TMI Blog1933 (7) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... t larger than what was awarded by the Collector. We are of opinion that in view of the provisions of Section 25 of the Land Acquisition Act, the view of the District Judge was right. The tenants cannot now be heard to say that the amount awarded to them is inadequate. The appeal of Amar Nath and Musammat Kaunsilia must, therefore, be dismissed with costs. 4. Shiam Lai claimed ₹ 4,600 as the market value of the land. The Collector treated this land as an agricultural land and assessed compensation at the rate of lb years purchase based on the net income. The total amount came to ₹ 78-15. The first point is whether the basis of calculating compensation is correct. 5. It appears that the land in question is a part of a bigger plot measuring one bigha and four biswas. 17 biswas out of this have now been acquired by Government. That area amounts to 2341 square yards. The plot is situated within the Municipal limits of the City of Agra and adjoins a metalled public road and is quite close to another metalled public road which crosses it. This portion is still called village Bhugipura, but is in a portion of the town which is well inhabited. The map shows that there a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... square yard. In the same year over 84 square yards were sold at the rate of ₹ 2-15-4 and over 56 square yards at the rate of ₹ 2-15. But these were the sales of much smaller plots of land, and the prices obtained would not necessarily furnish a Bufiicien; criteria for determining the rate for the plot in question. At the sama time it is to be borne in mind that when building sites are sold the are is may be small. The evidence produced by the claimant as regards the income derived for the stalls is very unsatisfactory, but there is reason to suppose that he has been getting some income. Having regard to all the evidence and the circumstances, we have come to the conclusion that the price fixed by the Court below is too low and that at the same time the price demanded by the claimant is too high. A fair assessment of the market value would be to fix it at the rate of Re. 1 per square yard. There is some arbitrariness, in this assessment, but in the absence of better evidence, it is not possible to arrive at any other result. We accordingly hold that a fair market price of this land, having regard to all its potentialities, is ₹ 2,312. This is exclusive of the 15 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an occupancy tenant in these provinces and that a fair estimate would be to say that in a rupee the landlord's share ought to be ten annas and the occupancy tenant's rights, 6 annas. The learned Judges have rightly pointed out that there are several matters which have to be borne in mind in favour of the zemindar. These are: (1) that an occupancy tenant's rent is liable to enhancement, although within statutory limits; (2) that the tenant is unable to transfer his rights; (3) that his right even to sublet is very much limited; (4) that in the case of rent falling into arrears, from whatever reason, he is liable to be ejected; (5) that in the case of the tenant dying without one of the statutory heirs the tenancy would lapse to the landlord. As against these there are also circumstances in favour of the tenants. (1)(a) No doubt an occupancy tenant's right is liable to enhancement, but the enhancement of rent of any occupancy tenant cannot be effected more than once in 20 years and this too for not more than 25 per cent. (Sections 67 and 50 of the Tenancy Act.) (b) As against this Government Revenue payable by the zemindar is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in most cases whenever zemindari property is acquired for public purposes. As pointed out above, the principle on which the learned Judges in L.W. Orde's case (3) proceeded was quite the contrary. 14. We, therefore, think that it is necessary that the following question should be referred to a larger Bench for an answer: In the absence of any specific evidence as custom, practice or agreement, what would be the fair ratio of distribution of the compensation awarded for agricultural laud as between the landlord on the one hand and occupancy tenants on the other. Lay it before the Chief Justice. Dr. N.P. Asthana and Mr. B.N. Sahai, for the Appellants. Mr. Muhammad Ismail (Government Advocate), for the Respondent. Sulaiman, C.J.- The question referred to the Pall Bench is: In the absence of any specific evidence as to custom, practice or agreement, what would be the fair ratio of distribution of the compensation awarded for agricultural land as between the landlord on the one hand and occupancy tenants on the other. 14. A plot of land belonging to a zemindar and occupied by two tenants was acquired by the Government under the Land Acquisition Act. Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons to Collectors fixing maxima both for the amount to be awarded to the zamindar and the amount to be. awarded to an occupancy tenant in the case of culturable lands. An occupancy tenant is allowed four times the rent-rate payable by, a statutory tenant plus 10 times the difference between that rate and the rent actually paid by the occupancy tenant, whereas the zamindar is allowed no more than 16 times his net profit. The method is not only a complicated one, but it is also difficult to see on what principle it is based. 18. In Section 40 of the New Tenancy Act, provision has been made for the acquisition of land by a landlord from an occupancy tenant, but that is for the special purpose of farming on improved lines, and before acquisition can be made the Collector has to be satisfied that reasonable grounds exist for ordering such an acquisition; and the Collector is bound to award to the tenant another land with similar advantages in the same village or with his consent in another village; and it is only to such extent as such land is not available that the Collector has to award monetary compensation. The rate of monetary compensation fixed is six times the annual rental va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as ₹ 22 and the annual value of the appellant's interest was Es 11 and then they divided the total sum in the proportion of 2-3 and 1-3 respectively. 