(1) These are three appeals from awards made by the Civil Judge, Senior Division, poona in a group of land acquisition references. By a notification published on 12.12.1946 in exercise of powers under S. 4 of the land Acquisition Act, the Government of Bombay notified fr acquisition 276 acres and 35 gunthas of land out of the village of Aundha, in the District of Poona, for the National chemical Laboratry. the lands at the date of the notification were in the possession of occupants. The claimant, who is one of the Inamdars of the illage, was awarded Rs.4,093-9-6 as capitalised value of agricultural assessment receivable by him in respect of the lands from the occupants. The occupants were separately awarded compensation for compulsory acquisition of their interest in the lands. We are, in these appeals not concerned with the Compensation which was awarded to the occupants of the lands. It may be noticed however that compensation was awarded compensation for compulsory acquisition which was awarded to the occupants of the lands. It may be noticed however that compensation was awarded to the occupants on the footing that the lands were assessed and put to agricultural use and had no immediate building potentiality. The claimant who is one of the Inamdars of the village and is entitled o a 6 annas share in the Inam, prayed for a reference to the District Court at Poona. claiming that he was entitled to the capitalised value of the non-agricultural assessment of the land. A reference was accordingly made and was trnasferredfor trail to the civil judge. Senior Division and was numbered 132 of 1953. Before the Civil Judge, Senior Division, the claimant demanded compensation for extinction of his rightsd to mines, minerals etc., in the land and he also demanded compensation for extinction of the Inamdar's right to receive assessment on the footing that the lands had at the date of the notification acquired a building potentiality and accordingly to capitalised value of the non-agricultural assessment at the rate of Rs.50 per acre. The Civil Judge, Senior Division, rejected both the claims. He held that the claimant failed to establish that he was the owner of any mines or minerals in the lands, and that the lands had at the date of the notification not acquired any building potentiality. It appeared however that the Land Acquisition Officer committed an error in stating that the assessment of survey No. 100B out of the lnds notified for acquisition for the National Chemical Laboratory was Rs. 9 per annum nd in capitalising the assessment at 30 times and in awarding to the climant compensation accordingly. It is clear however that the assessment of the land Survey No. 100B was Rs.90 and not Rs.9 The trial judge rectified that mistake and awarded an additional amount of Rs.2,430 to the claimant for his six annas share in the compensation. But the learned trial Judge did not award the 15 per cent. Solatium in addition to the amoung of Rs.2,430 awarded by him, nor did he award any interest on that amoung to the claimant Against the award made by the Civil Judge, the claimant has preferred appeal No.505 of 1956 and has claimed that out of the total area of 273 acres and 35 gunthas, even it be assumed that only 2 per cent. of the area be taken to be developed and assessed to non-agricultural use, at the rate of Rs.49-8-0 per acre the Inamdars will be entitled to 30 times Rs.287-12-0 and that the climant 6 annas share out of the same will be Rs.3,374-3-0.
(2) By another notification published on 2-12-1948, 5 acres and 19 gunthas, an area of land in village Aundh in the possession of occupants as notified for acquisition for the Fruit Experimental Station. Compensation was awarded to the occupants who were in occupation of the land on the footing that the land was agricultural land and had no building potentiality. The claimant was awarded Rs. 222-30 by the land Acquisition Officer as his 6 annas who share in the capitalized value of the agricultrual assessment. The claimant feeling disatisfied with the award made by the Land Acquisition Officer applied for a reference to the district Court at Poona. A reference was accordingly made and was numbered 72 of 1953. In this reference also the claimant demanded the capitalized value of non-agricultural assessment of the land. The trial Judge negatived the laim and dismissed the reference. In may be observed that in this case the Land Acquisition Officer had awarded to the claimant 15 per cent. Solatium on the capitalized value of his share of the assessment and the right o the claimant to that compensation was though somewhat reluctantly affirmed. Aggrieved by the award made by the Civil judge. Senior Division Appeal No. 506 of 1956 is preferred to this court by the claimant.
