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Mehtar and anr. Vs. the Collector, Durg and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMadhya Pradesh High Court
Decided On
Case NumberFirst Appeal Nos. 90 and 205 of 1973
Judge
Reported inAIR1975MP46
ActsLand Acquisition Act, 1894 - Sections 9, 14, 18, 23 and 54; Code of Civil Procedure (CPC) - Order 41, Rule 27
AppellantMehtar and anr.
RespondentThe Collector, Durg and ors.
Appellant AdvocateKu. Rama Gupta, Adv.
Respondent AdvocateM.V. Tamaskar, Adv.
Cases ReferredVelayudam Chettiar v. The Special Tahsildar
Excerpt:
- - the earlier invalid notices under section 9. which vitiated the awards made on 6-7-1961 and 6-10-1964 could not, however, invalidate or render nugatory the validity of the land acquisition proceedings upto the stage of declaration made under section 6. the failure to give proper notices under section 9 could only have the effect of preserving the rights of the claimants which would accrue to them if proper notices had gone to them, necessarily, therefore, from a stage of finality reached by the declaration under section 6. there can be no doubt about this position of law. (h) for considering oral evidence, court is not bound to accept the statements of witnesses only because they have not been effectively cross-examined or evidence in rebuttal has not been adduced. it is difficult.....malik, j.1. these appeals are directed against the order of the additional district judge, dated the 8th march, 1973, passed in miscellaneous judicial case no. 9 of 1971, the principal question that arises for consideration is the determination of the market value of the land acquired on the date of notification under section 4(1) of the land acquisition act.2. the state government has acquired for public purpose 127.52 acres of land in mouza kasaridih, in tahsil anddistrict durg. the notification under section 4(1) of the land acquisition act was issued on 2-12-1959 (published in the madhya pradesh gazette dated the 4th december, 1959). notification under section 6 of the act was issued on the 6th may, 1962, the land acquisition officer gave an award earlier on 6-7-1961, but soon after,.....
Judgment:

Malik, J.

1. These appeals are directed against the order of the Additional District Judge, dated the 8th March, 1973, passed in Miscellaneous Judicial Case No. 9 of 1971, The principal question that arises for consideration is the determination of the market value of the land acquired on the date of notification under Section 4(1) of the Land Acquisition Act.

2. The State Government has acquired for public purpose 127.52 acres of land in mouza Kasaridih, in tahsil anddistrict Durg. The notification under Section 4(1) of the Land Acquisition Act was issued on 2-12-1959 (published in the Madhya Pradesh Gazette dated the 4th December, 1959). Notification under Section 6 of the Act was issued on the 6th May, 1962, The Land Acquisition Officer gave an award earlier on 6-7-1961, but soon after, discovered that no award could be made without a proper notification under Section 6. Before he could initiate fresh proceedings, for the determination of compensation, one Smt. Suroj Kumari filed a writ petition before the High Court for quashing the award dated the 6th July 1961. The High Court quashed the award, directing the Land Acquisition Officer to proceed afresh in accordance with the provisions of law.

The Land Acquisition Officer fell into an error again. He proceeded on the basis of the previous notices issued under Section 9 of the Act instead of issuing fresh notices, which the law contemplated ought to be issued after the publication of the notification under S. 6. He did not withdraw the award D/- the 6th July, 1961, and acted on the statements and evidence previously recorded, without giving opportunity to the claimants to put in additional evidence, if they so desired. The matter, therefore, came up again before the High Court and the second award made on 6th October, 1964, was also quashed, because it was based on no enquiry and was without any opportunity having been given to the claimants. Smt. Sarojkumari v. The State of Madhya Pradesh. 1966 MPLJ 437 = (AIR 1966 Madh Pra 197) which reports the decision of this Court.

