S.N. Andley, J.
1. These two appeals which are being dealt with by this common judgment are against the common judgment dated January 2, 1967, of the Additional District Judge, Delhi, in Land Acquisition Cases Nos. 489 of 1962 and 511 of 1962.l The Additional District Judge gave judgment upon references made to him under Section 18 of the Land Acquisition Act 1894, on behalf of the respective appellants. The land involved in the two appeals measures 50 bighas 19 bids was and is situated in estate Sadhora Kalan, Delhi. Out of this land 35 bighas 7 bids was belong to Shanker Dass Seth (appellant in R.F.A. No. 78 of 1967) and 15 bighas 12 bids was belong to Madan Mohan (appellant in R.F.A. No. 77 of 1967). These two pieces of land adjoin each other. The appellants had in 1958, submitted a lay out plan to build a colony to be known as Sangham Park. This lay out plan was sanctioned by the Municipal Corporation of Delhi as communicated in their letter dated September, 30, 1958 subjected to two conditions which are not relevant for the purpose of these appeals. In anticipation of the sanction the appellants agreed to sell about 29 plots of land comprising areas of 160 and 200 square yards 19 of these plots were agreed to be sold for a price of Rs.25/.- per square yard were of which Rs.5/- per square yard were for laying services. These 19 agreements to sell were entered into between June and August 1958. The 20th plot of land measuring 209 square yards was agreed to be sold in December, 1958, to Smt. Kailash Kumari at Rs.32.50 per square yard out of which Rs.5/- per square yard were for laying services.
2. By a notification dated December 9, 1958 published in the Delhi Gazette on December 18, 1958 issued under Section 4 of the Said Act, the entire 50 bighas 19 bids was of land was sought to be acquired by the Government at the expense of the Naveen Bharat Co-operative House Building Society Limited for the construction of houses for the members of that Society. This notification was, however cancelled by another notification dated June 21, 1961 published in the Delhi Gazette on July 6, 1961. On the very same date another notification was issued under Section 4 of the said Act giving notice of acquisition of the said land for the planned development of Delhi. This was followed by a notification under Section 6 of the said Act dated October 28, 1961, published in the Delhi Gazette on November 16, 1961.
3. By the award dated December 26, 1961, the Land Acquisition Collector (I) Delhi offered to the appellants compensation at the rate of Rs.7,000/- per bigha. The Land Acquisition Collector proceeded to calculate the compensation on the basis of plotted areas and observing that the rates of land in the colony remained stationary between 1958 and 1961 took the value of the plotted land to be Rs.25/- per square yard on the basis of the aforesaid agreements to sell. He deducted Rs.8/- per square yard towards cost of development and arrived at the cost of the land of plotted area at Rs.17/- per square yard. Relying upon the statement of the owner that half of the land was to be left for common purposes he calculated the cost of the gross land to be Rs.8.50 per square yard and from that deducted a further amount of Rs.1.50 per square yard on account of 'great amount of botheration in getting the services of the plan sanctioned by the Municipal Corporation' and fixed the price of the gross land Rs.7/- per square yard or Rs.7,000/- per bighas. Upon the reference the Additional District Judge found that the value of the land in December 1958 would be about Rs.9,000/- per bigha but taking into consideration the rising trend in prices fixed the compensation at Rs.12,000/- per bigha on the date of the second section 4 notification in 1961. In coming to this conclusion, the Additional District Judge found:
(1) that the percentage of the plotted area to total area was 40 and not 50 as represented by the appellants to the Land Acquisition Collector.
(2) that the over all cost of development would be about Rs.8/- per square yard
(3) that the normal price of plots in December, 1958, would be near about Rs.30/- per square yard which would be brought down to Rs.12/- per square yard after deducting RS.8/- per square yard for development charges and, thereforee calculating on the basis of 40 per cent being the plotted area, the price would be Rs.9/- per square yard in December, 1958;
(4) that the price of the acquired land was to be ascertained as on June 21, 1961.
(5) that the best evidence of the value in June, 1961, was furnished by sale deeds Exhibit A-34 dated March 26, 1959; Exhibit A.1 dated August 11, 1959 and Exhibit A-53 dated February 22, 1960 of neighbouring lands which were sold at Rs.13,750/- per bigha and Rupees 18,000/- per bigha but since the situation of this block of land was superior to that of the appellants' land the price was fixed at Rs.12,000/- per bigha in June 1961 taking into consideration a possible rise in prices and the fact that the area of the appellants' land was much bigger than the area covered by these three sale deeds and
(6) that the other evidence relied upon by the appellants, which will be adverted to later could not form the basis for determining the market price of the land in June 1961.