(3) By a third notification published on 11-5-1950 the Government of Bombay notified by for acquisition 29 acres and 26 gunthas out of the village of Aundh for a Serum Institute. The land was in the possession of occupants wo were awarded by the land Acquisition Officer compensation on the footing that the land was capable of agricultural use and had no building potentiality. The climant was awarded Rs.599-1-0 for his 6 annas share of the capitalised value of the agricultural assessment. The claimant was disatisfied with the award made by the Land Acquisition Officer and applied for a reference to the district Court and reference was accordingly made and transferred to the Civil Judge. Senior Division for trnasferred to the Civil Judge, Senior Division for trail. That reference was No. 26 of 1953 Before the Civil Judge. Senior Division the claimant demanded a six annas sare in the capitalized value of the non-agricultural assessment at the rate of Rs.50 per acre. The civil Judge, Senior Division, rejected that claim and confirmed the award made by the Land Acquisition Officer and dismissed the reference. It may be noticed that in this case tha land Acquisition Officer and dismised te reference. It may be noticed that in this case the land Acquisition Officer did not award to the claimant `15 per cent. Solatium on he claimants claimant 15 per cent. Solatium on the claimants share of compensation and the learned Judge aggirmed that order. Against this award Appeal No. 507 of 1956 has been filed in this Court by the claimant.
(4) In appeal No. 506 of 1956 the claim is restricted to Rs.163-2-0 on the plea that out of the total area of 5 acres and 19 gunthas a minimum area of 2 per cent. had a building potentiality and the claimant claimed an additional amount of Rs. 163-2-0 being his share in the capitalized the non-agricultural assessment .
(5) In Appeal No. 507 of 1956 the claim is restricted to Rs. 330 on the plea that out of the total area of 29 acres and 26 gunthas, a two per cent. area thereof had a building potentiality and capitalizing the non-agricultural assessment of that area the claimant claimed for his share an additional amount of Rs. 330.
(6) In these three appeals Mr. Gharpure, who appears on behalf of the claimant, has contended that the trial court erred in holding that the lands under acquisition had no immediate building potentiality. Mr. Gharpure has invited out attention to the fact that a substantial area out of the land of the village Aundh covered by Survey No. 25 is occupied by the Government House Poona, and that in the year 1941 an Institute known as Spicer College was constructed in a part of the land of this village. Mr. Gharpure has also pointed out that the lands. which gave been notified for acquisition for the National Chemical Laboratry were requisitioned by the Government of Bombay for the use of the Defence forces and buildings had been contructed thereon. Mr. Gharpure, says that the village of Aundh is in the civlnity of the developed area of the Twon of Poona and is included within the Corporation limits of Poona, and having regard to the extensive building activity in the twon of Poona, contends Mr. Gharpure, there was a resonable possibility of the lands of the village of Aundh being converted to non agricultural use in the near future and that the claimants was therefore entitled to the capitalized value of non agricultural assessment on 2 per cent. of the total area acquired. Mr. Gharpure submits that because the lands have ben acquired by the state. of Bombay for non agricultural use the market valu of the interest of the calimant in the lands should be capitalized on the basis that his right to non agricultural use is extinguished. As we have stated earlier, value of all the lands has been assessed in aiming at the compensation payable to the occupants of the lands on the footing that they were agricultural lands having no building potentiality. It is difficult to hold that the lands which are assessed to land revenue as agricultural land and which are valued in assessing compensation payable to the occupants as land fit only for agricultural use, should in valuing the interest of the inamdar therein be treated as fit for non-agricultural use. The claimant is, it appears setting to take advantage of the somewhat unusal method of valuation adopted by the land Acquisition Officer of separately valuing the interest of the occupants and of the Inamdars. Normally when land is acquired, all the interests of the owners of the land but not the interest of the State are notified for acquisition and after the composite value for all those interest is assessable the compensation is distributed amongst the owners of the diverse interest in the land in apportionment proceedings. We are of the view that in this case the inteest of the occupants in that land and the interestof the Inamdars sholdf have been valued in one proceeding for a composite amount and therafter the amount of compensation should have been apportioned between the occupants and the Inamdars. But the Land Acquisition Officer proceeded to assess the compensation payable to the occupants in one proceeding and the compensation payable to the Inamdar in a spearate proceeding. This in our judgment was irregular as however the lnd acquisition Officer has separately valued the claim of the Inamdar in the land and separate references have been made to the District court on the assumption that the Inamdars are entitled to calim compensation apart from the compensation, which is payable to the District Court on the assumption that the Inamdars are entitled to claim compensation apart from the compensation, which is payable to te occupants, we do not think that sitting in the appeal we will be justified in discarding the laborious enquiry, which has been made for assessing the compensation payable to the Inamdars. However irregular the proceeding may be we are of the view that the assessment of the value of the interest of te claimant as owner of a share in the Inamdar's rights may not at this late stage be interferred with.
