S.N. Andley, J.
(1) The appellant had purchased land measuring 206 bighas 11 bids was in village Dhirpur sometime in 1950. This land had a frontage on Princess Road off Kingsway and was behind the colony known as Model Town Colony. In 1951-52, the appellant sold certain plots out of this land without getting any plans sanctioned by the appropriate authorities. On October 3, 1959, the Government issued a notification under section 4 of the Land Acquisition Act, 1894, for acquiring. 43 bighas 4 bids was out of this land. The Land Acquisition Collector awarded compensation at the rate of Rs. l.00 per square per square yard which as increased to Rs. 2/8.00 per square yard by the Additional District Judge, Delhi, upon reference made to him and this was further increased to Rs. 8.00 per square yard by the High Court of Punjab by its judgment dated July 24, 1963 (Exhibit (A.34).
(2) The remaining land comprising an area of 163 bighas and 7 bids was was notified under section 4 of the said Act on July 23, 1962. The se
(3) It appears that in 1952, the appellant had submitted a lay-out plan to the Notified Area Committee, Delhi, in respect of the entire area for a colony to be developed as Harbans Nagar under cover of letter dated May 3, 1952 (Exhibit A.18). It was stated in this letter that this land was bounded on the east by Princess Road; on the West by the land belonging to cultivators; on the north by Military Grass Farm, and on the South by the aforesaid Model Town Colony. It was further stated that it was intended to develop this land into a model colony consisting of plots of 200 square yards and 350 square yards to cater to the needs of the lower middle class; that it was intended to fill in earth in order to bring the level of this land up to the standard required so as to be of a level with the land of Model Town and that out of the total area, 11,832 square yards had been allotted for gardens, school, bus stand, religious places etc.; 58,634 square yards had been allotted for roads and lanes-thus covering an areas of 35.5% of the entire land and the balance was to be plotted. The Notified Area Committee directed the appellant to contact the Delhi Improvement Trust by their letter Exhibit A. 19. It appears that the lay-out plan was submitted to the Delhi Improvement Trust who raised various objections and made some suggestions by their letter dated March 25, 1955, (Exhibit A.22). Afresh lay-out plan was submitted by the appellant under cover of his letter dated June 23, 1955 (Exhibit A.23) staling that the objections raised had been met and the suggestions carried out. There was some further correspondence and ultimately the matter came to be dealt with by the Delhi Development (Provisional) Authority. Certain objections were made to the lay-out plans of various proposed colonies including the appellant's colony, Harbans Nagar, in respect of which it was pointed out that the land was low-lying and liable to flooding. Thereupon the aforesaid Authority passed a resolution that the consideration of the lay-out plans may be awaited till the preparation of the Master Plan. The result of all this correspondence was that the appellant could not carry out his object of developing his colony and ultimately the land was acquired as stated earlier in 1962.
(4) The Additional District Judge, Delhi gave his judgment on December 18, 1967, and basing himself upon the High Court judgment referred to earlier, enhanced the compensation to Rs. 8.00 per square yard for the land measuring 76 bighas 6 bids was and rejected the prayer for enhancement in respect of the land covered by the Nullah.
(5) It appears from the judgment of the Additional District Judge that two arguments were addressed to him on behalf of the appellant. namley, 1) that the value of the land in dispute be assessed after working out the development charges and deducting them from the price of developed land and (2) in any case the compensation should not be less than Rs. 8.00 per square yard which was the compensation awarded by the aforesaid High Court Judgment. The Additional District Judge did not adopt the first method and gave compensation equivalent to the compensation awarded by the aforesaid judgment of the High Court. It was contended by the respondent before the Additional District Judge that this judgment should no be relied upon because instances of sale had been proved by the respondent in the present reference which had not 'been brought on the record in the earlier case and if these instances are taken into consideration, compensation would not be fixed at Rs. 8.00 per square yard as was done by the aforesaid judgment of the High Court. The instances of sales of land which were proved by the respondent in this case and the instances of sales of land which were proved in the earlier proceedings were inspected by the Additional District Judge. With respect to the latter, his comment is that those lands are quite near to the land in dispute and there is absolutely no reason to differ from the observation of the High Court. He has further come to the conclusion that the land in dispute has great potential value as it touches the boundary of the Model Town which is a very flourishing locality and as many as six roads touch the land in dispute which could be used as a residential colony without any difficulty. As to the instances produced by the respondent the Additional District Judge has commented that they are not of similar nature and cannot be given preference over the aforesaid judgment of the High Court.
