Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Rameswar Singh vs Secretary Of State For India on 29 January, 1907
Equivalent citations: (1907) ILR 34 Cal 470
Author: M A Holmwood
Bench: Mookerjee, Holmwood


Mookerjee and Holmwood, JJ.

1. The appellant, the Maharaja of Durbhanga, commenced the action, out of which the present appeal arises, in the Court of the Subordinate Judge of Purneah, against the Secretary of State for India in Council and the Bengal and North-Western Railway Company, for an injunction, for damages on account of permanent injury to a ferry and for other incidental reliefs. The Company defendants are the owners of a Railway line which, some time before 1898, was proposed to be extended from Hajipur to Katihar; the extension passes through the zamindary of the plaintiff, and had to be carried across the river Koshi, which flows through that zamindary. A bridge had consequently to be constructed across the river, the banks and bed of which are part and parcel of the estate of the plaintiff. The Maharaja had a ferry across the river, near the place where the bridge has now been constructed, and it is alleged that this ferry, which had existed for many years past, has-been practically stopped by the acquisition of lands for the railway, by the erection of embankments by the Company on the river banks, and by the construction of the Railway bridge. It is alleged that the loss which has resulted from the interference of the ferry, is substantial, and that no damages have been awarded by the Land Acquisition authorities in respect of the matter. These are shortly the circumstances which led to the present litigation; but they require careful examination, as they are somewhat complicated, and the parties are not quite agreed as to some of the incidents, which preceded the suit.

