RAMESWAR SINGH Vs. SECRETARY OF STATE FOR INDIA

JUDGEMENT

(1.) The appellant, the Maharaja of Durbhanga, commenced the action, out of which the present appeal arises, in the Court of the Subordinate Judge of Purneah, against the Secretary of State for India in Council and the Bengal and North-Western Railway Company, for an injunction, for damages on account of permanent injury to a ferry and for other incidental reliefs. The Company defendants are the owners of a Railway line which, some time before 1898, was proposed to be extended from Hajipur to Katihar; the extension passes through the zamindary of the plaintiff, and had to be carried across the river Koshi, which flows through that zamindary. A bridge had consequently to be constructed across the river, the banks and bed of which are part and parcel of the estate of the plaintiff. The Maharaja had a ferry across the river, near the place where the bridge has now been constructed, and it is alleged that this ferry, which had existed for many years past, has-been practically stopped by the acquisition of lands for the railway, by the erection of embankments by the Company on the river banks, and by the construction of the Railway bridge. It is alleged that the loss which has resulted from the interference of the ferry, is substantial, and that no damages have been awarded by the Land Acquisition authorities in respect of the matter. These are shortly the circumstances which led to the present litigation; but they require careful examination, as they are somewhat complicated, and the parties are not quite agreed as to some of the incidents, which preceded the suit.

(2.) On the 26 January, 1898, the Government of Bengal made a declaration under Section 6 of the Land Acquisition Act of 1894, to the effect that a strip of laud, measuring about 1,616 acres was required for the construction of an extension of the Tirhut State Railway in the district of Purneah. The declaration stated that 911 acres was situated in mouza Katharia, and 705 in mouza Muradpur, and that a plan of the land might be inspected in the office of the Collector. This plan has not been produced in the course of this litigation; but it was admitted before us by the learned Government pleader that the plan would not enable any person to ascertain whether a particular parcel of land was or was not covered by the declaration. It appears from the evidence, that the land had previously been marked out, as contemplated by Section 8 of the Land Acquisition Act, by the central line of the alignment being, what is called in these proceedings dagbailed,--in other words, the central line was specified by the insertion of posts and pegs in the soil. It further appears that another alignment, about two and a half miles from the present site, had been previously laid down, but was discarded about the end of 1896, or the beginning of 1897, and so far as we can make out from the evidence, the position of the central line of the present alignment, was determined in the early part of 1897. It is not clear, however, whether after the central line of the original alignment, which had been demarcated, had been abandoned, any posts and pins were inserted in the ground to indicate the central line of the new alignment. But one circumstance is beyond dispute. There was nothing to indicate on the spot, the boundaries of the land intended to be acquired on both sides of the central line, because nothing beyond the central line was ever attempted to be demarcated; nor was such information given in the declaration, and it is admitted, could not have been gathered from the plan mentioned therein. After the issue of the declaration, the Collector instituted about 250 proceedings for the acquisition of the land, each proceeding relating to a small portion of the land in respect of which the declaration had been issued. In each proceeding, the Collector issued, on various dates ranging between November, 1897 (which was before the issue of the declaration), and July, 1898, a general notice as contemplated by Section 9, Sub-section 1 of the Land Acquisition Act, and also a special notice as contemplated by Sub-section 3 of the same Section. The form of these notices and the question of their sufficiency require consideration. It is enough to state, no attempt was made in them to describe the lands with any approach to precision. In some cases no boundaries at all were given; in others, the boundaries given were of the vaguest possible description, wholly insufficient to identify the land referred to in it, or to determine its location. Consequently, on the 9 March, 1898, an application was made to the Collector on behalf of the Maharaja, in which it was alleged that as no boundaries were given in the notices, it was impossible for him to identify