We are dealing now with the third award made by the Land Acquisition Officer on the 4th August, 1969. The procedural errors, whatever were committed earlier in the matter of notices under Section 9, were not repeated, it appears, in the proceedings that commenced after the decision of the High Court on 15-12-1965 in Miscellaneous Petition No. 309 of 1965. At least there is no challenge in that regard. The earlier invalid notices under Section 9. which vitiated the awards made on 6-7-1961 and 6-10-1964 could not, however, invalidate or render nugatory the validity of the Land Acquisition proceedings upto the stage of declaration made under Section 6. The failure to give proper notices under Section 9 could only have the effect of preserving the rights of the claimants which would accrue to them if proper notices had gone to them, necessarily, therefore, from a stage of finality reached by the declaration under Section 6. There can be no doubt about this position of law. To cite an authority, reference may be made to the Tuticorin Municipal Council. Tuticorin v. A. R. A. S. Arunagiri, ILR (1966) 1 Mad 336.

No invalidity attached to the notifications under Sections 4 and 6 of the Land Acquisition Act and the crucial date for determination of the market value would be the date of the publication of the notification under Section 4(1) of the Act i.e., the 4th December, 1959.

3. The Land Acquisition Officer made the award on the basis of a multiple per rupee rental. The multiple was worked out by him at 1146. He took into consideration the oral evidence led by the parties which gave the market value of the agricultural lands at Rs. 2,000/- to Rs. 3,000/- an acre. According to him. the lands were essentially paddy fields with high embankments, water-cloggeo during rains and to convert them into building sites, would mean an expense of of Rs. 15,000/- to Rs. 20,000/- an acre. In his view, the sale-deeds which the claimants relied upon and which mostly concerned buildings-sites in the abadi or close in vicinity, could not furnish the correct basis for valuation. He was, therefore, inclined to ignore those sale-deeds. Taking, into consideration the sales relating to agricultural lands, used as such, he divided the total value with the total rental payable and determined the multiple. That furnished the basis for calculation In addition, the Land Acquisition Officer gave 10% for potential value besides the statutory 15% solatium. He also allowed 6% P. A. interest from the date possession was taken i.e., from 30-10-1964. till the payment was made.

4. The Additional District Judge, who heard the references under Section 18 of the Land Acquisition Act, was of the view that the land had substantial value as a building-site on the date of the notification: houses were coming up in the vicinity of the Kasaridih abadi which was hardly 250 yards away from the acquired lands, and on the other side towards the north, lay the Uttai-Durg road with a poultry farm, a Bakery, Kaleys' bungalow and garrage, and bungalow of the Officers abutting. The Sector 9 of the Bhilai Steel Plant was hardly at a distance of 1 1/2 miles. The land lay in between the two roads, Uttai-Durg and Durg-Boarsi. The claimants relied upon certain sale-deeds relating to plots in close vicinity of the abadi, sold in 1958 and 1959. which indicated that the price was almost Re. 1/- per square foot there. The learned Judge proceeded on that basis to hold that for the Land 250 yards away from the built-up area, the price should be 50 Nps. per square foot and should further be reduced as one went deeper towards the East. The other factor which the Judge took notice of. was that the bigger plots could not possiblyfetch the price which the smaller plots did and the bigger plots would need substantial expenditure on the lay-out of roads and in providing other amenities. He, therefore, divided the land into two categories and valued the first category land at Rs. 12,000/- an acre and the second category land at Rs. 7,000/- an acre. The land that appeared to him closer to the Uttai-Durg road or to the Kasaridih abadi was put in the first category; the rest in the second category. Necessarily, the line of division could have no mathematical basis. He had to depend on conjecture.

5. The claimants and the Government have both assailed the determination of the market value by the Additional District Judge; the former contending that the market value should have been assessed on square foot basis, treating the whole land as a house-building site and the rate could be anything above 50 NPS. to Re. 1/- per square foot. The claimants say, the Additional District Judge was wrong in putting a hypothetical line dividing the land into two categories, one for being valued at Rs. 12,000/- an acre and the other at Rs. 7,000/- an acre. The basis of such division had no rational basis. It was arbitrary and capricious.

The Government, on the other hand, contended that the Additional District Judge had relied on sales which were not comparable; the transactions proved by the claimants related to plots which were within the abadi or contiguous to it; and the acquired lands were paddy fields quite at a distance, with no pressure of building activities towards that direction. The acquired lands, therefore, should have been valued essentially as agricultural lands, with nominal potential value for their adaptability for house-building purposes in some distant future. It was contended that there being no building activity on Borsi road beyond the Kasaridih abadi nor evidence showing that there were purchasers who were willing to put the land in a profitable use as building site, the user of the land on the date of the notification should principally guide the court's decision in determining the market value. The value, then, could be anything between Rs. 3,000/- to Rupees 4,000/- an acre.

