1. The question involved in this appeal is, as to the compensation which should be awarded to the claimants, the brothers Cama. in respect of certain land of theirs which has been acquired by the Government under the Land Acquisition A.ct for the purposes of the Great Indian Peninsula Railway Company. The land acquired comprised a total area of 85.799 sq. yds., and consisted of four several parcels; but with three of these parcels we are not now concerned as the award made in respect of them has been accepted. The single parcel to which this appeal is confined measures 14,817 acres, or 71,714 sq. yds, having a frontage of 1,268 ft. on the Parel Road, and an average depth of about 500 ft. It is the ' front land ' referred to in the judgment under appeal, and was notified for acquisition in April 1904. The brothers Cama claimed Rs. 8,37,780 for the land. The Collector awarded Rs. 3,93,143, to which were to be added Rs. 7,576 the value of the materials of the building standing on the land, and Rs. 60,107, in respect of the 15 per cent for com-pulsory acquisition: the total sum offered by the Collector was thus Rs. 4,60,826. Being dissatisfied with this offer, the claimants caused the Collector to refer the matter to this Court, and Mr. Justice Batty has increased the Collector's award for the land alone from Rs. 3,93,143 to Rs. 4,48,222 and for the building material from Rs. 7.576 to Rs. 10,794: to these sums will have to be added the 15 per cent, The Government now appeals against Mr. Justice Batty's decision, and cross objections have been filed by the brothers Cama.
2. We are met at the outset by the necessity of determining a question of principle, namely the question whether the Court below was right in adopting as the basis of its decision for the more valuable portion of the land that method of valuation which is known in these Courts as the hypothetical building scheme. This method consists in an attempt to value a parcel of land by means of figures based upon the calculated financial results of a notional erection of buildings on the land, and its notional development in the most profitable manner. The land to be assessed is imagined as covered with as many houses or shops of as profitable a character as can be reconciled with existing and presumed future circumstances of demand; then the nett annual returns from these buildings are capitalised, and from this figure the calculated cost of construction is deducted : the balance is said to be the prospective value of the land, and from this figure the present value is inferred by deducting various sums on account of loss of interest on capital and so forth.
3. We shall inquire presently whether this is a legitimate investigation for a Court to pursue, but, assuming for the moment that it is legitimate, it appears to us that the judgment under appeal is open to objection inasmuch as, while it adopts only part of the hypothetical scheme tendered to the Court on behalf of the claimants, it applies to that part several important considerations which are applicable only if the scheme be accepted as a whole. Thus, in the scheme propounded there were contemplated 2,440 double rooms yielding a rental of Rs. 23,180, and this item was reduced by the Court on the groud that there was no proof of a demand for these rooms; but though, for this and other reasons, the numbers of the colony imagined as settled on the land were necessarily reduced by the learned Judge, he has allowed the imaginary shops to be as numerous and as productive as they were represented in the original scheme. So, two blocks of buildings which the scheme had placed at the southern end of the property were ultimately permitted by the learned Judge to be conceived as transported to the other end with a frontage on the Parel Cross Lane, with the result that, as may be seen on reference to the plan Ex. 56, which we have had prepared for ourselves, this one piece of land fronting on the Cross Lane is variously estimated from East to West at about Rs. 27, Rs. 6 1/2, Rs. 10 and Rs. 3 5/8 per sq. yard. It is clear that contiguous parcels of the same plot are not really susceptible of such differences in value, as, no doubt, the learned Judge would himself have realised if the consequences of his judgment had been clearly present to his mind. That they were not so present is, we think, fairly certain, for, as we are informed by counsel, the long judgment now under appeal is but an abbreviated form of the judgment first delivered, and the judge, who suffered from some physical disability, had the case reargued on more than one occasion after the first judgment was pronounced. In these circumstances, and remembering that no map was prepared to illustrate the effect of the judgment, which moves amid a labyrinth of intricate calculations, we are led to accept the suggestion made to us that the learned judge may well have failed to realize all the consequences of accepting in part and rejecting in part the hypothetical scheme tendered to him on behalf of the claimants.
