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Calcutta High Court
The Secretary Of State For India In … vs Fakir Mahammad Mondal on 2 December, 1926
Equivalent citations: 101 Ind Cas 349
Author: B Ghose
Bench: B Ghose, Panton


B.B. Ghose, J.

1. All these appeals are on behalf of the Secretary of State against the judgment of the Special Land Acquisition Judge of Alipore in a number of cases which were heard by him on reference made under the Land Acquisition Act. The reference was with respect to the valuation of the property made by the Collector.

2. Appeal No. 57 should be taken up first as it involves a question of law with reference to the interpretation of the Bengal Sanitary Drainage Act VIII of 1895 (B.C.). The land in question in all these cases was acquired for the purpose of constructing a drainage under that Act. The land in connection with Appeal No. 57 was in the bed of a watercourse and the Collector purporting to act under the provisions of Section 16 of Act VIII of 1895 allowed no compensation for the land in question. The appellant asked for reference on the ground that the land was within his Zemindari and was valuable, and having regard to its advantageous position he ought to be allowed Rs. 750 per bigha. I ought to state that no objection was taken on the ground that the land was not recorded as a watercourse in the Land Revenue Survey map. The learned Judge on hearing the reference came to the conclusion that it comprises the bed of a khal, and as the Collector has stated it was not proved that such and had been under cultivation for a period of not less than 12 years previous to the acquisition. He held that as the land lies within the area of the Municipality of North Barackpore the provisions of Section 16 of the Drainage Act are not applicable and, therefore, the claimant was entitled to get the market-value of the land acquired. The rate fixed by him was Rs. 75 per bigha. The area in question is very small being only 3 bighas 4 cottas. But the Assistant Government Pleader who has argued the case before us states that as the case involves a question of law it is very important that the Secretary of State should obtain an opinion of this Court on the question of principle.

3. The contention on behalf of the appellant is that no compensation is payable for this land under the Act. On behalf of the respondent Babu Rupehdra Kumar Mitter advanced the very same arguments which found favour with the learned Judge below, and he relies upon the provisions of Section 1, Sub-section (2) of the Act and contends that as there is no provision extending the Act to the Municipality of North Barackpore his client is entitled to receive compensation for the land in question. It was further argued that the Collector’s statement that the land was recorded in the last Revenue Survey map as a watercourse is not correct. [B] This objection as I have already stated was not taken in the application for reference, and it has been held by this Court in several previous cases that unless an objection is specifically taken with regard to a matter stated in the award of the Collector, such question cannot be urged at the time of the hearing of the case before the Court. Much less can this question be allowed to be raised here in this case as this question of fact was not raised even before the Judge below. [B] The appeal must, therefor, proceed on the supposition that the land formed part of what was recorded as a watercourse in the last Revenue Survey map as provided in Section 16 of Act VIII of 1895 (B.C.)

4. [A] The only question, therefore, that we have to decide is whether Section 16 applies to land within a Municipality. The preamble to the Act says that it was enacted for the purpose of facilitating the construction of drainage works and it laid down the procedure therefor other than the procedure provided by Section 37 B of the Bengal Municipal Act. Sub-section (2) of Section 1 provides that “except aa hereinafter otherwise provided it shall extend to all the territories administered by the Lieutenant-governor of Bengal which are not included within the limits of any Municipality.” This provision clearly means that no scheme for construction of drainage works within a Municipality can be undertaken under the provisions of this Act. The question then arises, if in pursuance of a scheme for the purpose of construction of drainage works outside a Municipality what would happen when any action is to be taken within the Municipal area. This is provided in Section 6, Sub-section (1)(b) that is, a report has first to be made containing an estimate of the total cost of the undertaking including the cost of any land to be acquired under Section 16, and there is a proviso which rune thus, provided that if the tract affected includes any Municipal area the estimate to be framed under Clauses (6) and (c) of the section shall show separately the portion of the costs under each clause which will be included in respect of such Municipal area. The first paragraph of Section 16 provides that any land likely to be needed in carrying out any scheme may be acquired under the provisions of the Land Acquisition Act, and the proviso to the section runs thus: “Provided that no compensation shall be paid for land recorded as a watercourse in the last Revenue Survey map published under Section 4 of Act IX of 1847 or any similar enactment for the time being in force, unless it be proved that such land has been under cultivation for a period of not less than twelve years previous to the acquisition.” Section 25 to which reference has been made in the lower Court only refers to the proportion and the manner in which costs should be recovered from the Municipality for any drainage work. Reference to Section 16 in Clause (6) of Sub-section (1) of Section 6 of the Act read along with the proviso indicates that in the case of lands acquired within the Municipality Section 16 would apply, as Section 16 has been directly referred to in that clause, and if that is so the proviso to Section 16 must necessarily apply. [A] To hold otherwise would lead to an absurd and anomalous result. It is one of the cardinal rules of construing a Statute that in construing it absurdity should be avoided. The absurdity to which the construction as pressed on behalf of the respondent would lead is this, that where land such as that mentioned in the proviso is outside any Municipality the owner would get no compensation, but if it happens to fall within the

5. Municipality the owner is entitled to compensation. There is absolutely no reason for this differential treatment. But it is contended on behalf of the respondent that land within a Municipality is more valuable than land outside a Municipality. That may be so, but land which is or has been a watercourse, whether within or outside a Municipality cannot be used for any other purpose. It must remain a watercourse. It is further urged that a watercourse may also be very valuable as in this case it is said that there is evidence that there was valuable fishery in it. But a fishery may be more valuable outside a Municipality than inside a Municipality. This argument, therefore, does not remove the absurd result which would follow if the construction pressed for by the respondent is accepted. Under these circumstances it should be held that no compensation is payable for the land which has been acquired in Appeal No. 57 of 1925.

6. Appeal No. 57 of 1925 must, therefore, be allowed and the order directing compensation to be paid with regard to this land must be set aside. The appellant is entitled to his costs in both Courts. The hearing fee in this Court will be two gold mohurs

7. [Note–The rest of the judgment is not material for the purposes of this report–[Ed].

Panton, J.

8. I agree.

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