JUDGMENT 1. THIS appeal is directed against an appellate decree of the district Judge of Howrah reversing a decree of the Munsif by which he allowed a claim of compensation against respondent Howrah Municipality. It appears that the appellants, plaintiffs filed a suit in the Munsif's Court praying for a mandatory injunction against the respondent defendant for restoring the disputed land in its original position or alternatively for payment of adequate compensation for the said and The plaintif case in the lower court was that they were the owners of holding no. 5 0 Natabar pal Road Howrah and that the defendant Municipality acquired the disputed land, about 3 Kattas chhataks and 13 sq. feet in area, for excavating an outfall drain over this holding. The plintiff made repeated demands for compensation for the disputed land but the defendant failed to pay the same Hence a suit was filed in the munsif' s Court for the reliefs stated above. 2. THE defendant Municipality had stoutly denied its liability to pay any compensation for the land. Its defence in brief was that "the outfall drain was already there but it was being obstructed by the owner of the holding. Ultimately the defendant municipality took the land by issuing a notice and the drain was cleared and further dugout and the plaintiff's low land was raised, at their request, with the sweepings and drain cuttings in exchange of the drain lands. An amount of Rs. 9161/- was expended by the municipality for the said operation and as per an oral agreement with the owners the claim of compensation was set off against the cost of raising the land. The learned Munsif decreed the suit allowing a compensation of Rs. 9,631/ - For the present however the plaintiffs ware allowed an amount for which court fees were paid and the remaining amount was to be recovered by a seperate proceeding under Order 20 Rule 12 Civil procedure Code. On appeal the ld. District judge reversed the decree. He held that the suit was barred by limitation and that the plaintiffs were entitled, if the suit was not so barred to a compensation of, Rs. 470/- only being the difference of compensation once assessed by the Municipality and the alleged cost of raising the plaintiff land as per oral agreement. 3. District judge reversed the decree. He held that the suit was barred by limitation and that the plaintiffs were entitled, if the suit was not so barred to a compensation of, Rs. 470/- only being the difference of compensation once assessed by the Municipality and the alleged cost of raising the plaintiff land as per oral agreement. 3. IN the appeal before this court Mr, Himangshu Kumar basu attacks the District judge's judgment on. several points. His first point of attack is that the District Judge has made an error of law in deciding the point of limitation. His second point of attack is that the District Judge accepted the alleged oral agreement although there was no evidence in this regard His third ground of attack is that no compensation could be assessed by the Municipality unilaternally without informing the appellants and without giving them any opportunity to challenge the adequacy of the a amount of compensation. He argues that as the land in question was acquired, the appellants were entitled to compensation according to the provisions of the Land Acquisition Act, 1894. 4. IT appears that the written statement filed by the defendant in the trial Court was rather loosely drafted. Mr. Satya Char an Pain on behalf of the respondent Municipality submits, on the basis of the document produced by the municipality in the lower court, that actually a strip of land measuring about 3 kattas 13 chhataks and 39 sq. feet was acquired by the municipality by the service of a notice under section 252 of the Calcutta Municipal act, 1923, as extended to Howrah (hereinafter referred to as the extended Act). The Municipality's letter No. 1 555 E. D. dated 7. 6. 61 (marked exhibit 1) is the said notice. For a proper examination of this notice it is necessary to know the relevant Municipal Act, which was in force at Howrah when the alleged acquisition was made. The Calcutta Municipal Act, 1923 was originally extended to the Municipality of Howrah, subject to certain modifications, in exercise of the powers conferred by section 540 of the said Act The said Act of 1923 was subsequently repealed and re-enacted as the Calcutta Municipal act, 1951 (vide section 2 of the re-enacted Act ). The power of extending the provision of the 1951 Act also to Howrah was retained in section 589 of the said Act. The power of extending the provision of the 1951 Act also to Howrah was retained in section 589 of the said Act. On the date on which the disputed land was acquired by the Howrah Municipality the Calcutta Municipal Act, 1923, as extended to Howrah was in force and the land is purported to have been acquired under Sec 252 of the extended Act. Section 252 of the Calcutta Municipal Act, 1923 reads as follows "252. (1) The Corporation may- (a) enlarge,, arch over or otherwise improve any municipal drain, or (b) discontinue close up or destroy any municipal drain which, in their opinion becomes useless and unnecessary, or (c) carry any municipal drain (i) through, across or under any street or any place laid out as or intended for, a street, and (ii) (after giving reasonable notice in writing to the owner and occupier) into, through or under any land whatsoever or under any building, in Calcutta or for the purport of outfall or distribution of sewerage, Without Calcutta, or (d) repaif or after any municipal drain so constructed provided that - (i) if in the exercise of any of the power conferred by this section, it is proposed