the parcels or to take objection with regard to them, and it was prayed, that an order might be passed to give the boundaries, to enable him to submit his objection and claim under Sub-section 2 of Section 9. On the 14 March, the Deputy Collector replied that no clearer boundaries could be given, and that it was open to the Maharaja to inspect the mile plans in his office, which, as now appears from the evidence of the Deputy Collector, who has been examined as a witness in this case, had been prepared in February, 1898, shortly after the issue of the declaration. On the 19 March, the Maharaja informed the Deputy Collector, that he had appointed a surveyor Nasib Lal to attend to the Land Acquisition work, and asked that he might be permitted to make a copy of the map. This petition was ordered to be filed on the 29 March--and it does not transpire from the evidence, whether or not the surveyor was allowed to take a copy of the map. On the 30 March, the Deputy Collector made his award in one of the numerous cases pending before him, in which he assessed the value of six parcels of land, including one parcel, which formed a portion of the bed of the river Koshi. This river admittedly is a tributary of the Ganges and there is no dispute that the banks as well as the bed of the river, where it passes through Perganna Dharampur, form the property of the Maharaja: this is also established by the order of the Commissioner of Bhagalpur, passed on the 28 April, 1860. Similar awards appear to have been made in the numerous other cases pending before the Deputy Collector, but they have not been adduced in evidence. The Maharaja declined to accept the awards made by the Collector, and asked that the cases might be referred to the Civil Court under Section 18 of the Land Acquisition Act. Meanwhile, on the 25 February, 1898, the Deputy Collector started a separate proceeding in respect of the ferry, which was plied on behalf of the Maharaja from one bank of the Koshi to the other. A notice was issued to the Maharaja, in which it was alleged, that the lessee from him had started a ferry during the previous rains on the portion of the river under acquisition and the Maharaja as well as his lessee were invited to put forward their claim to compensation in. respect of the ferry. No claim, however, was preferred, and on the 30 March, 1898, the Deputy Collector dropped the proceeding. It is dear from the evidence of Nasib Lal, that in July or August following, the lessee of the Maharaja found, that as the landing places of the ferry had been acquired in the course of the numerous land acquisition proceedings, the ferry would no longer be allowed to work; thereupon Nasib Lal went to the Deputy Collector and represented that no notices had been received in respect of the ferry. The Deputy Collector informed him, that as soon as the other matters had been settled, that is, as soon as the references to the Civil Court were disposed of, the question of the ferry would be taken into consideration. This statement, it may be observed, is not admitted by the Deputy Collector, but it is materially corroborated by two circumstances. In the first place, on the 15 August, 1898, an application was filed on behalf of the Maharaja, in which it was stated, that in consideration of the fact, that the claim which was left unconsidered (i.e., the claim in respect of the ferry) was going to be decided in future, he was willing to withdraw all the petitions for reference to the Civil Court. The references were consequently withdrawn, and compensation was paid to the Maharaja in respect of the land only, on the 30 August, 1898. In the second place, shortly after, on the 18 November, 1898, the Maharaja applied to the Deputy Collector that the damages in respect of the ferry might be assessed and awarded to him. The Deputy Collector did not object that the matter had been abandoned or had not been left open, but did hold an enquiry into the matter, and submitted two reports to the Collector on the 29 January and 1 February, 1899. On the 2nd February, 1899, the Collector recorded a note, in which he specified the points upon which further information was required, and on the 11 April, 1899, he held that the claimant had forfeited his title to compensation, as he had preferred it more than six months after the date of the award of the 80 March, 1898. He further held, that, until the Railway had worked for some time, no material could be available, on the basis of which the loss accruing to the petitioner could be calculated. Consequently, the petitioner waited for some time, and on the 18 February, 1902, he applied to the Collector again, praying that as the construction of the Railway had practically stopped all approaches to the ferry, and as he had thereby suffered considerable