JIVANDAS KHIMJI Vs. NARBADA BAI

JUDGEMENT

(1.) The main question raised in this appeal is a question of law, namely, whether an award made by a Land Acquisition Collector under Section 11 of the Land Acquisition Act is a nullity, because of the omission of the Collector to include therein compensation claimed by the owner of an adjoining land in respect of easement over the land acquired, when such omission is the result of the Collector's opinion that no such compensation should be allowed. The respondent Narbada Baa brought the suit for a declaration that she was entitled to a right of easement in respect of certain windows on the ground, first and second floors on the western side 6f her premises No. 161, Lower Chitpore Road and to have access of light and air into the rooms, thereof through the said windows; for an injunction restraining the appellant, Jivraj Jivandas Khimji, from interfering with the right of easement and with the access of light and air through the windows for a permanent injunction directing him to remove and pull down obstructions which had been put up; for a permanent injunction restraining him from proceeding with the construction of a boarding or from putting up construction of any kind so as to obstruct the access of light, and for damages. Admittedly, 16 Ezra Street was acquired' by the Board of Trustees of the Calcutta Improvement Trust under the provisions of the Land Acquisition Act and after an award under S, 11 of the Land Acquisition Act was made, the Collector took possession thereof. If this is a valid award the property vested in the Government is absolutely free from all encumbrances and so free from the operation of the easement, if any? which the plaintiff had in respect of the access of light to his premises. 161 Lower Ghitpore Road, The plaintiffs case is that he had, such an easement; that that easement had, not been in any way affected by the award inasmuch as the award is a nullity, and as the defendant had recently planted three iron pillars on the extreme eastern boundary of the premises No. 16; Ezra Street and placed iron angles crosswise upon these pillars with a view to putting up a hoarding, he brought the suit for the declaration of his right of easement and for other reliefs as mentioned earlier. In the court below the appellant challenged, inter alia, the plaintiffs averment as regards the existence at any time of any right of easement on the basis of which he could claim the access of light and air unobstructed by any construction on the premises No. 16, Ezra Street. We are no longer concerned however, with this aspect of the case as the conclusion of the trial court that there was such a right of easement at the date of the acquisition and also that if the constructions as alleged are put up, there will be an obstruction to light and air to the plaintiff's premises so as to amount to a nuisance, is not disputed. The main contention of the defendant which concerns us now was, as set out in paragraph 15 of his written statement, in these words 'With further reference to paragraph 13 of the plaint the defendant states that by reason of the said Award and by reason of the said Collector having thereafter taken possession of the said premises No. 16, Ezra Street, Calcutta, the same vested in the Government absolutely free from all encumbrances as provided in the special statute of, Land Acquisition Act, and the right of easement even if any of the plaintiffs has been fully and completely extinguished by virtue of such vesting, by statute declared free from all encumbrances."

(2.) The main dispute in the trial court was therefore over the question whether the award of the Collector was a nullity. Among the grounds averred by the plaintiff as the basis of his case that the award was a nullity were the statements that the Collector had arbitrarily refused to adjudge upon the claim put forward by the plaintiffs predecessor-in-interest, Mussamat Halima Ariff Bham, who, at the date of the acquisition, was the owner of 161 Lower Chitpore Road, and / or to admit evidence relating to her right of easement in respect of the ancient lights. This case does not appear to have been stressed at the trial and it is sufficient to say that the evidence on the record clearly shows that the Land Acquisition Collector did consider the matter and held an enquiry and after consideration came to the conclusion that the said Mussamat Bham was not entitled to any compensation in respect of the easement. The ground on which reliance was ultimately placed in the trial court and also before us for the contention that the award was a nullity, was the fact that no compensation was included in the award in respect of this easement right. Another averment of the plaint which has to be mentioned is that the Collector did in fact keep the right of easement alive By his award and so even if the award be valid, the right of easement has not been extinguished or prejudiced or affected by the award and, alternatively, the award is invalid because the right of easement has been kept alive even though, under the law, such an easement cannot be kept alive.

(3.) The vital issue in the case is therefore issue No. 3 as framed in the trial court which is in these words: "Has the right of easement, if any, been extinguished by reason of the allegations pleaded in paragraph 15 of the written statement?" Issues Nos. 9 and 10 also raised the same question in another form issue No. 9 being "Was the alleged acquisition of premises No. 16, Ezra Street free from encumbrance within the meaning of Section 16 of the Land Acquisition Act by reason of the matters pleaded in the plaint?" and issue No. 10 being," "Did the Award in any way affect the plaintiff's right of easement, if any?" The learned Judge has answered all these questions in the negative. The basis of his conclusion is that the award was a nullity. The reason as given by him for the decision is that "in view of the requirements of Sections 11 and 16, the award, in my view is bad on the face of it." In another portion of the judgment the learned Judge has said: