N.M. Miabhoy, J.
1. These three appeals arise from the judgment dated 3rd February 1958 delivered by the learned Civil Judge (S.D.) Nadiad in Compensation Cases Nos. 14 19 and 20 of 1956 by which the learned Judge rejected those references obtained by three different sets of claimants. First Appeal No. 194 of 1960 arises from Compensation Case No. 14 of 1956 First Appeal No. 195 of 1960 arises from Compensation Case No. 19 of 1956 and First Appeal No. 215 of 1960 arises from Compensation Case No. 20 of 1956. The lands in all these three references were notified for acquisition under Section 4 of the Land Acquisition Act on 11 March 1950. The acquisition was for and on behalf of the Associated Cement Companies Bombay In appeal No. 194 of 1960 three lands bearing survey Nos. 303 304 and 305/1 measuring 77 bighas and 14 vasas are involved. In appeal No. 195 of 1960 six lands bearing survey Nos. 317, 318, 319, 320, 320 and 321 measuring 130 bighas and 1 vasa are involved. In appeal No. 215 of 1960 lands bearing survey Nos. 315 and 316/1 measuring 26 bighas and 6 vasas are involved. All these lands are situated within the limits of a locality known as Gajapagis Muwada in the village Bhagiakinari. The lands are situated in two different lots. Survey Nos. 303 304 and 305/1 are situated in the northern extremity of the village and the locality. They border on the limits of the neighbouring village Falsani. The other lands survey Nos. 315 316 317 318 319 320 320 and 321 are situated on the southern extremity of the locality in the village and border on the neighbouring village Bodeli. The claimants in both the appeals Nos. 194 and 195 of 196 claimed compensation for the land value at the rate of Rs. 1 200 per bigha. The claimants in appeal No. 194 of 1960 in addition asked for a sum of Rs. 500/for trees and hedges and claimant in appeal No. 195 of 1960 asked for a sum of Rs. 650/- under the same two heads. The land Acquisition Officer awarded to the claimants in appeal No. 194 of 1960 land value at the rate of Rs. 125/- per bigha and a sum of Rs. 75/- as compensation for trees. In addition he awarded solatium at the rate of 15% and a sum of Rs. 661/- by way of interest. The total claim thus awarded to the claimants in appeal No. 194 of 1960 was Rs. 1 667 as against their total claim of Rs. 1 14 75 The same officer awarded to the claimant in appeal No. 195 of 1960 land value at the rate of Rs. 85 per bigha plus Rs. 50/- for hedge a sum of Rs. 177/- for a hut plus solatium at 15%. The total amount thus awarded to this claimant was Rs. 13 321 as against his total claim of Rs. 1 50 275. The claimant in appeal No. 215 of 1960 did not make any claim before the Land Acquisition Officer. The latter awarded to that claimant the same rate of Rs. 85/- per bigha as was awarded to the claimant in appeal No. 195 of 1960. All the three sets of claimants were dissatisfied with the awards made by the Land Acquisition Officer. Therefore they asked for references to the District Court at Nadiad which references were given to them. The District Court transferred the cases for decision to the Court of the learned Civil Judge (Senior Division) at Nadiad. The latter held that the claimants were unable to show that the compensation amounts were inadequate and dismissed substantially the references on merits. He awarded only two very small sums to the claimants in appeals Nos. 194 and 195 of 1960 on the ground that the Land Acquisition Officer had committed an error in giving the measurements of the lands acquired from these two sets of claimants. It is from this judgment, of the learned Civil Judge that the present three appeals have been preferred.
2. The three sets of claimants relied upon in the Reference Court two types of evidence in support of their claims viz. income from the land under acquisition and instances of sales. The learned Judge did not place any reliance upon the evidence relating to income. He considered the instances of sales and found that those instances did not afford any assistance or guidance in the matter of the valuation of the lands under acquisition. He held that each of the sale instances was not a useful instance. In addition the claimants also relied upon an award Ex. 84 dated 27th February 195A given by a Land Acquisition Officer in respect of lands situated in the hamlet of Jamiatpura of the neighbouring village Bodeli. The learned Judge also held that this was not a useful instance. It is on these grounds that the learned Judge dismissed the claims of the three claimants.
His Lordships held that as the claimant in appeal No. 215 of 1960 did not make any claim to the Land Acquisition Officer the additional claim of the claimant is barred under Section 25(2) of the Land Acquisition Act. His Lordship after stating the facts of other two appeals further observed:
The witness who deposes about the sale embodied in Ex. 55 is Gopalji Prabhudas. This witness is the son of the vendor Prabhudas Zaver. It appears from Ex. 55 that land bearing survey No. 484/1 measuring 4 bighas and 11 vasas was sold by the vendor Prabhudas to the vendee Solanki Bhadari Adarji. The sale was an oral sale. According to the witness there was no practice of transferring lands by documents in this particular area when the sale took place. Only a mutation used to be made in the record of rights on the sale taking place. Such mutation was made on 30th May 1948. The mutation entry states that the land had been orally sold by the vendor to the vendee. The entry does not specifically state the date of the oral sale. But the witness Gopalji states that land was sold on 30th May 1948 and there is no cross-examination on that subject. The land was sold for Rs. 1 551 The witness has given the rate per guntha as Rs. 400/-. But it is agreed that this is an inaccurate calculation. The correct figure according to the admission in our Court was Rs. 340/per bigha. The witness states that proper price was paid. In the cross-examination the witness states that he sold the land to build a house. This evidence has been construed by the learned Judge to mean that the land was transferred for building a house therein. The Gujarati deposition makes it clear that this is not a correct rendering of the evidence of the witness. What the witness has stated is that he sold the land for the purpose of building a house in another land of his. But there is no doubt that this does not make the sale a needy one. There is nothing either in the examination-in-chief or the cross-examination which would show that the sale was made because the vendor was in need of funds and did not mind selling his land for a lesser price. Having regard to the evidence of the witness as recorded in Gujarati the learned Advocate General very fairly did not press this contention. We will mention just in a moment the contentions which were urged by the learned Advocate General against the submission of Mr. Shastri that this was a good sale which afforded good guidance and assistance for the purpose of valuing the lands under acquisition.
This leaves only the sale embodied in Ex. 55 in the field. We will first of all mention the various factors on which the learned Advocate General relied for his submission that this sale was not of any assistance or guidance for valuing the lands under acquisition. Survey No. 484/1 is situated in the neighbouring village Falsani and it is not situated in the locality Gajapagis Muwada or in the village Bhogiakinari. The distance between survey No. 484/1 and the lands under acquisition is stated by the witness Gopalji to be half a mile. A study of the map Ex. 85 shows that the distance between the lands in the northern lot and the lands in southern lot is little less than three furlongs. The evidence of the witness Gopalji is not quite clear as to whether the distance deposed to by him is from the northern lot or the southern lot. Mr. Shastri contended that the evidence as given by the witness can be relied upon in respect of both the lots. He contended that it was physically possible for survey No. 484/1 to be so situated as to be equidistant from both the aforesaid lands. However the evidence is not quite clear as to where survey No. 484 is situated and in our judgment it will be better to proceed on the basis that the land is actually situated at a distance of half a mile from the northern lot because the boundaries of the villages Bhogiakinari and Falsani meet at the lands of the northern lot. That would make the distance between the lands of the southern lot and survey No. 484/1 to be more than 3/4th and less than one mile. The evidence of the witness Gopalji does not show the distance between survey No. 484/1 and Falsani village proper. The witness also does not give any indication about the state of the level of survey No. 484/1 and whether it was subject to irrigation or liable to be flooded. Survey No. 484/1 measures 4 bighas and 11 vasas. This area is very small as compared with the extent of the northern and the southern lands. The northern lands measure 77 bighas and 14 vasas and the southern lands 130 bighas and 1 vasa. The learned Advocate General contended that having regard to these features in the evidence of the witness Gopalji or in Ex. 55 the instance embodied in Ex. 55 was of no value whatsoever. The learned Advocate General contended that the burden of proving that the compensation was inadequate and that the price offered by the Land Acquisition Officer was less was upon the claimant and that it was for the claimant to adduce not merely evidence of instances but sufficient evidence to show that the instance was a comparable one and could be utilised for the purpose of fixing the value of the lands under acquisition. The submission was