G.N. Ray, J.
1. This appeal arises out of the judgment and decree passed by the learned Special Land Acquisition Judge, Alipore in L.R.A. Case No. 4 of 1979. The State of West Bengal is the appellant in the instant appeal and it appears that certain lands including tanks and structures were initially requisitioned under the West Bengal Act II of 1948 and were subsequently acquired. It appears that after the referring claimants respondents received a notice under Section 5(1) of the said Act, they preferred an objection bymaking claims for the compensation for the lands, structures etc. giving details of such claim on different items. It appears that the Land Acquisition Collector had valued the acquired solid land @ Rs. 633.50 per cottah and tank land @ Rs. 316.75 per cottah and on such basis, an award of compensation for structures, trees and other immovables was also made for total sum of Rs. 2,23,462.11 paise on all heads. The referring claimants being dissatisfied with the said award, made an application under Section 18 of the Land Acquisition Act, 1894 and on the said application, L.R.A. 4 of 1979 arose.
2. The State of West Bengal in the said appeal filed a certified copy of the judgment passed on December 15, 1976 by the learned Additional Special Land Acquisition Judge in L.R.A. 268 of 1975 in order to show that the value of the solid land in the vicinity was @ Rs. 394 per cottah on Jan. 24, 1974. The referring claimants respondents, however, relied on certain documents showing the value of land in the vicinity at a much higher rate and it also appears that witnesses were also examined on behalf of the referring claimants including one Jamaluddin Ahmed, son of the Mutwalli of Wakf Estate from which the acquired land had been purchased. After taking into consideration all the exhibits showing the price of the land in the vicinity of the acquired lands and the evidence adduced by the parties, the learned Land Acquisition Judge, inter alia, came to the finding that the value of the acquired lands which faced the Diamond Harbour Road should be fixed @ Rs. 4033/- per cottah and the lands on the back portion should be valued at a reduced rate @ 3227/- per cottah. The learned Judge also fixed the value of the tank lands as half of the solid lands. He had also considered the question of reduction of the value of the lands because of the bigger size of the plots in question. The learned Judge had come to the finding that the document sought to be relied on by the State Government should not be accepted because the said documents related to lands which were not similarly situated. The State Government contended that the referring claimants having purchased the disputed lands at the rate of Rs. 1,26,000/-should not be permitted to claim any higher sum and in any event, the enhancement of the value for only about three years must be insignificant. The learned Judge accepted the claims of the referring claimants that the saidproperties had been purchased by the referring claimants from the Wakf Estate at a lesser price because the referring claimants had already been the tenants under the said Wakf Estate and as such, the Wakf Estate had agreed to sell the said land only for Rs. 1,26,000/- but the said price was not the indication of the market value of the land in the days of acquisition. It appears that on the basis of the valuation noted by the learned Judge a decree for Rs. 4,38,301.05 paise was passed being the enhanced amount and the learned Judge also gave a decree for 15% as solatium and also interest at the rate of 6% per annum of the total enhanced amount from 24-1-74 till payment with a further recurring compensation @ 6% per annum on the market value from 11-9-73 to 3-1-74. Against the said judgment and decree, the State of West Bengal preferred this instant appeal.
3. Mr. Sengupta appearing for the appellants, has contended that the learned Judge has given the decree in violation of the provisions of Section 25(1) of the Land Acquisition Act. He has contended that under Section 25(1), the court cannot give an award exceeding the amount claimed by the referring claimants. Mr. Sengupta has also contended that admittedly the acquired properties consist of big plots of lands containing structures, tanks etc. and the price of bigger plots is comparatively much less than the smaller plots. For this contention, he has referred to a decision of the Supreme Court made in the case of Sm. Padma Uppal v. State of Punjab, reported in : 1SCR329 . Mr. Sengupta has contended that when the referring claimants has purchased the said lands at Rs. 1,26,000/- only a few years back, it should be reasonably accepted that the said price was the fair and reasonable market price at which the intending seller had agreed to sell to the intending purchaser who has agreed to purchase. Mr. Sengupta has contended that in the said deeds, it has not been mentioned that the said lands had been sold at a concessional rate because the purchasers were the tenants in respect of the said lands. Mr. Sengupta has contended that when a price is paid by the owner, such price usually reflects the market value of the recent time, after taking into consideration the relevant factors involving a transfer of land. For this contention, Mr. Sengupta has referred to another decisionof the Supreme Court made in the case of Dollar Company, Madras v. Collector of Madras, reported in : AIR1975SC1670 . In the said decision, the Supreme Court has held that if the sale is of recent date, then all that need normally to be proved is that the sale was between a willing purchaser and a willing seller and there has not been any appreciable rise or fall since such transaction. Mr. Sengupta has submitted that within two or three years of the sale, there has not been any appreciable rise in the price and such evidences have not been adduced by the referring claimants. Accordingly, the price mentioned in the sale deeds, should have been accepted by the learned Judge as reasonable market price on the relevant date.
