' KARAM ELAHEE CHAUHAN, J.-A large area of agricultural land of village 58/1 in Tehsil Toba Tek Singh, District Lyallpur, was compulsorily acquired under the Land Acquisition Act I of 1894 (hereinafter called the Act) for a public purpose of construction of a Protection Bund with high level bridge on River Ravi at Chichawatni-Kamalia road. The land of the appellants, measuring 9 kanals and 9 marlas, was involved in that acquisition and was taken over by the authorities concerned and the aforesaid bund was built thereon as also on the land of the other land owners which was similarly acquired. Notification indicating the intention to acquire the land under section 4 of the Act was issued on 9.6-1968 which was followed by other relevant notifications etc. The Land Acquisition Collector (Highways Department Bahawalpur), by means of his Award dated 17.4.1969 directed that the appellants be granted compensation for their land at the rate of Rs, 3,356.80 per acre. The appellants, it may be mentioned, had claimed compensation at the rate of Rs, 6,000 per acre and had also claimed compensation for damage caused to the rest of their land due to the aforesaid acquisition. The aforesaid right and the claim, however, were not accepted or granted.
The appellants made a reference to the civil Court under section 18 of the Act which was partially accepted by the Administrative Civil Judge by his judgment and decree dated 1-6-1970 whereby the rate of compensation was enhanced from Rs, 3,356.80 to Rs, 4,000 per acre, but no other relief and nor any compensation, interest or compound interest under any other head was granted to the appellants and in fact these matters were not even attended to by him, The appellants have come up in Regular First Appeal under section 54 of the pct to this Court. Learned counsel for the appellants has raised a number of contentions, to which we will presently advert.
2. The first point argued by the learned counsel for the appellants was that his clients had a total area of 218 kanals and 3 marlas out of which only 9 kanals and 9 marlas had been acquired along with the land of the various other land owners for the purpose of constructing a bund to stop flow of river and rain water towards the west of the bund with the result that the remaining land of the appellants measuring 208 kanals and 14 marlas, which already existed towards the east of the bund has been more exposed and become more vulnerable to frequency of floods and strangulation of rain water, inasmuch as, with, the construction of the bund the water now cannot cross over the bund but will strangulate in the rest of the area, which, in this way has become valueless and totally depreciated. That some injurious effect on the other land of the appellants has taken place is conceded in the Award dated 17-4-1969 of the Collector, who, on page 5, held as follows:- "Mr. Hamid Ali, Proprietor of this village stated that some area has been acquired from his land for the protection Bund. He has further stated that by the construction of the protection bund his remaining area has come within the protection bund and as such whenever flood will come his tube-well, crops will be destroyed and that this situation has adversely affected value of his land and as such he should be compensated for this injury under section 23(1)(4) of the Land Acquisition Act, 1894. He has referred to his application in which this question has been raised. This application has been placed on the file. Not only Mr. Hamid Ali but some other owners also whose land has come on the eastern side of the bund have raised similar question. It is difficult to assess the value of this injury, to the proprietors in the east of the bund. The protection bund has been constructed in the greater Interest of the locality and country. It could not be denied that the area which has come on the eastern side of the protection bund was previous to this construction, also subject to River flood. The only difference being that whereas formerly flood water used to pass through this area now there is a possibility of its being stopped by this bund and there is likelihood of great damage to the area. Mr. Hamid Ali and a few others are not only persons who will be affected if flood comes but owners and proprietors of wry vast area are likely to be affected. The magnitude of this problem can only be assessed by the Technical Officers of the Department at High Level. Torn of policy in cases of damage to property viz. Houses, crops etc. The Government does compensate the affected people whenever a flood or emergency takes place and damage is done to the property of the public. The affected people of this village can avail of this concession and claim proper compensation whenever such emergency arises. At this juncture. I find myself unable to assess an award damages on this account."