4. This brings us to the question whether the hypothetical building scheme should in any case have been accepted by the Court as a guide to its decision. This question was argued as a preliminary point, and we intimated to counsel that our decision was against the admissibility of the scheme. Our opinion is grounded mainly on the following reasons. In the first place the scheme depends entirely on the validity of three propositions, of which the first is that the present market value of land on which buildings have been erected can be ascertained by deducting the cost of construction from the capitalised nett annual rental. Then it is asserted that the prospective market value of land which is now vacant can be ascertained by deducting the estimated cost of the buildings which, it is supposed, can be erected on the land from the capitalised nett annual rent which it is estimated such buildings will produce. Lastly it is asserted that the present market value of the land can be ascertained by making certain deductions from the prospective market value. It is clear that, unless the first proposition is true,the other two propositions cannot be true and the hypothetical building scheme is out of Court. In our opinion the first proposition is not true. The balance remaining after deducting cost of construction of buildings in esse from-the capitalised value of actual rents received must, we think, be regarded as including builder's profits, which will depend on the capital, skill and experience at his disposal; it is therefore an unknown quantity and has no necessary connection With the 'market value of the land', which is the figure to be ascertained under Section 23 of the Land Acquisition Act. In our opinion the market value of land means simply the price which, at the given time and place, land would fetch on sale according to the then rates of the market; and this value depends on general pre-existing considerations apart from the individual projects of a particular purchaser. To express the same thing in other words : land is a marketable commodity of one description, and land with buildings on it is a marketable commodity of another and a different description ; and there is no known process by which from the ascertained value of land plus buildings as an investment, it is possible to deduce the value of the land alone. This view receives support from the history, so far as it is known, of the fate which has attended these schemes in this Court. The witness Narsimham who is a Surveyor and Valuer, and who was the author of the present scheme submitted on behalf of the respondents, claims the credit of inventing this particular method of calculation, which it has become the fashion to adopt on behalf of persons whose lands are acquired under the Act. Turning to the reports, we find the first notice of the first proposition above specified in In the matter of the Land Acquisition Act X of 1870; Munji Khetsey (1890) L.R. R. 15 Bom. 279, a case decided in 1890 by Farran J., sitting with assessors. There the claimant's experts sought to derive the present value of neighbouring land on which a chawl had been built from the joint value of the land and chawl, and suggested that the value so derived should be applied to the land then under reference. This method was rejected with little ceremony by the learned Judge in these words : ' When we have before the Court evidence of actual purchases and sales of land in the vicinity, in none of which does the actual price given even remotely approximate to that figure [i. e. the figure arrived at by this method], it is plain that there must be something intrinsically unsound in the calculation or its basis. It would be easy to point out wherein this unsoundness consists. It is, however, unnecessary to do so, for this method of arriving at the value of land has not been adopted by the Court.' Three years later this same method, as applied to imaginary buildings and not to neighbouring buildings, was tendered on behalf of the claimant in Municipal Commissioner for the City of Bombay v. Syed Abdul Huk Kurmalker (1893) L.R. R. 18 Bom 184 and the Court observed : ' We do not think that such a basis of valuation should be accepted in any case, certainly not where there is any more practical basis to work on.' That decision has the high authority of Sir Charles Sargent C.J., and we may note in passing that in the case now before us there is sufficient evidence of sales of land in the vicinity, and the prices so indicated do not in general approach the figure deduced from the hypothetical scheme.
