Compensation under the Land Acquisition Act should be based on the loss of income from the land itself, and the owner is not entitled to additional compensation for the loss of earnings during the intervening period when a new lease is granted in exchange for the old one.

Pollock, J—This is an appeal by the Provincial Government against an award by the First Additional District Judge, Nagpur, in proceedings under the Land Acquisition Act. The Provincial Government has acquired 52. 94 acres of land in mauza Pendharabodi for the Nagpur University. This includes 17 acres of land of which the Provincial Government had granted a quarry lease for 10 years with effect from 14-8-1934 to Messrs. Oke Brothers, the respondents. The Oke Brothers acquired 2 acres out of this land under Section 218(5), Land Revenue Act, and extracted a considerable amount of metal and muram from one acre and a little from the other. The Provincial Government published notification under Section 4, Land Acquisition Act, on 18-1-1987 and directed in that notification that possession of the said land, which was described as waste arable land, should be taken on the expiration of fifteen days from the publication of the notice under Section 9(1) of the Act. The notice under Section 9(1) was published on 14-2-1937, and a copy was served on Oke Brothers on 20-2-1937. On 30-3-1937 the Land Acquisition Officer directed Mr. Oke to stop the quarry work at once, and he did so. On 17-7-1937 the Provincial Government gave to Oke Brothers a quarry lease over an area of 8.32 acres of land in mauza Takli and cancelled the former lease.

2. The learned Additional District Judge held that Oke Brothers were entitled to damages at the rate of Rs. 15 a day from 30-3-1937, when they had to stop work on the land acquired, until 17-7-1937, when they were granted a new lease. The Provincial Government contends that a new lease was given in exchange for the old by mutual arrangement under Section 31(3), Land Acquisition Act, and no further compensation is therefore payable. Negotiations had been going on for some time between the Provincial Government and Oke Brothers about the exchange even before these land acquisition proceedings began, but there is no doubt that a new lease was granted in exchange for the old and this has not been disputed in this Court, although the Additional District Judge seems to think otherwise. The Land Acquisition Officer was, in my opinion, justified in taking immediate possession, but I do not think the question is material in deciding what compensation is payable to Oke Brothers under the Land Acquisition Act. The amount of compensation has to be calculated in accordance with the provisions under Section 23 of the Act, and the learned Counsel for the respondents admitted that he relied solely on the fourth clause of Sub-section (1) of that section. That clause provides that in determining the amount of compensation to be awarded, the Court shall take into consideration the damage, if any, sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his earnings. I respectfully agree with the view taken in Secy. of State v. Rawat Mull, 1938 AIR(Pat) 618 that this clause has no application if the loss of income complained of is the loss of the income of the property itself which is being acquired, that the price of the land should be fixed on the basis that the owner should get full compensation for the loss of the income which he was getting from the land, and that for the land itself the owner is not entitled to get anything more than the market value of the land. If the learned Judges who decided Nanamiyan v. Land Acquisition Officer, 1946 AIR(Bom) 171 intended to lay down the contrary view I must respectfully dissent.

3. The question is what arrangement was made between the Provincial Government and Oke Brothers when it was agreed that a new lease should be given to Oke Brothers in exchange for the old. There is nothing in the pleadings or elsewhere to suggest that Oke Brothers were to get compensation for the loss of earnings during the intervening period. The Collector was therefore right, in my opinion, and the learned add