2. On the 26th January, 1898, the Government of Bengal made a declaration under Section 6 of the Land Acquisition Act of 1894, to the effect that a strip of laud, measuring about 1,616 acres was required for the construction of an extension of the Tirhut State Railway in the district of Purneah. The declaration stated that 911 acres was situated in mouza Katharia, and 705 in mouza Muradpur, and that a plan of the land might be inspected in the office of the Collector. This plan has not been produced in the course of this litigation; but it was admitted before us by the learned Government pleader that the plan would not enable any person to ascertain whether a particular parcel of land was or was not covered by the declaration. It appears from the evidence, that the land had previously been marked out, as contemplated by Section 8 of the Land Acquisition Act, by the central line of the alignment being, what is called in these proceedings dagbailed,–in other words, the central line was specified by the insertion of posts and pegs in the soil. It further appears that another alignment, about two and a half miles from the present site, had been previously laid down, but was discarded about the end of 1896, or the beginning of 1897, and so far as we can make out from the evidence, the position of the central line of the present alignment, was determined in the early part of 1897. It is not clear, however, whether after the central line of the original alignment, which had been demarcated, had been abandoned, any posts and pins were inserted in the ground to indicate the central line of the new alignment. But one circumstance is beyond dispute. There was nothing to indicate on the spot, the boundaries of the land intended to be acquired on both sides of the central line, because nothing beyond the central line was ever attempted to be demarcated; nor was such information given in the declaration, and it is admitted, could not have been gathered from the plan mentioned therein. After the issue of the declaration, the Collector instituted about 250 proceedings for the acquisition of the land, each proceeding relating to a small portion of the land in respect of which the declaration had been issued. In each proceeding, the Collector issued, on various dates ranging between November, 1897 (which was before the issue of the declaration), and July, 1898, a general notice as contemplated by Section 9, Sub-section 1 of the Land Acquisition Act, and also a special notice as contemplated by Sub-section 3 of the same Section. The form of these notices and the question of their sufficiency require consideration. It is enough to state, no attempt was made in them to describe the lands with any approach to precision. In some cases no boundaries at all were given; in others, the boundaries given were of the vaguest possible description, wholly insufficient to identify the land referred to in it, or to determine its location. Consequently, on the 9th March, 1898, an application was made to the Collector on behalf of the Maharaja, in which it was alleged that as no boundaries were given in the notices, it was impossible for him to identify the parcels or to take objection with regard to them, and it was prayed, that an order might be passed to give the boundaries, to enable him to submit his objection and claim under Sub-section 2 of Section 9. On the 14th March, the Deputy Collector replied that no clearer boundaries could be given, and that it was open to the Maharaja to inspect the mile plans in his office, which, as now appears from the evidence of the Deputy Collector, who has been examined as a witness in this case, had been prepared in February, 1898, shortly after the issue of the declaration. On the 19th March, the Maharaja informed the Deputy Collector, that he had appointed a surveyor Nasib Lal to attend to the Land Acquisition work, and asked that he might be permitted to make a copy of the map. This petition was ordered to be filed on the 29th March–and it does not transpire from the evidence, whether or not the surveyor was allowed to take a copy of the map. On the 30th March, the Deputy Collector made his award in one of the numerous cases pending before him, in which he assessed the value of six parcels of land, including one parcel, which formed a portion of the bed of the river Koshi. This river admittedly is a tributary of the Ganges and there is no dispute that the banks as well as the bed of the river, where it passes through Perganna Dharampur, form the property of the Maharaja: this is also established by the order of the Commissioner of Bhagalpur, passed on the 28th April, 1860. Similar awards appear to have been made in the numerous other cases pending before the Deputy Collector, but they have not been adduced in evidence. The Maharaja declined to accept the awards made by the Collector, and asked that the cases might be referred to the Civil Court under Section 18 of the Land Acquisition Act. Meanwhile, on the 25th February, 1898, the Deputy Collector started a separate proceeding in respect of the ferry, which was plied on behalf of the Maharaja from one bank of the Koshi to the other. A notice was issued to the Maharaja, in which it was alleged, that the lessee from him had started a ferry during the previous rains on the portion of the river under acquisition and the Maharaja as well as his lessee were invited to put forward their claim to compensation in. respect of the ferry. No claim, however, was preferred, and on the 30th March, 1898, the Deputy Collector dropped the proceeding. It is dear from the evidence of Nasib Lal, that in July or August following, the lessee of the Maharaja found, that as the landing places of the ferry had been acquired in the course of the numerous land acquisition proceedings, the ferry would no longer be allowed to work; thereupon Nasib Lal went to the Deputy Collector and represented that no notices had been received in respect of the ferry. The Deputy Collector informed him, that as soon as the other matters had been settled, that is, as soon as the references to the Civil Court were disposed of, the question of the ferry would be taken into consideration. This statement, it may be observed, is not admitted by the Deputy Collector, but it is materially corroborated by two circumstances. In the first place, on the 15th August, 1898, an application was filed on behalf of the Maharaja, in which it was stated, that in consideration of the fact, that the claim which was left unconsidered (i.e., the claim in respect of the ferry) was going to be decided in future, he was willing to withdraw all the petitions for reference to the Civil Court. The references were consequently withdrawn, and compensation was paid to the Maharaja in respect of the land only, on the 30th August, 1898. In the second place, shortly after, on the 18th November, 1898, the Maharaja applied to the Deputy Collector that the damages in respect of the ferry might be assessed and awarded to him. The Deputy Collector did not object that the matter had been abandoned or had not been left open, but did hold an enquiry into the matter, and submitted two reports to the Collector on the 29th January and 1st February, 1899. On the 2nd February, 1899, the Collector recorded a note, in which he specified the points upon which further information was required, and on the 11th April, 1899, he held that the claimant had forfeited his title to compensation, as he had preferred it more than six months after the date of the award of the 80th March, 1898. He further held, that, until the Railway had worked for some time, no material could be available, on the basis of which the loss accruing to the petitioner could be calculated. Consequently, the petitioner waited for some time, and on the 18th February, 1902, he applied to the Collector again, praying that as the construction of the Railway had practically stopped all approaches to the ferry, and as he had thereby suffered considerable loss, the damages might be assessed and paid to him. On the 1st May, 1902, the Collector held, that the petitioner could not be afforded any relief, and that he must seek his remedy in the Civil Court. On the 25th June, 1903, the Maharaja commenced the present action against the Secretary of State and the Railway Company, for whose benefit the lands had been acquired by the former. The claim was resisted by both the defendants upon various grounds of law and fact. The Subordinate Judge has held that the land acquisition proceedings were not vitiated by any irregularity, that the award of the 30th March, 1898, was a bar to the suit, that the claim to compensation in respect of the ferry ought to have been made in connection with that award, that the plaintiff had waived his right to compensation, if any, and, that as against the Secretary of State, the suit was barred under Article 17, Sch. II to the Limitation Act. In this view of the matter the Subordinate Judge dismissed the suit without any decision upon the main question on the merits, namely, whether the plaintiff had suffered any actionable damage, and, if so, to what extent. The plaintiff has appealed to this Court, and on his behalf, the decision of the Subordinate Judge, has been assailed On five grounds, namely, first, that the award of the 30th March, 1898, was no bar to the present action, by reason of irregularities in connection with the land acquisition proceedings, which had substantially prejudiced the appellant; secondly, that the award was no bar to the present suit, because by reason of the piecemeal character of the land acquisition proceedings, it was impossible for the appellant to put forward his claim for compensation in respect of the ferry in the course of those proceedings; thirdly, that the claim preferred to the Collector in respect of the ferry, whether it be regarded as one under the Land Acquisition Act or under the Indian Railways Act, was never investigated by the Collector, and as no final award was ever made in respect thereof, the jurisdiction of the Civil Court has not been ousted; fourthly, that the suit is maintainable, at least in respect of any damage, which has accrued, subsequent to the land acquisition proceedings, and which could not be reasonably foreseen at the time; and fifthly, that the suit was not barred by limitation.

