1. This judgment shall govern the disposal of First Appeal No. 35 of 1968 also. Both the appeals arise out of the acquisition of open land belonging to the respondent for the construction of Auto Exchange building of the Post and Telegraph Department at Jabalpur.
2. Under two notifications issued under Section 4 of the Land Acquisition Act (hereinafter called the Act), 31330 sq. ft of land and 32400 sq. ft. of land, adjoining each other, were acquired. The notifications are dated 30-3-1963 and 26-7-1962, respectively. 31330 sq. ft. of land has frontage of 175 feet and is about 200 feet deep. The other land is situated immediately behind it and has no frontage. Behind both the acquired lands there is left to the respondent about 50000 sq. ft. of open land. In continuation of that land the respondent has his buildings. For brevity's sake, we will call the acquisition of 31330 sq.ft. of land as the 'first case' and the other case as the 'second case' throughout this judgment.
3. In the first case, the Land Acquisition Officer came to the conclusion that the entire land abutting the road up to the depth of 70 feet was of higher value as it could be used for commercial purposes and therefore awarded for that portion of the land compensation at the rate of Rs. 3/- per sq.ft. For the remaining land in the first case, which, according to the Land Acquisition Officer, was only useful as residential plots, he awarded compensation at the rate of Rs. 1.87 paise per sq.ft. In the second case, the award of compensation was made by the Land Acquisition Officer at the rate of Rs. 1.87 paise per sq.ft. The Land Acquisition Officer also awarded compensation for severance of other land left with the respondent at the back of the land acquired at Rupees 2000/-.
4. On references made to the Additional District Judge, Jabalpur, in both the cases, he awarded compensation for land at the uniform rate of Rs. 9/- per sq.ft. Placing reliance on three sale-deeds to which we shall refer in detail presently, he further awarded Rupees 30,000/- as damages for severance. Statutory compensation at the rate of 15% has also been awarded. Thus, in the first case, he awarded Rs. 281970/-as compensation for the land, Rupees 4295.50 paise as solatium for compulsory acquisition, and Rs. 30000/- as damages for severance. In the second case, he awarded Rs. 291600/- as compensation for the land and Rs. 43740/- as solatium for compulsory acquisition, total Rupees 335340/-.
5. The grievance made in both the appeals is that the basis adopted by the learned Additional District Judge in fixing the compensation at Rs. 9/- per sq.ft. is wholly unjustified and the award made to the respondent is excessive. It has also been urged that the award of Rs. 30000/- as damages is also unreasonably excessive.
6. It will be helpful to state a few principles before we take up for consideration the two points involved in the case. The general principles for determining the compensation are specified in Sections 23 and 24 of the Act. The compensation must be determined by reference to the price which a willing vendor would reasonably expect to obtain from a willing purchaser. The value to be ascertained is the value to the seller of the property in its actual condition at the time of expropriation with all its existing advantages and with all its possibilities, excluding any advantage due to the carrying out of the scheme for which the property is compulsorily acquired; see Lala Narsingh Das v. Secretary of State, AIR 1925 PC 91.
7. The market value is required to be considered as it was on the date of the notification under Section 4 of the Act. The value of the potentialities has to be taken into account even where the only possible purchaser is the authority purchasing under powers enabling compulsory acquisition. The sentimental considerations and enhanced valuation by reason of the scheme itself have to be totally excluded. The land is not to be valued merely by reference to -the use to which it is being put at the time at which its value has to be determined, but also by reference to the uses to which it is reasonably capable of being put in the future -- See Raja Vyricherla Narayan Gajapatiraju v. Revenue Divisional Officer, Vizagapatam, ILR 39 Mad 532 = (AIR 1939 PC 98). In valuing the land the possibilities of the land as distinct from its realised possibilites must be taken into consideration.
8. It may also be stated as a general principle that the valuation of petty extents cannot be made to govern the valuation for acquisition of large areas of lands and vice versa.
9. It is not disputed that the land acquired is located on an important road in the city of Jabalpur. On the other side of the road, in front of the plot acquired, there is a building in which the Madhya Pradesh Co-operative Bank is located and close-by at a distance of about 100 yards there is the office of the Life Insurance Corporation. However, the land acquired has the benefit of road only on one side and has not the benefit of roads on three sides.
10. We may state at the outset that by our order dated 8-1-1969, we permitted both the parties to this appeal to adduce further evidence under Order 41, Rule 27, Civil P. C. as in our view certain points which were material for determination of proper value of the land acquired had remained obscure in the evidence which had been adduced by the parties before the learned Additional District Judge. The appellants availed of the opportunity and examined three witnesses before us and produced some sale-deeds. The respondent did not adduce any evidence in this Court. The parties, however, agreed before us that the said evidence may be read as evidence in the other case also. As the documents relied on in both the cases are the same and the other evidence adduced also is mostly common, we would refer to the evidencewhich has been adduced in the first case only and would refer to the evidence in the other case only when it is particularly necessary.
11. The evidence which has been adduced in the case for proving the market price of the land at the time of the acquisition can be divided into two parts. The most important evidence on record is the documentary evidence consisting of the various sale-deeds. The oral evidence consists of the alleged offers made for purchase of the plots which have been acquired and the estimated value of the lands as stated by witnesses.
12. The following sale-deeds have been proved in the case. The first four sale-deeds have been proved on behalf of the respondent and reliance is placed on the other sale-deeds on behalf of the appellants.
Date of sale-deed.
Area of the land sold.
270 sq. ft.
Umraosingh (A. W. 2)
3300 sq. ft.
Harbhajansingh (A. W.5)
2400 sq. ft.
Hyderhussain (A. W. 6)
1350 sq. ft.
Ramprasad (A. W. 3)
1989 sq. ft.
422 sq. ft.
J. R. Bedekar (N. A. W. 4)
7650 sq. ft.
Rajendraprasad (N. A. W. 3)
40000 sq. ft.
2591 sq. ft.
Shri L. P. Tiwari
165 sq. ft.
Shri L. P. Tiwari
13. The learned Additional District Judge placed reliance upon the first three sale-deeds for fixing the market value of the acquired land. He did not attach any importance to the other four sale-deeds which were produced before him. The last three sale-deeds have been produced in this Court.
14. The contention advanced by the learned counsel for the appellants is that all the three sale-deeds relied on by the Additional District Judge are of lands of very small area and therefore could not be treated to be a safe guide in fixing the market value. It is further urged that the location of the land covered by the first three sale-deeds is much more suitable for shops than of the acquired land but the lower Court did not attach significance to this important factor. In the same connection it has further been contended that the depth of the lands sold under the first three sale-deeds was only between 60 feet to 75 feet which was eminently suitable for shops. It has been urged that the said three sale-deeds did not pertain to such lands where the backland could be held to be of lower valuation.
15. The land sold under the first sale-deed is situated near Gurudwara. The land sold under the second and the third sale-deeds is situated near the City Coffee House. Shri L. P. Tiwari, Administrator of the Municipal Corporation, stated in paragraph 9 of his deposition before us that-
'The City Coffee House is situated in a more busy locality of the town. Gurudwara shops are situated on the road leading from the Shyam Talkies to the Corporation Chouraha. In ranking importance from the business point of view, I would say that Coffee House has the best position, the next best position will be Gurudwara shops and the last best place will be the plot in question.'
We inspected the spot where the lands sold under the first three sale-deeds are situated and saw the site of the land acquired. We are satisfied that the lands sold under the first three sale-deeds are situated on roads which command much greater mercantile activity than is to befound in the area where the land acquired is situated. These sale-deeds pertain to what may be described as purely business localities whereas the land acquired is situated at a place where mercantile activity is developing but the locality cannot be described as purely business locality in so far as many residential houses also are situated in the vicinity of the land acquired. In our opinion, the estimate of importance given by Shri L. E. Tiwari is true and correct.
16. It is also true that the lands transferred under the said three sale-deeds are comparatively much less in area than the acquired land. However, merely on that ground it would not be correct to completely ignore the said sale-deeds. Compensation will have to be fixed after making allowance for the smallness of the area and after noticing the fact that the lands covered by the first three sale-deeds have a better location. In Ramaswami Naidu L. v. District Welfare Officer, Coimbatore, Civil Appeal No. 618 of 1966, D/- 21-4-1969 (SC) decided by their Lordships of the Supreme Court, the land acquired was a big plot and the sale-deed which was proved was of a small area of 10 cents which was sold at the rate of Rs. 580/-per cent. Their Lordships found that both the lands were similarly situated and making allowance for the smallness of the area, the valuation was fixed at Rs. 200/- per cent.
