1. x x x x x
2. The lands under acquisition in all admeasures 50 acres 30 gunthas. They form a compact block of agricultural lauds, though no doubt they are shown in separate survey numbers. They are situated in the village of Sampoi in Zalod Taluka. The village Sampoi was a personal Inam village and since the tenants have had no right to sell any such lands, there are no instances of sale in that village. The lands are at a distance of half a mile from the village side of Sampoi. The population thereof as per census of 1951 is 2824. To the west of these lands under acquisition is the sim of village Varod. On the eastern side there is a road going from Zalod to Dohad. To the south of these lands runs the river Manchhan. The water remains in this river throughout the year except in the months of May and June. Beyond this river Manchhan towards the south is a small village Tandi. Of the lands under acquisition S. No. 66 abuts and can be said to be on the bank of the river Manchhan. In S. No. 88 there is a well in respect of which separate compensation is claimed at the rate of Rs. 500/-. This well was a katcha well. As already stated hereabove, the Land Acquisition Officer valued lands at the rate of Rs. 300/- per acre except in respect of S. No. 88 which came to be valued at the rate of Rs. 480/- since there stood a well in that land. The learned Judge, however, valued all the lands at a flat rate of Rs. 800/- per one acre of land and rejected the claim in respect of the well situated in S. No. 88. The award of the learned Civil Judge is mainly based on an instance of sale in respect of S. No. 6/5 situated in the village of Varod. That transaction was said to have taken place on 14th December, 1956. It related to 26 bighas of land and the sale-price thereof was Rs. 600/-. The market price that way came to Rs. 827.58 nP. per one acre of land The learned Judge also found that there were two other instances of sale in respect of S. Nos. 58/1 and 58/1/A as per Exs. 53 and 54 dated 8-6-48 and 6-5-49 respectively. While the former admeasured 1 acre 16 gunthas, the latter admeasured 1 acre 7 gunthas. Having regard to the price paid for the same, the rate per one acre of land came to Rs. 1,428.59 nP., in respect of the land comprised under the sale-deed Ex. 53 and Rs. 1,249.82 nP., in respect of the land comprised under the sale deed Ex. 54 in the case. While the learned Judge found them to be comparable instances in so far as the lands were similar to the lands under acquisition, but since they were old transactions and that way not comparable in point of time, the same came to be rejected. The claim, however, made before this Court as also in the lower Court was Rs. 1,200/- per one acre of land and since the award is challenged by both the sides with regard to the compensation awarded in the matter, the question that would arise to be determined by this Court is as to what amount of additional compensation for the lands under acquisition should be awarded to the claimants. The other question that would arise is whether the claimants are entitled to any compensation for the well situated in S. No. 88 and if so, what amount.
3. Before we consider the effect of the arguments advanced by the learned Advocates appearing for both the sides, it appears essential to point out that a notion prevails among the Courts below hearing such matters arising under the Land Acquisition Act that they sit, as it were, in appeal against the award of the Land Acquisition Officer and they deal with the reasons given in the award on that basis. Sometimes they go to the length of passing remarks against them as done in the present case such as about the 'careless manner in which the indiscriminate average has been calculated by the Deputy Collector . The award given by him is based on some enquiry required to be held under Section 11 of the Act and he has then to make an award showing details as set out there under. What is, therefore, before the Court in the reference is the finding and it is that part which becomes a subject-matter of reference to be dealt with by the Court. The other part containing reasons given by the Land Acquisition Officer does not necessarily form part of the record unless the Land Acquisition Officer has been examined and he has stated the same which led him to coma to a particular conclusion. That part can also be taken into account if both the sides agree to the same being read as a part of the evidence in the case. The award given by him becomes in the nature of an offer which stands and would bind the State on whose behalf that offer has been made, if it is accepted by the claimants in respect of the lands under acquisition. If, however, that award is challenged by the claimants on the ground of inadequacy of compensation or otherwise permissible in law, and taken to Court by a reference made under Section 18 of the Act, a judicial proceeding commences before the Court. The person who challenges the same becomes as it were, a plaintiff in the Court and he has to show to the satisfaction of the Court that the amount awarded has not been the proper market value of the property under acquisition and that he should be awarded at a particular rate or price set out in the reference. In other words, the proceedings before the Court start afresh and it is on the legal evidence produced before it that it has to arrive at his own judicial finding and pass an award under the provisions of the Act. In those circumstances, the trial Court does not sit in appeal on any such award passed by the Land Acquisition Officer and consequently one would not expecl the Court at any rate, passing any remarks such as about his having dealt with the matter in a careless manner and the like, and even if on the material before it, it was obliged to pass any remarks, it must 'be said that they should be in a restrained and dignified language.