6. Before we discuss the evidence, we propose to set down the principles which should guide us in determining the market value:

'Market value on the basis of which compensation is payable under Section 23 of the Act means the price that a willing purchaser would pay to a willing seller for a property having due regard to its existing condition, with all its existing advantages, and its potential possibilities when laid out in its most advantageous manner, excluding any advantages due to the carrying out of the scheme for the purposes for which the property is compulsorily acquired.'

Raghubans Narain v. The Uttar Pradesh Government. AIR 1967 SC 465.

(ii) 'The value of the potentialities must be ascertained on such materials as are available, without indulging in beats of imagination.....' The land is notto 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 near future. ............ The land must notbe valued as though it had already been built upon. ............ It is the possibilitiesof the land and not its realised possibilities that must be taken into consideration.'

Vyricherla Narayana Gajapatiraju v. Revenue Divisional Officer, Vizagapatnam, AIR 1939 PC 98.

(iii) 'In the context of building potentiality many questions will have to be asked and answered; whether there is pressure on the land for building activity, whether the acquired land is suitable for building purposes, whether the extension of the said activity is towards the land acquired what is the pace of the progress and how far the said activity has extended and within what time, whether buildings have been put up on lands purchased for building purposes, what is the distance between the built-in-land and the acquired and similar other questions will have to be answered. It is the overall picture drawn on the said relevant circumstances that affords the solution.'

Raghubans Narain v. The Uttar Pradesh Government, AIR 1967 SC 465 at p. 467.

(iv) '(f) For ascertaining market value the value to the owner may also be determined by capitalising the rent as one of the methods, though not the only method. But method of valuation by the annual crop value is not always adequate;

(g) Method of valuation may be (i) opinion of experts, (ii) price paid within a reasonable time in bona fide transaction of purchase of lands acquired and the lands adjacent to the lands acquired and possessing similar advantages and (iii) a number of years purchase of the actual or immediately prospective profits of the lands acquired;

(h) For considering oral evidence, Court is not bound to accept the statements of witnesses only because they have not been effectively cross-examined or evidence in rebuttal has not been adduced. Judges are not computers.....they are bound to call into aid their experience of life and test the evidence onthe basis of probabilities. Chaturbhuj Pande v. Collector, Raigarh, AIR 1969 SC255.

(vii) It is not open to look into and rely on documents not properly proved and brought in evidence by giving the other side opportunity to produce evidence in rebuttal. If use is made of inadmissible evidence or unproved documents, appeal Court will exclude them under Section 167, Evidence Act. Chaturbhuj Pande v. Collector, Raigarh, AIR 1969 SC 255.

(viii) Comparable sales on the basis of which market price is determined should be of such lands as are (a) similar in character as far as may be. (b) reasonably proximus to the acquired land, (c) should have similar amenities and advantages and (d) these should be transactions of time reasonably proximus to the date of the acquisition.'

7. We may observe at the outset that the determination of the market value by the Land Acquisition Officer on the basis of a multiple which was worked out on no rational basis and where the consideration of each transaction taken into account, was not sought to be proved by the evidence of the persons who were either parties to the transaction or who had personal knowledge about it, and, therefore, the foundation having been laid on inadmissible evidence, could not be acceptable to us. . The Additional (contd. on col. 2)District Judge's award was equally arbitrary. We could not find any comparable sale which gave to the vendor the price at the rate of Rs. 12,000/- or Rs. 7,000/-an acre, for any land in close proximity, at or about the time of the notification. We also could see no justifiable reason for drawing a line which could put the very contiguous land on the other side, at a discount of Rs. 5,000/- an acre. Instead of keeping a sliding scale as one went deeper to the east, the Additional District Judge gave a steep fall from Rs. 12,000/- to Rs. 7,000/-. all abruptly at a line and we were at a loss to understand the logic behind it.