' This claim was pressed before the civil Court as well, as is evident from a recital of this matter at page 8 of his impugned judgment and order dated 1-6-1970, where it is stated that "they further state that their land is permanently affected and injured by the construction of the protection bund and its market value has been decreased as the land has been exposed to the river action and is likely to be flooded during the rainy seasons". However, the learned civil Court failed to deal with this subject-matter and this fact by itself is sufficient to vitiate his last judgment and order under appeal. The learned counsel has submitted that the above approach of the Collector is illegal and the failure of the civil Court to deal with the aforesaid mattes in accordance with law relevant on the subject has brought injustice to his clients, who have been deprived of a fair compensation which it was their legal right to claim. The contentions seem to have force. Section 2 of the Act, which deals with and lays down the principles and rules for the award of compensation reads as follow:- ' Section 23. "Matters to be considered in determining compensation.-(1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration : ' First, the market-value of the land at the date of the publication of the notification under section 4, subsection (1).
' Secondly, the damage sustained by the person interested by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof; ' Thirdly, the damage (if any) sustained by the person interested at the time of the Collector's taking possession of the land, by reason of severing such land from his other land; ' Fourthly, 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 other property movable or immovable, in any other manner, or his earnings; ' Fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and ' Sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land.
(2) In addition to the market-value of the land as above provided, the Court shall in every case award a sum of fifteen per centum on such market-value, in consideration of the compulsory natures of the acquisition,"
At the moment we are concerned with clauses thirdly and fourthly of section 23(1). The difference between these two clauses is that whereas clause thirdly refers to the other lands of the owner by reason of severance while clause fourthly refers to an injury to such lands caused in any other manner, Le., an injury other than the one caused by severance though the conditions are the same, namely-
(a) that he must be a person interested in the land;
(b) his other property, movable or immovable, or his earnings, must be injuriously affected by the acquisition; and (c)that the damage must be sustained at the time of the Collector's taking possession.
3. Taking the point at (a) above, it may be mentioned that for the phrase "person interested", which occurs in the clauses under consideration, reference may be made to section 3(b) where it is laid down that "the expression 'person interested' includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act, and a person shall be deemed to be interested in land if he is interested in an easement affecting the land". This will show that a person interested is one who is interested in the compensation of the land. If we compare clauses (first), (secondly) and (sixthly) of section 23 with clauses (thirdly) and (fourthly), we note that clauses (first) (secondly) and (sixthly) relate to the land which is subject of acquisition and the mention of "other land" and 'any other property" in clauses (thirdly) and (fourthly) respectively indicate that compensation can be claimed only by one whose land has been taken over under the Act. (As the learned counsel conceded that in the instant case he will not be invoking the clause thirdly, therefore, we need not go into the detailed discussion of the same and will confine our judgment to clause "fourthly" alone). In other words, it would mean that under this Act no person can claim compensation unless some of his land has been taken over for which he claims an interest or over which he has an easement. A person cannot claim compensation on the ground that his land has been injuriously affected by the acquisition if no part of his land has been taken over. Thus simple workmen employed on certain land are not entitled to any compensation, because, they are not persons interested in the land within the meaning of these clauses. This is clear from a Privy Council case reported in Secretary of State v.
Shanamugaraya (1), where at pages 378379 the Privy Council observed that "no compensation is tendered by the Collector or ordered by the Act except to persons interested in the land. If the acquisition injuriously affects the earnings of the person interested, he is to obtain further compensation beyond the market value of the land. But no compensation is given to persons not interested in the land on the ground that their earnings may be affected by the change of ownership, or indeed on any ground. The forty-six quarrymen are no more interested in the land than ploughman or a digger is interested in the land on which he works for wages. Nor are their earnings the earning of their Zamindar who is interested. The market value of a property is not increased by the circumstance that a number of persons work on it and so earn their livelihood.
That is no profit to the owner; it may be expense to him. And the award of the High Court has the extraordinary result of putting a large sum into the pocket of the Mudaliars on the ground that some of their neighbors will be injured by losing their employment." It may be mentioned that this, however, is not the law in England and there a person may recover compensation subject to certain restrictions if his land is injuriously affected although no part of it is taken over. For this distinction see Collector of Dinagepore v. Girja Nath Roy and others (2) (Macpherson and Wilkins, JJ.)