4. Now it is well settled that the best method of determining the true market price of any land or properly under acquisition at the date of notification published under Section 4 of the Act is to base it on instances of sale of the same land or a portion of land having taken place by about the same time. The next best method is to look for other instances of sale comparable in time and quality. In other words, the instances of sale should have been in respect of lands in the nearby locality or area having the same and similar advantages or disadvantages as the lands under acquisition. Those instances must also be nearer in point of time to the date of notification published under Section 4 of the Act for the acquisition of lands. We are, therefore, required to consider the instances of sale in this matter and find out as to whether they fulfill the test of being comparable both in point of time as also in regard to the quality of the lands under acquisition. The market price of the lands under acquisition has, to be ascertained as on 19-6-58.
Before we actually go to the instances of sale, we may refer to certain instances in respect of lands bearing S. Nos. 101/3, 26/2 and 136/1 situated in the village of Tandi to the south of the river beyond the lands under acquisition. These instances have not been relied upon and for good reasons. The sale-deeds in respect thereof have not been produced in the case. Nor are the parties to the same or any persons having Knowledge about those transactions examined. Even if therefore, the lands were taken to be comparable in quality with the lands under acquisition as also a little nearer in point of time compared to other instances of sale in the case, they cannot be looked into in absence of any such material evidence in relation thereto. This Court in First Appeal No. 171 of 1964 the judgment whereof has been delivered on 30/31-7-1968 (AIR 1969 Guj 270) after considering the effect of some of the decisions cited at the Bar, has come to the conclusion as follows :--
'It would, thus, appear clear that even if any document came to be exhibited by the consent of parties, that would only mean dispensing with the proof of execution thereof unless contents are also admitted by the other side. The claimant, who is in the nature of a plaintiff in any such proceeding, is not absolved from his having to establish by proper evidence the contents of any such document. The proof of any such contents of the deed or about the transaction relating to that property, can best be offered by examining the parties to that deed or the transaction or any person who knew about the same or brought about the transaction. The importance of such evidence is all the more in cases of this character where not only one is required to prove any such transaction having taken place in regard to land or property at a particular time and at a particular price, but that before it can serve as a good piece of evidence for determination of the market value of the land under acquisition, it must be further shown that that transaction was between a purchaser and a willing vendor and that the price given by the purchaser was the normal market price prevailing then. A reference to any such entries either from account books or from revenue records or even the sale-deeds, or putting mere reliance on them would not avail the party concerned. The State would then be able to meet any such instances on which reliance is placed by the appellant, for, it could test the nature of the transaction by cross-examining those persons who speak about the same. That view finds support from another decision in The Special Land Acquisition Officer, Bombay City and Bombay Suburban District v. The Trustees of the will ot A. H. Wadia : (1956)58BOMLR766 . The pertinent observations made at page 767 may well be quoted with advantage:
'But it is clear that the only sales that the claimant can rely upon are genuine sales, sales which indicate a proper market value. A sale may be a forced sale, a sale may be an accommodation sale, a purchaser may be prepared to pay a fancy price for a particular land, there may be an element of speculation in a sale, but the Court has to discard these sales and try and concentrate only on those sales which are effected between a willing purchaser and a willing seller and in which these extraneous factors are absent. Therefore, in relying on a sale the claimant must rely not only on the factum of the sale, but also on the fact that that particular sale is a genuine sale.' Thus, in absence of any material evidence, they cannot be looked into. At any rate, they can be of no help in ascertaining the market value of the lands under acquisition.