5. Then we think that a scheme of this sort, considered as evidence, is bad as being too remote, speculative and conjectural. We do not lose sight of the decision of the Privy Council in Secretary of State for Foreign Affairs v. Charlesworth, Pilling & Co. (1901) 28 I.A. 121 where their Lordships point out: 'It is quite true that in all valuations, judicial or other, there must be room for inferences and inclinations of opinion which, being more or less conjectural, are difficult to reduce to exact reasoning or to explain to others, Every one who has gone through the process is aware of this lack of demonstrative proof in his own mind, and knows that every expert witness called before him has had his own set of conjectures of more or less weight according to his experience and personal sagacity. In such an inquiry as the present, relating to subjects abounding with uncertainties and on which there is little experience, there is more than ordinary room for such guess-work, and it would be very unfair to require an exact exposition of reasons for the conclusions arrived at.' Here however it is not the Court which requires, but the expert Narsira-ham who himself propounds what purport to be the precise reasons for his opinion, namely the hypothetical building scheme, Ex. A, on which the land in reference is valued at Rs. 10 per square yard. It is true that the opinion of an expert witness is admissible in evidence not only when it rests on the personal observation and inquiry of the witness himself or on facts within his own knowledge, but also when it is founded on the case as proved by other witnesses at the trial; and, under Section 51 of the Evidence Act, when the opinion is admissible, the grounds upon which it is based are also admissible. But we understand it to be settled law that an expert may not be asked purely speculative hypothetical questions having no foundation in the evidence in other words, before the expert witness is entitled to give evidence on the hypothesis, a sufficient foundation for it must be laid by due evidence aliunde of the facts assumed.
6. This is the view taken on the subject in the recognised text books (e, g. Wharton, Section 452, Phips, 2nd edition, 364, Amir Ali and Woodroffe under Section 46) and followed in the American Courts : see Storey v. Union Bank 34 Ala. 687, Bush v. Long Island B. Co. 10 N. Y. App. Div. 535 and other cases cited in Volume XII of the American and English Encyclopaedia of Law.
7. But if this test be applied to the scheme Exh. A, it will be seen that the scheme begins and ends in mere hypothesis. It rests upon deductions from certain factors, of which the principal are the character and cost of the assumed construction; the number of years purchase; the allowance for vacancies in the imagined tenements; the height of the buildings; the number and rent of the shops; and the time requisite for building and developing.
8. Now on each and all of these fundamental starting points we have, instead of some reasonable approach to certainty grounded upon evidence from ascertained facts, an assumed figure which, with equal probability, may be varied at least up to 10 per cent, either way. There is no guarantee that an error by excess in one item will be automatically corrected by an error by defect in another item; and it follows that, without trenching upon such degree of probability as the calculations may possess, the initial figures need only be bent a little in one direction or in the other to bring out a result which shall be, in one case, out of all reason high, and, in the other case, out of all reason low. The whole process of calculation, long and elaborate as it is, never moves out of the region of unverified hypothesis; the initial uncertainty increases at every step; and the final result is, in our opinion, devoid of any real probative force whatever. In proof of the maze of difficulties through which this system invites the Court to thread its way to a plain conclusion of fact we need only refer to the voluminous and discursive character of the evidence on this record, and to the long and elaborate judgment of Batty J. If evidence of this kind is to be received, we do not know where inquiry is to stop. A dozen experts may produce each his own scheme, forcing the Court to embark on protracted investigations of the most difficult character leading to no useful result. In Section ll of the Evidence Act fprovision is made for the admission of facts not otherwise frelevant when they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable ; and the adverb was not introduced into the section without good reason. Upon this point reference may be made to Reg. v. Parbhudas (1874) 11 Bom. H.C. 90 where West J. points out that the section discountenances the complication of a trial 'with a mass of collateral inquiries limited only by the patience and the means of the parties. One of the objects of a ' Law of Evidence, 'he says in words with which we entirely concur, ' is to restrict the investigations made by Courts within the bounds prescribed by general convenience, and this object would be completely frus-trated by the admission, on all occasions, of every circumstance on either side having some remote and conjectural probative force, the precise amount of which might itself be ascertainable only by a long trial and a determination of fresh collateral issues, growing up in endless succession as the inquiry proceeded.' And in this case, as we have noticed, these conjectural calculations are the less admissible inasmuch as the record contains sufficient evidence of a simple and direct character to guide the Court to its determination. Indeed we cannot resist the conclusion that these hypothetical schemes are not really intended to assist an inquirer to ascertain an unknown figure, but are designed as arguments to afford some support for a figure already otherwise fixed upon and settled. It is apparent that nothing is easier for the calculator than to shape and adjust his figures so as to bring about the result desired without introducing any one variation large enough to be pronounced wholly improbable. But in our opinion no intending purchaser would allow his purchase to be decided by complex calculations of this kind involving so much risk of error as to be practically worthless.