We have, therefore, chosen to read the evidence a bit closely for ourselves and to find what the market value should be for the acquired land on the date of the notification under Section 4(1) of the Land Acquisition Act. In a reference under Section 18 where the claimant challenges the valuation made by the Land Acquisition Officer, the burden of proving that the valuation is insufficient and unfair is upon the claimant. The claimant's position is that of a plaintiff and the onus of proving the value is upon him. While we assess the evidence, we must bear in mind this proposition regarding the burden of proof.

8. Sixteen sale transactions were proved before the Additional District Judge. The particulars relating to Khasra Numbers, area and the price may be given below :

S.No.

Ex.No.

Dateof the Sale-deed.

Areain Acre/Sq.ft.

Kh.No.

Price

1

23

4

5

6

1.

P-1

25-7-1959

40' x 30'

766/1

120

2.

Ex

P-2

25-1-1958

1431Sq. ft.

763/3

2000/-

4Decimal

3.

P-3

19-9-1958

3000Sq. ft.

720/1

2000/-

7Decimal

4.

P-4

3-7-1958

480Sq. ft.

763/3

500/-

1Decimal

5.

P-5

22-11-1958

11250Sq ft.

48

11250/-

6.

P-6

5-2-1959

40'x 45'

763/1

2000/-

7.

P-7

16-4-1959

27'x 30'

763/3

800/-

8.

P-8

24-7-1967

4590Sq. ft'

717/1

7000/-

9.

P-9

5-11-1963

2Decimal

215/4

2000/-

10.

P-10

5-12-1950

1500Sq. ft.

763

2000/-

11.

P-11

15-11-1957

2 Decimals

763/1

1000/-

12.

P-12

13-12-1957

705Sq. ft

600/-

13.

D-1

5-1-1969

78Decimals

705/3

546/-

14.

D-2

18-4-1958

1Acre

880

1500/-

15.

D-3

20-7-1959

93Decimals

974

}

974/2

1000/.

974/1

16.

D-4

7-11-1960

1.42

717/1

}

1500/.

720/2

9. Out of the twelve sale deeds proved by the claimants, two were rightly ignored by the Additional District Judge. They are Exs. P-8 and P-9. They relate to transactions four and eight years after the date of the notification and could bear no relevance to the market price on the date of the notification. Seven sale-deeds (Exs. P-2. P-4, P-6, P-7. P-10, P-11 and P-12) relate to plots sold out of Khasra No. 763, which lies to the West of the Kastaridih abadi. abutting the Borsi Road. The acquired lands lie a furlong away from the abadi to the East. A.W. 2 Sukhuram proves Ex. P-2. He says that the plot which he purchased under the sale-deed Ex. P-2. lies within the abadi; a very significant admission on his part that there was habitation all around when he purchased the plot. Similar is the statement of Dudharam (A.W. 4) Sadik Ali (A.W. 8) who proves Ex. P-6, Badal Prasad (A. W, 9) who proves Ex. P-7, Devi Prasad Gupta (A.W. 15) who proves Ex. P-10, Sundarlal (A.W. 17) who proves Ex. P-11 and Savantram (A.W. 20) who proves Ex. P-12. all of them admit that the plots they purchased were within the Kasaridih abadi. Houses were all around, A glance at the map Ex. P-14 makes it Abundantly clear that on one side of the road is the Kasaridih abadi and on the other side are the plots these witnesses had purchased. It appears that some houses had come up on this side of the road when the witnesses purchased the plots and the area where they wanted to settle was not lonesome It was in fact contiguous to the abadi providing to the plot-holders all the amenities of the village life. The lands which the Government has acquired are paddy fields with embankments 4' high, unapprochable during rains, except by wading through water or by going over the embankments. It is difficult to conceive of a purchaser who would build a house in a field like that a furlong away from the abadi; unless the entire area is levelled, roads are laid and his plot becomes approchable all the year round. Even the land abutting the Borsi-road. a furlong away from the abadi, would present such desolation that ordinarily a man would not purchase a plot there to settle down.

These sales, therefore, were not comparable sales. The plots purchases thereunder were not similar in character to the lands acquired nor were they alike in amenities and advantages.