(6) Strong reliance has been placed by the respondent before us on the instances which were proved with respect to other neighbouring lands which were the subject matter of the sales in 1961 and 1962 for prices ranging between Rs. 1/8.00 per square yard and Rs. 4.50 per square yard. All that the respondent did with respect to these instances was to produce the sale deeds. The vendors or the purchasers of these lands were not produced. It is not possible to ascertain the exact location of the lands which were the subject matter of these sales. In view of the observation of the Additional District Judge, the argument on behalf of the appellant that these lands were at a distance and without any roads or, in any event, puce roads, and are, thereforee, not comparable to ascertain the fair market value is not without substance. If the vendors are the purchasers of these lands had been produced, facts could have been ascertained as to their exact location; approach; nature and potentiality. In the absence of these details it is not possible for us to accept these instances as indicative of the fair market value particularly in view of the fact that they were not accepted for consideration by the Additional District Judge.
(7) The appellant, on the other hand, has urged that the prices obtained by sales of plots in the neighbouring colony of Model Town furnish conclusive evidence as to the fair market value and the market value of the land in question should be determined on the same basis. It may here be stated that although the claim of the appellant before the Collector as well as before the Additional District Judge was on the basis of Rs. 70.00 per square yard, the claim in appeal is only on the basis of Rs. 25.00 per square yard. The sales in Model Town upon which reliance is placed by the appellant are between 1959 and 1962 and these are :-
(1)Sale deed dated 18-2-1959 (Exhibit A.I) in respect of 280 square yard plot for Rs. 8,330.00 at the rate of Rs. 29.75 per square yard. (2) Sale deed dated 8-3-1960 (Exhibit A.2) in respect of 280 square yard plot for Rs. 9800.00 at the rate of Rs. 35.00 per square yard. (3) Sale deed dated 21-8-1961 (Exhibit A.3) in respect of 280 square yard plot for Rs. 14,840.00 at the rate of Rs. 53.00 per square yard. (4) Sale deed dated 6-3-1962 (Exhibit A.4) in respect of square yard plot for Rs. 15,480.00 at the rate of Rs. 60.00 per square yard. (5) Sale deed dated 23-7-1962 (Exhibit A.5) in respect of 80 square yard plot for Rs. 5,600.00 at the rate of Rs. 70.00 per square yard.
(8) The last sale deed mentioned above is of the same date as the section 4 notification although it is of a comparatively small plot of land covering 80 square yards. The argument on the basis of these sale deeds is two fold. Firstly, it is argued that taking the market price of plot of land at the rate of Rs. 70.00 per square yard on July 23, 1962 (the date of the section 4 notification) as the basis, the price of the gross area can be worked out after considering the land to be left out for roads and other amenities and the development charges which would have been incurred by the appellant for development of his land. In furtherance of this argument, the appellant relies upon the report and statement of P. C. Goel (A.W.4), a Chartered Civil Engineer and Architect, who prepared the lay-out plan (Exhibit A. 15) for development of the appellant's land. He has stated that the area under roads and open spaces is about 30% of the total area and not 45 and 48%. He has further stated in his report (Exhibit A. 14) that the development cost per plotted square yard would be Rs. 7.75. In his examination in Court this witness has admitted that the level of the appellant's land is two feet lower than the level of the Model Town area and about one foot lower than the level of Mall Road at the point where the appellant's land abuts on this Road.
(9) There can be no doubt that if a piece of land has potentiality of development into a residential area its price can be determined, even though the land has not been developed, on the basis of prices prevailing in comparable contiguous land or land in the neighborhood. But to adopt this method in this case it would be necessary to ascertain from the evidence whether the appellant's land is comparable to the land which is comprised in the developed colony known as Model Town. In our opinion, such evidence is lacking in this case. It is established in this case not only from the appellant's witness, P. C. Goel (A.W.4), but also from the inspection note of the Court that the appellant's land is in a low-lying area and the area which is contiguous to Medal Town is two feet lower and the area which abuts on the Mall Road is one foot lower. It is further clear that with the earlier acquisition of 43 bighas 4 bids was out of the applellant's land in 1959, the rest of the land lost its frontage on Princess Road and the resulting position is that the only approach left to the present piece of land is from the roads in Model Town. No evidence has been given by the appellant as to how much will be spent on filling up this land so as to bring it on a level with any evidence whether the approaches to this land through the roads of Model Town will be available to the appellant.
