amounts due to Bhagabati Das Seal, and also the Dutts and Mr. Bose, upon the same basis as the one upon which he relied for the valuation of the total, namely, 18-2/11th years’ purchase. The learned Judge has gone into it more closely, and on the whole I think he was right. I take, first of all, plot No. 9 Bethune Row. The Collector had given Mr. Bose, the owner of that plot, in respect of 5/16ths of 6 cottas, Rs. 2,322, and the Dutts in respect of 11/16ths of 6 cottas Rs. 6,208 making a total of Rs. 8,530. The learned Judge has come to the conclusion that the Dutts and Mr. Bose ought to have the whole of the amount which could be allocated to that plot, making a total of Rs. 10,179, without the statutory addition. That works out at about Rs. 1,700 per cottla.
8. Now, having regard to the neighbourhood in which this property was situated and to the surroundings, I think it would be hard for anybody to say that Rs. 1,700 per cotta was an excessive amount for that property, even though it had only a small frontage. Looked at in another way, the amount of this award to the Dutts and Mr. Bose works out, roughly speaking, at about twenty-five years’ purchase of the annual rental. The rental, as I have said, is Rs. 34-6-0 per month, multiplying that by 12, it comes to something like Rs. 412 and multiplying that by 25, it comes to Rs. 10,300, which is more than the actual figure 10,179. But the learned Vakils for these claimants argue that it is quite right to take twenty five years’ purchase, because the rent is not a fluctuating quantity and that it has been paid for many years. On the other side. it is said that there is something fluctuating about it, because the rent of Rs. 34-6-0 per month would never have been obtained in respect of this land but for the fact of its being close to the market, and if the market is to be looked upon as an unstable element, then the rent of the land adjoining it ought to be regarded as unstable too. But there is the fact found by the learned Judge that’ Rs. 34-6-0 per month was a reasonable amount of rent which could have been obtained even if there had been no market at all. Therefore, in my judgement the learned Vakils were right in urging that the rent of Rs. 34-6-0 ought not to be regarded as a fluctuating amount, and consequently I think that the learned Judge’s apportionment, can be supported on that ground.
9. The same remarks apply to the case of the land of Bhagabati Das Seal. It is not necessary for me to say whether I agree with the principle on which the learned Judge has arrived at the amount awarded to him. He allowed 18 2/11th years’ purchase, but he then said that the claimant should have Rs. 13,000 as compensation for the reversion. I should prefer to put my decision upon the other basis and take the actual rent, Rs. 200 per month, as the basis, and allow a specified number of years’ purchase. The sum awarded amounts to 25 years’ purchase as I have already mentioned of the annual rent. That was the rent payable in respect of the land itself, apart from the buildings and there is a clause in the lease which provides that the lessee would remove, before the expiration or sooner determination of the term, the buildings which had been or might thereafter have been erected on the premises, so that the lessor would not be left at the end of the term with a bazar in respect of which there might be no customer, but would have the land clear of buildings. Therefore, I think that the same reasons apply, as with regard to the other plot of land, and that the. learned Judge was not wrong when he arrived at the conclusion that Bhagabati Das Seal was entitled to Rs. 60,000 in respect of that part of the property which was covered by the lease, and Rs. 9,000 as the customary additional compensation.
10. For these reasons, I think that both the appeals should be dismissed.
11. In the circumstances above referred to I think that each party must pay his or their own costs in both the appeals.
12. I agree.