Prakesh Narain, J.
(1) This will dispose of the two connected appeals. Regular First appeal No. 214 of 1969 and Regular First Appeal No. 338 of 1969, which are in the nature of cross-appeals against the same judgment of an Addl. District Judge disposing of a reference under section 18 of the Land Acquisition Act, 1894 (hereafter referred to as 'The Act').
(2) A notification under section 4 of the Act was issued by the Delhi Administration on May 26, 1960 in respect of land and buildings, of a property commonly known as Ludlow Castle Estate. A declaration under section 6 of the Act was made in respect of the said property on August 8, 1961. After inviting claims the Land Acquisition Collector gave his award in respect of 54 bighas and 12 bids was of land but did not give his award in respect of the land under t
(3) The Union of India is also dissatisfied with the compensation granted by the judgment of the Addl. District Judge. It has, thereforee, filed R.F.A. No. 338 of 1969 against Smt. Heero Bibi and others with the prayer that enhancement in the market rate of land granted by the Addl. District Judge be set aside and it be held that the correct market value of the acquired land of Smt. Heero Bibi and others is Rs. 15.00 per Sq. Yd. as was awarded by the, Land Acquisition Collector.
(4) In as much as these are cross-appeals by Smt. Heero Bibi and others and the Union of India it will be convenient if instead of the parties being referred to as appellants or respondents. Smt. Heero Bibi and others are referred to as the claimants and the Union of India and the land Acquisition Collector, the appellants in R.F.A. No. 338 of 1969, collectively as the Government.
(5) The claimants in support of their claim produced evidence of sales of properties in the vicinity and even part of the Ludlow Castle Estate and an agreement to sell partaining to a part of the acquired land itself. The Government on the other hand has produced evidence of only one sale in the vicinity. The learned Addl. District Judge rejecting the entire evidence produced by the claimants has based his decision only on the sale transition evidenced by the copy of a sale deed dated February 25, 1960, Ex. R. 4. In our opinion, the learned Addl. District Judge wrongly rejected the evidence of the claimants and was not Justified in relying on Ex R. We will, thereforee, discuss the entire evidence.
(6) Betore we proceed to discuss the evidence it would be appropriate to note the situation of the claimants' acquired land. On page 3 of the paper book is a note pertaining to the inspection of the site recorded by the Addl. District Judge himself. He records :
'The land of the reference of Smt. Heero Bibi and others is situated on the junction of Alipur and Ludlow Castle Roads. The office of the Chief Secretary, Delhi Administration is on the other side of this land ... The land of the reference of Bishamber Nath Ram Sarup has also been visited. It is on Ludlow Castle Road, which formed a part of the out-houses of the Ludlow Castle Estate, now a subject matter of reference made by Smt. Heero Bibi and others. The Land of M/s Bishamber Nath Ram Sarup is comparatively low-lying and a drain, through which sullage water flows, passed on one side.'
Thus we see that the land in question is bounded by Alipur Road, one of the two main roads in Civil Lines, and Ludlow Castle Road on which as is well-known is situate the 'Raj Niwas' Opposite to the land in question are the office of the Delhi Administration and the land is better located that the land covered by the reference of Bishamber Nath Ram Sarup which also was in the Ludlow Castle Estate.
(7) The first piece of evidence that the claimants produced was the copy of a sale deed (Ex. A. 8) dated. November 2, 1960 in respect of the property known as the Bombay House, situate on Ludlow Castle Road, Delhi. This sale deed was in furtherance of an agreement to sell dated August 4, 1960. The property sold fetched a price of Rs. 2,50,000.00 . The land in this property was 6000 Sq Yds. with a bungalow constructed on it.
(8) EX. A. 4 is the copy of the deed dated November 9, 1959 by which property bearing Municipal No. 12 in Commissioner's Lane, Delhi was sold for Rs. l,40,000.00 . This property comprised of 23,00 Sq. Yds. of land with a bungalow thereon.