4. As regards the point at (b) above, namely, injurious affection (clause fourthly) it is to be borne in mind that to attract application of (1) I L R 16 Mad. 369 (P) (2) I L R 25 Cal. 346 this clause it is necessary that other property of the person interested in the land under acquisition must be affected by the acquisition in question. The word acquisition, as used in this section, includes the purpose for which the land is taken as well as the actual taking. In the aforesaid Calcutta case the District Board of Dinagepore erected a bridge over the river Tulai, in consequence of the erection of which a ferry, which was within 100 cubits of the bridge and owned by the Maharajah of Dinagepore who was also the owner of the land taken for the construction of the bridge, ceased to exist. It was held that the owner of the ferry was entitled under the Land Acquisition Act to compensation for the loss of the ferry. The actual relevant passage in the judgment occurs at pages 353-354 where it was held that: "Then, was the damage sustained by reason of the acquisition, injuriously affecting the ferry? It is said that the word 'acquisition' means the mere taking of the land without any regard to the purpose for which it was taken, and that the ferry was not in any way injuriously affected by the acquisition of the land, however much it may have been injured by the construction of the bridge when the bridge was constructed and opened to traffic. We think it is clear that the word 'acquisition' as used in section 23 includes the purpose for which the land is taken as well as the actual taking.
' Under section 6 the declaration of the intended acquisition must state the purpose for which the land is needed; after it has been published the Collector is to take order for the acquisition. He is to measure, mark out and make a plan of the land, to give notice that the Government intends to take possession of it, that he will receive claims to compensation for all interests in it, and that all persons interested must attend at a specified time and state the nature of their respective interests and the amount and particulars of their claims to compensation. He is then to inquire into the respective interests and claims and to make his award, and in determining the amount of compensation he is to be guided by the provisions of sections 23 and 24.
' If he is not to take into consideration the purpose for which the land is taken, it is difficult to see how he is to determine the amount of the compensation with reference to many of the matters which he is bound to consider under section 23.
' It may be true that if the bridge had never been constructed, or if constructed, never opened for traffic, the actual injury, to the ferry might have been comparatively speaking small. But it is impossible to say that it was not injuriously affected by the acquisition in such a way as to cause some damage to the owner of it. The declaration of the Government that the land was wanted for a purpose which would entirely destroy that ferry, the proceedings taken, and the actual acquisition of the land for that purpose, must have considerably affected the letting or selling value at the time of the acquisition.
' The intention of the Legislature to be gathered from the Act seems to have been that persons, a part of whose land has been compulsorily taken from them, should, apart from its actual value, be compensated for injury done to their other property by the taking.
' We must hold, therefore, that the Maharajah was entitled under the Act to compensation for the loss of the ferry, and that the decision of the District Judge is right."
' Reference may also be made to M. E. Moola v. Collector of Rangoon (1), whore the purpose of acquisition, namely, "road" was held to have injuriously affected the other lands. In The Special Tahsildar, Harijan Welfare, Kumbakonam Land Acquisition Collector v. S. Vaidyannatha Ayyar (2) the land was acquired for construction Harijan quarters. It was held that this will injuriously affect other land of the claimants, and as such, they were entitled to further compensation under section 23(1)(4). Similarly in R. H. Wernicke and others v. The Secretary of State for India in Council (2) (Doss and Richardson, II.) at was held that where a portion of a tea garden is taken for being used as a rifle range, the other portion must be taken to be injuriously affected as it is extremely unsafe to work on land situated behind the butts when tiring is going on. It was further observed that it was no answer to the claim of the land owner to say that as an injury may be caused in future by the use of the acquired laud as a rifle range (the declared purpose for which it was acquired) therefore it would be only actionable (i,e, by a separate suit). In Guru Das Kundu Chowdhrp and others v. The Secretary of State for India in Council (4), it was held that where part of a person's land is taken for sewage depot, the close proximity of the depot to the other land adjoining of the person would depreciate its value and compensation may be awarded for damage to be sustained by reason of the other land being injuriously affected. In Nathar Hussain Meers Leval Rowther and another v.
Deputy Collector of Usilampati (5) it was held that "there is uncontradicted evidence that the remaining lands of the claimants were injuriously affected by the construction of the channel and flood bank. They are entitled to be compensated for this injury ....., ...... ". In Pandurang Fate v.