5. While we are on this point, it was also pointed out by the learned Advocate-General for the appellant that the instance of sale in respect of S. No. 6/5 can on similar grounds be ruled out from consideration for the reason that neither the sale-deed has been produced nor any of the parties there to or any persons having knowledge in respect of that transaction have been examined in the case. The mere fact that it was considered by the Land Acquisition Officer is no ground to have it considered unless the necessary requirements are established before the Court below so as to enable the Court to consider the same for fixing the market value of the lands under acquisition. He, however, urged that in case this transaction were to be looked into, the rate of Rs. 827.58 nP. per one acre of land can be said to be on the higher basis. In the view that we have taken in respect of any such instances of sale evidenced by the revenue entries or the account entries, we can-not take this instance of sale into account for determining the market value of the lands under acquisition.
6. That leads us to the consideration of the remaining two instances of sale. The first relates to S. No. 58/1 admeasuring 1 acre 16 gunthas as per the sale-deed Ex. 53 dated 8-6-48. Having regard to the price mentioned therein, the rate comes to Rs. 1,428.59 nP. per one acre of land. The other instance relates to a portion of that very land S. No. 58/l/A belonging of the same person as per Ex. 54 dated 6-5-49, It admeasures 1 acre 17 gunthas and on the basis of its price the rate comes to Rs. 1,249.82 nP. per one acre of land. The sale-deeds in respect of those lands have been produced and proved. While the land S. No. 58/1 was sold to one Kanabhai, the other land S. No. 58/1/A was sold to one Kana Natha. The claimants have examined one Vallabhdas Ex. 52, the son of the vendor in respect of both the lands and also the two purchasers at Exs. 48 and 50 in tho case. The purchasers were tenants in respect of those lands. The lands were situated at Varod village the outskirts of which adjoin that of Sampoi. The instances of sale as per Exs. 53 and 54 relate to lands which have been found to be similar in quality. In other words, the soil of those lands was at any rate similar to that of the lands under acquisition. The learned Advocate General was fair enough to concede to that position having regard to the evidence on record. His argument, however, was that those lands were nearer the 'Gam-Tal' of Varod than the lands under acquisition to the village of Sampoi. While they were only two fields away from the 'Gam-Tal', the distance of the lands under acquisition from the village of Sampoi was about 2 furlongs or so. It is no doubt true that the land nearer the village would have sometimes better facilities than those situated at a distance from the village. It might make some difference in matters of transport or the like. But that would not make much difference when the distance is not so much as to affect the market price. The distance of 2 furlongs or even half a mile or sometimes even a mile may not be of much consequence to village people as observed in the case of Chimanlal Kodarlal v. The District Deputy Collector, Anand, (1962) 3 Guj LR 778. What matters to them is the fertility of the soil of the land and if that soil or fertility of land is similar to those under acquisition, they can well stand the comparison on the point of quality of lands. Another point made out by him was that both the sale-deeds as per Exs. 53 and 54 were accommodation sales in the sense that they were sold to the tenants who were occupying tho same since about 20 years, The tenants would be anxious to purchase the same even by paying higher price since they may have developed attachment to the lands cultivated by them for long. However, it appears from the evidence of Vallabhdas Ex. 52 also from that of the tenants Ramanlal Ex. 48 and Ambalal Ex. 50 that they had ascertained prices of the lands round about and had paid what the people of the village said. In other words, there is no reason to doubt that part of the evidence. It would follow therefrom that the price paid by them was what a prudent purchaser would pay for the same. Apart from that position, it was pointed out by Mr. Oza, the learned Advocate for the respondents, that once the Bombay Tenancy Act had come to be applied, no tenant would ordinarily pay higher price for the lands, as, having regard to the provisions of the Act, they would get a priority over any other purchaser. In those circumstances, one can easily call this to be a sale between a willing vendor and a prudent or a willing purchaser. We may observe incidentally at this stage that compared to these lands comprised under the sale-deeds Exs. 53 and 54, the lands under acquisition have had one other advantage viz., about the same being freehold land. The claimants would be entitled to sell to anyone and not to the tenants and they would have that way fetched more price in 1958. Besides, these lands and particularly S. No. 66 can be said to have river facilities. In fact in S. No. 88 there was a well. Thus, these instances of sale do fulfill the first part of it viz., about the comparative character with regard to the similarity of the lands with the lands under acquisition.