(9) EX. A. 5 is the copy of a sale deed dated January 25, 1960 by which half of the property known as No. 10, Ludlow Castle Road was sold for Rs. 65,000.00 . This property comprised of land measuring 1400 Sq. Yds. with a superstructure thereon. The agreement to sell this property culminating in the sale was entered into on December 23, 1959 while the earnest money was paid by the vendor to the vendee on November 17, 1959 and December 23, 1959.
(10) EX. A. 6 is the agreement to sell executed on April 3, 1959 between the claimants and the Imperial Tobacco Co. of India Ltd.., Calcutta. By this agreement the claimants agreed to sell land measuring 12,440 Sq. Yads. forming part of the property known as .Ludlow Castle Estate for Rs. 3, 35, 880.00 at the rate of Rs. 27.00 per Sq. Yd. A sum of Rs. 10,000.00 by way of earnest money was paid by the company to the claimants by cheque dated April 3, 1959 (Ex-A. 1) for which aproper receipt dated April 3, 1959 was executed by the claimants. It may be noted here that on account of the acquisition of the land covered by Ex. A. 6 the agreement to sell did not mature into a sale and . the earnest money of Rs 10,000.00 received by the claimants was refunded to the company. Ex. A. 7 is a receipt issued by the company for refund .of Rs. 10,000.00 and cancelled the receipt of Rs. 10,000.00 given by the claimants to the Imperial Tobacco Co. on April 3, 1959 (Ex. A. 8).
(11) EX. A. 9 is the copy of a sale deed dated September 14, 1959 by which 1214 Sq. Yds. of land with a bungalow on it on Ram Kishore Road, Delhi was sold for Rs. 43,746.00 . Ex. A-10 is the copy of a sale deed dated January 14, 1961 by which a plot of land, orginally forming part of the property known as annexe to Ludlow Castle, situate on 2 Ludlow Castle Road, Delhi was sold for Rs. 1,26.000.00 . The property comprised of 3000 Sq Yds. of land having some servant quarters and garages in the back portion. Ex. A. 11 is the copy of a sale deed dated March 21, 1960 by which 7052 Sq. Yds. of land being portion of premises bearing municipal No. 2 on Ludlow Castle Road, Delhi were sold for Rs. 2,46,820.00 . This property like the property covered by Ex A. 10 had land with some quarters on it. It may be noticed that in Ex. A. 11 it is mentioned specifically that the land in question was covered by a notification issued under section 4 of the Act though no declaration under section 6 had been made. The vendees had purchase this land and paid a price of Rs. 35.00 per Sq. Yds. for the land and superstructure thereon, the land being 2052 Sq. Yds. and had taken the risk of getting the land denotified.
(12) EX. A. 12 is the copy of a sale deed by which property at 11; Metcalf Road, Delhi, was sold. The land in the property was 1484 Sq. Yds. and it had a superstructure on it. The sale transaction was for Rs. 1,32,500.00 .
(13) EX. A. 13 is the copy of a judgment in land Acquisition Cases Nos. 207 of 1964 and 172 of 1964 given by same Addl. District Judge in respect of compensation to be paid for land notified for acquisition in June, 1961 situate at Mori Gate, Delhi. We need not comment upon this piece of evidence because in our opinion it is wholly irrelevant. The land in respect of which this judgment was given was situate in a thickly populated area within the city walls and was in no way similar to the land. with which the present appeals are concerned.
(14) The only instance of sale produced on the record on behalf of the Government is a copy of the sale deed dated February 25, 1960 pertaining to 6282 Sq. Yds. of land with 16 servant quarters built thereon. This property was sold for Rs. 88,941.50 in pursuance of an agreement of sale dated June 12, 1959. The rate at which the land was sold is mentioned in the sale deed as Rs. 15 per Sq. Yd. and the total price was paid for land and the superstructure thereon. This document is Ex. R. 4.
