JUDGMENT
1. This is an appeal by the Secretary of State arising out of certain land acquisition proceedings. The property acquired was a house, No. 69 in Mirganj, within the Municipal limits of Allahabad. According to the finding of the Tribunal, it is situated within 50 paces of the Clock Tower which is in the centre of the town. The house consisted of two rooms, two verandahs, one puces courtyard and one latrine on the ground floor and a pucca roof with a pucca room on the upper storey. The area of the house was 26 feet × 26 feet and it was situated at a distance of 20 paces from the Grand Trunk Road. The Land Acquisition Officer found that the Municipal taxes had been assessed on the basis of Rs. 48 yearly (monthly appears to be a mistake), and thought that Rs. 5 per month after making deductions for repairs, etc., would be a fair amount, that is, he thought that the rent fetched would be more, but the average rent per month might be taken to be Rs. 5 after allowing for repairs, vacancies, etc. He then calculated the value of the property at six per cent per annum and awarded. Rs. 833 without awarding the owner any compensation on account of compulsory acquisition as he thought that the building was not in actual occupation of the owner. The Tribunal of the Improvement Trust came to the conclusion that the building was used by the claimant as his godown for storing sugar and also for the accommodation of customers who came from outside. They estimated the proper rent as Rs. 8 per month. They accordingly awarded Rs. 1,600 as compensation at the rate of 16-2/3rds years purchase, and also awarded Rs. 240 as the extra 15 per cent for compulsory acquisition.
2. In appeal the first point urged is that the Tribunal should not have fixed the rent at Rs. 8 per month, which was nobody's case, as Land Acquisition Officer had fixed Rs. 5 per month whereas the claimant was claiming at the rate of Rs. 13 or Rs. 14. We cannot possibly accept this argument. It was certainly open to the Tribunal to record a finding fixing a rate which was midway between the two rates mentioned by the parties. The second point urged is that the house having been assessed to Municipal taxes the Tribunal was bound to fix the value at that rate and has no power to go beyond it. This contention is based on Section 10 Sub-section (3), Clause (g). But under that sub-section it is only where the owner of the land or building has after the passing of the Town Improvement Act of 1919, and within two years preceding the date with reference to which the market value is to be determined, made a return under the Municipalities Act, that such rent is to be deemed to be the maximum amount allowable. In the present case there is nothing to show that the owner had made a return within two years, and after the passing of the Town Improvement Act. For aught one knows, the Municipal tax might have been assessed on the report of some Municipal Officer long ago and the rate has remained unaltered. We are therefore unable to accept this contention.
3. The third point argued was that this was not a case in which any compensation for compulsory acquisition could be awarded. This contention is based on the ground that under the proviso added to Section 10, Sub-section (2) of the Schedule, compensation cannot be awarded unless, among other things, the buildings are in the actual occupation of the owner or occupied free of rent by a relative of the owner, and land appurtenant thereto. It is urged before us that on the finding of the Tribunal the owner was not actually residing in the building personally and therefore it cannot be considered to be in his actual occupation. We do not think that this is a proper interpretation to put on this section. Had the building, been let out, the award for full compensation of its value would have been adequate and there would have been no need of any extra compensation on account of compulsory acquisition; but where the owner is occupying the building and it is likely that he may be inconvenienced, he is entitled to claim extra compensation. He was using it for himself and therefore it was being occupied by him, though he might not himself have slept on the premises. We accordingly overrule this objection. The result is that the appeal is dismissed with costs.