17. Out of the remaining seven sale-deeds, the one dated 20-5-1955 and the other two dated 10-1-1968 and 3-2-1969, in our opinion have to be ignored. The first of these cannot be taken into consideration for the reason that it relates to a period which is more than seven years prior to the date of notification under Section 4 and the other two have to be left out of consideration as being sales made about five years after the date of notification under Section 4. The time-lag between the date of notification and the dates of these sale-deeds is so much that in our opinion we will be purely entering into the domain of conjecture if any weight was attached to these sale-deeds. It is true that with regard to the land which was sold under the sale-deed dated 10-1-1968, Shri Tiwari deposed in his statement that possession was taken by the Municipal Corporation in the year 1963 and therefore it may be that the price which could be secured for that land in that year may have been actually agreed upon between the parties. It may also be that as the land had already been taken possession of by the Municipal Corporation, the vendor may have thought it proper to get whatever price was paidto him without his being required to resort to litigation.
18. The sale-deeds dated 23-1-1961 and 22-1-1962 are in respect of lands situated in Wright Town which is admittedly one of the best residential localities of the city of Jabalpur, Shri Karunashankar pave stated in his deposition that on his land he had constructed a building worth about Rs. 20000/-in the year 1932 or 1933, and the land which was sold under the sale-deed dated 23-1-1961 included that building also. He stated that the present value of the building was Rs. 40000/-. However, even if the building were entirely excluded from consideration, the price of land secured under the sale-deed comes only to Re. 1.75 paise per sq.ft. The learned counsel for the respondent suggesed that the sale price paid to Shri Karunashankar was not correctly recorded in the sale-deed. That suggestion was denied by Shri Karunashankar in the witness-box and there is absolutely no material on record to justify that suggestion. For the other land situated in the Wright Town there is the sale-deed dated 21-1-1962. It is true that a very small piece of land was sold under this sale-deed to Shri J. R. Bedekar (N. A. W. 4) at the rate of Rs, 2/- per sq.ft. and there is no evidence to show as to whether the said land is situated contiguous to the road or on back side. The average price which can be worked on the basis of these sale-deeds and to the other sale-deed dated 25-5-1961 comes to about Rs. 2/8/- per sq.ft. at the best. While fixing compensation for the land acquired in this case, we have to keep in view the fact that these sale-deeds are for lands situated in purely residential localities.
19. The next contention raised on behalf of the appellants is that the learned Additional District Judge was completely in error in awarding compensation at the uniform rate of Rs. 9/-per sq.ft. for the lands acquired in both the cases. It is urged that without the shadow of doubt the land which was acquired in the second case is the land which has no frontage at all and is situated at a distance of about 200 feet away from the road. This land, it has been urged, could never be taken to be as valuable as the front land. It has further been contended that the evidence of Shri L. P. Tiwari clearly showed that the front land up to a depth of 60 feet at the most will have high value depending on the size, nature and need of the construction but beyond that it will have only residential value. Shri Tiwari also deposed that up to the depth of about 60 feet the land in question if sold for commercial purposes could in the year 1968 fetch a price of about Rs. 8/- per sq.ft. but in the year 3963 the price of this front portion could not be higher than Rs. 5/- per sq.ft. He also deposed that the price of back portion would range from Rs. 3/-to Rs. 2/- per sq.ft. According to him, it would be Rs. 3/- per sq.ft. for the middle portion and Rs. 2/- per sq.ft. for the hind portion. In his cross-examination he stated that the price of the plot in question in the year 1963 as being Rs. 5/- per sq.ft. for the front portion and Rs. 3/- per sq.ft. for the middle and back portions was stated by him on the basis that generally the prices of plots in the Wright Town in that year were Rs. 3/- to Rs. 4/- per sq.ft. and generally in the sales made, he stated, he had kept that in view. He also stated that he did not state the price on the basis of any particular sale-deed.