that the aforesaid lacunae in the evidence introduced certain imponderable factors and that though in some cases a Court dealing with land acquisition matters can resort to guess-work or conjectures before the Court can resort to such work it was absolutely essential for the claimant to place sufficient data before the Court on the basis of which even a conjecture or guess-work could be done. No exception can be taken to some of the aforesaid propositions of the learned Advocate General. But we do not agree with all the submissions which the learned Advocate General has made as to what quantum of proof a claimant is required to adduce in order to make out a prima facie case that the compensation is inadequate. In making the aforesaid submissions the learned Advocate General ignores the fact that a land acquisition reference is not a criminal trial but that it is a civil case and that though the initial burden is on the claimant the burden does not remain constant and it is liable to shift according to the evidence adduced by one or the other party. The learned Advocate General placed strong reliance upon certain passages from the case of The Assistant Development Officer Trombay v. Tayabali Allibhoy Bohori reported in 35 Bombay Law Reporter page 763 at pages 767 and 768. The following is one of those passages.
3. Then in view of certain arguments which have been addressed to us I shall make a few observations as to the burden of proof and the functions of the Court in land acquisition references. The acquiring Officers award is of course strictly speaking not an award at all but an offer. It is based on inquiry and inspection and the officer responsible for it is usually a man of experience and local knowledge. He may take evidence but he is not bound to do so and his proceedings are administrative rather than judicial. But if his award is not accepted and the matter is taken into Court the proceedings are thence forward judicial in character. The party claiming enhanced compensation is more or less in the position of a plaintiff and must produce evidence to show that the award is inadequate. If he has no evidence the award must stand and if he succeeds in showing prima facie that the award is inadequate then Government must support the award by producing evidence.
Stopping here for a moment it is noteworthy that Mr. Justice Broomfield after stating that the burden of proof was on the claimant has also indicated in this passage as to what in his opinion was the quantum of proof which was required to be adduced by the claimant and at what stage the Government must step in to support the award. After stating that the burden of proof is on the claimant the learned Judge has expressed the opinion that if the claimant succeeds in showing prima facie that the award is inadequate then Government must support the award by producing evidence. In this term we have observed in quite a number of cases that the Land Acquisition Officers as a general rule sit on the fence and do not lead any evidence whatsoever, except in one or two cases the Land Acquisition Officers had neither cared to go into the witness-box nor to adduce any evidence. It is true that the initial burden being on the claimant the claimant must adduce evidence in the first instance. But if he has adduced evidence and shown that there are materials on the basis of which the lands under acquisition can be valued and that if those instances are found to be reliable the offer made by the Land Acquisition Officer can turn out to be inadequate then if there are any counter instances which are reliable and which can support the award it is the duty of the Land Acquisition Officer to adduce that evidence before the Court and in the absence of such evidence if the materials which are brought on the record by the claimant are found to be reliable there is no reason why the Court should not act upon those materials even though in some cases in assessing the value on the basis of those materials some guess work or conjecture may have to be done. There is high support for the latter proposition in The Secretary of State for Foreign Affairs v. Charlesworth Pilling and Co. and T.D. Charlesworth and Co. 28 Indian Appeals 121. At page 139 Their Lordships of the Privy Council have expressed themselves as follows as regards the functions which all officers executive or judicial have to perform in the matter of the valuations of properties:
It is quite true that in all valuations, judicial or other there must be room for inferences and inclinations of opinion which being more or less conjectural are difficult to reduce to exact reasoning or to explain to others. Everyone who has gone through the process is aware of this lack of demonstrative proof in his own mind and knows that every expert witness called before him has had his own set of conjectures of more or less weight according to his experience and personal sagacity. In such an inquiry as the present relating to subjects abounding with uncertainties and on which there is little experience there is more than ordinary room for such guesswork and it would be very unfair to require an exact exposition of reasons for the conclusions arrived at.