4. The appellants filed these appeals claiming that the compensation should have been fixed by the Additional District Judge at the rate of RS.30/- per square yard. The land in question abuts on Palmbari Road and lies to the east of the railway line at a short distance from the Grand Trunk Road. It is free from the restrictions of the Delhi Land Reforms Act Section 22 whereof restricts the user of the land to agricultural and allied purposes. It is adjacent to another colony known as Rana Pratap Bagh which had been developed by 1956 but which abuts on the Grand Truck Road. It is not disputed that the potential value of the land was to be determined on the basis that the land was fit for a residential colony.
4A. The first question that may be dealt with is whether the plotted area was 40 per cent, as found by the Additional District Judge or 50 per cent as claimed by the appellants. The District Judge has relied upon Exhibit A.20 which was an accompaniment to the agenda of the meeting of the Standing committee of the Delhi Municipal Corporation which was to be held on August 17, 1958. In this accompaniment the total area of Sangam Park is shown as 10.13 acres. The area under plots is 4.41 acres for roads 4.63 acres for parks and open spaces 0.5 acres and for parks and open spaces 0.5 acres and for a primary school 0.59 acres. From this date, the Additional District, Judge found that an area of about 6 acres in all was left open as against the plotted area of about 4 acres and it was concluded that the plotted area would be 40 per cent and not 50 per cent. It is contended by the appellants that Om Prakash Goel (A.W. 2) Architect, who prepared the lay out plan put in a split up statement of the plotted area in accordance with the order dated August 12, 1964 of the Additional District Judge and this statement which was accepted as Exhibit A. W. 2/1 shows that the plotted area is 47 per cent of the gross area., While it is true that Om Prakash Goel was not cross-examined with reference to the contents of this statement we have not been able to follow the calculations which have been incorporated therein. In fact the very first entry in the statement which shows the total area of 68 plots of 200 square yards each to be 14,800 square yards instead of 13,600 square yards is erroneous. In our opinion the Additional District Judge was right in relying upon the aforesaid accompaniment to the agenda of the meeting of the Standard Committee referred to earlier and on basis of the areas mentioned therein to have come to the conclusion that the plotted area would be 40 percent of the gross area.
5. The next question relates to the development cost. The Additional District Judge rejected the testimony of the Architect, Om Prakash Goel (A.W. 2) who had estimated the cost of development to be Rs.6/- per square yard on the ground that this witness had not taken into consideration the cost of the survey, levelling and demarcation according to the lay out plan and the supervision charges for developing the colony and added Rs.2/- per square yard towards the expenditure for levelling etc. and supervision and fixed the cost of development to be Rs.8/- per square yard. For this conclusion he also relied upon the observations of the Land Acquisition Collator that the cost of development in 1961 was about Rs.8/- per square yard on the plotted area. The rate of development cost fixed by the Additional District Judge has not been disputed by the appellants and no argument has been addressed on behalf of the respondents on this aspect of the case. We shall, thereforee, take the cost of development in 1958 and 1961 to be Rs.8/- per square yard.
6. The next question is about the quantum of compensation. The principles in this behalf have been laid down by the Privy Council in the case reported in Air 1939 Pc 98 re: Vyricheria Narayana Gajapatiraju v. Revenue Divisional Officer, Vizagapatam, where it has been observed:
'The compensation must be determined by reference to the price which a willing vendor might reasonably expect to obtain from a willing purchaser. The disinclination of the vendor to part which the land and the urgent necessity of the purchaser to buy must alike the disregarded. Neither must be considered as acting under compulsion. This is implied in the common saying that the value of the land is not to be estimated at its value to the purchaser. But this does not mean that the fact that some particular purchaser might desire the land more than others is to be disregarded. This wish of a particular purchaser, though not his compulsion, may always be taken into consideration for what it is worth. To say that it is the value of the land to the vendor that has to be estimated is however not in strictness accurate. The land for instance may have for the vendor a sentimental value far in excess of its `market value' . But the compensation must not be increased by reason of any such consideration. The vendor is to be treated as a vendor willing to sell at `the market price'.
In Air 1967, Sc 465 in re: Raghbans Narain Singh v. The Uttar Pradesh Government, it has been observed:
'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 advantageous 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.'
The existing condition of the lands which are subject-matter of these appeals at the time of the notification under Section 4 of the Land Acquisition Act was that it was a barren piece of land but had potential possibilities when laid out in the most advantageous manner as a residential colony. It was well situated having a frontage on Palmbari Road a short distance away from the main Grand Truck Road. Adjacent to it was the residential colony known as Rana Partap Bagh which had been fully developed five years earlier in 1956 and in which numerous residential houses and buildings had been constructed. The location of the lands which are the subject-matter of these appeals was slightly inferior to Rana Pratap Bagh colony for the reason that the latter abutted on the main Grand Truck Road while ht former being a little away from the main Grand Truck Road abutted on the Palmbari Road. There is also no doubt that the prices in the area were rising from 1958 onwards.