to demolish any house drain, a written notice shall be served upon the owner of such drain and (ii) if, by reason of anything done under this section any person is deprive of the lawful use of any drain, the Corporation shall as soon as practicable, provide for his use some other drain as effectual as the one which has been discontinued, closed up or destroyed. (2) In exercise of any power conferred by this section, the Corporation shall create the least practicable nuisance and do as little damage as may be and shall pay compensation to any person who sustains damage the exercise of such power " Now the letter written by the Chief Engineer on 77, f1 acquiring the disputed land is as follows : "Office of the Municipal Commissioners of Howrah no. 1555 E. D Engineering Department the 7th July 1961 shri Anil Baran Deoty 8, ledarnath Deoty Lane howrah,. Re: Acquisition of Land within 50 Natabar pal Road for opening out drain sir, You are hereby informed that you ha obstructed the course of the outfall drain coming from Mukardah Road and passing through SO Natabor Pal Road since a long time. Re: Acquisition of Land within 50 Natabar pal Road for opening out drain sir, You are hereby informed that you ha obstructed the course of the outfall drain coming from Mukardah Road and passing through SO Natabor Pal Road since a long time. As this is seriously affecting the drainage of a vast area, notice is hereby issued to you under section 252 Calcutta Municipal Act, 1923 as inforce now for acquiring a strip of land for the purpose of outfall as shown in the drawing enclosed. Yours faithfully, encol : A Fero copy of the plan sd/ Illegible chief Engineer " 5. THIS letter is admitted by both parties and inspite of a loose defence in the written statement it is accepted by the respondent municipality that land - in dispute WAS acquired by them on the basis of this letter. The notes and' orders produced by the respondent in exts. A - series also show unmistakably that the disputed land was acquired on the basis of this letter. The only point for consideration thus is if any compensation is payable on its basis. 6. A perusal of section 252 of the extended Act would show that there is no provision that soever of acquiring any land under this section, The section deals with the construction, repair, maintenance, discontinuance etc. of a municipal drain within the municipality. The provision for serving a notice upon the owner is only in clause (i) of the Proviso to sub-section (1) of the section and that is when it is proposed to demolish a house drain which, however, is not anybody's case here. Mr. Pain is hopelessly cornered when he tries to argue that the suit land was acquired under this section. Truly speaking there is no consistency between the case pleaded in the written statement and the evidence adduced in its support. Mr. Pain also hopelessly fails to substantiate his argument that the municipality had power, and in his estimation ample power, to acquire any land under this section. But then it does not negative the real power of the municipality to acquire any land on necessity Section 475 of the extended Act provides that any land or buildings which the municipality is authorised by the said Act may be acquired under the provision of the Land Acquisition act, 1894 subject to the modifications mentioned in the said section. But then it does not negative the real power of the municipality to acquire any land on necessity Section 475 of the extended Act provides that any land or buildings which the municipality is authorised by the said Act may be acquired under the provision of the Land Acquisition act, 1894 subject to the modifications mentioned in the said section. Section 468 and 469 of the said Act refer to the circumstances under which the municipality, can acquire any land and buildings. Oh an analysis of the legal position it is thus clear that the municipality had power to acquire any land inter alia for carrying out any of the purpose of the extended Act, but in such a case the acquisition must be made under the provisions of the Land acquisition Act, 1894 subject to, the modifications mentioned in section 475 of the said Act. The acquisition, however, was not done according to the above legal procedure. 7. THE disputed land in question was, however, actually taken possession of and utilised by the municipality. This fact is admitted by the appellant and asserted by the respondent municipality. The provision for compulsory acquisition of land subject to payment of' compensation was in article 31 of the Constitution of India. The said article was repealed by the Constitution (Forty fourth Amendment)Act, 1978 with effect from 20. 6. 79. By the same' Amending act Article 300a was inserted which provides that no person shall be deprived of his property save authority of law. This identical provision was also there in clause (1) of the repealed Article 31. Evidently the disputed property was acquired without any authority of law and when it was purportedly acquired it was in breach of a fundamental right as Article 31 was in force then being a part of Part iii of the Constitution. It may be noted that until the enactment of the Constitution (Forty fourth Amendment)Act, 1978 the right to acquire, hold and dispose of property was a fundamental right. So the appellant's property was actually acquired in breach of a fundamental right. 8. BE that as it may, the appellants were deprived of their property with effect from the 7th July, 1961 and there is no reason why they should not be compensated for the loss of their property. So the appellant's property was actually acquired in breach of a fundamental right. 