SECRETARY OF STATE Vs. SMDULALI BALA DEBI

JUDGEMENT

(1.) This is an appeal from the decision of the learned President of the Calcutta Improvement Tribunal, dated 1 November 1936 to which the assessors composing the Tribunal concurred, in a case arising out of a reference under Section 18 of the Land Acquisition Act, The premises, "No. 107, Lake Road, western portion with interest in the common passage" were acquired under a project known as Scheme No. 33, Southern Avenue, 1 Section of the Calcutta Improvement Trust, The declaration for the acquisition aforesaid was published in the Calcutta Gazette of 10 March 1932. Under the same project and by the same declaration was acquired the common passage to premises No. 107 Lake Road" referred to above which is the subject matter of the case before us. The land acquired was described as "passage land," and the area of the same was 2 c. 3 oh. 20 sq. ft. The premises No. 107 Lake Road and the passage were owned by the same persons, and the award made by the Land Acquisition Collector on 16 August 1934 in respect of the "passage land" showed that the acquisition of the common passage completed the acquisition of the entire holding No. 107, Lake Road. The award made by the Collector further showed that inasmuch as the existence of the passage was considered at the time of valuing the premises served by it, no separate compensation was awarded for the land covered by the passage.

(2.) The owners of the land covered by the common passage applied for a reference under Section 18, Land Acquisition Act, on the ground that the Collector ought to have awarded compensation for acquiring the land of the common passage according to their shares. Reference as contemplated by law was made by the Collector to the Tribunal. The Tribunal made an award in favour of the claimants determining the market value of the land, on the basis that the land covered by the common passage in question should be valued at one. fourth the rate given for the surrounding land. The Secretary of State appealed to this Court supporting the award by the Collector, according to which the claimants were entitled to no compensation for the land covered by the common passage.

(3.) It has to be noticed at the outset that in acquiring "premises No. 107, Lake Road, western portion, with interest in the common passage" as mentioned in the award Ex. B in this case, it could not possibly be intended that the entire proprietary interest of the owners of the land in the common passage, including all the rights in the sub-soil, were acquired. In point of fact it was not done. The existence of the passage was taken into consideration in valuing premises No. 107 Lake Road western portion; an increment in valuation was allowed for the reason of the existence of that passage as a means of access. The position that the adjacent land had received a higher valuation for the existence of the passage, could not lead to the conclusion that the land covered by the passage had lost its value to the owners. In the case before us "premises No. 107, Lake Road western portion" and he common passage in question were owned by the same persons; and apart from any question of policy involved and underlying the method adopted in the acquisition of the same, there was hardly any justification for separate acquisition of premises No. 107, Lake Road western portion, with interest in the common passage" and "common passage to premises No. 107, Lake Road." The passage was a private passage appertaining to premises No. 107, Lake Road, providing, as it did, access to all parts of the said premises; and as such the passage could very well be included in the acquisition of the whole site and taken into consideration for the purpose of the assessment of valuation of the same: see in this connexion Trustees for the Improvement of the City of Bombay V/s. Karson Das (1909) 33 Bom 28.