10. The either three sales covered by Ex. P-1. Ex. P-3 and Ex. P-5 are similarly not comparable sales. Ex. P-1 relates to a plot in Khasra No. 766/1 contiguous to the Kasaridih abadi. on the other side of the Borsi road, opposite the purchaser's house and it is evident that its situation is just akin to Khasra No. 763. Ex. P-3 relates to a plot in KhasraNo. 726/1 and Hirderam (A.W. 3) tells us that the plot is near Satnamipara. a locality of the Durg town. The acquired lands are far off from this place. Ex. P-5 relates to a plot in the heart of the town, purchased by Motilal (A. W. 5) for business purposes. He would erect a Mill there. The Khasra Number of this plot is nowhere to be seen in the map Ex. P-14.

11. The evidence adduced on behalf of the claimants, thus examined, provide us with no useful material for determining the market value. The burden, in fact, lay on them to discharge the onus of proving the market value and to satisfy the Court that the Land Acquisition Officer's award was insufficient and unsatisfactory. They have failed in discharging the onus and the evidence they gave is really unhelpful.

12. Our examination of the transactions proved by the Government wasequally unfruitful. Surprisingly. the Officer-in-charge of the litigation, chose such transactions which were effected by or in favour of the claimants and it was reasonable to expect that the claimant s would not speak anything against their own interest but would rather endeavour to demolish the Government's case. This is exactly what happened. The claimant-witness was not inclined to produce his sale-deed, compelled the Government to lead secondary evidence and instead of supporting the transaction to be one of sale, something was said to construe it as a conditional mortgage. The trial Court was. therefore, inclined to reject all the sale-deeds.

13. This excited our suspicion. Was it that the Officer-in-charge had colluded with the claimants? Why could he not summon independent witnesses; those unconcerned with the acquisition, who might have purchased or sold lands in the vicinity? Not that such persons or such transactions were not available. The Land Acquisition Officer in his award dated the 4th August. 1969. had referred, in para 5, to numerous comparable transactions which could be proved over again before the Additional District Judge. That was not done. The question was whether we could read the admissions of a counsel relating to those transactions; made before the Land Acquisition Officer as evidence in the proceedings before this Court.

The question was not free from difficulty. The Land Acquisition Officer was supposed to act as an agent of the Government for the purposes of acquisition. The enquiry before him was supposed to be departmental in its character for the purpose of enabling him to make a tender to the person parting with land. He was, therefore, not a judicial officer nor were proceedings before him judicial in the true sense. Yet he had been conferred powers of a Civil Court under Section 14 of the Land Acquisition Act for the purposes of summoning witnesses, production of documents and compelling, attendance of the witnesses including the parties. That being so. even though the enquiry and the consequent award were supposed to be administrative in nature, the point for consideration was. whether the evidence lawfully recorded by the Land Acquisition Officer, following the provisions of the Civil Procedure Code, and the documents received by him after due proof either by admission or by other legal evidence, should require proof over again? In making a reference, the Land Acquisition Officer had to furnish to the Court information as regards the grounds on which the amount of compensation was determined. The transactions which were proved before him furnished the grounds for making the award, and the evidence relating to those transactions went to the Court as an information under Section 19(1)(d) of the Land Acquisition Act. Could this information not be read though it was evidence lawfully tendered before the Land Acquisition Officer?

14. In Arunachala Aiyar v. Collector of Tanjore. AIR 1926 Mad 961, their Lordships of the Madras High Court held:

'The award of the acquisition officer is evidence in proceeding under reference under Section 18. Statements in the award, such as statements as to contents of certain documents examined by the acquisition officer, are evidence and need not be proved by the production of the documents themselves. The burden of proof is on the claimant to show that the award is wrong and the weight of that burden depends on the nature of the award.'

The authority fully supported the view that the evidence relating to transactions, lawfully proved before the Land Acquisition Officer, could be read in evidence before the Court dealing with a reference under Section 18 of the Land Acquisition Act. But the observations of the Supreme Court in Chaturbhuj Pande's case AIR 1969 SC 255 in Para 5 seem to render the Madras authority a little doubtful. This is what their Lordships said:

'Mr. S. T. Desai. learned Counsel for the appellants complained that the High Court was not right in looking into documents which were not a part of the records of the case particularly when his clients had not been given any opportunity to rebut the conclusions reached therein. It appears that these documents were looked into by the learned Judges after the conclusion of the arguments. If the High Court wanted to take into consideration any fresh evidence, it should have admitted the game in accordance with law. In that event the appellants would have got opportunity to rebut that evidence. Thathaving not been done we do not think it was open to the High Court to rely on those documents. We accordingly exclude from consideration those documents.'