(15) The Addl. District Judge rejected the evidence of Ex. A.3 on the ground that the transaction had taken place about 6 months after the Sec. 4 notification and the price paid included the price of the superstructure as well as the land and it was difficult to find out as to what was the price of the land alone. For the same reason he rejected the. evidence contained in Ex. A-4 though the claimants had produced Phool Chand Goel an architect who had evaluated the superstructure as per plan Ex. AW4/1 and given an estimate Ex. Aw 4/2 was also rejected. The claimants had submitted that out of the total consideration of Rs. 1,46,000.00 paid by the vendee to the vendor, as mentioned in Ex. A/4 dated November 9, 1959 the value of the superstructure which came to Rs. 37,615.00 according to Shri Phool Chand Goel had to be deducted leaving a balance of Rs. 1,03, 385.00 as the value of the land, giving a market price of Rs. 47.00 per Sq. Yd. The Addl. District Judge rejected this contention because this method of finding out the price of land with superstructure thereon was, according to him cumbersome. It is not understood how the learned Addl. District Judge made this observation because in assessing the compensation to be paid to the claimants for their property he relied upon the evidence of the Government regarding the value of superstructure which was evaluated separately vide Ex. R. 1 and Ex. R. 3. In our opinion, if in a property comprising land and superstructure, the only known factor is the total price paid for the entire property, a good method of finding out the value of the land comprised in the property is to get the super structure valued and to deduct that value from the total price paid. It is certainly one of the well known methods and reasonable one to follow.
(16) EX. a. 5 was the rejected by the Addl. District Judge as irrelevant piece of evidence for the same reasons which prompted him to reject. Ex. A. 4 despite Shri Phool Chand Goel's report about the value of the superstructure proved by him as correct when he appeared as Aw 4. According to the report Ex. Aw 4/3 the superstructure on the land was of the value of Rs. 6779.00 leaving a balance of Rs. 48,211.00 as the price of land, giving an average of Rs. 34.60 per Sq. Yd.
(17) EX. A. 9 was rejected on the ground that the property was situate on Ram Kishore Road which was about 3 Furlongs from the land in question. It was noticed that the average price of land according to that transaction came to Rs. 39.00 per Sq. Yd. That transaction took place 8 months prior to the notification under section 4 of the Act issued in respect of the land in question.
(18) EX. A. 10 was rightly rejected because the value of the superstructure was not proved. Ex. A. 11 was similarly rejected as the value of the superstructure was not proved. Ex. A. 12 has rightly been not commented upon because it is in respect of a transaction on Metcalfe Road which is far away.
(19) EX. A. 6 has been rejected on rather peculiar grounds which we must hold to be purely conjectural and not based on any evidence. The learned Addl. District Judge has held that the agreement to sell (Ex. A. 6) was void abi initio as it was not acted upon by the parties for 14 months and a close scrutiny of the terms show that subclauses (a) and (b) and clause 4, Sub-clause (a) of clause (5) and clause 9 of the said agreement gave untramelled power to the purchase to rescind the contract and not to purchase the land inquestion even though all conditions were fulfillled by the seller. In our opinion, this observation was uncalled for an unjustified. As noticed earlier on the execution of agreement Ex. A. 6 the intending purchaser paid Rs. 10,000.00 as earnest money by cheque Ex. A/I to the claimants. When the agreement fell through on account of acquisition of land the earnest money was refunded. Receipts Ex. A. 7 and Ex. A. Besides the fact that is was an agreement for sale entered into by a public limited liability company leaves no doubt that it was a genuine transaction. With regard to sub-clauses(a)and(b)and clause 4 we find nothing unnatural in them. The agreement was executed, inter alias on behalf of minors. It was, thereforee, perfectly legitimate for the vendee to have got a clause inserted that the vendors will obtain such permission or sanction as in their opinion may be necessary