Judgement

Consolidated Appeals (No. 106 of 1927) from a decree of the High Court (February 1, 1926) modifying two decrees of that Court in its original jurisdiction.

The decrees appealed from were made in appeals from decrees or orders in two references under s. 19 of the Land Acquisition Act, 1894.

The only question of principle which arose was as to the date upon which the market value was to be considered, having regard to the fact that the Government had published in October, 1923, a declaration of its intention to acquire the appellants land, which cancelled a declaration of May, 1923, referring to the appellants land and to certain other land.

Law Rep. 56 Ind. App. 210 ( 1928- 1929)

Ma Sin V. C ollector of Rangoon 61

The High Court, on appeal (Rutledge C.J. and Maung Ba J.), held that the material date for consideration was that of the earlier notification, since in their view that notification practically remained good so far as the plots in question were concerned.

1929. Feb. 12. Samuel Moses for the appellants.

Sir George Lowndes K.C. and E. B. Raikes for the respondent. Reference was made to the Land Acquisition Act, 1894, ss. 6, 23, 48.

The judgment of their Lordships was delivered by

VISCOUNT DUNEDIN. This is an appeal from the High Court of Judicature at Rangoon, in a case in which they have altered the finding of the judge of the High Court of the original side in a land acquisition case.

The Government on May 31, 1922, had published a declaration under s. 6 of the Land Acquisition Act, 1894, that the appellants land was required for a public purpose, and that declaration included, besides the land which they desired to take from the appellants, certain land belonging to other people. The Government seemingly changed their mind about requiring the land of the other people, and accordingly on October 6, 1923, they published another declaration under s. 6, specifying the same land belonging to them, but, at the same time, announcing that the former declaration was cancelled.

The matter went before the Collector, and he gave a certain award, to which their Lordships need make no further allusion. An appeal was taken to a judge of the High Court, and that judge made an award by which he awarded Rs. 6500 per acre in respect of one plot and Rs. 3800 per acre in respect of another plot. Appeal and cross-appeal were taken to the Appellate Court, and the Appellate Court altered that judgment, replacing the figure of Rs. 6500 per acre by a figure of Rs. 5600 per acre, and replacing the figure of Rs. 3800 per acre by a figure of Rs. 2750 per acre.

The Appellate Court, in considering the sales upon which they based their judgment, after mentioning the two notifications, which their Lordships have already referred to, then said " Though the word cancelled was used to mean that the first notification was either superseded or modified, the first notification practically remained good so far as these two plots of Maung Ba Kyaw and Ma Sin are concerned.

So in our opinion the market value at the date of the publication of the first notification should be the market value to be considered."

Their Lordships are unable to take that view, because it is absolutely in the teeth of s. 23, sub-s. 1 (1.), of the Land Acquisition Act, 1894, which says that, in determining the amount of compensation to be awarded, the Court shall take into consideration " the market value of land at the date of the publication of the declaration relating thereto under s. 6."

Now, it is perfectly certain that the only notification which gave right to take this land was the second notification, and therefore that date must be the date taken. That really vitiates the judgment of the Appellate Court. It is apparent from the figures that all this land was galloping upwards in value, and in particular, that sales were proved, after the date of the first notification, but before the date of the second, which showed a highly increased value, and that it was in conside