15. Realizing that the sale-deeds proved before the Land Acquisition Officer should have been placed before the Court as evidence to be read in the case, the learned Government Advocate made an application under Order 41. Rule 27 of the Code of Civil Procedure for admitting additional evidence, and at the same time gave notice to the counsel appearing for the claimants to admit or deny the documents proposed to be tendered. There could be no serious objection to the admittance of the documents because they were referred by the Land Acquisition Officer in his award and they furnished the reasoning in support of his conclusions. Shri Wasudeo Patankar. Advocate appearing for Manglabai Kaley, had admitted before the Land Acquisition Officer that the transactions under which his client had purchased the lands were genuine transactions. Shri Thakur. Advocate appearing before us for the lady, therefore, had nothing to say against those documents except that the additional evidence might be called in aid if this Court was unable to pronounce the judgment satisfactory to its mind but not to fill in the lacuna or the defect in evidence which the other side, with reasonable diligence could have avoided. Shri Thakur was fair enough to admit the first six documents in the list shown to be executed in favour of Manglabai Kaley.

16. We are inclined to admit on record such documents about which there is no controversy. The documents do not take the claimants by surprise. They had notice of the documents. Those documents had furnished the data to the Land Acquisition Officer for working out the multiple. In our view, calculation of the market value on the basis of the multiple was not the correct process. The land contiguous to the Road, having potential value as a building site, could not be valued on the basis of the multiple because it was bound to fetch lesser price than what it should reasonably receive. Land quite in the interior without potential value, worked on the basis of multiple, would fetch more price than what it deserved. The award of the Land Acquisition Officer, therefore, was patently erroneous and the very basis on which the multiple was worked out could furnish data to us for assessing the correct market value. We could refer to those very sale-deeds proved before the Land Acquisition Officer and say which sale-deed was a comparable transaction in respect of which land was proposed to be acquired. Suppose, the parties had led no evidence before the Court and relied on the data collected by the Land Acquisition Officerhimself. Could they not show that a better award could be made on following correct principles

Another reason for admitting the additional evidence is that these very sale-deeds were proved in another Land Acquisition proceedings relating to contiguous lands- Those proceedings came before us in appeal (First Appeal No. 113 of 1968 arising out of Miscellaneous Judicial Case No. 21 of 1966 of the Court of the Additional District Judge, Durg). Our decision in the appeal was delivered on 16-8-1974. A previous decision in a Land Acquisition Case is relevant in a subsequent Land Acquisition Case where the lands involved are in the neighbourhood. We would invite attention of the parties to the decision we gave in that appeal and use it as a comparable award. In fact,

(contd. on column 2)

the claimants themselves exhibited the Judgment delivered in Miscellaneous Judicial Case No. 21 of 1966 (Ex. P-13) and asked for a comparable award.

Our admitting the additional evidence, in a wav is not going to prejudice the claimants. In fact, the claimants having failed to discharge the onus of proving the market value we could accept the award of the Land Acquisition Officer, but finding that we could make a better award on the basis of the very documents placed before him. we could not have declined to look into them.

17. The following sale-deeds have been received as additional evidence. (We have considered only such sale-deeds as have been admitted by the Counsel appearing for the claimants and about which there could possibly be no controversy)

Price

(i)

Sale-deed dated 14-2-1959 byPuniyabai in favour of Smt. Manglabai Kaley

Khasra No. 946/6 Area: 59Acres.

2000/-

(ii)

Sale-deed dated 14-2-1959 byBiselal in favour of Smt. Manglabai Kaley.

Khasra No. 960/1 Area : 1 Acre.

4000/-

(iii)

Sale deed dated 15-1-1959executed by Kherbahara in favour of Manglabai.

Khasra Nos. 951 and 951/2 Area: .42 Acres.

1260/-

(iv)

Sale-deed dated 14-7-1959executed by Biselal in favour of Manglabai

Khasra No 959/15 Area: .38Acres.