(7) It is conceded by the claimant, who has been examined in the courts below, that in respect of the land which has been occupied by the Government House non-aricultural assessment is not received by the Inamdars. It is also conceded by him that the lands. acquired for the National Chemical Labouratory, which were originaly requisitioned by the government of Bombay for the Defence forces and on which hutments were constructed, had to be returned to the owners in their original condition. i.e. as agricultural lands. The circumstance, therefore, that some temporary hutments had during the period of requisition been constructed on this land will not, in our judgment, attribute to this land a building potentiality at the date of acquistion. regarded as agricultural land, It is true that after the Bombay Provincial Municipal Corporation Act was enacted the limits of the Poona Corporation were extended and the village of Aundh was included therein. There is no clear eveidence on the record to show that under the Bombay Municipal Boreoughs Act this area was assuming that these lands were so included, in our view. every piece of land within the Municipal area may not be assumed to have an immediate building potentiality. It is conceded by the claimant in his eveidence that the building development of the Poona Town had extended up to the boundary of the village Bopodi, which is to the East of the Government House. The village Bopodi is spearated from the remaining which is covered by the Government House. It cannot be said that because up to the village Bopodi the building activity had extended at the date of the notification for acquisition, it was in the near future likely to reach the area under acquisition.
(8) Strong reliance was placed by Mr. Gharpure on the evidence relating to construction of the Spicer College in the years 1941 - 42 in support of the plea that the climants lands have an immediate building potentiality. But these lands of the Spicer College, are at a considerable distance from the lands which are acquired for the National Chemical Laboratory. Again it appears from the order passed by the Mamlatdar that the lands on which the Spicer College stands were converted to non-agricultural use ithout the sanction of the Collector, and fine and non-agricultural assessment were levied for unauthorised conversion. It was admitted by the claimant Deo in his evidence that without the order of Collector he was not entitled to the altered assessment. Agricultural lands within the Inam village can normally be converted to non-agricultural use with the sanction of the collector and in the present case on the admission could have claimed non-agricultural assessment merely because the land was intended to the used for non-agricultural purpose by some one. Unless the conversion was sanctioned by the Collector, the non-agricultural purpose by some one. Unless the conversion was sanctioned by the collector the non-agricultural user could not be claimed by the claimant. There is on other record no eveidence to show that either the collector was approached for coversion of the land which it is alleged the intending purchaser or purchasers had a desire to covert to non-agricultural use. Even if we accept the evidence ofthe claimant which is not supported by any documentary evidence. that some Sindhi refuges had purchased lands in the village of Aundh for a Cooperative Society and some other persons had also purchased plots of land in that village for the same purpose, unless the sanction of the Collector was obtained permitting conversion, the assessment could not be regarded as altered. Admittedly in respect of the lands under acquisition, there has not been an attempted conversion to non-agriculturaluse and no part of that land was trnasferred or attempted to be trnasferred for non-agricutural use and no part of that land was transferred or attempted to be transferred non agricultural purpose. The circumstance that the land under acquisition may be put to non-agricultural use after it is acquired by the State has to be ignored under S. 24 and compensation cannot be awarded to the claimant on that account. In our view, the Land Acquisition Officer and the learned trail Judge were right in holding that the lands under acquistion for the National Chemical Labourtory were agricultural lands and compensation payable to the claimant can onlybe assessed by capitalizing to the agricultural assessment.