20. Shri M. M. Sapre, learned counsel for the respondent, urged that the evidence of Shri L. P. Tiwari could not be acted upon as he could not be treated to be an expert and therefore was not competent to express any opinion. In the second place, it was urged that fixing the price of the same plot which was the subject of acquisition by dividing it into front and back belts was illegal and could not be resorted to. He therefore stated that if the price of the front portion was found to be Rs. 8/- or Rs. 9/- per sq. ft., the only proper course open for the Court was to fix the value of the plots acquired in both the cases in an uniform manner as was done by the learned Additional District Judge.
21. It would be convenient to examine at this stage the remaining oral evidence which was adduced on behalf of the respondent in the case. This evidence consists of two witnesses Abdul Majid (A. W. 1), who was the Mukhtyar of the respondent, and Abbas Ali (A. W. 4). Abdul Majid stated in his deposition that he was looking after the property of the respondent for the last 18 years. He deposed that the land acquired had an excellent situation for the construction of shops or any other building. In para 7 of his deposition he stated that in 1962 the respondent intended to sell this land after dividing it into plots as there was no purchaser for such a big piece of land. He gave his estimate of the price of the plots at the rate of Rs. 10/- per sq.ft. In cross-examination, he admitted that within his knowledge no lands near the acquired land were either sold or purchased by any one. He stated that the respondent wanted to divide the land into plots measuring40' x 60', 40' x 80' and 50' x 60'. He admitted that passage had to be provided for these plots. No lay-out of plots, however, was produced in the first case although in the second case a lay-out was produced. The statement of this witness is not helpful in fixing the compensation as his statement about the price of the plots is more or less a mere conjecture and is not based on any thing which could be characterised as his positive knowledge on the point.
22. Abbas Ali (A. W. 4) deposed in his examination-in-chief that one of his relations who resided at Akola wanted to purchase land for the construction of a cinema house at Jabalpur in the year 1961. He stated that he had offered to purchase the plot in question at the rate of Rs. 8/- per sq. ft. but the respondent demanded price at the rate of Rs. 10/- per sq. ft. and therefore no bargain was struck. In our opinion, no weight at all can be attached to this evidence. The first weakness of the statement of Abbas Ali is that though he admitted that some correspondence on the point had been made and that correspondence may be in existence at his house, not a single letter was produced. In the second place, the person on whose behalf the said offer was made remained an undisclosed person in Ms entire statement and was not examined as a witness in the case. He was not named by him. Thirdly, if the offer had been made to the respondent as stated by the witness, it was for the respondent to enter the witness-box to support the version of the said offer but that also has not been done. Fourthly, it is significant that Abdul Majid (A. W. 1) who has been looking after the property of the respondent for so many years has remained completely silent about the said offer in the witness-box. Further, much weight cannot be attached to the evidence regarding offers as at best it would amount to expression of opinion on the part of the person making it. It has been held in Deptylal v. Collector of Nilgiris, AIR 1959 Mad 460 that oral offers unsupported by any documentary evidence do not carry any weight or afford any assistance. For all these reasons, we totally reject the evidence of Abbas Ali.
23. The learned counsel for the respondent urged that the evidence of Shri L. P. Tiwari could not be acted upon as his evidence amounted to opinion evidence and the said witness could not be treated to be an expert. In our opinion, this contention has no merit. It is in evidence of Shri L. P. Tiwari that all the transactions of sale and purchase of lands or houses which take place in the city of Jabalpur are reported to theCorporation and are entered in a register called 'Mutation Register'. He, in the capacity of his being at first the Commissioner and later the Administrator of the Municipal Corporation, must have had opportunities of noticing these entries and acquiring knowledge of the market value of lands and houses at Jabalpur. Further, it is in evidence that he negotiated some transactions of purchases of lands by the Municipal Corporation. He has only stated his experience when he said that if a big plot is divided into many plots the value of the plot becomes less and less as we go away from the road and the estimate of price that he has given of the front and back portions of the acquired land is based and can safely be assumed to be based on the knowledge that he has of all the various transactions of sale and purchase. An expert, in order to be competent as a witness, need not have acquired his knowledge professionally. It is sufficient, so far as the admissibility of the evidence goes, if he has acquired a special experience therein. In his capacity as Commissioner and Administrator of the Municipal Corporation he appears to have gained knowledge pertaining to the value of land situated in different parts of the city as also of the house properties and the said knowledge in our opinion entitles him to be considered an expert so far as to render his opinion founded on such knowledge admissible in evidence. We may also make it clear that we are not solely basing the award of compensation on the opinion of Shri L. P. Tiwari but also on the sale-deeds which we have already discussed after making due allowance for location, size and advantages of the land acquired with those of the lands sold under the sale-deeds.