7. What was, however, emphasized by the learned Advocate-General was that these instances of sale cannot stand comparison in point of time. According to him, they are very old sales and can therefore be easily called stale sales. Such instances of sale cannot, therefore, reflect a correct market price prevailing after a period of about 8 or 9 years. The time factor no doubt is very important and normally speaking, we would be inclined to think that instances of sale having taken place in 1948 and 1949 i.e., about 9 or 10 years ago would not ordinarily serve as good or safe guide for ascertaining the market value in 1958. In this connection, we may refer to a decision of this Court in District Deputy Collector, Anand v. Patel Puniabhai Mathurbhai, (1962) 3 Guj LR 778, where the question as to what can be called a stale sale has been considered. The contention advanced by the learned Advocate-General in that case was that the sales were stale sales and that though they were in respect of lands, which were situated in the same locality in which survey No. 1496/A was situated, the sales, having taken place nearly 34 months before the date of the notification, could not be used for valuing Survey No. 1496/A, unless the claimant led further evidence in the case to show that the prices had remained steady between the date of the aforesaid sales and the date of the notification under Section 4. He further contended that the test which should be applied for determining the question as to what was the reasonable interval which kept a sale wholesome was the same which was applied for determining the question as to what was the reasonable period of time for performance of contracts of sale of goods. The High Court did not agree with him in that part of the contention and observed that while no hard and fast rule should be laid down for determining the question whether a sale is wholesome or stale, it was inadvisable and inexpedient to equate this question with the sale of goods. The question whether a sale is state or wholesome is a question of fact and the Court must determine it with reference to the circumstances of each particular case. In determining it, one of the important circumstances to bear in mind is the frequency of sales in the locality in which the land under acquisition is situated. If the evidence discloses that sales of lands in the locality take place at such short intervals as of a day or of a week or of a month, then, even an interval of six months will render a sale stale. If on the other hand, the evidence is that the sale market is not brisk and sales take place at longer intervals, then, an interval of a few months or a few years will not necessarily make a sale a stale sale. Then the Court observed that there was no material on the record to show that the sales taking place in this locality were so brisk or rapid that an interval of 34 months must render the aforesaid three sales stale. Then on a further contention raised in that case by the learned Advocate-General that even if this were so, those sales were not of any assistance unless there was also evidence to the effect that prices had remained steady during the interval between the date of the sales and the date of the notification, and he contended that the burden of proving this was on the claimant. He further contended that there could not be any presumption of steadiness of prices. Then after referring to the decision of the Privy Council in the case of Gulam Hussain Ahmed Somaji v. Land Acquisition Officer, South Salsette Bandra, reported in AIR 1928 PC 305, the Court held as follows:--
'In our judgment, given a relevant sale, If there was no evidence of slump or increase in prices, it was open to the Court to proceed to decide the case that the price paid under the sale furnished a good guide for determining the value of land.'
This decision also was considered in a subsequent case of The Land Acquisition Officer, Surat v. Dalichand Virchand Shroff, ILR (1966) Guj 1006 and after considering the effect of that earlier decision just referred to hereabove, it was observed that
'the question as to whether a sale is a wholesome sale or a stale sale depends upon the facts of each case and that again as to the same being relevant in the absence of any evidence of slump or increase in, the Court can proceed to decide and find out the market price on the basis of such sales even though some longer period had even intervened. That longer period has again to be a reasonable period which has to be considered having regard to the facts and circumstances or each case.'
It appears, therefore, clear that it is not a period that necessarily matters, but we have to take into account various factors with a view to find out as to whether such instances of sale having taken place about 8 or 9 years ago could still be of some use in enabling the Court to determine the market value of the lands under acquisition. The lands under acquisition are not situated in any urban area or round about any urban area. They are lands situated in small villages like Sampoi and Varod having hardly a population of about 2000 or 3000 persons. There was no question of any development as a result of which there existed any market of Purchase of any land there or in the nearby locality. Consequently there existed no frequency of sales at short intervals. There can hardly be any market as such, as we usually have in respect of other properties. Thus, ordinarily agriculturists who depend upon agricultural operations on lands hardly think of selling their lands. That may no doubt arise if any development in that part has taken place so as to lead them to sell off their lands. When such is the position in respect of the lands under acquisition, in absence of any other instances of sale during that intervening period, we feel inclined to think that they can be taken into account unless it is shown that there was either slump or rise in prices of lands during the intervening period. An attempt was made by the claimants to show that there has been some rise in prices, but that has been a very feeble and faint attempt and there has been hardly any attempt on the part of the opponent to show that there was in reality any slump or rise during the intervening period. The question of any rise or slump in price during the intervening period was hardly there and in absence of any such thing, the prices of the lands in that area can be taken to be steady. In those circumstances, we think that much though the intervening period is fairly long, it can still be called a reasonable period and those instances can well be taken into account for the purpose of fixing the market value of the lands in question even on 19-6-58.