9. On these grounds, then, we must hold that the hypothetical building scheme is not admissible in evidence, and as it is the only foundation for Narsinham's valuation, that valuation must go out of the case. And the scheme which he adopted is, moreover, the foundation for Batty J.'s award in respect of his areas I and II. The learned Judge, referring to the figure deduced from the modified scheme, namely Rs. 23-6 per square yard over his areas I and II, says that ' this, no doubt, seems a very high price,' and the only instances of any actual transactions which he finds to support it are the offers made for Ardesir Irani's plot, which is No. 14 in the claimants' list of sales, Ext. S. But that is a small compact plot which Irani bought in 1894 at Rs. 13-8 per square yard and the only offer for it which we can hold to be proved is that authenticated by the writing, Ext. 01.
10. But that was made in May 1905, that is, after the rise in values which began in the autumn of 1904 and after vacant land in the vicinity had been appreciated by the withdrawal of these large plots of claimants from the market. But the market value to which the claimants are entitled is, under Section 23 of the Act, the market value at the time of the publication of the declaration, that is, April 1904. It is true that Irani speaks of an earlier offer made to him in 1900, but though he admits that the offer was in writing, the writing is not produced, and we can therefore attach no importance to this alleged offer. It follows, then, that the offers made for Irani's land do not in fact give countenance to the confessedly high rate of Rs. 23-6, which is thus left in unexplained conflict with the results of actual sales. If, as would appear from a later part of the judgment, the learned Judge relied on the actual sales in Exts. S and 19 to support the result of his hypothetical scheme, we must express our inability to discover from what instances in those Exhibits such support is to be found.
11. Further it must be remembered that areas I and II are of distinctly different qualities and were separately valued by the learned Judge though he did not distinguish them in arriving at his rate of Rs. 23-6. The amount awarded for area I as appearing in Ext. 55 was in fact at the rate of Rs. 27 per square yard a rate which it is still more difficult to reconcile with the rates. in Exts. S and 19.
12. After disposing of his areas I and II the learned Judge applied in a modified form to his area III the method which, it was suggested by the Government witnesses, was applicable to the whole of the land under reference. This method is set forth in Ext. 13 which was prepared by Mr. Kent and adopted by Mr. Delves who gave evidence on behalf of Government. It introduces a speculative purchaser who is supposed to base his offer for the land as a whole on a series of intricate calculations. The land is plotted out into building sites ; the amounts these will realise are placed to credit; deductions of every conceivable character as shown at p. 331 of the printed book are placed to debit. The attenuated balance is considered as the market value of the land. We consider this method as equally fallacious with Narsinham's. It rests on the assumption that the land to be valued must be valued as a whole and sold as a whole to a single speculative purchaser who, as against the claimant vendor, is regarded as entitled to deduct all costs, charges and expenses to which he is put in developing the land. But we can see no necessity for assuming the intervention of this costly speculator, and no warrant for the consequent serious reductions in the value of the ownership. Indeed it is clear that this method, while appearing to concede to the owner the doctrine of the most profitable user, in fact deprives him of every advantage which he may claim under that doctrine. Its main object appears to be to depreciate the land under acquisition, and for this reason alone it would be opposed to the general principles by which the Court is governed in these cases. Further it seems distinctly opposed to the reported decisions of this Court. But Mr. Robertson strenuously insisted that this was the only correct method of applying the above doctrine and it is therefore necessary to deal with the arguments at some length. While contending that the market value of the land was what a purchaser would pay for the whole, he omitted to consider that it is the Government which notifies the area for acquisition under the Act and it is the Collector who determines the area to be valued in each case for the purpose of making an award. In all this the owner has no voice. But it would be contrary to all principles of equity and justice to allow an owner to be in any way prejudiced by such an arbitrary determination of the particular areas to be valued in each case. If the argument was pushed to its logical conclusion it would follow that in a case where the land in the hands of one owner was so extensive that the idea of one purchaser buying the whole would be out of the question, the land would have no market value.