24. The award made by the learned Additional District Judge at the uniform rate of Rs. 9/- per sq. ft. is clearly erroneous for many reasons. In the first place, the three sale-deeds relied on by him do not establish the price of land to be at Rs. 9/- per sq.ft. They only give the average rate of Rs. 7.60 paise per sq. ft. In the second place, the respondent himself, in the first case, claimed compensation of land at the rate of Rs. 15/- per sq. ft., but in the second case he claimed it at the rate of Rs. 8/-per sq.ft. If the market value of the land was the same in both the cases, the respondent would not make the mistake of claiming a lesser amount in one case when he could claim a higher amount for it. We may also stress that in the statement of claim dated 20-9-1963 the respondent had urged in para 5 that lands in the neighbourhood and other parts of the city of Jabalpur have beensold at the rate varying between Rupees Rs. 10/- to Rs. 20/- per sq.ft. However, not a single sale made at the alleged rates has been proved. It is also pertinent to note that in the second case the award made by the Additional District Judge is clearly against Section 25 of the Act as it is even in excess of the claim made by the respondent pursuant to the notice given under Section 9 of, the Act.
25. In our opinion, the learned Government Advocate is right in his contention that for properly fixing the amount of compensation in the present case, we have to work out the average of the prices that may be available for the front land and the back land. According to the evidence of Shri L. P. Tiwari, on which we place reliance, the value of the front portion of the land up to the depth of 60 feet could at best be Rs. 5/- per sq.ft. in the year 1963 when the notification under Section 4 was issued, and the value of the back portion could be only Rs. 3/- per sq. ft. Though Shri Tiwari has stated that the rate of Rs. 5/- per sq.ft. would apply only up to the depth of 60 feet, even if we allow this rate for the half portion of the land going up to the depth of about 100 feet and value the remaining land at Rs. 3/-per sq.ft., the average market value of the land acquired in this case would be Rs. 4/- per sq. ft.
26. The learned counsel for the respondent has pressed into service the decision of their Lordships in U. P. Govt. v. H. S. Gupta, AIR 1957 SC 202 for contending that the market value of the acquired land could not properly be fixed block-wise and should have been fixed only plot-wise. In that case their Lordships did hold that 'the District Judge was right in thinking that Rs. 1/2/- per sq. ft. should be the price of the various plots as delineated in Exhibit 52.' However, the said conclusion was reached as their Lordships 'did not find any justification in the learned Judges of the High Court falling back upon the method of block-wise sale, especially when we see from the evidence that there is no doubt whatever that there are willing, if not anxious, purchasers for all the plots delineated in Exhibit 52.' It is thus clear that their Lordships did not lay down any general proposition, that in no case the value of an entire plot can be fixed on consideration of the value of front, middle or back belts of the land. In case of acquisition of a large area of land, an attempt must always be made to judge from other sales what the whole land would have been likely to realise in the market. It is generally undesirable to divide the whole into separate piecesand give different value to front land and divide again the land in the interior into separate portions but where there is no evidence to show on the basis of which the value of the large area to be acquired can be worked out, help has to be taken from such material as may be available.
27. When determining the value of frontage land, the depth is the question of supreme importance. What is a suitable depth must primarily depend on the character of the buildings in the locality. See Govt. of Bombay v. Karim Tar Mahomed, (1909) ILR 33 Bom 325. In Secy of State v. Bhupati Nath Deb, AIR 1936 Cal 346 it was observed that 'where the value of the land in a populous locality to be acquired under the Land Acquisition Act, is to be determined, frontage, i.e., immediate contiguity to highway and where there is no frontage, propinquity and easy access to high road are the powerful elements of the value to be taken into consideration.' In many cases it has been stated that there is no hard and fast rule that the back land is to be valued at half the front land or in any other fixed ratio (See Alaul Huq v. Secretary of State for India in Council, (1909) 11 Cal LJ 393; (1909) ILR 33 Bom 325 and Pribhu Diyal v. Secretary of State, 135 Ind Cas 183 = (AIR 1931 Lah 364) but the depth of frontage is a matter of importance and it has to be best settled by assuming that the owner of the property will make best possible use of it and that the actual lay out of the property at the time of acquisition was in all the circumstances of the case the most advantageous and lucrative.