Collector Nagpur (6), Findlay, J. C. Laid down that where a portion of a plot of land is acquired for the construction of a public latrine there is a presumption that the acquisition will directly tend to reduce the amenity of the land as a whole. The leading English authority on the subject is Cowper Essex v. The Aeton Local Board (7), which was a case of acquiring land for sewage and it was held that by this acquisition other land of the land owner was injuriously affected. However, it is t be remembered that the words "injuriously affecting" as occurring in clause (fourthly) do not mean wrongfully or unlawfully nor do they imply the compensation is limited to cases where the act done is such, as, but for the power given, would be a tort at common law. (This is the law in England but not here where we have express provision in the form of clause (fourthly) in the act). The words mean 'damnously affected' only. The test is this "where by the construction of works there is a physical interference with any right, public or private, which the owners or occupiers of property are by law entitled to make use of in connection with such property and which right gives an additional market value to such property apart from the uses to which any particular owner or occupier might put it, there is a title to compensation if by reason of such interference the property as a property is lessened in value." Injurious affection really means a depreciation in value. The injury complained of should not merely be a personal injury or a sentimental injury. It must be an injury which has diminished the value of the land. In other words it is injury to the land (1) AIR 1927 Rang, 29 (2) AIR 1958 Mad. 214 (3) 2 I C 562 (4) 22 I C 354 (5) AIR 1916 Mad. 1146 (6) 108 I C 745 (7) (1889) 14 A C 153 (H L) and not to a person. Injurious affection must have reference to land and its incidents as, for example, by exposing it to danger of fire due to a railway engine passing through or near the land, or an injury loosening the foundation of the building on it, obstructing its light, or its drains, or flow of water resulting in its stagnation due to acquisition or making it inaccessible by lowering or raising the grounds immediately in front of it, or by some similar physical deterioration. For further discussion on the subject see the Compulsory Acquisition of Land in India and Pakistan by Om Parakash Aggarawala 1950 (Third Edition) page 300 and Sanjiwa Row's Law of Land Acquisition and Compensation (Fourth) (1958 Edition), revised and enlarged by S. P. Singhal at pages 311 to 321 and pages 469 to 472. And Halsbury's Laws of England (Fourth Edition) Volume 8, paras. 319-320, pages 227 to 230.
5. As regards the point at (c) in para. 2 above, the damage should be such which is sustained at the t me of the Collector's taking possession of the land. In this case, according to the learned counsel for the appellants, then possession was taken on 4-3-1967 and by reason of the aforesaid acquisition rest of their land diminished in value at that or with effect from that date or time. In clause (fourthly), according to us, there is no limit as to the, nature of injurious affection, except, insofar as, this is provided for by the other clauses of the section and the difficulty is only as to the time when damage is sustained. It is sufficient when possession is taken that there is other property injuriously affected so as to suffer some damage due to the acquisition.
6. Examining the case in the light of the above law, we note that here there is ample evidence to show that the value of the other land measuring 20e kanals and 14 marlas of the appellants did dwindle down at the time of the Collector's taking possession of the land. P. W. 1 Syed Ahmed Khan, revenue pat wari, deposed that he had seen the land in dispute And that due to the construction of the bund the land of the appellants, as (he deposed, had come within bund and that in case of flood water strangulates at that place. P. W. 2 Umar Hayat deposed that the land of the appellants was subject to danger in case of floods. R. W. 3 Ch. Nabi Ahmed stated that due to bund the area of the appellants had become vulnerable to water. P. W. 4 was Ch. Hamid Ali, appellant himself. He deposed that due to bund value of his other land had dwindled down; that he had been deprived of taking any benefit of road; that the land has been left with no access; earlier his land was above river level but now it had rather come within river and within flood range; if flood comes then he will suffer great loss. The respondent produced only one witness, namely, Abdul Sattar, Patwari, Land Acquisition Circle, Malian, who said nothing regarding the subject matter under discussion. The respondent thus led no evidence in rebuttal of the case of the appellants on the subject in hand.
On the other hand, the Land Acquisition Collector himself, in the portion of his Award reproduced above, conceded that some injurious affection had occasioned to the other land of the appellants.