24. In the case of L.W. Orde v. Secretary, of State for India in Council 44 Ind. Cas. 923 : 40 A. 367 : 16 A.L.J. 301. the ocupancy tenants had not come up in appeal before the High Court and the zamindar alone was claiming a larger amount than what had been awarded. It had been found by the District Judge that the market value of the property was at the rate of ₹ 500 per bigha. The Collector had awarded to the tenant compensation at the rate of ₹ 108 per bigha and to the zamindar at the rate of Es. 213. The District Judge disallowed the claim of the zamindar to get more on the ground that as the land in question was hampered by the existence of the tenants occupancy rights it had no value other than the value calculated on its rent income to a person who could not extinguish those occupancy rights (p. 368 page of 40 A. [Ed]). The zamindar claimed the whole of the compensation minus what had been given to the tenant. A Division Bench of this Court (Piggott and Walsh, JJ.) held that had it been established that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our of the zemindar, there are points in favour of the occupancy tenant as well: (1). (a) No doubt an occupancy tenant's rent (is liable to enhancement, but the enhancement of the rent of an occupancy tenant, cannot be effected more than once in 20 years, and this too for not more than 25 per cent, (Sections 67 and 50 of the Tenancy Act). (b) As against this the Government Revenue payable by the zemindar is also liable to enhancement though it cannot be enhanced within the period of the existing settlement. (2) Of course, the occupancy tenant has no right to transfer his rights, whereas the zemindar can transfer his proprietary interest. But the value of the transferable interest of the zemindar is, for all practical purposes, governed by the rent which he receives from the tenant. Although he transfers his other contingent rights, he has no right of actual occupation. (3) The right of a tenant to sub-let the land is very much limited, but as against this the zemindars right to sub let the land to anybody else and put him in possession does not exist so long as the occupancy tenant continues. (4) The tenant is liable to ejectment when the rent falls into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s line becoming extinct and he may also be fairly well off so that there is no fear of his being ejected for non-payment of a rent. In such a case the prospective chance of the zemindar for obtaining the occupancy tenancy is almost negligible. On the, other hand, there may be an old Hindu widow as an occupancy tenant, who has no daughter, daughter's son or collateral of her deceased husband joint with her in the cultivation. In such a case the chance of the tenancy lapsing to the zemindar would be very great, and the value of the interest of the zemindar, therefore, fairly high. 31. The method adopted by Griffin and Chamier, JJ. in Hirday Narairt's case 17 Ind. Cas. 672 : 35 A. 9 : 10 A.L.J. 403, was that in the absence of definite evidence as to the respective rights of the parties in the land the apportionment should be in the ratio of the annual values of their interests i.e., in the ratio of the net profits to the zemindar and the net profits to the tenant. The net profits of the zemindar are to be determined by the difference in the amount of rent received and the amount of Government Revenue paid by him; and the net profits of the occupancy tenant would be the diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spective of the fact who holds the land and in what shares. The land may be held by say 100 petty shares and it may again be held by tenants and sub-tenants. The proprietors may find it extremely difficult to agree among themselves as to whether they should sell the land and therefore it may be well nigh impossible for them to sell the land to a private purchaser. Again, for the reason that some of the actual holders of the land are tenants without any right of transfer and for the reason that the landlord and the tenant cannot agree, to give a transferee good title and possession, there may be practical difficulty in transferring the property to a private individual. But these considerations cannot be relevant in finding out the price which the Government must pay in acquiring the land. If these considerations were relevant, the Government would pay different prices for the same land in different circumstances which have nothing to do with the intrinsic worth of the land or the market value of it. 33. When the price payable by the Government has been determined the question of apportionment will arise and then we must find, out the proportionate values of the interests of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not arise. The Collector makes his a ward in accordance with the instructions contained in Chap. XV of the Manual of the Revenue Department. The sums payable as compensation to the landlord and to the tenant respectively are separately assessed. The landlord's compensation is calculated in accordance with paras. 467 to 474, and the occupancy tenant's compensation in accordance with para. 485. The point that I mean to emphasize is that the compensation payable to the landlord and to the tenant is calculated separately and independently. The result is that there is no lump sum, or joint assessment, which has to be apportioned between the landlord and tenant. It would no doubt be possible to work out the average ratio of the landlord's interest to the tenant's interest by comparing the sums paid as compensation to landlords and to tenants respectively in a large number of cases. We have no materials for calculating the average ratio and I do not see what useful purpose would be served by such a calculation. In practice the Courts are not called upon to divide any lump sum between the landlord and the tenant. If a reference is made to the Court by the landlord, then the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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