8. The first instance of sale can well be ignored particularly as the next instance of sale had taken place within a year's time and that has fetched the vendor in respect of the same or similar land a lesser price which came to Rs. 1249.82 nP. per acre. The latter instance of sale comprised under the sale-deed Ex. 54, therefore, can well be taken into account as a comparable instance for the purpose of arriving at the market value of the land as it stood on 19-6-58.
9. It was, however pointed out by the learned Advocate-General that these two instances are in respect of small plots and that they cannot stand comparison with such a block containing about 50 acres of land. It is no doubt true that these two instances of sale relate to 1 acre 16 gunthas and 1 acre 17 gunthas only. They are that way, small plots of lands. The size of the plot no doubt serves one of the elements to be considered while determining the market price of the lands in question. Smaller plots, it is often said, can easily find market. More purchasers can be available, for, the price they have to pay would be quite small. This no doubt would be a good factor to be taken into account, but that factor can well be and more appropriately be applied in respect of plots for building sites or in respect of lands which are intended to be utilized in making plots for residential purposes. In the present case, there is no question of any building potentiality in respect of the lands under acquisition, and as we said above, the lands under acquisition form a compact block of about 50 acres or so and used for agricultural purposes only. They are by the side of a river. In one of those lands there is a well. Thus, for those who are out to develop agricultural operations, a compact block of land would be more beneficial and convenient. The labour can well be minimized. A protection by hedges or the like may not be so very expensive as they are not required to be put up in every small area. If we look at the largeness of a plot such as the one under acquisition, we do not think that any such consideration can outweigh in saying that it would fetch less price and that the smaller plot compared to the same would fetch greater price in the circumstances of the case. Apart from that position, they are in separate survey numbers and it would have been also open to the claimants to sell them in some small areas contained in those survey numbers. In our view, therefore, that contention does not much affect in treating the instances of sale comprised under Exs. 53 and 54 as comparable instances. If we were to take that instance of sale comprised under Ex. 54 as a comparable instance for determining the price of the lands under acquisition, the market price thereof even on the date of acquisition viz., 19-6-58 would come to Rs. 1249.82 P. The compensation claimed for the lands under acquisition is at the rate of Rs. 1,200/- per acre. When that is so, the claimants can be held to be entitled to Rs. 1,200/- per one acre of land. Since the reduction in the rate awarded by the learned Judge is out of question, the appeal filed by the State would obviously be dismissed. The cross-objections on that basis shall be allowed and since they claim Rs. 1,200/- per one acre of land, the compensation shall be awarded at a flat rate is respect of all the lands.
10. So far as the separate claim for compensation in respect of the well situated in Survey No. 88 is concerned, a reference was made to a decision of this Court in First Appeals Nos. 92 and 93 of 1962, deckled on 25/27th September 1967 (Guj) where it was held that they would be entitled to compensation for the well as well. In that case, there was a pucca construction of the well. It had a 'Thala' and all other pucca requirements made therein. Apart from the claimants losing those materials if they were to be removed, the acquiring authority was getting an advantage over the materials that they were to remove from the well in the lands under acquisition. In the present case, however, the well is said to be a kutcha well. There is, therefore, no likelihood of any loss to the claimants or any gain to the acquiring authority by demolishing or removing that part of the well. There is no superstructure whatever and it is that which distinguishes the present case from the one in the decision referred fat hereabove. The advantage derived as a result of the well on the lands has been obtained and it has been taken into account while valuing the lands under acquisition. No separate compensation for well can, therefore, be awarded.
