Anil K. Sen, J.
1. This appeal is directed against the judgment and award dated Nov. 8, 1971, passed by the learned District Judge, Burdwan, in L. A. Case No. 58 of 1971. The claimant is the appellant.
2. On May 25, 1956, the respondent State issued a preliminary notification under Section 4 of the Land Acquisition Act (hereinafter referred to as the said Act) the material part whereof recited 'whereas it appears to the Governor that land in the District of Burdwan is likely to be needed for a public purpose, namely, for the development of industries in the Durgapur area notice is hereby given to all whom it may concern that in exercise of the powers conferred by Section 4 of the Land Acquisition Act (1 of 1894) the Governor has authorised the engineers and their subordinates for the time being engaged on this undertaking to enter upon and survey the land and do all other acts required for the proper execution of their work as provided for in the said section.' The notification then proceeded to specify the general route to be taken for the survey within the area bounded on the north by the District of Burdwan, east by a line suitably extending from 108 mile post of G. T. Road being a width of about 3 miles all along from the western boundary of thana Kangsa, south by the Damodar river in the District of Burdwan and west by the eastern boundary of thana Faridpur.
3. There is no dispute that notwithstanding the aforesaid notification underSection 4, the respondent-State issued a fresh notification under Section 4 and Section 17(4) of the said Act, notifying that the lands specified in the two Schedules annexed to the notification, namely, Schedule A (waste and arable land) and Schedule B (other than waste and arable land) are likely to be needed for the public purpose of development of industries in Durgapur area. This notification called for objections under Section 5A of the Act to the proposed acquisition of lands other than the waste and arable lands but such objections were ruled out in respect of the waste or arable lands in exercise of powers under Section 17(4) of the Act.
4. A declaration under Section 6 of the Act followed the aforesaid second notification under Section 4 on August 20, 1964, and as a result thereof land measuring 1.16 acres in total appertaining to 4 different plots differently situated being Plots Nos. 735, 710, 824 and 762 of Mouza Khantpukur, Police Station Kanksa, District Burdwan belonging to the claimant-appellant was acquired. The claimant/appellant lodged a claim of compensation under Section 9 of the Act claiming compensation for the land at Rs. 10,000 per cottah which works out a rate of little over Rs. 6,00,000 per acre, The Collector, however, awarded her compensation calculated at the rate of Rs. 2,310 per acre. In doing so undisputedly the Collector made the assessment at the market value prevailing on the date of preliminary notification under Section 4 of the Act, namely, May 25, 1956. The claimant/appellant asked for a reference under Section 18 of the Act wherein it was claimed that the compensation should have been determined on the basis of the market value prevailing on the date of the second notification under Section 4 of the Act, namely, August 10, 1964 and that she should have been given compensation at the rate of Rs. 1,85,000 per acre. A reference to the court was made on the basis of the said claim and it appears that in court the claimant filed an application for amendment of her claim by enhancing the rate claimed from Rs. 1,85,000 to Rs. 6,00,000 per acre.
5. The claim of the claimant/appellant was contested by the respondent/ State and the learned District Judge framed the following two issues in adjudicating the said claim.
'1. Whether the compensation should be assessed on the basis of the marketvalue as it was on 25-5-56, that is, the date of preliminary notification or on the basis of the market value as it was on 10-8-64, that is, the date of second notification?
2. What should be the amount of compensation?'
6. So far as the first issue is concerned, the learned Judge held against the claimant/appellant. Though strong reliance was placed on behalf of the claimant on an earlier decision of this court in the case of Jogendra Nath Chatterjee v. State, : AIR1971Cal458 , the learned Judge took the view that the said decision is distinguishable as unlike the facts of that case in the present case in the preliminary notification dated May 25, 1956, the locality had been sufficiently specified with reference to the boundaries and names of Mouzas to render it a valid and competent notification under Section 4. The learned Judge further held that the said earlier preliminary notification cannot be said to have been superseded or not acted upon by the State and the said position according to the learned Judge is well established by two-fold facts, namely, (1) the Collector assessed the compensation at the rate prevailing in the locality at the time of the preliminary notification and (2) the State itself issued a second notification intending to take away the rights of the owners of the second notification to file objections under Section 5A in respect of the waste and arable lands. Such being the position, according to the learned Judge, the lands acquired should be valued on the basis of the market value as prevailing on the date of preliminary notification dated May 25, 1956, and not on the basis of the market value prevailing on the date of the second notification as claimed by the claimant/appellant.