8. BE that as it may, the appellants were deprived of their property with effect from the 7th July, 1961 and there is no reason why they should not be compensated for the loss of their property. In fact the respondent does not actually dispute the appellants right to get the com-pensataion from the municipality, but then it has set up a plea of set off on the basis of an oral agreement which is another story. In the background of the above legal position let us now advert to the decision of the District Judge and the law points involved in it. The learned District Judge has held that the suit is barred by limitation and that had it not been so barved, the plaintiffs would have been entitled a paltry a mount- of Rs. 470/- being the difference of the compensation assessed by the municipality for the land and the cost alleged to have been incurred for raising the land. That shows, however, that the learned district Judge believed the alleged oral agreement between the parties to be true. 9. LET us take up the point of limitation first. The learned District Judge has disposed, of the issue of limitation in his judgment with the following observations : "in paragraph 8 of the plaint the plaintiffs stated that the cause of action for the first arose on and from 7th July, 1961 which was the date of excavation of the drain by the municipality and the service of the notice under section 252 of the Act by the Municipality upon the plaintiffs. That notice WAS dated 7.7.61 (vide ext. 1). The suit was filed more than nine years later on 20.7.1970. The trial court's views is that the plaintiff's claim and the suit were not barred by limitation as the matter was under correspondence and the defendants never informed the plaintiffs that they would not pay the compensation for the land. In my view the trial court's view is not correct and cannot be upheld. Correspondence between the parties does not stop tine running of limitation. In my view the trial court's view is not correct and cannot be upheld. Correspondence between the parties does not stop tine running of limitation. Only if it is proved that before the expiring of the period of limitation commencing from the accrual of the rights to sue, the defendant made an acknowledgement in writing, a first period of limitation will be avail 1/8ble to th1/8 plaintiffs from the date of such acknowledgement. In this suit there is no evidence there the municipality either made any acknowledgement of liability in writing or refused to pay; In some letters they only said that the matter was under consideration. Under section 523 of the Act the period of limitation was only one year. This special limitation will be applicable. Even if the general limitation under Article 120 of the old Limitation Act which was then in force is applied the suit is barred. I hold that the suit, including the claim for compensation, was barred by limitation. The finding of the trial court cannot be upheld. This point is answered in affirmative. It thus appears that the learned District Judge is of opinion that the period of limitation in this case would be governed by section 523 of the extended act. Section 523 reads as follows : "523. (1) when in any case not provided for by section 522, the Corporation are, or any municipal officer or servant or any other person is, required by this Act, or by any rule or toy law made there under, to pay any expenses or any compensation, the amount to be so paid and, if necessary, the apportionment of the same shall in case of dispute, be determined by the court of Small Causes hawing local jurisdiction, or by the High Court, as the case may be, on application being made to it for this purpose at any time within one year from the date when such expenses or compensation first became claimable.- (2) This section shall not apply to any case which is otherwise provided for in section. 4 21, sub-section (3) section 521, sub-section (2:) or in the Land Acquisition Act, 1894, as amended by section 475 of this act. 4 21, sub-section (3) section 521, sub-section (2:) or in the Land Acquisition Act, 1894, as amended by section 475 of this act. " It is thus clear that section 523 can be resorted to when the municipality or- any municipal officer or servant or any other person is required by the extended Act or by any rule or by-law made there under to pay any expenses or any compensation. No doubt any compensation payable under sub-section (2) of section 252 of the extended Act may be covered Jay this section. But to the present suit for any' compensation payable under sub -section (2) of section 252 ? a compensation is payable under the said sub-section when a person sustains any damage by the exercise of any power conferred by section 252. I have already discussed about the provisions of the said section. The notice dated 7.7.61 does not refer to exercise of any power under section 252. It declares that a piece of land was being acquined. I have already dos-cussed that acquiring of any land which the municipality is authorised to do under the Act can only be made under the provisions of the Land Acquisition act, 1894, as amended by section 475 of the extended act. But under sub-section ' 2) of section 523 compensation payable under the L. A. Act is expressly excluded from the section. Moreover, a claim under the said section was required to be made before a small causes court having jurisdiction. The present suit was filed before a Munsif. So in any case section 523 is not applicable here. 10. BUT then that should be the period of limitation in this suit. It was a suit for mandatory injunction and in the alternative for conpansation for the value of the land acquired. The case was actually contested