3. With reference to his first contention, it was argued by the learned vakil for the appellant, that the powers conferred by the Land Acquisition Act must be exercised in strict conformity with the provisions of the Act, and as in the present case, there have been grave irregularities in connection with the exercise of these powers, the finality, which attaches to an award under Section 12 of the Act, cannot be claimed in respect of the award of the 30th March, 1898. Our attention was invited to two irregularities in connection with the acquisition proceedings. It was pointed out in the first place, that the notices issued under Section 9 were defective, inasmuch as they did not state the particulars of the land intended to be acquired, as a result of which the appellant was misled and Could not ascertain what precise parcel was to be acquired, and whether by reason of the acquisition the exercise of his franchise of the ferry would in any manner be affected. Our attention was invited in the second place to the fact, that some of the notices under Section 9 were defective, inasmuch as they called upon the petitioner to put forward his claim earlier than fifteen days in contravention of the provisions of that section. In support of the first branch of the contention, namely, that the notices ought to be precise and ought to give information sufficient for the identification of the land intended to be acquired, reliance was placed upon the cases of Stone v. Commercial Railway Co. (1839) 4 Myl. & Cr. 122, Wrigley v. Lancashire and Yorkshire Railway Co. (1863) 4 Giff. 352 and Protheroe v. Tottenham & F.G. Railway Co. (1891) 3 Ch. 278. In support of the second contention as to the invalidity of a notice, which allows less than the statutory time, reference was made to the case of Balmakoond Lall v. Jirjudhun Roy (1882) I.L.R. 9 Calc. 271, 279. In support of the proposition that strict compliance with the provisions of the Act is necessary for the validity of the award, reliance was placed upon the cases of North Shore Railway Co. v. Pion (1889) 14 App. Cas. 612, Herron v. Rathmines (1892) A.C. 498, 523 and Saunby v. London Water Commissioners (1906) A.C. 110. It is not necessary for our present purposes to examine in detail all the oases which were referred to at the Bar, inasmuch as the principles applicable to cases of this description, appear to us to be well settled.