7. Proceeding to consider the second issue, the learned Judge considered the documentary evidence led on behalf of the claimant as also the State -- no oral evidence having been led by either of the parties. While considering the documentary evidence relied on by the claimant the learned Judge discarded the different sale deeds (Ext. 3 series) barring Ext. 3b principally on the ground that they represent sales at a time long after the relevant date, namely, May 25, 1956, although the learned Judge gave additional reasons for discarding one or other of the said documents. Ext. 3b was discarded by him as the land conveyed thereby appertains to a different Mouza and there was no evidence how such lands could be compared to those for which compensation was being assessed. Moreover, it was found that Ext. 3b works out a rate of Rs. 2,500 per acre which can hardly support the claim put forward by the claimant. Of the other two documents Ext. la and Ext. 1b the learned Judge discarded Ext. la again principally on the ground that the same represents a sale dated June 18, 1964, long after the relevant date and also because of the fact that the land covered by the sale deed is situate within the municipal area quite near the industrial town, school, college, hospital and telephone exchange and there was no evidence to show how such land can be treated as a comparable unit for the land for which the compensation was being assessed. He, however, accepted the other document Ext. 1b though it represents a sale of the year 1964 since on the price the rate worked out was Rs. 4,000 per acre in respect of a big plot. The learned Judge discarded the Bynanamas (Ext. 2 series) for reasons similar to those for discarding Ext. la. Two awards relied on by the claimant, namely, Exts. 5 and 5a (the relevant decrees being Exts. 6 and 7) were discarded by the learned Judge on two-fold grounds, namely, (1) the notification under Section 4 for such lands were issued in the year 1962 long after the relevant date and (2) that the lands thereunder acquired appertain to Mouza Birbhanpur, a Mouza different from Khantpukur and there being no evidence how such lands can be said to be comparable to the lands for which compensation was being assessed. Other documents relied on by the claimant were held to be of no assistance for assessing the compensation as claimed by the claimant.
8. The learned Judge then proceededto consider the documents Ext. A series filed by the respondent-State. It was found that Exts. A to A3 represent sales between the years 1954 and 1956. On the findings of the learned Judge Ext. A and Ext. Al which respectively worked out the price prevailing in the year 1956 to be Rs. 1,900 per acre and Rs. 1,500 per acre may be taken into consideration for assessing the price of the bigger plot like plot No. 762 but those could furnish no basis for assessing the price of the other smaller plots. The learned Judge, however, jprincipally relied on Exts. A4,A5, A6 and A7 together with the claimant's document Ext. 1b in making the assessment. These documents Exts. A4 to A7 represent sales of the year 1964 and they work out the price not exceeding Rs. 4,500 per acre. Accordingly, the learned Judge concluded: 'Having regard to the facts and circumstances and potential value of the land I hold that the market value of the large area of the suit plots was more or less about Rs. 4,000 per acre and that of small area was more or less Rs. 6,000 per acre in the locality at the time of preliminary notification. The acquired land in respect of case No. 58 of 1971 being two smaller plots ,and two bigger plots I hold that on an average the market value of those plots of land should be assessed at the rate of Rs. 5,500 per acre for compensation.' He made the award accordingly. Feeling aggrieved by the award so made the claimant has preferred the present appeal and in doing so, the claimant had originally limited her claim to the sum of Rs. 1,02,040 being the difference between the compensation claimed at the rate of Rs. 1,00,000 per acre and the compensation awarded but that was later amended to Rs. 6,89,400.