1400/-

(v)

Sale-deed dated 19-2-1958 byFiron in favour of Manglabai,

Khasra No. 959/7 Area : 1 Acre.

5000/-

(vi)

Sale-deed dated 29-8-1958 byFiron in favour of Manglabai.

1 Acre.

5000/-

18. The sale-deeds relate to lands in close proximity to the North. They have better situation value being nearer to Uttiai-Durg road. In First Appeal No, 113 of 1968. on the basis of these very sale-deeds and a few more, we determined the market value on the date of notification which in that case was 27-10-1960. to be Rs. 5500/- per acre for lands contiguous to the Uttai-Durg Road or in close proximity, Rs. 4800/- per acre for the lands close to Kasaridih abadi. and Rupees 4400/- per acre for lands in between. The present lands are more in the inferior and farther away from the Kasaridih abadi, except a few Khasra numbers which are contiguous to the Uttai-Durg Road or the Borsi-Road. For lands closer to the Uttai-Durg Road or the Kasaridih abadi we would fix the value on the basis of the comparable award at Rs. 5500/- and Rupees 4800/- per acre respectively. The date of the present acquisition is earlier by a couple of months but that would hardly make any difference. For the lands in the interior, the value, according to us, should be assessed at Rs. 4400/- an acre.

19. The acquired lands were paddy fields on the date of the acquisition. They were all under the plough. The lands lie in between the Uttai-Durg and Borsi-Durg Road. The acquisition under the notification under Section 4, dated 27-10-1960with which we were concerned in First Appeal No. 113 of 1968 related to lands very contiguous to the Uttai-Durg road to the North and lands of Mangalusao, very close to the Kasaridih abadi to the South. The map Ex. P-14 gives the relative position of these lands. The claimants in that appeal had claimed compensation at the rate of Re. 1/- per square foot (i.e. at the rate of more than Rupees 40,000/- an acre), whereas they themselves had purchased the lands at less than Rs. 5000/- an acre only a year or so earlier. This Court dealt with their contentions regarding potential value in para 26 of the Judgment which may be usefully reproduced here since the evidence in the present case is just the same rather a bit inferior.

'It is an admitted position that the acquired land lies in between Durg-Uttai road to the North and Kasaridih road to the South (Please see the map Ex. A-1). To the North of the Durg-Uttai road are bungalows of the District Officers as shown in the map. then the paultry farm and then the open playground or land kept reserved for the Central Jail. Thereafter lie paddy fields. To the South of the road are Kaleys' bungalow, their automobile workshop and all some distance Sims Bakery (Map Ex. A-8 may be seen). In between and to the South are paddyfields. The land has been acquired for extension of the abadi. The area is within municipal limits. Possibility of increased house-building activity in that direction is not too remote. The Bhilai Sector 9 is at a distance of 1 1/2 miles. The land on the road side may be wanted for ancillary industries. Two houses have been recently constructed on Kaleys' plots.'

Our pertinent query to the claimants was. how could Kaleys. Mangalu Sao and Modis acquire lands from the cultivators in 1958 and in February 1959 at Rupees 5000/- an acre, when everything they spoke of concerning the bungalows to the North. Kaley's garage and bungalow to the South: the poultry farm, the Sims Bakery end the Sector 9 of Bhilai had their impact on the potential value? Bhilai plant had started functioning since 1956. The bungalows to the North and South of the road already existed before the purchases were made by Kaleys, Modis, Mangalu Sao and Suganchand. What was the sudden spurt of activity to raise the once from Rs. 5000/- to Rupees 40,000/- in 1960?