(10) There is no evidence in this case as to whether the amenities which were proposed to be provided by the appellant would be of the same standard or quality as they might be in Model Town. It cannot be doubted that in a colony which has a large number of amenities like good roads, open spaces parks, gardens, places of public entertainment, shopping centre or the like, the prices of land will be higher than in a colony where comparable amenities are not available. It is. thereforee, for a claimant to prove not only the contiguity of a piece of land to fully developed colony but also to prove the comparative merits of the proposed and developed colony before he can claim compensation at the same rate as the rate prevailing in the developed colony. The appellant has not given any such evidence and taking into consideration these and the circumstances peculiar to the appellant's land adverted to earlier, we are unable to say that the fair market price of the appellant's land should be calculated on the basis of sales effected in Model Town near about the issue of the section 4 notification.
(11) The second line of argument adopted by the appellant appears to us to be more reasonable. The argument is that the fair market price of a portion of this very land was fixed by the High Court at Rs. 8.00 in 1959. There after, there has admittedly been a trend of rise in the prices. The ratio of the rise is indicated not only by the sale of plots in Model Town covered by Exhibits A. I to A. 5 but also by the sale of other agricultural land on which reliance was placed by the respondent and this ratio shows that between 1959 and 1962. there was a rise of atleast 100% in the price of land in that area. On this basis, it is urged that the price of undeveloped land in 1962 would come to Rs. 16.00 per square yard being double of the rate fixed for 1959 by the aforesaid judgment of the High Court and that, in any event compensation should be allowed at this rate. If the land covered by Model Town had been identically situated as the land of the appellant, this claim would be unexceptionable. But we find two defects in the appellant's land which makes it less valuable than the land in Model Town. The first defect is that its level is lower than the level of Model Town by two feet and even on the Mall Road side it is one foot lower than the Mall Road. The second defect is that with the acquisition of 43 bighas 4 bids was of land belonging to the appellant in 1959, the present land lost its frontage on the Princess Road and the only approach to it now is through the roads of Model Town. A third factor which has to be taken into consideration is that the ratio of rise of undeveloped land would be comparatively lowes than the ratio of rise of developed land. A purchaser of land in the latter will be more willing to pay a higher price because he knows that he can immediately proceed to construct a building upon the land. On the other hand a purchase of land in the former will have to wait for construction until the land is developed. It is a material factor for a willing purchaser to consider whether houses have already gone up in the neighborhood where he proposes to buy land and for such a neighborhood he would be willing to pay a higher price.
(12) In matters like this it is not possible, except in rare cases, to adopt any mathematical formula for arriving at the exact fair market value and even Mr. Bhagwat Dayal, learned counsel for the appellant. stated in his argument that the fixation of fair market value in these circumstances would be a matter of guess work to a certain extent.
(13) Taking into consideration the aforesaid two defects and factors. we feel that there should be a further deduction in Rs. 16.00 per square yard by Rs. 6.00 per square yard for filling up the land so as to bring it up to the level of Model Town; for the absence of easy approach to it by reason of the closing of its approach from Princess Road and the land in question being undeveloped as against the land in Model Town which was fully developed and in which building activity had started a considerable time earlier. We thereforee, feel that the fair market price of this land would be Rs. 10.00 per square yard.
(14) We accordingly partly allow the appeal and enhance the compensation of the land in dispute measuring 76 bighas 6 bids was by Rs. 2.00 per square yard above the amount of compensation fixed by the Additional District Judge, Delhi. There will be no enhancement in the compensation for the land measuring 4 bighas 10 bids was covered by the Nullah. The appellant will be further entitled to solarium at 15% on the total enhanced compensation apart from interest at the rate of 6% per annum from the date of possession till the date of payment. In view of the fact that the claim of the appellant as filed in this appeal was inflated, we make no order as to costs.