loss, the damages might be assessed and paid to him. On the 1 May, 1902, the Collector held, that the petitioner could not be afforded any relief, and that he must seek his remedy in the Civil Court. On the 25 June, 1903, the Maharaja commenced the present action against the Secretary of State and the Railway Company, for whose benefit the lands had been acquired by the former. The claim was resisted by both the defendants upon various grounds of law and fact. The Subordinate Judge has held that the land acquisition proceedings were not vitiated by any irregularity, that the award of the 30 March, 1898, was a bar to the suit, that the claim to compensation in respect of the ferry ought to have been made in connection with that award, that the plaintiff had waived his right to compensation, if any, and, that as against the Secretary of State, the suit was barred under Art. 17, Sch. II to the Limitation Act. In this view of the matter the Subordinate Judge dismissed the suit without any decision upon the main question on the merits, namely, whether the plaintiff had suffered any actionable damage, and, if so, to what extent. The plaintiff has appealed to this Court, and on his behalf, the decision of the Subordinate Judge, has been assailed On five grounds, namely, first, that the award of the 30 March, 1898, was no bar to the present action, by reason of irregularities in connection with the land acquisition proceedings, which had substantially prejudiced the appellant; secondly, that the award was no bar to the present suit, because by reason of the piecemeal character of the land acquisition proceedings, it was impossible for the appellant to put forward his claim for compensation in respect of the ferry in the course of those proceedings; thirdly, that the claim preferred to the Collector in respect of the ferry, whether it be regarded as one under the Land Acquisition Act or under the Indian Railways Act, was never investigated by the Collector, and as no final award was ever made in respect thereof, the jurisdiction of the Civil Court has not been ousted; fourthly, that the suit is maintainable, at least in respect of any damage, which has accrued, subsequent to the land acquisition proceedings, and which could not be reasonably foreseen at the time; and fifthly, that the suit was not barred by limitation.

(3.) With reference to his first contention, it was argued by the learned vakil for the appellant, that the powers conferred by the Land Acquisition Act must be exercised in strict conformity with the provisions of the Act, and as in the present case, there have been grave irregularities in connection with the exercise of these powers, the finality, which attaches to an award under Section 12 of the Act, cannot be claimed in respect of the award of the 30 March, 1898. Our attention was invited to two irregularities in connection with the acquisition proceedings. It was pointed out in the first place, that the notices issued under Section 9 were defective, inasmuch as they did not state the particulars of the land intended to be acquired, as a result of which the appellant was misled and Could not ascertain what precise parcel was to be acquired, and whether by reason of the acquisition the exercise of his franchise of the ferry would in any manner be affected. Our attention was invited in the second place to the fact, that some of the notices under Section 9 were defective, inasmuch as they called upon the petitioner to put forward his claim earlier than fifteen days in contravention of the provisions of that section. In support of the first branch of the contention, namely, that the notices ought to be precise and ought to give information sufficient for the identification of the land intended to be acquired, reliance was placed upon the cases of Stone V/s. Commercial Railway Co. (1839) 4 Myl. & Cr. 122, Wrigley V/s. Lancashire and Yorkshire Railway Co. (1863) 4 Giff. 352 and Protheroe V/s. Tottenham & F.G. Railway Co. (1891) 3 Ch. 278. In support of the second contention as to the invalidity of a notice, which allows less than the statutory time, reference was made to the case of Balmakoond Lall V/s. Jirjudhun Roy (1882) I.L.R. 9 Calc. 271, 279. In support of the proposition that strict compliance with the provisions of the Act is necessary for the validity of the award, reliance was placed upon the cases of North Shore Railway Co. v. Pion (1889) 14 App. Cas. 612, Herron V/s. Rathmines (1892) A.C. 498, 523 and Saunby v. London Water Commissioners (1906) A.C. 110. It is not necessary for our present purposes to examine in detail all the oases which were referred to at the Bar, inasmuch as the principles applicable to cases of this description, appear to us to be well settled. (i) In the first place, it is quite dear, that notice is essential to the exercise of the jurisdiction. The Statute does not prescribe any form for the notice, but it is dear that it must contain the material facts, which would enable the land owner to identify the land intended to be taken up. The very object of the notice would be defeated, if it did not contain a sufficiently accurate description of the property, which could inform the parties in interest what land it is proposed to appropriate. The identification of the thing desired is of the utmost importance, and if the notice does not describe the property against which it is directed, it must be taken to be defective. It may be conceded, that the requirement of accuracy should not be pushed to extremes, because a description, though not drawn with the precision usually found in conveyances, may yet sufficiently apprise the owner as to the property wanted. Where, therefore, the land to be acquired is affected with, a franchise, a description of the land simply is inadequate, and the franchise should ordinarily be described. For instance, if a railway bridge has to be constructed across a river, the bed of which belongs to a private individual, a portion of the river bed under the water has to be acquired and compensation paid for it: Thames Conservators V/s. Pimlico Railway Co. (1868) L.R. 4 C.P. 59; but such acquisition will not necessarily interfere with an existing ferry, unless the approaches to the ferry are also acquired, in which event the notice ought to specify that the ferry itself is intended to be acquired. (ii) In the second place, where the Statute requires that the notice should give the owner a prescribed time, after the expiry of which claims and objections might be preferred, a notice which fixes a shorter time, is in contravention of the Statute, and is consequently defective. The principle is, that no man shall have his rights determined without the opportunity to be beard in his defence, and where the Statute prescribes the minimum period, which the person affected is to have, for submission of his defence, such time cannot be allowed to be reduced. (iii) In the third place, in order to give validity to the proceedings and finality to the award in which they terminate, the power of acquisition with all statutory limitations, and directions for its use, must be strictly pursued; every essential pre- requisite to the jurisdiction called for by the Statute, must be strictly complied with. It is an elementary proposition that statutory provisions in respect of acquisition of lands must be strictly complied with, and the burden of proof of compliance rests upon those, who claim statutory powers or base their title upon the exercise of statutory provisions: Matter of Baffalo (1879} 78 N.Y. 862, Dyckman V/s. New York (1851) 5 N.Y. 434. This doctrine is nowhere better illustrated than in the recent decision of their Lordships of the Judicial Committee in Saunby V/s. London Water Commissioners (1906) A.C. 110, in which the decision of the majority of the Supreme Court of Canada in Water Commissioners of London V/s. Saunby (1904) 34 Canada. Sup. Ct. Rep. 650 was reversed. In that case, the defendants had interfered with the property of the plaintiff in contravention of the provisions of the Act, under the authority of which they professed to proceed. The Judicial Committee held, that the defendants were guilty of trespass, and that the plaintiff was entitled to an injunction, because to refuse an injunction in such a case would be to enable the defendant to expropriate the plaintiff without statutory authority or without following the procedure, pointed out by the statutory authority, if any. To the same effect are the observations of their Lordships of the Judical Committee in North Shore Railway Co. V/s. Pion (1889) 14 App. Cas. 612, 629, and of the House of Lords in Herron Vs. Rathmines (1892) A.C. 498, 523. In the latter case Lord Macnaghten observed, that, where the promoters of a public undertaking have authority from Parliament to interfere with private property on certain terms, any person whose property is interfered with by virtue of that authority has a right to require that the promoters shall comply with the letter of the appointment, so far as it makes provision on his own behalf. A similar view has been adopted in the American Courts; see Benney V/s. Chesaplake Canal Co. (1834) 8 Peters 214, in which it was held by the Supreme Court of the United States, that a canal Company could not take private property, until it had strictly complied with all the requirements of the law and completed all the steps contemplated therein see also United States V/s. Rauers (1895) 70 Fed. Rep. 748, In re Montgomary (1892) 48 Fed. Rep. 896, and Bonaparte V/s. Camdeno Railway Co. (1830) Baldwin 205 ; 3 Fed. Cas. 821.