9. Mr. Gupta appearing in support of this appeal has strongly assailed the findings of the learned Judge on both the issues, as aforesaid. According to Mr. Gupta on the facts and circumstances of the present case in determining the amount of compensation for the lands acquired, the court under Section 23(1) should have taken into consideration the market value of the land at the date of the second notification under Section 4, namely, Aug. 10, 1964, and not the earlier preliminary notification. According to Mr. Gupta the preliminary notification was not a competent or a valid notification under Section 4 of the Act and in any event the respondent-State itself having superseded the said notification, the date of the preliminary notification could have no relevance in the matter of determination of compensation. According to Mr, Gupta this position is well established by the decision of this court in the case of Jogendra Nath Chatterjee : AIR1971Cal458 (supra) and the unreported decision of the Supreme Court in the case of Bhutnath Chatterjee v. State in Civil Appeal No. 654 of 1966 disposed of on March 14, 1969, referred to and relied on by the Calcutta decision itself and the learned Judge was in error in distinguishing the said decision on grounds which can hardly be sustained. According to Mr. Gupta once this court accepts his first contention the award as made and the compensation as assessed must necessarily be set aside as the same was made with reference to the market value prevailing at a time 8 years prior to the relevant date, namely, Aug. 10, 1964. Necessarily, Mr. Gupta invited us to accept the appellant's claim in this appeal and assess the compensation Tor the lands acquired at the rate at least of Rs. 1,00,000 per acre in view of Ext. 3 series. Strong reliance is placed by Mr. Gupta on Ext. 3g, a sale deed dated April 24, 1964, whereby 1 cent of land from each of the 4 plots acquired were sold by the claimant at a price which works out at a rate of Rs. 1,85,000 per acre and that being the best evidence it is contended by Mr. Gupta that we should make the assessment on the basis of the said document. At the hearing Mr. Gupta pressed before us an application for additional evidence under Order 41 Rule 27 of the Civil P. C. in respect of certain subsequent awards made by the Land Acquisition Judge, Burdwan, in respect of other lands covered by the same notification and declaration wherein the learned judge had not only accepted the plea put forward on behalf of the claimant that the compensation should be determined with reference to the price prevailing on the date of the second notification and not the preliminary notification but assessed the compensation at or about the rate of Rs. 1,80,000/-per acre.
10. Mr. Das appearing on behalf of the respondent-State has contested each of these points raised by Mr. Gupta. According to Mr. Das, the learned Judge has correctly decided that the compensation should be determined with reference to the market value prevailing on the date of the preliminary notification and not the second notification as according to Mr. Das the mere fact that there had been successive notifications under Section 4 does not rule out the first of such notifications in the series. Mr. Das has next contended that if this court does not accept the conclusion of the learned judge that the compensation is to be assessed with reference to the date of the preliminary notification, then the matter should be sent back to the court below for a fresh determination because on the evidence now available to this court it would be difficult to determine what should be the fair compensation. It has been pointed out by Mr. Das that the documents produced show varying prices of lands prevailing even in the year 1964. While Ext. 1b and Exts. A4 to A7 make out a price not exceeding Rs. 4,500/- per acre some of the documents in Ext. 3 series work out prices at rates anything between Rs. l,80,000/-to Rs. 6,00,000/-. In the absence of any evidence as to how far the lands covered by these different documents are comparable to the lands for which the compensation is being determined it would be difficult for this court to make the assessment. So far as Ext. 3g is concerned Mr. Das has contended that it is necessary to find out how far this sale represents any bona fide transaction. Accord' ing to Mr. Das it is rather strange that land measuring only 1 cent from each of the 4 plots together with another plot being plot No. 912 was being sold by the claimant to one person Lalit Kumar Roy just a few months prior to the second notification. The plots are not contiguous to each other and it is difficult to appreciate how a purchaser purchases the lands measuring 1 cent from each of those plots differently situated and for what purpose. Mr. Das has further drawn our attention to the fact that while the claimant by her documents Exts. 3e and 3c both dated April 18, 1964, had been selling lands out of plots Nos. 1209, 1210 and 1211 at prices which work out at Rs. 31/2 lakhs per acre it is rather strange that she herself purchases two months earlier such lands by Ext. A6 which works out the rate of Rs. 250/- per acre. In such circumstances, Mr. Das has contended that in case the award as- made is not upheld by this court the proceeding should be remanded for a thorough investigation as to the bona fide of the different transactions represented by Ext. 3 series and also to find out how far lands covered thereby can be held to be comparable to the lands for which the compensation is being determined. So far as the application for additional evidence is concerned, it has been contended by Mr. Das that since appeals are pending against those awards this court should not admit them as additional evidence because the awards are not final.
