SPECIAL LAND ACQUISITION OFFICER Vs. J.H. KATRAK

JUDGEMENT

(1.) [His Lordship after dealing with the facts of the case and points not material to this report, proceeded.] As regards development, admittedly upto January, 1950, there was no development in Parjapur itself except for a solitary one -room structure with a verandah in S.N. 34/2 -A. As one comes down south towards Marol gaothan, the Acme Bobbin and Shuttles Co., Ltd. had, by January, 1950, constructed a factory in Instance No. 3. Except for that, there were no structures on Marol -Maroshi Road until one came to S. No. 168/6 where there were three structures. Marol gaothan had, of course, about 400 houses. Going eastwards there was some development in S. Nos. 44 and 45 of Paspoli and in S. No. 31 of Tungwa where M/s. Larsen and Toubro and Khandelwal and Co. had their factories. Near Saki Naka also there were some 3 or 4 structures. But the distance between these places and Marol -Maroshi Road is as much as five furlongs and, therefore, any development in that direction cannot be considered as a development in the vicinity of the acquired land. There is next the evidence that from, the south of Marol gaothan upto Andheri -Kurla Road, a distance of about 1,200 feet, there were only 10 residential structures but not any industrial structure and all these 10 structures abutted on the main road. The position, therefore, was that there were considerable undeveloped areas, first, between Andheri -Kurla Road and Marol gaothan, and secondly between Marol gaothan and the land in Instance No. 3. Even to the south of Marol gao than, development was in a ribbon fashion. Thus, except for three structures in S. No. 168/6, the factory in the land in Instance No. 3, a bungalow on the top of a hillock in S. No. 10 and a one -room structure in S. No. 34/2 -A there were no other structures in this entire locality. But Mr. Vaidya's anticipations were that all these areas, right from the north of Marol gaothan to S. No. 19/3, the northernmost part of the acquired land, would be filled up upto a depth of 900 feet on both sides of the road within a period of 25 years' 'These anticipations are not, in my view, justified by the evidence of the very scanty development that had taken place by January 19, 1950.

(2.) THE learned Advocate General in view of Mr. Vaidya's statement that this entire area would be fully developed within 25 years asked him what development, if any, had in fact taken place since the date of the notification until today. Mr. Laud objected to that question on the ground that any evidence as to the period after the date of notification was inadmissible. For this objection reliance was placed on Sections 23 and 24 of the Act. Now, Section 23 provides that in determining compensation the Court shall consider the market -value' of the acquired property at the date of the publication of the notification. Whereas that section lays down the several things to be taken into consideration, Section 24 provides what are the things that the Court cannot consider. Thus Clause (4) of Section 24 provides that the Court shall not take into consideration any damage likely to be caused to the land acquired after the date of the declaration under Section 6 or in consequence of the use to which it would be put. Clause (5) of Section 24 provides likewise that the Court shall not take into consideration any increase in the value of the land acquired likely to accrue from the use to which it would be put when acquired. As stated by their Lordships of the Privy Council in Manmatha Nath Mitter v. The Secretary of State for India in Council I.L.R. (1897) Cal. 104 the time of awarding compensation must be construed as meaning the time of compensation, the time at which the right to compensation attaches. In other words the valuation does not depend upon the result of acquisition. To that extent, evidence as to facts which arose after the acquisition is no doubt irrelevant. But the point to consider is does Section 23 or b. 24 mean that the Court must shut its eyes on all facts which have occurred after the date of notification under Section 4. Suppose the Court is asked to determine compensation on the basis of building potentiality on the footing that the acquired land is likely to develop upto a certain distance within a certain period into either residential or industrial area and the Court is shown that between the date of the notification and the hearing of the Reference when the Court estimates the compensation payable on that footing no development, has in fact taken place, does it mean that the Court must brush aside actuality ' and proceed to determine compensation on hypothetical considerations? effect of Sections 23 and 24 is that compensation must be fixed looking to the condition of the Property and the probable use to which a purchaser would most advantageously put it at the date of the notification. The date of notification fixes the time at which the value of the Property, as it then is, is to be determined. Reliance was placed on Bradberry, In re., National Provincial Bank, Ld. v. Bradberry. Fry, In re. Tasker v. Calliford [1943] 1 Ch. 35 to show that facts, though occurring after the date at which valuation is to be determined, can be looked) at for the purpose of arriving at a correct estimate. There the testatrix, one Ellen Bradberry, by her will dated August 19, 1931, gave legacies to certain legatees and life annuities beginning from the date of her death to three other persons. The annuities were payable out of a fund sufficient by its income to answer them. She, however, directed that if the income could not answer the annuities at the date when they became payable, no annuitant should have a claim against any other part of her estate. She gave her residue to four residuary legatees. The testatrix died on July 27, 1939. Her estate was not enough to pay the legacies and also to provide, income to pay these annuities, but it was enough to pay the legacies and the capitalized values of the annuities. On July 13, 1940, Clara Jones, one of the three annuitants, died. The estate then - became the to provide the fund to meet the remaining annuities. Before her death, however, the residuary legatees had consented to the annuitants' accepting the capitalized values of their annuities, but on learning of the death of Clara Jones they withdrew their consent. In May 1941, William Edwards, another annuitant, died. The executors and trustees, the National Provincial Bank, Ltd. were prepared to pay to the executors of Clara Jones and William Edwards the values of their annuities capitalized at the date of the testatrix's death. The residuary legatees contended that the executors of Clara Jones and William Edwards were entitled to receive only sums equal to the amount of the annuities payable for the periods between the death of the testatrix and the respective deaths of the two annuitants. In that event the Bank would have been able to pay those sums and the legacies and would also have been able to set aside a fund sufficient by its income to pay the third surviving annuitant her annuity in full. The residuary legatees contended that the surviving annuitant should be paid her annuity and not its capitalized value. On behalf of the executors of the two deceased annuitants it was claimed that their right to the value of annuities capitalized as at the date of the death of the testatrix cannot be said to have ended because the two annuitants died before it was paid. The two deceased annuitants had accepted the values so capitalized and that it should be paid to their executors. Negativing this contention, Uthwatt J. said that it was the duty of the Court to take into consideration every relevant fact that is known at the date when the decision is to be made and work out the rights of the parties accordingly. The death of an annuitant before the Court's decision enabled the Court to measure what was in fact given to him. Why should the Court,' he observed, 'neglect known facts and put itself in the position of a prophet who, when he knows all the facts, projects himself to an earlier date and predicts as the span of life of a person known to be dead the length of life of the hypothetical person who lives his actuarial life? At p. 45 of the report the learned Judge sums as follows: A principle is to be drawn from these authorities, namely, that where facts are available they are to be preferred to prophecies. Thus the principle laid down in this decision is that where the question at issue is the method of working out rights, regard can be had in estimating the value of those rights to events which have happened since those rights accrued.

(3.) [His Lordship, after dealing' with 'points not material to this report, continued.]