(i) In the first place, it is quite dear, that notice is essential to the exercise of the jurisdiction. The Statute does not prescribe any form for the notice, but it is dear that it must contain the material facts, which would enable the land owner to identify the land intended to be taken up. The very object of the notice would be defeated, if it did not contain a sufficiently accurate description of the property, which could inform the parties in interest what land it is proposed to appropriate. The identification of the thing desired is of the utmost importance, and if the notice does not describe the property against which it is directed, it must be taken to be defective. It may be conceded, that the requirement of accuracy should not be pushed to extremes, because a description, though not drawn with the precision usually found in conveyances, may yet sufficiently apprise the owner as to the property wanted. Where, therefore, the land to be acquired is affected with, a franchise, a description of the land simply is inadequate, and the franchise should ordinarily be described. For instance, if a railway bridge has to be constructed across a river, the bed of which belongs to a private individual, a portion of the river bed under the water has to be acquired and compensation paid for it: Thames Conservators v. Pimlico Railway Co. (1868) L.R. 4 C.P. 59; but such acquisition will not necessarily interfere with an existing ferry, unless the approaches to the ferry are also acquired, in which event the notice ought to specify that the ferry itself is intended to be acquired.

(ii) In the second place, where the Statute requires that the notice should give the owner a prescribed time, after the expiry of which claims and objections might be preferred, a notice which fixes a shorter time, is in contravention of the Statute, and is consequently defective. The principle is, that no man shall have his rights determined without the opportunity to be beard in his defence, and where the Statute prescribes the minimum period, which the person affected is to have, for submission of his defence, such time cannot be allowed to be reduced.

(iii) In the third place, in order to give validity to the proceedings and finality to the award in which they terminate, the power of acquisition with all statutory limitations, and directions for its use, must be strictly pursued; every essential pre-requisite to the jurisdiction called for by the Statute, must be strictly complied with. It is an elementary proposition that statutory provisions in respect of acquisition of lands must be strictly complied with, and the burden of proof of compliance rests upon those, who claim statutory powers or base their title upon the exercise of statutory provisions: Matter of Baffalo (1879} 78 N.Y. 862, Dyckman v. New York (1851) 5 N.Y. 434. This doctrine is nowhere better illustrated than in the recent decision of their Lordships of the Judicial Committee in Saunby v. London Water Commissioners (1906) A.C. 110, in which the decision of the majority of the Supreme Court of Canada in Water Commissioners of London v. Saunby (1904) 34 Canada. Sup. Ct. Rep. 650 was reversed. In that case, the defendants had interfered with the property of the plaintiff in contravention of the provisions of the Act, under the authority of which they professed to proceed. The Judicial Committee held, that the defendants were guilty of trespass, and that the plaintiff was entitled to an injunction, because to refuse an injunction in such a case would be to enable the defendant to expropriate the plaintiff without statutory authority or without following the procedure, pointed out by the statutory authority, if any. To the same effect are the observations of their Lordships of the Judical Committee in North Shore Railway Co. v. Pion (1889) 14 App. Cas. 612, 629, and of the House of Lords in Herron v. Rathmines (1892) A.C. 498, 523. In the latter case Lord Macnaghten observed, that, where the promoters of a public undertaking have authority from Parliament to interfere with private property on certain terms, any person whose property is interfered with by virtue of that authority has a right to require that the promoters shall comply with the letter of the appointment, so far as it makes provision on his own behalf. A similar view has been adopted in the American Courts; see Benney v. Chesaplake Canal Co. (1834) 8 Peters 214, in which it was held by the Supreme Court of the United States, that a canal Company could not take private property, until it had strictly complied with all the requirements of the law and completed all the steps contemplated therein see also United States v. Rauers (1895) 70 Fed. Rep. 748, In re Montgomary (1892) 48 Fed. Rep. 896, and Bonaparte v. Camdeno Railway Co. (1830) Baldwin 205 ; 3 Fed. Cas. 821.