for the sale of the land to the company on behalf of the minors. Sub-Clause (b) was a precautionery clause which a normally prudent purchaser would have inserted when part of an estate of plot is being sold by sub-division of the entire estate or plot. Similarly we do not find clause 5(a) and Clause 9 to be unconcionable or giving untrammelled powers to the purchaser. Clause 5(a) provides that the vendors undertake and agree to provide an approach road. This was necessary because the-estate was being divided and only a part of it was being sold to the company. Clause 9 provides that the company would have power to rescind the agreement in any of the contingencies mentioned therein, one of them being that in case the land is notified for acquisition by the Central or State Government or any other body authorised in law to acquire land before the completion of the sale deed the company may rescind the contract. It is a precautionary clause which cannot be said to be a clause giving untrammelled powers to the intending purchaser. Similarly the other sub-clauses in clause 9 are precautionary clauses which would begot inserted by any intending purchaser. It is worth noticing that when Mr. E.C. Williams, Accountant of Imperial Tobacoo Co. appeared as Aw 3, and proved the agreement to sell Ex. A. 6, the payment of the earnest money and the refund of the. earnest money, no question whatsoever was put to him in cross-examination, muchless 'a question doubting, the intention of the partigs to act upon the agreement Ex. A. 6. We, thereforee, disagree with the observations of the Addl. District Judge about Ex. A. 6 and hold that it was a relevant piece of evidence, particularly, in view of the fact that it was entered inter prior to the notification under section 4 of the Act and was in respect of a part of the land covered by the present acquisition.
(20) EX. R. 4 on which the Addl. District Judge relied was in our opinion, not a very good piece of evidence to rely upon and certainly not better than the other evidence adduced on the record. Admittedly, according to the inspection note of the Addl. District Judge,. land, covered by Ex. R. 4 was not so well situated as the land in the present' case. It seems that the Addl. District Judge forgot to note that Ex. R. 4 and Ex. R. 6 are more or less contemperaneous. Between the two, Ex. A. 6 afforded better data for arriving at the market value of the land.
(21) The estimate proved by AW4,Shri Phool Chand Goel were rejected by the Addl. District Judge on the ground that Shri Goel was an interested witness and the process of deducting the value of super-structure from the price of the property was a combersome process to arrive at the value of the land. In our opinion, the Addl. District Judge had no justification to arrive at the conclusion. The estimates Ex. Aw 4/2 and Ex. Aw 4/3 were prepared after measurements had been taken and as Aw 4 Shri Phool Chand Goel said in his cross- examination, the rates adopted by him for arriving at the per square foot cost of the superstructure were the 1955. Cpwd schedule of rates. Looking at Ex. Aw 4/2 and Ex. Aw 4/3 we find that rates given by Shri Goel are rather on the low side. Ex. R. I and Ex. R. 2 produced by the Government in connection with the claim for the super-structure on the required land are also based on the 1955 C.P.W.D. schedule of rates. thereforee, there is no reason why .Ex. Aw 4/2 and Ex. Aw 4/3 should have been rejected.
(22) According to Ex. A. 6. which we hold to be a very relevant piece of evidence, market value of the land was Rs. 27 per sq. yard .Ex. A. 6 is, in point of time, 14 months prior to the section 4 notification in the present case and is in respect of part of the rear portion of the acquired land. It was also for. a large parcel of land viz, 124405 sq. Yds. The agreement shows that the intention of the intending purchaser was to build office-cum-residential property Ex. A. 4 is the scale deed dated November 9, 1959, prior to the section 4 notification in the present case. This was in respect of 2400 Sq. Yds. with super-structure thereon. The total price paid was Rs. l,46,000.00 . From this we must deduct Rs. 37,615, which was the value of the super-structure as per Ex. Aw 4/2, leaving a balance of Rs. 1,08,305 as the price of 2400 Sq. Yds. This gives an average of Rs. 47 per Sq. Yds.