13. But, apart from that, we consider there is a clear decision on the question in The Collector of Poona v. Kashinath (1886) L.R. R. 10 Bom. 588 where Sir Charles Sargent C.J. says : ' The value of the property should be determined not necessarily according to its present disposition but laid out in the most lucrative and advantageous way in which the owner could dispose of it, which in the present case it was urged by the respondent No. 1 and not disputed by the appellant would be by laying it out for building purposes, The question then is what would be its market value if so laid out and the most reliable evidence on that question must be the rates per square foot at which similar building land sites in the neighbourhood have recently been sold.
14. It is remarkable that the argument of counsel for Government in that case was the direct antithesis of Mr. Robertson's before us, for Mr. Macpherson relied on the Judgment of Cockburn C.J. in Stebbing v. The Metropolitan Board of Works (1870) L.R. 6 Q. B. 37 where his Lordship says: 'When Parliament gives compulsory powers, and provides that compensation shall be made to the person from whom property is taken, for the loss that he sustains, it is intended that he shall be compensated to the extent of his loss; and that his loss shall be tested by what was the value of the thing to him, not by what will be its value to the persons acquiring it.' This involves the question whether there is any difference between the value to the owner which forms the basis of the compensation payable under the Lands Clauses Act and the market value of the land under Section 23 of the Land Acquisition Act. Mr. Beverley, in his commentary on the Act, 5bh Edition at page 45, considers that though the term ' market value ' is the converse of what the law in England contemplates, yet it has been interpreted according to principles very similar to those laid down in English Law. Apart from all questions of separate interests which may have been created in the land, which questions are, under the Indian statute, dealt with in apportionment, the value to the owner is what he can realise from a purchaser, while the market value is what a purchaser will give the owner, so that we can see no substantial difference between the two terms. We are further fortified in our decision by the judgment of the Privy Council in the Secretary of State v. Shanmugarays (1893) 20 I.A. 80 where their Lordships say: '' It was the best, if not the only, method he had for getting at the market value of the ownership.' In fact in no case can we find any reference to the speculative purchaser whose calculations are foretold with such mathematical accuracy as in Ext. 13. We agree with the principle laid down in Fink v. Secretary of State for India (1907) L.R. R. 34 Cal. 604. ' If it is shown that a person has paid a certain price for a block of neighbouring land similarly situated and pos sessing similar advantages with a view to some profitable disposition thereof, there is no reason why another block of land the subject of acquisition should not be similarly valued. The probability of a person purchasing the land for a similar purpose is an element for consideration if the probability is not so remote that it ought to be held purely speculative, so that, other things being equal, of two blocks of land, the block under acquisition should be taken to be of equal market value with the other block. The general principle cannot be denied.'
15. Having thus eliminated the schemes propounded respectively by the respondents and appellants in the lower Court and also the modification of those schemes which the learned Judge adopted in regard to the areas I and II on the one hand and area III on the other, we have now to ascertain for ourselves from the legal evidence in the case what is the market value of this land.
16. We consider that nothing we have said above debars a claimant from relying on the most advantageous way he can dispose of the land under acquisition and showing if he so choose what he could realise by retail sales after making the necessary deductions as appearing from the evidence in the case. We expressly asked respondents' counsel whether he wished us to value the land as blocked out for building sites either on Narsinham's plan Ex. A or on the appellants plan Ex. 13; but he preferred that we should value the land as a whole as a jury would on the evidence that remained after rejecting all that referred to the respective schemes on either side. We must presume from this that a block development scheme would not favour the claimants. It is necessary therefore for us to consider carefully the admitted instances of sales and purchases collected in Exts. S and 19. But in addition to that we were asked by Mr. Jardine to attach weight to evidence of offers for the land in reference to a neighbouring land, and in particular to attach more weight to the evidence of a particular offer for land belonging to Dayabhai Tapidas appearing at p. 45 of the Printed Book than to any other evidence in the case.