4. The learned vakil for the respondent did not seriously question the validity of these principles, nor did he dispute that the notices in the present case were defective and did not give sufficient information. He contended, however, that information might have been gathered from the mile plan. It is obvious, however, that this could not be done, as the mile plan does not give data sufficient to enable one to plot it on the ground and identify any particular parcel. The learned vakil further argued, that there was waiver on the part of the Maharaja, inasmuch as he had already accepted the compensation awarded for the lands taken up, and in support of this view referred to the decision of this Court in Gunga Ram Marwam v. Secretary of State for lndia (1903) I.L.R. 30 Calc. 576. Now it may be conceded, that, where the Collector has omitted to take some step, which is essential to the validity of the proceedings, the owner may waive the defect; for instance, he may waive the objection that the surveys and the plans were not sufficient or that the notice was defective: see Embury v. Conner (1850) 3 N.Y. 511 ; 53 Am. Dec. 325, Graves v. Middleton (1893) 137 Indiana 400 ; 37 N.E. 157 and Greatfalls Co. v. Garland (1887) 124 U.S. 581. It may also be conceded that, although the want of requisite notice may affect the validity of the proceedings, where it is proved that the owner had actual knowledge of all the proceedings, a technical objection, that notice had not been given, will be brushed aside; but it must be remembered that waiver has to be clearly established, and it must be shown, that the owner acted with full knowledge of all the facts. Besides, there will be no waiver where the owner appears and expressly reserves his legal rights: Sate v. Jersey City (1855) 25 N.J.L. 309. Thus in the case before us, if any question had been raised, as to the value of the lands acquired, the claimant might perhaps have been successfully met with the plea of waiver, on the ground that acceptance of compensation amounted to a waiver of all irregularities in the proceedings; but in so far as the ferry is concerned, there has been no acceptance of the compensation; indeed, none has ever been awarded and the Maharaja undoubtedly reserved his right, when the references were withdrawn upon the assumption, that the question of damages on account of the ferry would be decided later on. Under such circumstances, it is impossible to hold that there has been any waiver. The first ground taken on behalf of the appellant, must consequently be allowed to this extent, namely, that by reason of irregularities in connection with the land acquisition proceedings, the award of the 30th March, 1898, is no bar in respect of the claim for damages with regard to the ferry; it is not necessary to decide whether the irregularities were sufficient to affect the validity of the title to the land taken up, because no such question is raised in the suit, and compensation in respect thereof has been accepted by the Maharaja.

5. The second ground urged on behalf of the appellant is, that the award is no bar to the present suits, because by reason of the piecemeal character of the land acquisition proceedings, it became impossible for him to put forward his claim for compensation in respect of the ferry. In our opinion this contention is well founded, and the appellant has a substantial cause for grievance. As has been already stated, about 250 proceedings were started, each for a small area of land; there were at least 18 cases for lauds, situated on the Kataria bank of the river and 24 in respect of lands situated on the Muradpur bank of the river. The result was, that it became impossible to assert that the acquisition of any one specific parcel, forming the subject-matter of one proceeding, would prejudice the ferry. As the evidence shows, the ferry was not used froth a fixed point on one bank to a fixed point on the opposite bank; but according to the exigencies of the season, the landing places varied within certain limits on each bank. If one proceeding had been started covering the whole of the strips on the two banks and the river bed, it would have been apparent to the plaintiff, that with the acquisition of the landing places the ferry must disappear, or in any event the profits from it would be considerably reduced. But as the proceedings were taken, it was not possible to urge in any particular case, that the acquisition of the land covered thereby, would necessarily affect the exercise, of the right of ferry. A claim in respect of the ferry could not therefore be appropriately put forward in any of these cases. It must further be observed not one of the notices served upon the Maharaja indicated that the river bed would be acquired; and it is a striking fact, that, although Ex. C3, which is the counterfoil of a notice served on the Maharaja, and is produced from the office of the Collector, makes mention of the river Koshi, the original, which was actually served and is marked Ex. 1–14, makes no such mention. No explanation has been attempted to be offered to us, as to why all mention of the river was omitted from the notices served upon the plaintiff. It further appears from the proceedings of the Collector that he himself realised that a claim for damages in respect of the ferry could not be set up in any of the numerous proceedings pending before him, and this is the reason, why he started a separate case in respect of the ferry; but unfortunately, the notice issued was erroneous, as it referred to a new ferry, started for the purpose of getting compensation, and the notice was issued at a time, when the lands on the river banks had not yet been acquired, so as to enable the Maharaja to judge whether the ferry would or would not be affected. We must hold, consequently, that the award of the 30th March, 1898, which did not allow any compensation for the ferry is not a bar to the maintenance of the present suit, as the claim to compensation could not be appropriately put forward by reason of the numerous separate proceedings, which had been set on foot by the Collector. The second ground must accordingly be decided in favour of the appellant.