(23) EX. A. 5. evidences sale of 1400 sq. Yds. of land with superstructure thereon. Ex. A.W. 4/3 which shows the value of the building as Rs. 16,779 leaves the price of land as Rs. 44,211. This gives an average of Rs. .34.40 per Sq. Yd. The other instances are not so relevant because they give prices of land with super-structure and the Super-structures 'were not separately evaluated. All the same the other instances do show that price of land in this area was much more than what was awarded by the Addl. District Judge. . :
(24) It was urged on behalf of the Government that what has to be kept in view is that the acquired land is almost 55,000 Sq. Yds. and it is difficult to find one buyer for such a large parcel of land. It was submitted that instances of sales of smaller plots of land would not be relevant. It is urged in the appeal filled by Government that the enhancement granted by the Addl. District Judge over the price evidenced by Ex. R. 4 was not justified. We do not agree. It is no doubt true that smaller plots of land fetch higher price in residential areas but the evidence as produced is not worthless. Furthermore, we have the evidence of a large tract of land over 12000 Sq. Yds. having been agreed to be sold at the rate of Rs. 27 per Sq. Yds. in Ex. R. 6,
(25) We have already held that Ex. R. 4 was not a piece of evidence on which alone relience could be placed. We also hold that the enhancement given by the Addl. District Judge was not adequate. In this view of the matter the appeal filed by the Government cannot be accepted and is hereby dismissed.
(26) Coming now to the price of land in question we find that the maximum price in the area was Rs. 47.00 per Sq. Yd. for land covered by Ex. A. 4. This property was situate on Ludlow Castle Road. It was a smaller plot of land that land with which we are concerned but situationwise it could not be said to be better than the land in question. The land in question is definitely far superior by Way of location than the land covered by Ex. A. 4.; Then their is the market value of land evidenced by Ex. A. 5 which comes to Rs. 37 per Sq.. Yd. This was rather a small plot of land again on Ludlow Castle Road but with several disadvantages, namely, it was half the property known as 10, Ludlow Castle Road and not so well located as the land of the claimants.
(27) A mean has to be found between the price evidenced by Ex. A. 6 and the price evidenced by Ex. A. 4 and Ex. A. 5 by keeping the advantages and disadvantages of the land of the claimants and the Jand covered by Ex. A. 6., Ex. A. 4 and Ex. A. 5 in our mind. In our opinion considering that the land in the question was such a large tract of land but better situate and quality-wise better than the land covered by Ex. A. 4, Ex. A, 5 and was notified for acquisition 14 months after Exhibit A. 6, the price has to be more than Rs. 27 per Sq. yard but less than Rs. 47 per sq. yard. The rising trend in prices of land can be guaged from Exhibit A. 3, Exhibit A. 4, Exhibit A. 5. Exhibit A. 9, Exhibit A. 10 and Exhibit A. 11. We, thereforee, fix the fair market value of the claimants' land to be Rs. 35 per sq. yard. We arrived at this figure because the claimants' land now acquired has to be adjudged as a compact plot of land which a willing purchaser may purchase. Very few persons could have been found to buy such a large tract of land. We cannot persuade ourselves to give more than Rs. 35 per sq. yard because once again we have to keep in view the area of the land in question. A smaller plot though not so well situated. Yet being almost opposite to Raj Niwas was sold for Rs. 47 per sq. yard. Similarly, Rs. 37 per sq. yard, as evidenced by Exhibit A. 5, could be paid for a smaller plot not so well located but not for such a large tract of land as the claimant's land in question. We, accordingly, enhance the compensation for the land of the claimants to Rs. 35 per sq, yard. The claimants would be entitled to proportionate increase in the solarium and interest on the enhanced compensation from the date the Government took possession till the date of payment. The appeal of Smt. Heero Bibi and others is accepted in terms of our observations made above. The claimants will also be entitled to proportionate costs in R.F.A. No. 214 of 1969. R.F.A. No. 338 of 1969 filed by the Government is dismissed leaving the parties to bear their own costs in this Court.