4. Mr. Sengupta has also submitted that in an urban area where lands are sold in small plots of land for domestic user or similar other user, it is always desirable to resort to belting system of valuation. He has submitted that the lands in front of roads and other main thoroughfare and locality, are reasonably expected to fetch higher price than the lands at the back portion. He has submitted that unfortunately, the learned Judge has not given proper allowance in reducing the value because most of the lands did not appertain to Diamond Harbour Road and he has reduced the price for the back portion only to a marginal extent. In this connection, Mr. Sengupta has referred to a decision of this Court made in the case of Nityagopal Sen Poddar v. Secy, of State, reported in AIR 1933 Cal 25 and another decision of this Court reported in AIR 1973 Cal 44 J. Mr. Sengupta has also submitted that when bigger plots are transferred, the price is generally low than the smaller plots because the intending purchaser for smaller plots are more in number. He has submitted that in the instant case, substantially big plots have been transferred to the referring claimants and accordingly, the price of such plots or the market value of such plots must be substantially low than the smaller plots in the Vicinity. He has submitted that the learned Judge has failed to take note of the reduction of value because of the size of the plots in proper manner and the learned Judge has allowed a very marginal allowance in considering the size of the plots. In this connection, he has referred to a decision of this Court made in the case of State of West Bengal v. Phanindra Kumar Kundu, reported in : AIR1973Cal441 . It has been held in the said decision that where property consisted ofa large piece of land which did not have same frontage on both sides and where it has not proved that the land if divided in plots, would fetch same price in respect of all the plots, the valuation of the land on dividing it in front and back portions on a belt system could not be said to be incorrect. Mr. Sengupta has also submitted that since the disputed lands consist of bigger plots, the referring claimants must have incurred cost of development if they had sold the said lands to other purchasers and the learned Judge should have also taken into consideration the cost for development. Mr. Sengupta has also submitted that excepting a small portion of the acquired lands, most of the lands were vacant lands with tanks and there is no manner of doubt that the referring claimants should have incurred substantial expenses on the score of development of the said plots. In this connection, he has referred to a decision of the Supreme Court made in the case of Brigediar Sahib Singh Kalha v. Amritsar Improvement Trust reported in : AIR1982SC940 .