7. In fixing the price of plotted land at Rs.30/- per square yard in December, 1958, the Additional District Judge rejected the evidence furnished by two agreements of sale dated November 13, 1958 (Exhibit A.42) and December 13, 1958 (Exhibit A.43) which were in respect of two plots of land in Sangham Park itself. The first agreement was at the rate of Rs.37/- per square yard and the second at the rate of Rs.42/- per square yard. These two agreements were rejected on the ground that the subsequent agreement to sell dated December 5, 1958 in favor of Smt. Kailash Kumari aforesaid was at the rat of Rs.32.50 per square yard. In our opinion the learned Additional District Judge was not right in rejecting the aforesaid two agreements (Exhibits A.42 and A.43). In every colony there are plots on the frontage, in the middle and at the back and the prices of such plots must necessarily vary in accordance with their location. In such cases, the proper yard-stick should be to take the prices fetched by plots in different parts of the colony having different locations and then to arrive at the average price. The evidence furnished by the appellants showed that the prices in Sangham Park colony between June and December, 1958, varied from Rs.25/- to Rs.32/- to Rs.37/- to Rs.42/- per square yard for different plots of land. According to these figures, the average market price of plots between June and December 1958, would be Rs.34/- per square yard. Deducting Rs.8/- per square yard for development cost and taking into consideration the fact that the plotted area is only 40 per cent of the gross are, the price of the gross area would work out to Rs.10.50 per square yard or Rs.10.500/- per bigha against Rs.9/- per square yard or Rs.9,000/- per bigha as found by the Additional District Judge.
8. Then the appellants furnished evidence of the market price of lands in the neighborhood between March 26, 1959 and February 22, 1960. These lands are in field No. 804/24-26 measuring 5 bighas 10.5 bids was which was sold by Exhibit A.34 at the rate of Rs.13,750/- per bigha on March 26, 1959; lands in field No. 806/24-26 measuring 5 bighas 3 bids was sold on August 11, 1959 at the rate of Rs.18,000/- pre bigha vide sale dated Exhibit A.1 and lands in field No.29 measuring 1310 square yards sold for Rs.18,000/- per bigha on February 23, 1960 by sale deed Exhibit A.53. These lands are adjacent to the lands of the proposed Sangham Park colony and abut on Palmbari Road but are nearer to the main Grand Truck Road. The areas of these lands are much smaller than the areas of the lands of the proposed Sangham Park colony. They are of slightly better situation but, even as observed by the Additional District Judge, are of much help for determining the extent of rise in land prices in this locality during 1959-60. Considering the trend of rise in prices and taking the aforesaid circumstances into consideration it will not be unreasonable to fix Rs.13,000/- per bigha as the market price prevailing in the locality in February 1960.
9. The next batch of documents upon which the appellants rely relate to sales in Rana Partap Bagh colony between 1958 and 1960. The first is the sale deed Exhibit A.55 relating to the sale of plot No. D.5 dated October 25, 1958 at the rate of Rs.35/- per square yard and the resale of this very plot on March 23, 1959 vide sale deed Exhibit A.54 relating to the sale deed Exhibit A.54 relating to the sale of plot No. D5/1 on March 28, 1959 at the rate of Rs.50/- per square yard and the resale of this very plot on February 9, 1960 vide sale deed Exhibit A.45 at the rate of Rs.80/- per square yard. The steep rise in the prises of plots indicated by these documents in Rana Pratap Bagh Colony is relied upon by the appellants for the contention that a similar rise may be allowed for the appellant's acquired area. This contention was rejected by the Additional District Judge on the ground that 'the prices in a colony rise in rapid strides after in its full development and the construction of good many houses therein' As stated earlier the Rana Pratap Bah colony had been fully developed by 1956 and it is in evidence that all the plots therein had been sold by that year. On the one hand is the land of the proposed Sangham Park colony where no development had taken place by reason of the acquisition notices and on the other are the lands in Rana Pratap Bagh colony where development had taken place a long time back and house had been constructed. According to the Supreme Court decision referred to earlier the existing condition of the land has to be taken into consideration along with its potential possibilities when laid out in its most advantageous manner in fixing the market value which a willing purchaser would pay to a willing seller. There is no doubt that a willing purchaser will pay a higher price for land in the colony which has not only been fully developed but where houses have been constructed at the time of his purchase than for land which is still undeveloped and which has only a potentiality of development into a residential area. Even though these sales and resales in Rana Pratap Bagh colony show a rising trend in the price of land, the percentage of rise in Rana Pratap Bagh colony cannot apply to the proposed Sangham Park colony where no development had taken place and where there had been no change in its shape since 1958. In our opinion, it will be reasonable to assess the rise in prices of undeveloped land between February, 1960 and June, 1961 on the same basis as the rise in prices of undeveloped land between June to December 1958 and February, 1960 which has been assessed by us earlier at Rs.2,500/- per bigha. On this basis the rise in prices between February, 1960 and June, 1961 would also be at the rate of RS.2,500/- petitioner bigha, and thereforee, the market prices of undeveloped land in June 1961 would be Rs.15,500/- per bigha.
