PROVINCE OF BENGAL Vs. MAHES MISSIR

JUDGEMENT

(1.) These are two rules obtained by the Province of Bengal against orders of the Calcutta Improvement Trust Tribunal passed upon references under Section 49 (1), Land Acquisition Act, made by the First Land Acquisition Collector, 24-Parganas. Rule 567 of 1940 is not pressed and is accordingly discharged. Rule 566 of 1940 relates to premises No. 40, Lake Road, measuring about 6 bighas, 5 cottas, and 6 chittaks which was notified for acquisition by Government by a declaration No. 12578 L. A. dated 19 June 1937 published in the Calcutta Gazette of 24 June 1937. Under Section 24, Calcutta Improvement Act, the present landlord, opposite party 10, subsequently entered into an agreement with the Calcutta Improvement Trust whereby the trust was to acquire a portion of the land measuring about 58 cottas and 12 chittaks, and the remaining portion of the land measuring about 66 cottas and 10 chittaks was to be exempted from acquisition on a payment of Rs. 48,900 to be made by the landlord to the board. Upon the plan attached to the agreement, the portion of the land to be acquired was coloured blue and the portion to be exempted was coloured pink.

(2.) It would be convenient hereafter to refer to the land to be acquired as the blue land, and the land to be exempted as the pink land. The pink land embraced certain small plots which were in the occupation of opposite parties 1 to 9 as tenants with a terminable and non- transferable interest. These persons had erected huts on their respective plots, but according to the evidence of the present landlord, opposite party 10, their tenancies had been terminated by notices to quit. Two of the tenants opposite parties Sarabala and Sonalakshmi had actually surrendered possession, and against the remainder the landlord had instituted ejectment suits. The evidence further is that by virtue of a verbal permission granted by the predecessor of the present landlord, the tenants had constructed across the blue land a kutcha path connecting their bustee with the main road. By the sides of this path there ran kutcha drains and under the blue land ran water-pipes which served the bus-tee. The blue land was eventually acquired, and evidence adduced on behalf of the Improvement Trust was to the effect that after the acquisition the Trust has constructed a new road 150 feet wide to run along the south of the pink land, that this new road has sewerage and electric lighting, that access to the public road from the pink land has been improved since the acquisition, and that the acquisition has not prejudicially affected or impaired the use and occupation of the huts on the pink land.

(3.) When proceedings for the acquisition of the blue land were started before the First Land Acquisition Collector, the tenants opposite parties 1 to 9 claimed that the access to the pink land across the blue land and the water connections formed integral parts of their structures and prayed that their structures also be acquired under Section 49, Land Acquisition Act, and further that the question be referred to the Calcutta Improvement Trust Tribunal under Section 49, Land Acquisition Act. The Collector thereupon made a reference to the tribunal under Section 49 (1), Land Acquisition Act, for a decision as to whether the blue land which was intended to be acquired formed a part of the houses of the petitioners within the meaning of Section 49 (1) of the Act. The tribunal rejected the reference on the ground that it was incompetent, and the Collector proceeded to make an award in respect of the blue land and to take possession of the same. Meanwhile, the tenants, opposite parties moved this Court which eventually directed the tribunal to rehear the reference on the merits in the presence of the landlord opposite party 10. The tribunal by its judgment dated 26 February 1940 then answered the reference by holding that the blue land formed a part of the houses of the tenants opposite parties, and it is against that decision that this rule is directed. At the hearing before us, there has been considerable discussion as to whether the tenants opposite parties had any right of easement over the blue land. On their behalf it was argued that the access which they had over the blue land to the main road, the water connexion and kutcha drains, as well as the user by them of jheels upon the blue land were easements of necessity created by implied grants by the original landlord, and reliance was placed in this connexion on Crowdy V/s. O Reilly ( 12) 16 CLJ 417. In the view we take, it is not necessary to decide the question as to whether the tenants opposite parties as tenants of the pink land had rights of easement recognized by law over the blue land. For the purposes of the present decision we may assume that they had such rights. The main argument on behalf of the tenants opposite parties turned upon the construction of Section 49 (1), Land Acquisition Act, which is as follows: 49. The provisions of this Act shall not be put in force for the purpose of acquiring a part only of any house, manufactory or other building, if the owner desire that the whole of such house, manufactory or building shall be so acquired: Provided that the owner may, at any time before the Collector has made his award under S.11, by notice in writing, withdraw or modify his expressed desire that the whole of such house, manufactory or building shall be so acquired: Provided also that, if any question shall arise as to whether any land proposed to be taken under this Act does or does not form part of a house, manufactory or building within the meaning of this section, the Collector shall refer the determination of such question to the Court and shall not take possession of such land until after the question has been determined. In deciding on such a reference the Court shall have regard to the question whether the land proposed to be taken is reasonably required for the full and unimpaired use of the house, manufactory or building.