5. Mr. Mukherjee appearing for the respondents has, however, submitted that the provisions of Section 25(1) of the Land Acquisition Act were not attracted in the facts and circumstances of the case because admittedly, no notice under Section 9 has been served on the referring claimants. There was also no occasion to serve such notice because the acquisition, in the instant case, was made through requisition proceeding and notice under Section 5 of the West Bengal Land (Requisition and Acquisition) Act, 1948 (Act II of 48) had been served on the referring claimants. Mr. Mukherjee has also contended that in any event, in order to comply with the provisions of Section 25(1) of the said Act, it is necessary and incumbent upon the State Government to establish that all formalities under Section 9 of the Act had been strictly complied with. Mere service of the notice by itself cannot pin down to the referring claimants to the provisions of Section 25 of the Land Acquisition Act. In support of this contention, Mr. Mukherjee has referred to a decision of this Court made in the case of Tarapada Chaliha v. Secy. of State, reported in 34 Cal WN 323 : (AIR 1930 Cal 471). In the said decision, a notice under Section 9 of the Land Acquisition Act had been served on the referring claimants but such notice was short of two days and this Court had held that notice under Section 9 being bad in law, it was not possible to apply Section 25 of the Land Acquisition Act inorder to prevent the referring claimants from putting forth their claims. It appears that such view has also been taken by the other High Courts and Mr. Mukherjee has referred to a decision of the Mysore High Court made in the case of Special Land Acquisition Officer v. Shivaputra Appayya Patil reported in AIR 1974 Mys 5 and the decision made in the case of Sushila Devi v. State of Bihar reported in : AIR1963Pat469 . It has been held in the Mysore decision that the burden is on the Collector to prove that prerequisites of Section 9 of the Land Acquisition Act have been duly complied with. The Patna High Court in Sushila Devi's case has held that onus to prove that due compliance of section is on the State and entry in the order-sheet that such notice had been served will not prove due compliance with the provisions of Section 9 of the Act. Mr. Mukherjee, has also referred to another decision of this Court made in the case of Radha Koer v. Ajodhya Das reported in (1907) 7 Cal LJ 262. In the said case, the claim of annulment of tenancy under Section 167 of the Bengal Tenancy Act came up for consideration before this Court and relying on an earlier decision of this Court made in the case of Mir Tapurah Hossein v. Gopi Narayan reported in (1907) 7 Cal LJ 251, this Court held that unless the notice under Section 167 of the Bengal Tenancy Act had been properly served, the incumbrance must subsist. Mr. Mukherjee has submitted that the State of West Bengal has failed to prove that the notice under Section 5 of Act II of 48 had been served in accordance with the provisions of the said section and as such, even assuming that such service of notice can also attract the provisions of the Land Acquisition Act, for the failure to discharge the onus by the State Government, the State of West Bengal cannot be permitted to contend that the provisions of Section 25(1) are attracted in the facts of the case. Mr. Mukherjee has also contended that a referring claimant is not restricted to different valuation for different items in the petition of reference although the referring claimant may be held limited to the total amount claimed for the entire property. For this contention, Mr. Mukherjee has referred to a decision of this Court made in the case of Charu Prokash Ghosh v. State of West Bengal reported in : AIR1967Cal631 . He has submitted that the total claim made by the referring claimants for the entire property under acquisition has not been exceeded by the learned Judge and as such, no illegalityhas been committed by him in passing the said award in favour of the referring claimants.
6. Mr. Mukherjee has also submitted that the disputed properties are admittedly very close to Calcutta and they had been purchased and utilised by the referring, claimants for industrial use for running a Saw Mill and he has submitted that there is evidence that in the vicinity, there are other industrial undertakings. In such circumstances, the value of the bigger plots cannot be less but they may be even higher than the smaller plots because such bigger plots will suit the purpose of being utilised for industrial undertakings. Mr. Mukherjee has submitted that the learned Judge is quite justified in not accepting the documents relied on by the State Government. In support of its contention that the value of the disputed land as claimed by the referring claimants is not proper. He has submitted that the documents relied on by the State Government as a proof of the correct value of the land similarly situated, have not been accepted by the learned Judge on the finding that the said lands were land locked lands and cannot be compared with the lands in question. Mr. Mukherjee has also submitted that one of the documents sought to be relied on by the State of West Bengal is a decision in another L.A. proceeding after the award was made by the Collector, in the instant case. He has contended that the documents which had not been taken into consideration by the Collector in passing the award cannot be relied on by the State of West Bengal at the hearing before the learned Land Acquisition Judge. In support of this contention, Mr. Mukherjee has referred to a decision of this Court made in the case of State of West Bengal v. Secretary, Union Club, Purulia, reported in : AIR1972Cal225 . It has been held in that decision that the transaction or sale not relied on by the Collector can be relied by the State in a reference under Section 18 of the Land Acquisition Act. It appears that the said decision was made on relying on a decision of this Court made in the case of Charu Prokash Ghosh v. State of West Bengal reported in : AIR1967Cal631 and also a decision of the Andhra Pradesh High Court made in the case of Sub-Collector Ongole v. Y. Anumanchamma reported in : AIR1967AP230 . Mr. Mukherjee has submitted that the learned Judge has given all possible allowances in favour of the State by reducing the value of the land in consideration thatsome of the plots were bigger plots of land. The learned Judge has also given allowance for the tank lands and has computed the value of the tank lands as half of the value of the solid landq. He has submitted that the learned Judge having given very cogent reasons for the valuation of the properties, since acquired, no interference in the appeal is called for.
