Judgement

SHAH, J. : In this group of appeals arising out of land acquisition references, two questions fall to be determined:

(1) Whether the owners are entitled to get 15 Per cent solatium in addition to the market value for compulsory acquisition of the lands; and

(2) Whether the rate at which compensation has been awarded to the claimants for compulsory acquisition of the land is justified by the evidence.

2. The Legislature of the Province of Madras enacted the Madras City Improvement Trust Act 16 of 1945, to provide, inter alla, for improvement and expansion of the City of Madras by opening up congested areas. Under Sec. 8 of the Act a Board of Trustees, with power to carry out the provisions of the Act, is to be constituted. The Board is empowered by the Act to frame a scheme to be called "Town Expansion Scheme", and to notify the scheme and also to publish it in the Government Gazette. After considering the objections raised by persons affected by the scheme the Government may sanction the improvement scheme with or without modifications and announce the fact by notification. Publication of the notification is conclusive evidence that the scheme has been duly framed and sanctioned. The Board shall then proceed with the execution of the scheme. The Board is by virtue of Section 71 authorised, with the previous sanction of the Government, to acquire land under the provisions of the Land Acquisition Act, 1894, for carrying out any of the purposes of the Act. Section 72 authorises the Government to constitute a Tribunal for performing the functions of the Court in reference to the acquisition of land for the Board under the Land Acquisition Act, 1894. By Section 73 it is provided:

"For the purpose of acquiring land for the Board under the Land Acquisition Act, 1894-

(a) the said Act shall be subject to the modifications specified in the Schedule; and

(b) * * * * * *"

The Schedule to the Act provided for modifications in the Land Acquisition Act, 1894, for certain specific purposes. By Clause 6 (2) of the Schedule the acquiring authority is not liable to pay the additional 15 per cent of the market value under Section 23 (2) of the Land Acquisition Act "where the land acquired is situated in an area which is declared by the Provincial Government to be a congested or slum area and the land is not in the actual possession of the owner." It may suffice to state that the land in the cases out of which these appeals arise did not fall within the proviso and in addition to the market value fifteen per cent on the market value in consideration of the compulsory nature of the acquisition was payable for acquisition of land made under Act 16 of 1945.

3. Madras Act 16 of 1945 was repealed and was replaced by Madras Act 37 of 1950. The scheme of the new Act remained. with some modifications, substantially the same as the scheme of the repealed Act. By Section 173 (2) it was provided that:

"Notwithstanding such repeal all actions taken, all notifications published, all rules and orders issued and all things done under that Act (Act 16 of 1945) shall be deemed to have been taken, published, issued and done under this Act, and may be continued thereunder." All the proceedings commenced under Act 16 of 1945 were therefore to be deemed to have been taken under Act 37 of 1950. An important change, however, was made in the Schedule to Act 37 of 1950 which modified the provisions of the Land Acquisition Act, 1894, in its application to the acquisition of lands under that Act. By Clause 6 (2) of the Schedule it was provided that sub-s. (3) of Section 23 shall be omitted, and in lieu thereof the following sub-section shall be deemed to have been substituted namely :-

"(2) For the purpose of clause first of sub-section (1) of this section -

(a) if the market value of the land has been increased or decreased owing to the land falling within or near to the alignment of a projected public street, so much of the increase or decrease as may be due to such cause