In that state of affairs, the Land Acquisition Collector should have proceeded to award compensation for the same under clause (fourthly) of subsection (1) of section 23. His refusal to do so was illegal and so was the failure of the civil Court to deal with this matter despite its having been specifically raised before him. In these circumstances, we have no option but to remand the case to the Land Acquisition Collector to award and assess compensation to the appellants on the count under discussion.
7. When confronted with the above, learned counsel for the respondent referred to section 24 of the Act where it is laid down that "but the Court shall not take into consideration ... (fourthly any damage which is likely to be caused to the land acquired after the date of publication of the declaration under section 6, by or in consequence of the use to which it will be put . . ..... ". He submitted that if the land in question is to be acquired and used for the purpose of a Mind and if any damage is caused from that use to any other property of the appellants then no compensation for the same could be granted to them under this Act. The contention has no merit.
This clause talks of the damage to the land acquired and does not refer to the damage to the other land i,e, other than the land acquired of a person interested. Learned counsel for the respondent then urged that as and when any actual damage in the form of flood occurs to the remaining land of the appellants due to the bund they may, at that time, claim compensation -(if at all such a claim be maintainable), but as no flood had so far damaged their crops or land, therefore, the plea for claim under clause (fourthly) of section 23(1) which is being presently advanced in these proceedings is not maintainable. The contention has no merit. The correct approach in such cases is not as to whether any calamity has, prior to taking possession of the land occurred on the rest of the land but 'whether the rest of the land has due to the purpose for which some land of the land owner has been acquired diminished or dwindled in value. The matter stands thrashed out in the relevant cases referred to above and we need not do that exercise here in extenso again. It was further submitted that in such cases the proper remedy of the appellants was to sue for damages by means of a civil suit and not press their claim under clause (fourthly) of subsection (1) of section 23 of the Act. This plea too has no merit. The aforesaid provision of law expressly bestows a statutory right on the land owners to put forward such a claim before the Land Acquisition Collector and, therefore, the appellants were well within their statutory right to press their claim in these proceedings. Remedies of suits are available to those owners no portion of whose lands is acquired, but such owners whose lands are acquired and who are persons interested in the compensation can press their claims before the Land Acquisition Collector under the provisions of the Land Acquisition Act. Another submission of the learned counsel for the respondent in this respect was that clause fourthly does not authorise introduction of the concept of potential value of the land because that incident is to be taken note of only in clause first of subsection (1) of section 23. If claim of the kind advanced here is allowed, it will tantamount to introducing a new concept of potential value of the rest of the land whereas clause fourthly is confined only to the time of the Collector's taking possession of the land. The answer is quite simple. We are not introducing clause first in the instant case. Our detailed reasons and the supporting case-law referred to above, will show that we have confined our approach to the diminution of the value at the time of the Collector's taking possession of the land and have not exceeded that terminus.
8. Lastly learned counsel for the respondent submitted that in clause thirdly of section 24 it was laid down that a Court is not to take into consideration . . . . "thirdly any damage sustained by him which, if caused by a private person, would not render such person liable to a suit". He argued that this clause should be read as a proviso or an exception to clause fourthly of section 23(1), with the result that where damage is sustained by reason of "acquisition injuriously affecting" other property of a person interested, then the injurious affection should be such which, if caused by a private person could have been subject-matter of a suit, and if it could not be a subject-matter of a suit, then no damage for it was claimable(even)-under clause fourthly of section 23(1). The point has already been dealt with above, while explaining scope of section 23(1) (fourthly). However, now to attend to clause thirdly of section 24 specifically, it may be mentioned that there may be losses sustained in consequence of acquisition, which acquisition (and acts connected therewith) may be authorised by the acquisition law itself. If in consequence of sub acquisition, or to say, such act authorised by the law relevant, any damage is sustained to other land of a person interested, his remedy is to claim compensation under section 23(1) (thirdly), but if anything is done in excess of the aforesaid powers or authorised acts, then damages will be claimable only if injury is actionable by a suit If the injury so complained of, for instance, is not action by a civil suit, then clause thirdly of section 24 debars any compensation for the same under the Act. This is how clause thirdly of section 24 and clause fourthly of section 23(1) can be safely interpreter and reconciled without creating any unnecessary conflict between the two At this place we may reproduce a passage from "Compulsory Acquisition of Land in British India", Law and Practice, by Rai Sahib Om Prakash Aggarawala (1942 Edition), where at page 472, under the heading "by reason of the acquisition" as muting in clause fourthly of section 23(1), the learned author states as follows: "This expression means that the injurious affection must be the natural, consequence of the acquisition, otherwise there would be no right to compensation under this head. This is in accord with the English principles of compensation. "It has been again and again decided that no compensation could be sought except for injuries that might be occasioned by what was done under the powers conferred by the Legislature upon any bodies of persons" Imperial Gaslight Coke Co. v. Broadbent, (7 H L C 600), This statutory tribunals only established to give compensation for losses sustained in consequence of what the railway company may do lawfully under the powers which the Legislature has conferred upon them, and that for anything done in excess of those powers, or contrary to what the Legislature in conferring those powers has commanded, the proper remedy is a common law action in the common law Courts" Caledonian Railway Co. v. Golt (3 Macq. H L 833).