11. Ordinarily when the compensation is determined on the basis of comparable instances of sale, the market value arrived at can be taken 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 no doubt any advantages due to the carrying out of the scheme for the purposes for which the property is compulsorily acquired as observed in the case of Raghubans Narain Singh v. The Uttar Pradesh Government, through Collector of Bijnor AIR 1967 SC 465. In the case of ILR (1966) Guj 1006, a similar view was taken and a observed therein, 'while determining the market value of the land, the potential value of the land has to be taken into consideration. Where, however, the market value is to be determined on the basis of the sale instances of properties in the nearby locality the potential values of the land should not be separately assessed because the prices evidenced by the sale instances cover the potential values' In the present case what was urged by Mr. Oza was that the lands under acquisition were just on the bank of the river Manchhan to its south and that would afford a natural advantage to them because they could have utilised river water for the purpose of irrigation if their lands had not been acquired by the State. In other words, his contention was that even if no use of the river water was made before, the potentiality of making some such use in the near future can well be taken into account. He further urged that apart from the claimant Mahendralal Ex. 46 saying that till then he had not used river water for irrigation purposes from Survey No. 60, it has been admitted by Parshottamdas Talati Ex. 56 that it was possible to irrigate all the lands by lift irrigation in Manchhan river and carrying water by grips or open channel. The river water, as the evidence shows, only dried up during the months of May and June and that it continued to have flowing water during the other part of the year. It was that way urged that his lands Dad the natural advantage of getting river water for the purpose of irrigating the same and it can be said to have also a special adaptability in that regard. In fact he also urged that it was from that point of view that this large block of laud situated on the bank of the river was sought to be acquired for the purpose of Taluka Seeds Farm. This aspect of the case has no doubt been placed before us at length by reference to Various decisions. It must be stated here that any such natural advantage or the claim on the basis of special adaptability can extend to at best, if at all it can be done, to the land bearing S. No. 66 which, as found by the Learned Judge, was the only land on the bank of the river Manchhan. This land abutted on the river. Thus that being the only adjacent land to the river, it can claim to have any such advantage if permissible in law and no Other lands. In the present case, as already pointed out hereabove, we have arrived at the market price on the basis of instances of sale and when that claim goes to the fullest extent that has been made by the claimants in the case in respect of all the lands including S. No. 66, there may not arise any necessity of having to deal with this aspect of the matter. That would not add any amount to the compensation awarded inclusive of Survey No. 66 as the claim is confined to Rs. 1,200/- per one acre of land in respect of all the lands under acquisition. However, since this point has been urged by the learned advocates on both the sides, we consider the same briefly.
12. Mr. Oza, the learned Advocate for the respondents, invited a reference to a decision in the case of Trent-Stoughton, v. Barbados Water Supply Co., Ltd., 1893 AC 502, where it was held that the compensation due to the appellant included the value of his proprietary interest therein, and was not limited to the amount of pecuniary benefits obtained by past user thereof in disregard of possible benefits in the future. In that case, certain streams of water had been abstracted from the appellant's property by a water company acting under the Water Supply Act, 1885 and in that regard while considering the question whether these streams of water being abstracted can be called 'damage or loss' within the meaning of the Act, it was observed that though he never had up to that time obtained one farthing for the use of the streams, and might never have made any use of them, nevertheless, the damage or loss which he sustained was, that he was deprived of the power of using the property which was his. The decision may not nave any application to the facts of the present case where the river water does not pass through the land belonging to the claimant as in that case a stream of water was passing through his property. Then he referred to the decision in the case In re an Arbitration between Lucas and The Chesterfield Gas and Water Board, (1909) 1 KB 16. In that case the land was compulsorily taken for the purpose of making a reservoir, and the land has a special adaptability for the construction of a reservoir. In determining the value arising from such special adaptability, it was held that the tribunal should have regard to the contingent value arising from the possibility of the land coining into the market when required for the particular purpose, and not to the value of the realised possibility arising from the fact of the promoters having obtained statutory powers for the construction of the reservoir. In other words, such an element of special adaptability of a particular land can well be taken into account in assessing the market value of the land. He then invited a reference to the case of Vyricherla Narayana Gajapatiraju v. Revenue Divisional Officer, Vizagapatam . There it was held that the land is not to be valued merely by reference to the use to which it is being put at the time at which its value has to be determined (that time under the Indian Act being the date of the notification under Section 4(1)), but also by reference to the uses to which it is reasonably capable of being put in the future. It is the possibilities of the land and not its realized possibilities that must be taken into consideration. This principle in determining the potential value of any such property has still remained good law. It was, however, pointed out by the learned Advocate-General by reference to some observations made in that decision at page 103 that 'the value of the potentiality must be ascertained by the arbitrator on such materials as are available to him and without indulging in feats of the imagination.' That position is no doubt true and has to be kept in mind while trying to assess potential value on that basis. The next case referred to by him was one of Daya Khushal v. Assistant Collector, Surat, ILR 38 Bom 37 = (A1R 1914 Bom 284). In that case, a piece of land was compulsorily acquired by Government for quarrying purposes and it appeared to be a land having such special adaptability for the purpose. That was held to be an element for consideration in fixing the amount of compensation. While, therefore, if the land by reason of the same abutting on a river has certain facilities or special adaptability for making beneficial use of the land, such a factor may well have to be taken into account while assessing the market value of the land under acquisition.