6. The third ground taken on behalf of the appellant, raises the objection, that the jurisdiction of the Civil Court, has not been, ousted, because, the claim for compensation preferred to the Collector in respect of the ferry, whether it be regarded as one under the Land Acquisition Act or under the Indian Railways Act, was never investigated by the Collector, and there was no final award ever made by him upon this matter. In our opinion, there is considerable force in this contention. It may be conceded, as was laid down by this Court, in Bhandi Singh v. Ramadhin Rai (1905) 2 C.L.J. 359, that when statutory rights, and, liabilities have been created, and jurisdiction has been conferred upon a special Court for the investigation of matters, which may possibly be in controversy, such jurisdiction is exclusive and cannot concurrently be exercised by the ordinary Courts. The same view was adopted by a Full Bench of this Court in Collector of Pubna v.Romanath Tagore (1867) B.L.R. Sup. 630, where it was laid down, that if the Legislature creates an obligation to be enforced in a specific manner, as a general rule, performance cannot be enforced in any other way. It is well settled, however, that, even where a specific remedy is provided by a Statute, it is necessary, in order to remit the owner to such remedy, and exclude his remedy by suit, that the party acquiring the property should have substantially complied with its requirements; and where the proceedings for acquisition are not perfected and completed, they will not debar the remedy by a regular suit. The essence of the matter is, that the party has his remedy before the special Court. Where, however, as here, the party has not been able to put forward his claim by reason of defects or irregularities in the proceeding, or where the claim has been put forward, but not adjudged, the jurisdiction of the Civil Court cannot be treated as superseded. It was suggested by the learned vakil for the respondents that the claim for the damages, which was put forward on behalf of the Maharaja, was in substance a claim under the Indian Railways Act, and Section 10, Sub-section 2 of Act IX of 1890, bars a suit to recover such compensation; but, whether the claim be regarded as one under the Land Acquisition Act or under the Railways Act, there was a refusal on the part of the Collector to adjudicate upon it, and consequently the plaintiff has not lost his remedy by a suit in the Civil Court.

7. The fourth ground taken on behalf of the appellant, raises the question, whether the suit is maintainable in so far as the plaintiff claims damages, which could not be foreseen at the time of the acquisition proceedings. The learned vakil for the respondents has not seriously disputed that the suit would be maintainable for this purpose. Indeed, the contrary could not be maintained, in view of the decision in Tapidas v. B.B. & G.I. Railway Co. (1869) 6 Bom., A.C. 116. To the same effect, are the observations of Erle C.J. in Chamberlain v. West End of London and C.P. Ry. Co. (1863) 2 B. & S. 617. “It is well known law that under these statutes, a party must make one claim for damages, once and for all, damages that can reasonably before-seen, and have one enquiry and one compensation”: see also Laurence v. Great Northern Ry. Co. (1851) 16 Q.B. 643 ; 83 R.R. 645, Lancashire and Yorkshire Railway Co. v. Evans (1851) 15 Beav. 322, Lee v. Milner (1837) 2 M. & W. 824, and Darley Main Colliery Co. v. Mitchell (1886) 11 App. Cas 127. The case, moreover, becomes very much stronger, where, as in the case of Gaekwar of Baroda v. Gandhi (1903) I.L.R. 27 Bom. 344, the statutory authority has been abused or exceeded. Lord Macnaughten in delivering the judgment of their Lordships of the Judicial Committee observed, that, if a person or a body of persons having statutory authority for the construction of works, exceeds or abuses the powers conferred by the Legislature, the remedy of a person injured in consequence is by action or suit, and not by a proceeding for compensation under the Statute, which has been so transgressed. The fourth ground taken on behalf of the appellant, must consequently be answered in his favour.