Consequently we would hold that clause thirdly of section 24 refers to such acts which are injurious otherwise than on account of the act of acquisition itself. If the act of acquisition itself injuriously affects the remaining Ian then compensation for the damage so caused to the rest of land of a person interested is claimable by him through section 23(1) (fourthly) and thereunder it need not be such an act which should in law constitute a tort in the form of nuisance, negligence or otherwise an actionable claim etc. Because if that were so then clause fourthly of section 23(1) will become redundant and the words "acquisition" and "injuriously affecting" would lose all significance. This is in consonance with the interpretation of the aforesaid words as put by us on them above.
9. The second point raised by the learned counsel for the appellants was that the Collector and the civil Court have referred to Mutation No, 7 for the purpose of awarding compensation for the land acquired herein.
' He argued that the land in Mutation No, 7 was at a distance of one mile from the land of the appellants which was a chahi land and where they had installed an electric tube-well, whereas the land in Mutation No, 7 was barani and water was being used there by the cultivators concerned on loan and that it was, what is called The appellants' land was initially close to a pacca metaled road which goes from Kahna to Chichawatni and the land in Mutation No, 7 was not so close. The civil Court took note of these factors and enhanced the compensation to Rs, 4.000 per acre as against the rate of Rs, 3,356.80 per acre. The increased rate is quite reasonable. We have no other yardstick or evidence before us to show that the rate fixed by the learned civil Court is erroneous in any manner. The appellants claimed compensation at the rate of Rs, 6,000 per acre, but nothing has been brought on record warranting the aforesaid rate. In this respect the rate fixed by the learned civil Court, with regard to the land actually acquired, does not call for any interference. We hold accord.
10. The third point raised by the learned counsel for the appellants was that his clients have not been awarded interest under section 23(2) (as amended) of the Act. The contention seems to have merit. Such a solatiam is mandatory on the amount of compensation determined under subsection (1) of section 23 and the Court below erred in not granting the same to the appellants.
Learned counsel for the appellants also claimed compound interest under sections 28 and 34 of the Act. In Nishat Sarhad Textile Mills Ltd, v. Sher Ahmad Khan and others (1), it was held that compound interest under section 28 could be granted by the Court. In our view the appellants, on the facts and in the peculiar circumstances of this case, were well within their right to claim compound interest under the aforesaid g provisions of law, especially when it is due to the failure of the Land Acquisition Collector and the civil Court that they have been refused proper 'compensation, as highlighted above. We hold accordingly.
11. The upshot of the above discussion is that the present appeal is accepted, with costs, in this way that (a) the award of compensation for the land acquired at the rate of Rs, 4,000 per acre is hereby maintained but with a direction that the appellants should be awarded further solatium at the rate of 15% on the aforesaid amount under section 23(2) of the Act. (b) the case is remanded to the Land Acquisition Collector to assess and award compensation to the appellants for their other land measuring 208 kanals and 14 marks which has been injuriously affected by acquisition on the date of the Collector's taking possession of the land in the light of the discussion and observations made above and (c) similarly the Collector should award compound interest to the appellants under sections 28 and 34 of the Act as laid down therein.
(1) PLD 1976 SC 531