13. But the question is as to whether the claimant has a right to make use of the river water. In the cases referred to here-above, either the stream of water was passing through the land itself or that the land had its own adaptability for the purpose for which it came to be acquired. In the present case, it cannot be said that any such right to have any facility from the river water was in the nature of a proprietary right so as to say that it was an absolute right. We have, therefore, to consider the nature and extent of that right having regard to the law that prevails in this country. The learned Advocate-General invited a reference to Section 37 of the Land Revenue Code which provides as follows:--
'37. (1) All public roads ............ and of rivers, streams, nallas, lakes and tanks and all canals and water-courses, and all standing and flowing water ..........are and are hereby declared to be, with all rights in or over the same, or appertaining thereto, the property of the Government, and it shall be lawful for the Collector, subject to the orders of the Commissioner, to dispose of them in such manner as he may deem fit, or as may be authorized by general rules sanctioned by the Government concerned, subject always to the rights of way, and all other rights of the public or of individuals legally subsisting.'
In other words, the rivers, streams etc. and all standing and flowing water belong to the Government and unless permitted by the Collector, no one has any proprietary right over the same. But such a right of the Government stands affected by reason of the provisions contained in Section 7 of the Indian Easements Act. Section 7 runs thus:--
'7. Easements are restrictions of one or other of the following rights (namely):--
(a) The exclusive right of every owner of immovable property (subject to any law for the time being in force) to enjoy and dispose of the same and all products thereof and concessions thereto.
(b) The right of every owner of immovable property (subject to any law for the time being in force) to enjoy without disturbance by another the natural advantages arising from its situation.'
The right to make use of the river water by the claimant in respect of the land which abutted on such a river is as contemplated in clause (b) of Section 7 of the Act. The illustration (j) given therebelow explains the nature and extent of that right of any such person whose land can claim such benefit From the river water. That illustration runs thus:--
'The right of every owner of land abutting on a natural stream, lake or pond to use and consume its water for drinking, household purposes and watering his cattle and sheep; and the right of every such owner to use and consume the water for irrigating such land, and for the purposes or any manufactory situate thereon, provided that he does not thereby cause material injury to other like owners.' Then comes the explanation which says that 'a natural stream is a stream, whether permanent or intermittent tidal or fiddles, on the surface of land or underground, which flows by the operation of nature only and in a natural and known course.'