In this case no evidence has been adduced on behalf of the Land Acquisition Officer at all. The learned Civil Judge who has given reasons for rejecting those instances which in our judgment are not at all sufficient or proper. In fact the learned Advocate General was constrained to remark that he could not support some of the reasons given by the learned Judge. For example the learned Judge has stated that the claimants were not entitled to more compensation because the lands under acquisition had been purchased by them cheaply. The evidence discloses that the claimants had purchased those lands about 22 years ago. We cannot agree with the learned Civil Judge that because the lands were purchased at a certain rate about 22 years ago therefore the claimants whose lands are being acquired after a lapse of 22 years should not be paid anything more. Then the learned Judge has said that the value of lands in the locality was high because of the presence of lime stone underground and he has offered certain remarks as to whether the claimants were or were not the owners of the lime stones underground. But in the present case we do not find anything on the record which would suggest that the claimants claim a higher price because of the existence of the lime stones underground. On the contrary the evidence which they have adduced is that these lands were being used as agricultural lands and the instance on which we propose to rely is an instance of an agricultural land and there is nothing to show that a higher price was paid under that particular instance because of the existence of the lime stones below that land. The learned Judge has rejected one of the instances adduced by the claimants on the ground that the witness did not remember as to what price he had paid for his lands which were purchased by him from the Government in 1932. This is hardly a satisfactory ground for rejecting the evidence of that witness in relation to the purchase made by him in 1952. Under the circumstances in our judgment the judgment of the learned Civil Judge is not of much assistance to us in deciding the present appeals. In our judgment the learned Judge has not paid sufficient attention to the importance of the sale embodied in Ex. 55.
The learned Advocate General also relied upon another passage from the case of The Assistant Development Officer v. Tayabali Allibhoy Bohori reported in 35 Bombay Law Reporter 763 at page 768 which is as follows:
But I can call in aid the general tenor of the judgments of that learned Judge (reference is to Mechod J.) in land acquisition cases to support me when I say that the Court is bound to treat the matter judicially as far as possible and it should only guess when science or commonsense will not point to a definite conclusion.
4. It is important to note that the learned Judge observes that guesswork is to be1 resorted to not only when science will not point out to a definite conclusion but also when commonsense fails to do so. In deciding this case as in fact all other cases aid of both science and commonsense must be taken. As we shall point out not only some of the arguments which the learned Advocate General advanced against the acceptance of the sale embodied in Ex. 55 are not based on facts but some of the arguments which can be urged in support thereof are conformable to commonsense.
The learned Advocate General contended that the evidence did not show that survey No. 484/1 was an agricultural land He contended that the evidence did not support the conclusion one way or the other as to whether it was an agricultural land or a non-agricultural land. We do not think we can agree with the submission the land sold is not in the village proper. The land sold is a land which measures 4 bighas 11 vasas. The person who has sold the land is an agriculturist the witness speaks about the fertility of the soil. When one speaks about the fertility of a land one does so only when he speaks about land which is used for agricultural purposes. One does not do so when he speaks about land which is used as a building site. We have no doubt whatsoever that the land survey No. 484/1 was an agricultural land and was sold as such. In our judgment if the learned Government Pleader intended to contend that the land was a building site or had a building potentiality it was the duty of the learned Government Pleader to get that fact placed on the record and it was not the duty of the examiner-in-chief to place the negative evidence on the record that the land was not agricultural or that it did not possess building potentiality. The learned Advocate General is right in saying that the land survey No. 484/1 is situated in another village. But that in itself in our judgment is not a circumstance which should render the instance incomparable. The two sets of lands are situated in two neighbouring villages. Of course if the distance between the two sets of lands is very great the instance may not be useful. But here we have definite evidence of the purchaser that the distance between the two sets of lands was half a mile which we have construed to be half a mile from northern lot and less than a mile from the southern lot. But the learned Advocate General contended that it was not enough to know this fact. He contended that it was also necessary to know what the distance was between survey No. 484/1 and the village Falsani proper. He contended that if the land survey No. 484/1 was situated near the village proper