between the parties on the issue of payment of compensation. The period of limitation would be obviously three years from the date of cause of action. In the plaint the date of cause of action has been given as 7.7.61 i.e. the date of issue of the notice by the Municipality. The case was actually contested between the parties on the issue of payment of compensation. The period of limitation would be obviously three years from the date of cause of action. In the plaint the date of cause of action has been given as 7.7.61 i.e. the date of issue of the notice by the Municipality. No doubt that was the initial cause of action, but what is the cause of action for filing the present suit 1 As already pointed out, land can be acquired by the municipality for carrying out any of the purposes of the Act only under the Land Acquisition, act, 1 894 as amended by section 475 of the extended Act. But evidently no acquisition proceeding was started accordingly by issue of a notification under section 6 of the l. A. Act. The perplexing result is that the land was taken by the municipality in clear violation of the constitutional provision preventing the acquisition of any person': land without the authority of law. The party demanded compensation from time to time, the file was found to have been lost and on restoration of the same' it - was found that an amount of compensation was actually assessed and the owner was ordered' to be informed. But that was never done and instead the reply was given that the matter was being looked into. In, the face of such circumstances "was the cause for filing a suit until the aggrieved party came to know that there was no chance of ' payment of any compensation from the end of the municipality? Even the notice under section 538 of the extended Act could not bring a reply from the Municipality. It appears to me that the learned District judge did not give his proper attention to the actual cause of action of this suit, and examined the matter mechanically He did not notice that no land could be acquired by the municipality under section 252 of the extended Act. He did not notice that if the land was actually acquired compensation was to be paid under the provisions of the Land Acquisition act and that no suit could be filed for such compensation within one year or even thereafter. He did not consider what could be the remedy of a person in such circumstances. He did not consider why the municipality chose to remain silent all along. He did not consider what could be the remedy of a person in such circumstances. He did not consider why the municipality chose to remain silent all along. He completely misconstrued the meaning of cause of action and mechanically non-suited the aggrieved plaintiff. In consideration of all these I hold that the learned District Judge's finding on the point of limitation is wrong and that the suit was not barred by limitation. 11. THE next question that crops up, is if the plaintiffs are entitled to any condensation and if so, what would be the amount of compensation. That: the land was taken by the Municipality is admitted and the respondent municipality does not deny that compensation was payable to the owners. From the documentary and oral evidence adduced it is found that an amount of compensation was actually assessed. But the respondent defendant has come out with a defence that the amount of compensation was set off on the basis of an oral agreement, against the cost of1 raising the level of the appellants' low land. , For the first thing this oral agreement was not proved. Secondly how could there he an agreement without first ascertaining what would be the probable amounts of compensation and the probable cost of raising the land? Thirdly, a claim of set-off cannot be raised in a suit without making a proper claim on payment of court fees. For all these reasons the claim of set off cannot be entertained. 12. FINALLY, it is to be decided what amount, if any, is payable to the appellants as compensation. I have already held that the land in dispute has already been taken permanently by the municipality. If it was acquired according to law, there was a definite procedure for assessing the compensation. But since it had not been so acquired, the compensation payable is to be ascertained on the basis of comparable units and other factors. No evidence was taken as to the compensation. The trial court seems to have accepted the compensation assured by the municipality without giving any ground for its acceptance. No opportunity was also given to the appellants to challenge the amount. In the circumstances the said finding cannot be accepted. In the result this appeal succeeds. The appeal is allowed with costs. The judgment and decree of the learned district Judge is set aside. No opportunity was also given to the appellants to challenge the amount. In the circumstances the said finding cannot be accepted. In the result this appeal succeeds. The appeal is allowed with costs. The judgment and decree of the learned district Judge is set aside. The appeal be sent back on remand to the learned District judge for a fresh decision in the light of the observations made in the judgment. He will dispose of the appeal either himself of by transfer to any other competent court, the lower appellate court will ascertain the amount of compensation payable to the plaintiff by giving the parties an opportunity to adduce further evidence on this point only. The said court shall also consider the long delay in making payment of compensations and other factors as it deems necessary for assessing the amount of compensation. A decree will be passed thereafter accordingly. Appeal allowed.