BIJAYA KANTA LAHIRI CHAUDHURY Vs. SECYOF STATE

JUDGEMENT

(1.) This Appeal is directed against the judgment and award of the District Judge of Mymensingh, dated 16 May 1929, and arises out of a reference Under Section 18, Land Acquisition Act (1 of 1894), made by the Collector at the instance of the claimant who was dissatisfied with the award made by the Land Acquisition Collector.

(2.) It appears that the Assam Bengal Railway required certain lands belonging to the claimant for a bazar siding out of an area of 1.394 acres. The original proposal was to acquire a portion of this land. The Assam Bengal Railway required early possession of the land and the appellant, through his agent expressed his willingness to give up early possession if the entire plot was acquired. These negotiations took place before 21 June 1926 and then followed certain correspondence between the District Engineer of the Assam Bengal Railway, the Collector and the present claimant. The details of the correspondence will be given later. The declaration was published on 17 March 1927 in the Calcutta Gazette. Formal possession was delivered on 3 November 1927. The Land Acquisition Collector made his award by which he determined the amount of compensation to be Rs. 3,028-10-2. The claimant was dissatisfied with the award and asked for reference to the Court Under Section 18 of the Act. The learned District Judge has increased the award to the sum of Rs 4,945. Against this award the present appeal has been brought by the claimant and the Collector has preferred cross-objections. The claimant asked for an award for the sum of Rs. 14,000 and odd but before this Court he has limited his claim to compensation to the sum of Rs. 10,573. The secretary of State has also preferred a cross-objection and contends that the Court should not have granted compensation in excess of the sum awarded by the Deputy Collector. The appellant contends that there was a concluded agreement binding on the Secretary of State to the effect that the amount of compensation would be Rs. 10,573 and not less, and it was not open to the Collector or to the learned District Judge to award anything less than the sum agreed to, and in support of this contention reliance has been placed on his decision of their Lordships of the Judicial Committee of the Privy Council in the case of Fort Press Go. Ltd V/s. Municipality of Bombay AIR 1922 PC 365. The Land Acquisition Judge has come to the conclusion that there was no agreement between the Collector and the owner that the amount of compensation would not be less than Rs. 10,573 if early possession was given. This finding is attacked by the appellant on the ground that it is not justified by the oral and documentary evidence in the case. It becomes necessary therefore to examine the correspondence to see if this conclusion of the learned Judge is right. (After considering the correspondence, His Lordship proceeded.) It appears clear therefore that even .if the letter of Mr. Gurner dated the 14 April stating that the amount of compensation has been practically agreed on indicated an offer of Rs. 10,573, that offer was not accepted by the claimant or his manager who were persisting throughout in their claim for a higher amount. In order to constitute a binding agreement the intention of the parties must be distinct and common to both ; an agreement does not admit of difference. Here there was a difference between the parties as to the value to be paid for compensation. The Collector might have offered to buy even (if the most favourable construction be put on the letter of Mr. Gurner, dated the 14 April) at Rs. 10,000 odd. In response to the offer the appellants Manager agreed to sell for Rs. 14 000 odd. This really amounted to a refusal of the offer by the Collector to buy at Rs. 10,000 followed by a counter offer. On behalf of the appellant it has been strenuously argued that when the Assam Bengal Railway Company took possession they at any rate must have agreed to pay the value determined by the Collector as compensation. Looking at the whole of the correspondence which has already been referred to, it is clear that there was never a concluded agreement as to the value and the claimant's own petition (Ex. B.p. 49, part 2) makes it clear that the claimant never agreed to sell at Rs 10,000 and odd or to deliver possession on the understanding that the compensation was to be Rs. 10,000 odd. The evidence of Surendra, his Manager, also leads to the same view. He says: I understood that the amount estimated in Mr. Twynum's letter was only an estimate and that the award might be more or loss, and again: I did not think it necessary to write any letter to the Collector or District Engineer accepting the offer of Rs. 10,000.

(3.) It seems to us therefore that the learned Judge below was right in reaching the conclusion that there was no concluded agreement as to the compensation. In this view the decision of their Lordships of the Judicial Committee in 49 Indian Appeals does not apply as that was a case of concluded contract between the parties. The next ground taken is that there has been no proper determination of the value seeing that the learned Land Acquisition Judge? has excluded certain evidence which was relevant on the question of valuation and reference is made to the orders made in this behalf on 26 and 29 April 1929. On the former date the claimant applied for permission to adduce evidence as to the profit of timber business which is carried on in the Gouripur bazar. In our opinion this evidence has been rightly excluded as the timber business is not carried on in the land compulsorily acquired by the claimant and this cannot affect him prejudicially so as to entitle him to compensation. On the 29 the claimant wanted to adduce evidence of the transfer of tenants rights. The learned District Judge has pointed out that there are no tenants on the land and the value of the tenants right is the selami which the landlord could get and that it was not open to the claimant to show that if the tenants have come forward and paid selami they would have acquired right worth more than the selami. It appears from the evidence of the Manager of the claimant that there has been no sale of land adjoining the approach road and even now the appellant has not produced before us any document to show that there has been any such sale. In these circumstances this ground taking exception to the exclusion of such evidence seems to be unsubstantial. It is next argued that in arriving at the valuation the learned District Judge has not taken into account certain deeds of sale of the lands in the vicinity of the land acquired which would have proved the market price of the lands in the neighbourhood and would have furnished a criterion as to the value of the acquired lands. Reference is made to two deeds of sale Exs. 13 and 14 which are proved by claimants witnesses 6 and 7 respectively. In the case of the first deed of sale (Ex. 13) 14 acres of land were sold for Rs. 1,951 which shows that the land -was sold at Rs. 216 per bigha. It is to be observed however that in both these oases the lands are situate within the bazar and the bazar lands must fetch a higher value than lands situate outside the bazar. Reference however has been made to oral evidence showing that on account of the Railway the value of the land has increased. One witness Nripendra, witness 12 for the petitioner, says "the moat valuable land is that nearest to the station." With regard to the land covered by Ex. 14 it is to },be noticed further that 03 acres of land in Gouripur bazar with a hut was sold for Rs. 1,285. Witness 7 for the petitioner states that there was a hut on the land worth Rs. 200 or Rs. 300. He produces however no document for the price of the hut and states that there was a bainapatra showing the price of the land but he does not produce the same. Be that as it may the land was situate in the heart of the bazar near the junction of the Approach Road and can furnish no clue to the price of land which is still ill-developed.