11. We have carefully considered the rival contentions raised before us. In ourconsidered opinion, however, the decision of the learned judge on the first issue cannot be sustained. In our view there is no distinguishing feature between the present case and the case of Jogendra Nath Chatterjee : AIR1971Cal458 (supra) on which reliance was placed by the claimant before the learned judge. The distinction which was sought to be made by the learned judge is, in our opinion, based upon a clear misreading of the preliminary notification dated May 25, 1956. We have set out the relevant part of the notification hereinbefore. It would appear clear from the preliminary notification itself that the locality notified out of which the land is likely to be needed for public purpose is on the face of the notification the District of Burdwan, Clearly, there was no specification of that locality. What was specified in such notification was l,he general route of the survey for the purpose of Section 4(2) of the said Act. The learned judge misconstrued the notification in thinking that what was specified for the purpose of such survey constituted the locality notified as likely to be needed far a public purpose under Section 4(1) of the Act. Under Section 4(1) of the Act, the Governor is to notify the land in any locality which is needed or likely to be needed for public purpose. On such a notification being issued, the Governor may under Sub-section (2) authorise any officer to enter upon and survey and take levels of any land in such locality. The authorisation under Sub-section (2) may be in respect of land which need not necessarily be the entire land which is notified under Sub-section (1) as the land likely to be needed for a public purpose and as such specification of land to be surveyed cannot be read as specification of land or the locality in which the land is likely to be needed for a public purpose. There can be no dispute that in order to be a competent and effective notification under Sub-section (1) of Section 4 of the Act, the land has to be specified with that amount of certainty as would enable the people to put forward their objections under Section 5-A. Therefore, we are of the opinion that merely because the preliminary notification had set out with reference to the boundary and name of Mouzas the general route of survey it must (not) be held that the notification specifies the land or the locality in which land is likelyto be needed for a public purpose and as such may be acquired as held by thelearned judge. The learned judge, further failed to appreciate that on its face the preliminary notification did not invite any objection under Section 5-A and was intended for no other purpose than for exploring the area through a survey authorised thereby. Construing a comparable notification the Supreme Court in the case of Bhutnath Chatterjee (C. A. No. 654 of 1966, D/- 14-3-1969) (supra) had observed :
'The circumstances that an enquiry under Section 5-A after consideration of objections raised by the claimants and that the report of the Collector were not made may reasonably justify the inference that the previous notification dated Jan. 12, 1955, was not acted upon or was not intended to be acted upon.'
If there was any doubt about this position it must be held that the same was removed by the second notification issued under Section 4(1) on Aug. 10, 1964. No evidence was led why issue of a second notification was considered necessary if the earlier one was intended to be an effective notification for the purpose of Section 4(1) of the Act. In the very same Bhutnath Chatterjee's case it was pointed out by the Supreme Court that where the Government does not choose to explain the reasons which persuaded it to issue a second notification the court may be justified in inferring that it was intended to supersede the earlier by the latter. The learned judge appears to have accepted the suggestion of the learned Government pleader as to the reasons for the second notification though no evidence on the point was adduced on behalf of the State but the reason, suggested by the learned Government pleader if accepted would fully support Mr. Gupta's contention that the preliminary notification was not intended to be an effective notification for the purpose of Section 4(1) nor was it acted upon. The reason suggested was to enable people to file objections under Section 5-A. Such reason necessarily postulates that the preliminary notification never offered any opportunity to the people to file any objection to the proposed acquisition and if that was the position it would not be a competent notification under Section 4(1) at all. In our opinion, Mr. Gupta is right in his contention that the two factors which were relied on by the learned judge for coming to the conclusion that the preliminary notification was really acted upon as a valid and competent notification under Section 4(1), can hardly support such a conclusion. The first factor which prevailed with the learned judge is the fact that since the Collector was assessing compensation with reference to the rate prevailing on the date of the preliminary notification, the said notification must be said to have been acted upon. In our opinion, there is an error in the process of reasoning because the very assessment of the Collector is under challenge before the learned judge and the question under consideration by the learned judge was whether the State Government intended to act upon the