17. It appears to us that in ascertaining the market value under the Act too much importance must not be attached to evidence of offers. An offer does not come within the category of sales and purchases. If an offer for the whole or a portion of the land under acquisition is proved, it amounts merely to an expression of opinion on the part of the offeror. But this can only be proved by the evidence of the offeror himself and is then relevant. The evidence of offers made by irresponsible brokers on behalf of undisclosed principals, or perhaps for their own purposes without any principal behind them, is in our opinion useless, even supposing it is relevant, which we doubt. The evidence that the owner refused an offer so made through a broker is only evidence that in his opinion his land was worth more than the figure of value named or that the offer was for some other reason of a nature which he was unwilling to accept. Evidence of such offers by brokers for neighbouring land is still less effective If the offerer him self gives evidence, it is evidence that in his opinion such neigh bouring land was of a certain value, and such evidence would only be relevant if he had formed an opinion by comparison of the land under acquisition. We attach no importance whatever to the evidence of the claimant Hormasji of an offer made to his father in 1886 by a broker Hiraji Hansraj for 20,000 square yards, of the land under acquisition at an annual rent of 5 annas square yard per annum,. There is nothing certain to show to what 20,000 square yards the offer referred, and we agree with the remarks of Batty J. at p. 413 of the Printed Book Nor for the reasons given above can we rely in any way on the evidence of offers made for the land of Dayabhai Tapidas on the East side of Parel Road opposite to the land in reference. Mr. Gokhale's offer on behalf of a client made in 1903 was for a perpetual lease at a certain rental and at the best it is inconclusive as to what was offered for the vacant land. From the plan of the property Ext. G it appears there were several chawls already existing on the land and two of these were at the back, so that the least valuable part of the land had already been developed. There is no trustworthy evidence as to what rents these chawls were fetching ; but that would be an important item in estimating what [part of the offer could be allocated to the vacant land. The offers made in 1905 and 1906 after the land under acquisition had been taken out of the market are not relevant, but it is clear from Mr. Dayabhai's evidence at p. 41 that this land was rendered very much more valuable by the Railway Company opening a goods depot on the land acquired from the claimants. Mr. Damodar Amarsi, a specially authorized pleader practising at Thana, deposed that he had offered the claimants in 1903 to take 500 square yards of their frontage on a perpetual lease at a rent of 8 annas a square yard, afterwards increased to 12 annas. He considered this was a fair offer but the claimants asked for Re. 1 per square yard. In valuing ground by the capitalization of a ground rent we do not think that in any case more than twenty years purchase should be allowed and in the case of an unsecured ground rent we doubt whether more than 16f years purchase should be allowed. But if a mere offer at a fixed price possesses little probative force, an offer to pay a ground rent has stillless.We have already dealt with the offers made for Ardesir Irani's Plot.
18. As regards the valuation placed by the claimants on this land in the Schedule to their petition for probate of their father's will in March 1894 (Exts. 10 and 11) we think this must be taken as evidence of what the claimants honestly thought at that time this land was worth at its lowest reasonable estimate. To come to any other conclusion would be to encourage under valuation in petitions for probate. However that will not preclude the respondents from proving by evidence of sales and purchases that their land in 1904 was worth considerably more than in 1894, or that their valuation in 1894 was in fact an under estimate.