28. Applying these tests, in our view, the market value in both the cases would be required to be fixed in the light of the three sale-deeds relied on by the trial Court and the sale-deeds which we have discussed in para 18 of this judgment. The evidence of Shri L. P. Tiwari also is helpful in fixing the compensation. Taking into consideration the size, location and comparative advantages of the land acquired with the lands covered by those sale-deeds, we are of the view that fair compensation of the land to be acquired in the first case will be to fix the compensation at Rs. 4/- per sq. ft. and in the second case proper compensation would be at the rate of Rs. 3/- per sq. ft. This compensation works roughly at half the rate of the three sale-deeds which have been relied on by the trial Court. In our opinion, this is a very fair rate considering the fact that the plots acquired have a very large area and the back portion of the land is not suitable for commercial purposes. It is significant that the respondent himself contemplated to get the land divided into plots for getting a fair price for the land. For utilizing the undeveloped land at the back as developed area for building site, the process of estimating compensation should necessarily involve deduction of the cost of factors required to bring the undeveloped lands on par with the developed lands. Where a large extent of land is acquired for being laid out into smaller plots as house sites, allowance will have to be made for the space which will be taken up for the road and also for the costs of laying roads and of providing other amenities. Even if the value of the entire land acquired in the first case is treated to be Rs. 5/-per sq.ft. after development, 20% of the total land will have to be left out in working out the compensation for providing roads etc. This was so done by this Court in the case of Hitkarini Sabha, Jabalpur v. Corporation of City of Jabalpur, 1961 MPLJ 541 = (AIR 1961 Madh Pra 324). The same course was adopted in Mrs. V. Kannia Lal v. Collector of Madras, AIR 1966 Mad 82. By this method also the compensation for the land acquired in the first case comes to Rs. 4/- per sq.ft.
29. The next point for consideration is as to whether the award of Rupees 30000/- which has been made by the learned Additional District Judge as damages for severance is fair and reasonable. There cannot be any doubt that loss due to severance must be held to have been sustained in the present case as after the acquisition of the front portion for purposes of construction of the Auto Exchange building the remaining 50000 sq.ft. of land which still remains in the possession of the owner has lost the advantage of having an approach from the front. In his application for reference under Section 18 dated 27-4-1964 in paragraph 10, the respondent demanded this loss in this manner:
'The learned Collector has not properly taken into account the diminution in the value of the unacquired portion of the plot. The learned Collector was alive to this injury to the applicant yet in assessing the compensation this major factor was not given adequate importance. At least Rs. 10000/- should have been awarded on this count.'
In this application the respondent has nowhere demanded compensation for severance amounting to Rs. 30000/-. He has not led any evidence to prove the quantum of damages claimed by him. In our opinion, the damages on this account could not be awarded higher than what the respondent claimed in para 10of his application under Section 18. We could, therefore, reduce the amount of damages on this account from Rupees 30000/- to Rs. 10,000/-.
30. In the result, the appeal is partly allowed. Modifying the award made by the Additional District Judge, we award compensation to the respondent for the land in question at Rs. 4/- per sq. ft. amounting to Rs. 1,25,320/- and solatium at the rate of 15% for compulsory acquisition amounting to Rupees 18,798/-. In addition, the respondent would get Rs. 10,000/- as damages for severance. Thus, the total amount of compensation to which the respondent is entitled comes to Rs 1,54,118/-. He would also be entitled to interest on the unpaid part of compensation from the date on which the Collector took possession till the time of payment at the rate of 4% per annum. The amount of compensation which has been already received by the respondent shall be adjusted in the amount awarded by us. Considering the entire circumstances of the case, we would leave the parties to bear their own costs in this Court as also in the lower Court.