previous preliminary notification as a competent and valid notification under Section 4(1) of the Act or not. Such an issue has to be decided first by the Collector and then by the learned judge and a wrong decision of the Collector on the point could not have been used as evidence to show that the State Government acted upon the notification, The other reason given by the learned judge is that when by the second notification the State Government took away the right of the owners of the waste and arable lands to file objections that very fact shows that the first notification was intended to be acted upon. We cannot but point out that here again the learned judge has misread the second notification. The second notification Was not made as a corollary to the preliminary notification nor to supplement the same. The second notification is a combined notiification under Sections 4(1) and 17(4) of the Act. Objections under Section 5-A were ruled out under Section 17(4) in respect of such waste and arable lands as are covered by the same notification in so far as it is under Section 4(1) of the Act and not the earlier preliminary notification. There would have been some merit in the reasoning given by the learned judge had this second notification been made only under Section 17(4) of the Act and not in the manner made. The fact that the State Government thought it necessary that there should be a fresh notification under Section 4(1) of the Act would necessarily lead to the conclusion as pointed out by the Supreme Court that the earlier one was not intended to be acted upon. This position was amply made clear by the Bench decision of this court in the case of Jogendra Nath Chatterjee (supra), the true implication whereof the learned judge failed to appreciate. Such being the position, we must hold that the claimant/appellant is entitled to get compensation which should be determined with reference to the market value of the land prevailing on the date of the second notification, namely, Aug. 10, 1964, and not the date of the preliminary notification, namely, May 25, 1956, as wrongly held by the learned judge.
12. This leads us to consider the other issue regarding the determination of the compensation. Obviously, the determination as made by the learned judge must be set aside since the same was made on our findings arrived at hereinbefore on an erroneous basis. Therefore the only question left for our consideration is as to whether on the evidence already on record we should determine the compensation with reference to the market value prevailing on Aug. 10, 1964. We have very carefully considered the rival contentions of the learned advocates appearing for the appellant and the respondent on this issue and we feel no hesitation in agreeing with Mr. Das that there can be no alternative to remanding the case to the trial court for re-determination on further evidence. Though strong reliance is placed by Mr. Gupta on Ext. 3g by which land measuring 1 cent from each of these plots was sold by the claimant a few months prior to Aug. 10, 1964, at a price which works out at a rate of Rs. 1,85,000/- per acre we are of the opinion that it would be necessary to consider the bona fides of such a transaction. The circumstances pointed out by Mr. Das raise a doubt in our mind which in order to be resolved require further evidence to be taken regarding the said transaction. Similarly, the other documents principally relied on by the claimant indicate variations in the price to such a great extent that it is difficult for us to arrive at a norm. More so, in view of the 5 documents referred to by Mr. Das, namely, Exts, A-4 to A7 and Ext. 1b. Moreover, no oral evidence having been led and no local inspection being made it is difficult for this court to find out how far the lands which were the subject matter of sale in the different deeds in Ext. 3 series which were relied on by the claimant would be comparable to those for which the compensation is being determined. Even the bona fides of some of these transactions are also open to doubt in the circumstances as pointed out by Mr. Das having reference to Ext. A6 and Exts, 3c and 3e referred to hereinbefore. In our opinion, it is necessary that further evidence should be led to dispel such doubts before any reliance can be placed on such transactions. Such being the position, we cannot but remand this case to the trial court for re-trial on further evidence to be led by the parties.
13. Before we conclude we must dispose of the application for additional evidence filed on behalf of the appellant. In our opinion though the appellant wants to rely upon such awards subsequently made since the awards themselves are now under appeal in this court it would not be proper for us to take such awards as additional evidence. The awards are yet to reach their finality. Moreover, such awards to the extent they were made with reference to the document dated April 24, 19,64 of the claimant/appellant Sachibala Roy is concerned, since that document itself raises some doubt in our mind as to its bona fides we cannot rely upon the awards made on the basis thereof until our doubt is dispelled particularly when those are being challenged in appeals to this court,
14. In the result, the appeal is allowed and the award as made in L. A. Case No. 58 of 1971 is set aside. The case is remanded for re-trial in the light of our decisions indicated hereinbefore. Parties will bear their respective costs.
B.C. Chakrabarti, J.
15. I agree.