8. The last ground taken on behalf of the appellant, seeks to controvert the view of the Subordinate Judge, that the suit is barred by limitation under the provisions of Article 17 of Schedule II to the Limitation Act. This article provides, that a suit against Government for compensation for land acquired for public purposes, must be instituted within one year from the date of determining the amount of compensation. This obviously refers to a case in which the Collector fails to pay or deposit in Court the amount awarded by him under the Land Acquisition Act; in such a case a suit would lie against him for the recovery of the amount awarded: see Nilkanth Ganesh Naik v. The Collector of Thana (1897) I.L.R. 22 Bom. 802. The article has no application to a case like the present, where the amount of the compensation has not been determined. It was then suggested by the learned vakil for the respondents, that Article 14 or Article 18 might bar the suit. It is manifest that neither of these articles, has any application. This is not a suit to set aside any act or order of an officer of Government in his official capacity. Nor is it a suit for compensation, on the ground that the acquisition of land for public purposes is not completed. Article 18 obviously applies to suits for compensation for non-completion of, and refusal to complete the acquisition: see Mantharavadi Venkayya v. The Secretary of State for India in Council (1903) I.L.R. 27 Mad. 585. In our opinion, the rule of limitation applicable, is that provided in Article 120, and as the suit has been brought within six years from the date, when the right to sue accrued, whether such date be taken to be the date of the acquisition of the property over which the right of ferry was exercised, or the date, when the Collector refused to award any compensation for the ferry, the suit is amply within time.

9. On these grounds we must hold that the judgment of the Subordinate Judge, by which he dismissed the suit on preliminary grounds of law cannot be supported. The question, therefore, arises, to what relief is the plaintiff entitled. In the plaint, a claim was put forward to a mandatory injunction upon the defendants to restrain the Railway Company from using the bridge for the purposes of traffic. The learned vakil for the appellant referred to the decision of the Judicial Committee in Saunby v. London Water Commissioners (1905) A.C. 110, as showings that in cases of this description, an injunction may, under circumstances, be granted. He did not, however, seriously press this part of his case, and even if he had, we do not think, that an injunction could have been rightly granted in the present case. It is well settled, that the owner cannot resort to an injunction, merely because the proceedings for acquisition have been irregular or because there was merely a defective description of the land, Akin v. Riley County (1887) 36 Kansas 170; 13 Pacific 2, Huit v. Chicago (1900) 187 Illinois 145 ; 58 N.E. 412, and an injunction will be refused, where damages will adequately compensate for the injury. The question, therefore, arises, upon what principle the damages ought to be assessed.