We scanned the evidence, but to our surprize found the building activity in this direction almost negligible. Chhabilal Singh (A.W. 8) says that only 3 or 4 bungalows came up during these five years between the bank on one side and agricultural farm on the other. Shivnarayan Patwari (N.A.W. 8) is another witness who could give some positive data. He is a Patwari of Kasaridin since 1962. He says that during these five years after he took over charge, only 50 to 60 houses have come up in the Kasaridih abadi. The average conies to 10 houses a year, which would cover an area of half an acre, all told. It indicates a very poor house-building activity. The pace of progress between 1958 to 1960 was slow, almost negligible, in the direction of the acquired land, and therefore, there was no appreciable increase in the potential value. However, we propose to value the lands on the road-side at the rate of Rs. 5500/-per acre instead of Rs. 5000/- and at the rate of Rs. 4800/- per acre instead of Rupees 4300/-. for lands contiguous to the Kasaridih abadi. The lands in between shall be valued at the rate of Rs. 4400/-an acre. We have taken into account the rise in potential value at 10% as assessed by the Land Acquisition Officer which appeared to us reasonable and we have fixed the rates accordingly. In determining the Increase in potential value, we could act on no exact mathematical formula. We had to act on ordinary guess work, which as is stated in Velayudam Chettiar's case: Velayudam Chettiar v. The Special Tahsildar AIR 1959 Mad 462 is permissible. The authority says:

'Valuation of immovable property is not an exact science. It is an enquiry relating to a subject abounding in uncertainties, where there is more than ordinary guess work and where it would be very unfair to require an exact exposition of reasons for the conclusions arrived at'.

20. The six sale-deeds in favour of Kaleys (referred to in para 16) which relate to the lands placed in better situation, were acquired in the years 1958 and 1959 at a price range between Rupees 4000/- to Rupees 5000/- an acre with all the potential value the land possessed on account of the Government bungalows, the Jail Compound, the Poultry farm. Kaleys' bungalow and their garage and the Sim's Bakery. There was no spurt in the building activity after Kaleys acquired the land. Rather the pace of progress in that direction was negligible. Yet we allowed a nominal 10% increase towards potential value.

21. Referring to the evidence in the present case. Sadik Ali (A. W. 8) says that he had purchased in or about the years 1965-66 four acres of agricultural lands in Kasaridih village, at a price less than Rs. 4000/- an acre. He gives the price of agricultural land to be anything between Ra 2000/- to Rs. 4000/-. Jethu (N. A. W. 2) had purchased Khasra No. 705/3 area .78 acres for Rs. 546/- on 5-1-1959. Kheduram (N.A.W. 5) had purchased one acre from Banta on 5-7-1958 for Rs. 1500/-. Though he says that he paid later on Rs. 5000/- and obtained no receipt, we hardly believe him in that regard.

Be that as it may. the value of the agricultural lands on the date of the notification under Section 4(1) of the Land Acquisition Act was near about Rs. 4000/- an acre. The lands had negligible potential value as a building site. There was no pressure on the land for building activity, the pace of progress and extension in that direction was almost nil the built-in-land was quite far off and without the scheme under contemplation of the Government, no development towards that side was possible for years to come.

22. We have come to a definite conclusion, therefore, that the lands must be valued on acrage basis and the reasonable value for the lands contiguous to the Uttai-Durg Road should be Rs. 5500/- an acre; for lands close to Kasaridih abadi it should be Rs. 4800/- an acre: and for lands in the interior and far off from the abadi and the road, it should be Rs. 4400/- an acre. We proceed to assess the compensation accordingly and dispose of the appeals.

23. In Mehtar's appeal, the lands acquired are Khasra Nos. 974/2. 974/4 979/2. 979/6. 979/9, 988/5. 990/7 990/11 990/10, 990/20. 990/26. 990/32 990/36 990/41 and 990/44 area 6.83 acres. The Land Acquisition Officer gave an award of Rs. 24576.34 Nps. The Additional District Judge enhanced it to Rs. 54981.50Nps. and determined the excess amount of Rs. 30405.16 Nps. He allowed 6% P. A. interest from the date the Collector took possession of the lands till the date of payment of the excess amount. In our calculations, the market value inclusive of 15% solatium comes to Rs. 34559.80 Nps. The excess amount over and above that paid by the Collector, works out to Rs. 9983-46 Nps., and this figure shall have to be substituted for Rs. 30405.16 Nps. determined by the Additional District Judge. We order accordingly. The State appeal is allowed with proportionate costs and that filed by the claimants dismissed. The direction as to interest is maintained.

24. There is nothing much to write about the other appeals which we may now take up except the Khasra numbers involved, the amount of award determined by the Land Acquisition Officer and that determined by the Additional District Judge and the amount which according to us should have been the compensation payable.

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