10. The appellants strongly relied upon agreements to sell entered into by them between June 26, 1961 and July 5, 1961 which are Exhibits A. 56 and A.65 at rates ranging between Rs.86/- and Rs.103/- per square yard. The Additional District Judge rejected these agreements on the ground that the appellants must have come to know of the denotification and renotification of their lands by the notifications dated June 21, 1961 which were published in Delhi Gazettee on July 6, 1961 and that the appellants manufactured the evidence furnished by these agreements. The appellants contend that this conclusion of the Additional District Judge was unjustified in view of the fact that these agreements had been accepted by the respondents as genuine and exhibited into evidence and there was no evidence on the record to justify the conclusion that they had been manufactured. If the appellants did not know of the denotification of their lands on June 21, 1961, there was no reason for them to have offered plots for sale in their colony between June 26, 1961 and July 5, 1961. It would be difficult to conclude that during the pendency of the 1958 notification, these agreements between a willing seller and a willing purchaser. These agreements contain recitals to the effect that the appellants and the intending purchasers had learnt that the 1958 notification was to be cancelled. These agreements were entered into in anticipation of such denotification. The full price of the plots agreed to be sold by these agreements was not paid to appellants and only earnest amounts of Rs.500/- were paid. They contain clauses for payment of damages by the appellants in case there is no denotification or in case the authorities withheld permission for development even after denotification. In these circumstances we cannot rely upon these agreements as indicating willing purchases. In view of the proximity of these agreements to the date of denotification and renotification we cannot hold that the conclusion of the Additional District Judge is unjustified. For these reasons we are not prepared to accept these agreements as being relevant for determining the market price on the date of the notification of 1961.
11. For the reasons stated earlier, we are of the opinion that the market price of the land on July 5, 1961 would be Rs.15,500/- per bigha. On this basis the appellants will be entitled to an additional amount of Rs.3,500/- per bigha over and above the amount of Rupees 12,000/- per bigha fixed by the Additional District Judge. The appellants will further be entitled to 15 per cent solarium on this additional amount and interest at the rate of 6 per cent. per annum from the date the Collector entered into possession till payment is made.
12. It may here be mentioned that Shankar Dass Seth (appellant in R.F.A No. 78 of 1967) died during the pendency of this appeal and his legal representatives, namely, Narsing Dass, Prahlad Dass and Puran Chand were brought on the record as appellants in this appeal by order of the Registrar dated September 25, 1967 in C.M. No. 3766 of 1967.
13. In accordance with our finding the appellants in R.F.A. No. 78 of 1967 will be entitled to an enhancement of Rs.1,23,725/- over the amount awarded to them by the Additional District Judge in respect of 35 bighas and 7 bids was of land which belonged to them. On this amount they will further be entitled to Rs.18,588.75 as solarium at 15 per cent, of the aforesaid enhancement titled to interest at 6 per cent. per annum on the enhanced amount from the date when the Collector entered into possession of the land till payment.
14. The appellant in R.F.A. No. 77 of 1967 will be entitled to an enhancement of Rs.54,600/- over the amount awarded to him by the Additional District Judge in respect of 15 bighas 12 bids was of land which belonged to him. On this amount he will further entitled to Rs.8,190/- as solarium at 15 per cent, of the aforesaid enhanced amount. The appellant will also be entitled to interest at 6 per cent per annum on the enhanced amount from the date when the Collector entered into possession of the land till payment.
15. The appellants will also be entitled to costs proportionate to Rupees 1,23,725/- and Rs.54,600/-
Civ. R.F.A. No. 78 of 1967.
S.N. Andley, J.
16. For the reasons given R.F.A No. 77 of 1967, the appellant will be entitled to an enhancement of Rs. 1,23,725/- over the amount awarded to them by the Additional District Judge in respect of 35 bighas and 7 bids was of land which belonged to them. On this amount they will further be entitled to Rs.18,588.75 as solarium at 15 per cent of the aforesaid enhanced amount. The appellants will also be entitled to interest at 6 per cent. per annum on the enhanced amount from the date when the Collector entered into possession of the land till payment.
17. The appellant will also be entitled to costs proportionate to Rupees 1,23,725/-
18. Order accordingly.