then it would not be a comparable instance with the lands under acquisition. It is true that there is this lacuna but in our judgment an exaggerated importance cannot be given to the situation of survey No. 484/1. Even if we assume that the land survey No. 484 was near Falsani village and had the advantage of that proximity the fact would remain that the northern land would be only half a mile away. In evaluating agricultural lands though distance is a factor to be taken into consideration the distance does not play in ordinary cases such an over-riding and important role as to render the instance altogether useless. If a land happens to be near a village it has the advantages of that proximity such as less transport charges and greater facilities for access and watch. But a distance of about half a mile or even a mile from one field and another is not in itself of much importance though due allowance must be made for that particular fact. The learned Advocate General contended that the very fact that the lands are situated in two different villages makes the instance a useless one as the two villages may be at different levels of development. But there is no evidence to show that the two villages were at different stages of development. We may point out that if such was the case of the Land Acquisition Officer materials should have been placed by him on the record to that effect. The important point in our judgment so far as the agricultural lands are concerned is the fertility of the soil. This is a factor which weighs more with an agriculturist in ordinary circumstances than any other factor which would go to compose the price of an agricultural land. On this subject there is clear evidence of the seller that the lands under acquisition were of equal fertility with the land survey No. 484/1. There is no cross-examination whatsoever on this subject. The witness appears to us to be independent. We do not see any good reason for not placing any reliance upon this part of his evidence. In our judgment this is an important circumstance which renders the instance useful for the purpose of evaluating the lands under acquisition. It is only in very rare cases that one comes across a sale of the very land which is under acquisition. In that case ordinarily it would afford the best guidance for evaluating the land if the sale had taken place within a reasonable time from the date of notification and there was no evidence of any rise or fall in prices during the interval. But in a large majority of cases in land acquisition matters instances 6 which are available are instances of sales of other lands. What the law requires is that in order that the instances may be useful they must be of similar lands. It would be imprudent or unreasonable to insist that the lands must be identical lands. No two lands can be identical from all points of view. There are bound to be differences in the matters of size situation fertility etc. These differences must be taken into account and due allowances or deductions or additions must be made on account of interplay of these various factors. But the fact that there are differences between the instances and the land under acquisition should not deter the Court or the officer concerned from placing reliance upon the instance if otherwise it is found to be a useful one. In the present case in our judgment the facts that the two sets of lands are of equal fertility that they are separated in the case of one lot by only half a mile and in the case of another lot by less than a mile are circumstances which render the instance of sale of survey No. 484/1 a comparable instance. But we must make allowances for the fact that the survey No. 484/1 is nearer the village Falsani than the two sets of lands. We must also make allowance for the fact that survey No. 484/1 is a smaller plot. We do not wish to convey that a large agricultural plot is necessarily a disadvantage. In certain circumstances it may be put down as an advantage. But in the present case we propose to put this down as a disadvantage on the ground that the number of competitors for the purchase of a plot of large size is less than the number of purchasers of a small economic holding. We must also take into consideration that there is an interval of about two years between the date of the aforesaid sale and the date of the acquisition. But at the same time we must also bear in mind that we have no evidence whatsoever to show that the prices in the meantime had slumped. We do not propose to attach any importance to the argument of the learned Advocate General that there was no evidence as to the state of the level of survey No. 484/1. We have evidence that the lands under two lots were leveled after the purchase by the present claimants We also do not propose to attach any importance to the argument of the learned Advocate General that there was no evidence whatsoever that survey No. 484/1 was subject to irrigation. There is nothing on the record to show that that land was irrigated. If such was the case in our judgment the cross-examiner should have drawn out the point. If the survey No. 484/1 was subject to floods it would be a disadvantage rather than an advantage. In any case there is nothing on the record to show that the lands under acquisition were subject to floods. In our judgment therefore the instance embodied in Ex. 55 is a good and a comparable instance which was wrongly not taken into account by the learned Civil Judge.