7. After giving our anxious consideration to the respective contentions of the learned Counsel for the parties, it appears to us that the learned Judge not having exceeded its award in favour of the referring claimants to a sum more than claimed by the referring claimants for the entire property, the provisions of Section 25(1) are not attracted and Mr. Mukherjee is justified in relying on the decision of this Court made in the case of Charu Prokash Ghosh reported in : AIR1967Cal631 . We are also inclined to accept the contention of Mr. Mukherjee that in order to attract the provisions of Section 25(1) of the Land Acquisition Act, the State Government has an onus to prove that provisions of Section 9 had been strictly complied with. It has been rightly contended by Mr. Mukherjee that no evidence has been led by the State Government to show that the notice under Section 5 had been served after duly complying with the requirement of the said section. In the circumstances, it is not necessary to decide the contention raised by Mr. Mukherjee that if the acquisition is made through a requisition proceeding, the provisions of Section 25(1) cannot be made applicable because there is no occasion to serve notice under Section 9 of the Land Acquisition Act. It may be noted in this connection that for determining the market value of the land on the relevant date, all relevant factors namely, the relationship of the parties, the market conditions, the date of sale, the value of similarly situated land in the vicinity should be taken into consideration. It may also be noted in this connection that although such valuation is required to be determined objectively with reference to the relevant factors, there is always the possibility of some subjective element of the learned Judge determining the valuation. It has been very aptly pointed out by the Supreme Court in the case of Shamalbhai Lallubhai Patel v. Addl. Spl. Land Acquisition Officer reported in : AIR1977SC899 that 'there is an element of guess work inherent in most cases involving determination of market value of the acquiredland. But this, in the very nature of thing, cannot be avoided.'
8. It appears to us that the learned Judge has taken into consideration the various relevant factors for determining the market value of the acquired properties and has given cogent reasons for the same. The learned Counsel for the appellants has not succeeded in showing any strong point impelling us to take a contrary view in the matter. It, however, appears to us that the learned Judge has held that the value of the solid lands appertaining Diamond Harbour Road should be Rs. 4033/-per cottah and the value of the land which does not appertain to such road or which is not in front of the road, should be reduced and the learned Judge has indicated that the reasonable value of such lands should be Rs. 3227/- per cottah. The learned Judge has also indicated that the value of the lands appertaining to tank should be half of the value of the solid lands. It appears to us with reference to settlement map (Ext. 10) that plots Nos. 1641 and 1642 not only comprise tanks but such plots do not appertain to the Diamond Harbour Road. It, therefore, appears to us that on the basis of the determination by the learned Judge, the said plots should be valued @Rs. 1614/- per cottah being half of Rs. 3227/- being the value of similarly situated solid lands. It, therefore, appears to us that in computing the valuation of the acquired lands, the said plots should have been calculated not @Rs. 2016/- per cottah but at Rs. 1614/- or Rs. 1600/- being rounded off. It appears that the said plots Nos. 1641 and 1642 measuring about 50 decimals of land should be calculated @ Rs. 1600/- per cottah and the amount under the decree appealed from, should be reduced to that extent.
9. Save as aforesaid, the judgment and decree, passed by the learned Land Acquisition Judge are hereby affirmed, The appeal is therefore allowed in part.
10. By way of abundant caution, we make it clear that in addition, the referring claimants should get solatium at the rate of 15% and statutory interest @6% per annum and recurring compensation @6% per annum from the date mentioned by the learned Land Acquisition Judge.
11. There will be no order as to costs.
Sankariprasad Das Ghosh, J.