10. It appears to be quite clear that no damages can be claimed on account of losses sustained by reason of the construction of the Railway bridge; for instance, if the Railway Company had not acquired the lands used as landing places for the ferry, hut had merely constructed a bridge across the river, as a result of which, the traffic over the ferry was diminished, no damages could be claimed, not at any rate, unless it was established that the ferry owner had an exclusive franchise, that is, an exclusive right to carry passengers and goods across the river. In other words, the taking of property, that merely injures a franchise, but does not interfere with the exercise of it, is not such a taking of property from the owners of the franchise, as to require compensation. Reference may be made in this connection to the case of Hopkins v. Great Northern Railway Co. (1877) 2 Q.R.D. 224, in which it was held that the owner of a ferry cannot maintain an action for loss of traffic, caused by a new highway by bridge or ferry made to provide for new traffic; in that case, the owner of the ferry franchise unsuccessfully claimed compensation for loss of profits, caused by a rail-road built across the stream. The same view was taken in the case of Moses v. Samford (1888) 79 Tennesse 731, and Hydes Ferry v. Davidson County (1891) 91 Tennesse 291; 18 S. W. 626. In the former of these cases, it was held, that the profits of the ferry franchise had been affected, not by acquisition of the land over which the bridge was built, but by the opening of the bridge for travel across the river. The case, however, is different, where the land, which is used as the landing place for the ferry, is acquired. In such a case, the access to the river and with it, the exercise of the franchise, is destroyed and consequently compensation is payable: see Collector of Dinagepore v. Girjanath Roy (1897) I.L.R. 25 Calc. 346, and Reg v. Great Northern Railway Co. (1849) 14 Q.B. 25 ; 80 R.R. 203; see also the observations in Cowes v. Southampton (1905) 2 K.B. 287. In other words, where the ferry landing and the ferry franchise remain precisely as before, though the profits are liable to be depredated by the new mode of travel legitimately created, no compensation can be claimed; but where by the reason of the acquisition itself, the exercise of the franchise or the use of the property pertaining to the franchise, is interfered with, damages can be rightly claimed. It follows, therefore that although the value of the property to the owner at the time it is taken, is the measure of damages, the value of a ferry ought not to be determined, by ascertaining the average of the profits at the date of the acquisition by regarding it as an invariable quantity and by taking a number of years’ purchase. As the owner is not entitled to compensation for impairment of the profits of the ferry, which results merely from the use by the public of the bridge or railroad instead of the ferry, the damages ought to be calculated on the basis of the average profits from the ferry in spite of the construction of a bridge or a railroad, which does not interpose any physical obstruction to the enjoyment of the ferry franchise: see the decision of the Supreme Court of Missouri in Missouri Pacific Railway Co. v. Porter (1892) 112 Missouri 361 ; 20 S.W. 568, where the principle applicable to cases of this description is explained. The profits thus determined, will be one element to be taken into consideration in assessing the damages, since the value of a franchise is its productive capacity. The only other question which remains is, whether the profits are to be capitalized. We are of opinion, that capitalization cannot in such a case be adopted as a satisfactory or conclusive test of present value. If the franchise had been perpetual, and if it could be known, that the conditions now existing would be permanent, there would be ground for sustaining such a test. Where, however, as in the case before us, it is clear that the condition of things may alter and by reason, of competition (for example, by the construction of a bridge or railway or a rival ferry), the profits may be diminished, the capitalization of profits is not a conclusive test of present value; it can only be one of the elements to be considered in determining the value: Kennebee Water District v. City of Waterville (1902) 97 Maine 185 ; 60 L.R.A. 856, 869; see also Edinburgh Street Tramways Co. v. Provost, etc., of Edinburgh (1894) A.C. 456, where an arbitrator declined to value tramway lines by capitalizing the rental, and upon appeal, his assessment was affirmed.

11. It was suggested by the learned vakil for the respondents, that, if the judgment of the Court be against him upon the question of the maintainability of the suit, the damages should be allowed to be assessed in the first instance by the Collector. This suggestion appears to us to be reasonable, and the appellant does not take exception to it. The parties ought to be placed, as nearly as may be, in the position which they would have occupied, if the Collector had not, as we must hold he did, on erroneous grounds, refused to assess the damages. If the Collector had not refused to exercise his jurisdiction, the damages would have been assessed in the first instance, by him, and if the claimant had been dissatisfied with his award, he might have obtained a decision from the Civil Court upon reference made as provided by law. The order we shall make in this suit will place the parties substantially in the same position.

12. The result, therefore, is that this appeal must be allowed, the decree of the Subordinate Judge reversed, and the case remitted to him for assessment of damage. The Subordinate Judge will refer the matter, in the first instance, to the Collector, who after such enquiry as may be found necessary, will assess the compensation payable, and submit his award to the Court. The Subordinate Judge will hear the objections of the parties, if any, and allow them to adduce such evidence upon the question of damages as may be found necessary for a satisfactory determination of the matter. He will then make his final decree in the suit. The costs of this appeal, as well as the costs in the Court below, will abide the result. A certificate will be granted to the appellant under Section 13 of the Court Fees Act, authorising him to receive back the full amount of the Court fees paid by him on the memorandum of appeal to this Court.

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