As already pointed out hereabove, the river Manchhan passes by the land Survey No. 66 belonging to the claimant. That land abuts on the river bed which happens to be flowing by the operation of nature and in a natural course. That land, therefore, can no doubt claim a right by way of easement as it were, contemplated in Section 7 (b) and illustration (j) to use and consume its water for drinking, household purposes and watering cattle and sheep. That right also is further extended for making use and consume the water for irrigating such land and even for the purpose of any manufactory situate thereon. The right contemplated in the latter part thereof is, however, subject to the proviso which clearly requires that he would not thereby cause material injury to other like owners. This aspect of the matter has been considered at full length in the case of State of Bombay v. Laxman Sakharam Pimparkar, AIR 1960 Bom 490: Considering the effect of Section 7 (b) illustration (j) thereto of the Easements Act, the High Court has laid down six propositions which flow from the principles laid down in different cases. The first thing to be noted is that such a right such as the one contemplated in Section 7 (b) and illustration (j) thereof is not an express or an exclusive right. Such a right goes to the owner by reason of the fact of the land adjacent to water running in a defined natural course. Whether he is a higher riparian owner or lower riparian owner, that right arises jure naturae to the accustomed flow of water both as to quantity and quality. His right to the ordinary or primary use of water flowing past his land extends to domestic purposes including purposes of his cattle. This primary or ordinary right contemplated in the first part of illustration (J) can be exercised without regard to diminution of supply to lower owners. But when that right is sought to be exercised for other purposes such as for irrigating such land or for the purpose of any manufactory situate thereon, it can be called a right to have an extraordinary or secondary user. But this right to use water for extraordinary or secondary purposes such as of irrigating land is subject to the crucial condition that this user shall be reasonable. Reasonable use must always be a matter of degree and the true rule of the matter would seem to be that his user must not deprive lower owners of their accustomed flow of water by interrupting the natural course and regular flow of the stream. What is reasonable user or what may or may not amount to inflicting of 'a sensible injury' to the other riparian owners would primarily be a question of fact. Therefore the user must be a reasonable use and not capricious or such as would Inflict sensible injury on other similarly situated. This standard of reasonableness applies to the volume of water that he can divert, to the purpose for which he can utilise it as also to the mode or method that he may adopt for impounding and channeling such water. The riparian rights of lower owners is to have the water of the stream transmitted to them continuously and in a manner which does not materially affect the enjoyment of the right and an upper riparian owner who makes use for irrigation purpose or the like has to take care to see that the stream continues to flow without interruption and without any substantial diminution in volume. Thus, the right to make use of the river water can only be claimed by the claimants in respect of Survey No. 66 alone and not in relation to his other lands for the reason that Survey No. 66 alone abuts on the river bed. While this land can have, therefore, a right to make use of the river water for irrigation purposes, it has been subject to the conditions referred to hereabove in a manner that it does not cause material injury to the other riparian owners similarly situated.
14. But to assess any compensation on the basis of any such potential right is a very difficult matter in absence of any necessary materials to enable the Court to assess the same. It was pointed out by the learned Advocate General that in absence of any material evidence in that regard, it would not be possible to assess any additional compensation on any such basis. In order to claim any such additional compensation on that basis, as we said above, the land must to in the first place adjacent to the river so as to say that it would get natural advantage of making use of the water thereof. In the present case only S. No. 66 can be said to be so situated. But before one can reasonably assess the compensation on that basis, the claimant must adduce evidence as to the quantity of water that flows by the side of his field. He has also to show the necessary arrangements that he would have to make as also to incur the expenditure in providing for the contrivances for enabling him to make use of any such water for his land. Not only that, but it has also to be shown as to whether there are other riparian owners and if so, to what extent and in what manner they are likely to be affected by reason of making such use for irrigation purpose. We find no evidence in this regard, much though such a facility available to the land may well bo taken into account while considering the market value of the land under acquisition. It would be difficult in the present case to assess any compensation on that basis as such. We have already valued the lands under acquisition at the maximum rate claimed by the respondents and, therefore, there does not remain any scopes for any additional compensation even if we were to think that the market value of that basis of the lands under acquisition can be reasonably increased in view of the possibility of making beneficial use of that land Survey No. 66 in future.
15. In the result, therefore, the appeal fails and it is dismissed with costs.
16. The cross-objections are allowed with costs and the award passed by the trial Court would be modified on the basis that the market value of the lands shall be at the rate of Its. 1,200/- per one acre of land. They shall also be entitled to an amount of solatium at the rate of 15% on the additional claim allowed as also interest at the rate of 4% from the date of award till payment.
17. The claimants-respondents shall, thus be entitled to recover in all Rs. 70,914.76 P, inclusive of an amount by way of solatium of the lands under acquisition. After deducting the amount already awarded by the trial Court, they shall be entitled to an additional sum of Rs. 23,943/-. They shall get future interest at the rate of 4% thereon from the date of award till payment. The appellant shall also pay the costs of the respondents on the amount awarded an the trial Court and bear his own.