(9) It is true that the lands, which are notified for acquisition for the Fruit Experimental station and theserum Institute the adjacent to the Government House and that the Spicer College has been constructed in the civinity of these lands. But in our judgment, for reasons already stated while dealing with the lands acquired for the national Chemical Laboratory, these lands also cannot be regarded as having acquired any building potentiality and mut be valued in awarding compensation to th claimants on the fotting that only agrcultural assessment is receivable in respect thereof.
(10) The claimant is thereof not entitled in the three appeals to the capitalized value of non - agricultural assessment. It is urged by Mr. Gharpure that the Land Acquisition Officer and the trail judge were in any event in error in not awarding to the claimant in references Nos. 132 of 1953 and 26 of 1953, the 15 per cent solatuim. In our view, that contention is correct and must be upheld. The trial Judge in the course of his judgment observed in paragraph 9 that he had to find out the present value of the loss suffered by the claimant. In out view, the leanred trail judge was in errof in so holding. Under S. 3 of the Land Acquisition Act the expression land is defined as incluysive of benefits to arise out of land. When the land acquisition officer assessed compensation t be paid to the claimant for acquisition of their interest in the land he proceeded in substance to value land. Under S. 32 of the Land Acquisition Act, the court in determining the amount of compensation to be awarded for land acquied under the Act has to take into consideration, the market-value of the land at the date of the publication of the notification under S. 4, sub-s (1) and certainother specified heads on which compensation for damage may be awarded. Compensation payable to the claimant for extinction of his interest as Inamdar of the land can in our judgment, be awarded as the market-value of that interest and not as compensation for damage. If the view taken by the learned trail judge is correct the claimant will not be entitled to any compensation whatever. But a benefit to arise out of lnd is land within the meaning of S. 23 and evidently by the acquisition of that interest, the claimant will not be entitled to the market value thereof on the date of the publication of the notification. This view is supported by the form of the award presecribed by Section 26, which requires the judge making an award to specify the amount awarded under clause 1 of sub-s. (1) of S. 23 and also the amounts if any, respectively awarded under each of the other caluses of the same subsection. It is evident that the Legislature has not contemplated any compensation to be awarded which does not fall within the six clauses of S. 23.
(11) We are, therefore, of the view that the claimant was entitled to th 15 per cent. Solatium on the amount awarded to him. The learned Judge in the Court below also has not awarded interest to which the claimant is in law ened interest to which the claimant is in law entitled. The claimant will therefore be enetitled to interest at the rate of 4 per cent. On the amount awarded. The award made by the Civil Judge, Senior Division, in reference No. 132 of 1953 s modified by awarding to the calimant 15 per cent. solatium of Rs. 2,430-0-0 and interest thereon at 4 per cent. per annum from 6th November 1949; and in reference No. 26 of 1953, i.e., appeal No. 507 of 1956, the claimant is awarded 15 per cent solatium on Rs. 599-1-0 and interest at the rate of 4 per cent. From the date on which possession was taken in reference No. 72 of 1953 ie, appeal No. 506 of 1956, the claimant is awarded interest on Rs. 222-3-0 at the rate of 4 per cent. from the date on which possession was taken till payment. there will be no order as to costs in all three appeals.
(12) Order Accordingly.