19. For the purposes of our valuation it will not be necessary to divide the land under acquisition into more than two classes namely frontage land with a depth of 100 feet along the Parel Road and back land. The value of the frontage can be deduced with some degree of certainty from several sales of similar land appearing in Exts. S and 19. In 1894 the Municipality sold-several plots fronting on Parel Road and Connaught Road. The best plot. No. 14 on Ext. T with a double frontage on the two roads, was bought by Irani for Rs. 13 1/2 per sq. yd. Plots fronting on Parel Road realized from 111/4 to 101/4 per sq yd. and plots fronting on Connaught Road realized from Rs. 8| to 8i per sq. yd. A plot at the corner of the Connaught Road and Sussex Road realized Rs. 10 per sq. yd. In 1897 a plot on Parel road rea'ized Rs. 10 per sq. yd. This plot was sold again in 1905 a year after the date of the declaration for Rs. 16 per sq. yd. and again in March 1906 for Rs. 25 per sq. yd., distinct evidence of a rise in value after 1904. In 1897 another plot in Connaught Road realized Rs. 13 per sq. yd. The claimants also relied on certain leases granted by the late Mr. J. N. Tata for five plots numbered 10 on Ext. T. The rent for 3 plots fronting on Parel Road capitalized at twenty years purchase amounted to Rs. 12-14 per sq. yd. and the rent for two back plots to Rs. 11-14 and Rs. 10-5 respectively. Mr Jardine relied on these last two rates as showing that land immediately behind a frontage did not differ very much in value from the frontage land. This no doubt is true if proper access is provided and shop building is not contemplated on the frontage, but that entails a considerable diminution of front land, and further the plan that was shown to us of these five plots revealed a quantity of back land which appeared to have been rendered practically useless. At any rate there was no evidence that it had become remunerative since 1889. The rest of the Connaught Road estate remained in the hands of the Municipality until it was transferred to the City Improvement Trust and no further sees were effected before the date of the declaration. It is in evidence that there was a considerable amount of vacant land in this neighbourhood, and the fact that none of it appears to have been sold between 1897 and 1904 at anything like the rates now claimed for frontage land seems to point to the conclusion that the demand in this locality was small and that the value of the land was not increasing. This also appears from the purchase by Seedick Haji Mahomad of 9311 sq. yds. with a frontage of 125 feet on Parel Road in November 1902 for Rs. 3-10-9 per sq. yd. The land is numbered VII on Exhibit T and is a little to the North of the land belonging to Dayabhai Tapidas already referred to. From the plan annexed to the Conveyance it appears that the land was bounded on the South by a narrow passage. The vendor was Mr. Bomanji Dinshaw Petit so that it could not be alleged that the sale was a forced one or by an ignorant owner. We consider this a fair instance of a sale of front and back land in one lot.
20. Taking the frontage of the land under acquisition at 1268 feet with a depth of 100 feet we get an area of 14088 8/9 sq. yds. Considering all the evidence of sales of similar front land, the fact that the land required draining and an expenditure of at least 8 annas per sq. yd. for filling, and that nothing has been deducted for providing access to the back land we find the outside value of this front land per sq. yard Rs. 12. We will allow that rate for the purposes of this appeal, but it must not be inferred that we should have adopted so high a value if the matter had come before us as a Court of first instance; for we must estimate this land as of a decidedly lower quality than the best of the Connaught Estate Plots. There remains an area of 57085 1/9 sq. yds. to be valued as back land. We are satisfied on the evidence that this land was certainly 2 feet and probably nearer four feet below the level of Parel Road. Mr. Gray, Assistant Engineer to the Railway Company in his evidence at page 255 says he filled in to an average depth of 4 feet. In the monsoon the land was swampy and would require filling and systematic drainage before it could be put to any profitable use. The learned Judge has for the purpose of valuing his area III analyzed very carefully the instances in Exts. S and 19 relating to back land. He divided this area into 2 moieties assessing the eastern portion at Rs. 6 1/2 and the western at Rs. 3 5/8 per sq. yd. but with the deductions which appear in Ext. 55 at p. 393 the value awarded for the whole area amounted to a little less than Rs. 3 1/3. We consider that the evidence does not justify higher rates than those allowed by the Court below for the improved land, and the result is a very clear indication that even the simplest scheme of block development must prove of very little assistance to an owner when applied to land like this. Fully admitting that the eastern portion of the land must be considered more valuable than the western portion but considering also the condition and quality of the back land as a whole without deduction for access and applying the value realized by back land of distinctly superior quality as proved in Exts. S and 19 we think a fair average value to place on this area is Rs. 3 1/2 The market value of the land under acquisition at the date of the declaration was therefore Rs. l,69,066 2/3 for front land plus Rs. 1,99,797 17/18 for back land total Rs. 3,68,864 11/18.
21. The learned Judge increased the Collector's valuation of the building materials from Rs. 7576 to Rs. 10794 and no exception has been taken to this by the appellants. In our opinion,therefore, the total amount to be awarded, exclusive of the 15 per cent for compulsory acquisition, should be Rs. 3,79,658 1/1-1/8. The Collector has awarded Rs. 4-00,719, and admittedly this award, cannot now be reduced : for the reason given we cannot increase it. The result, therefore, is that we must set aside the award of the Court below and restore the Collector's award. The respondents must pay all costs here and in the Court below.