Sen Gupta, J.
1. These three appeals have been heard together as the same questions of law and facts are involved in all of them. They arise out of the judgment and decree passed by Shri S.N. Bagchi, Special Land Acquisition Judge, Alipore in L. A. Case Nos. 104, 107 and 109 of 1954 (V).
2. These appeals arise out of the following facts:
By Notification under Section 4 of Land Acquisition Act 1 of 1894 the Collector of 24 Parganas decided to acquire the lands in mouza Nilgunj and Suryapore covering an area of 273 bighas 5 cottahas and 10 chataks. The lands involved in these cases were acquired by the Government for the establishment of Central Jute Agricultural Research Station. The said notification was published in the official gazette on the 18th December, 1950 and possession of the acquired lands was taken by the Collector on the 29th January, 1951.
3. The lands acquired are in a compact block situated in contiguous mouzas.
4. Let us give, in brief, the history how these three appeals in this Court have arisen. In L. A. case 104 of 1954 (V) before the Special Land Acquisition Judge, Alipure the awards in serial numbers 5, 8 and 10 of L. A. Case No. D 9/1 of 1951-52 passed by the L. A. Collector came for consideration. Similarly in L. A. Case No. 107 of 1954 (V) and L. A. Case No. 109 of 1954 (V) of the Court of the Special Judge, awards in L. A. Case D 9/3 of 1951-52 and in L. A. Case No. D 9/2 of 1951-52 were respectively considered. The Special L. A. Judge did not interfere with the awards passed by the L. A. Collector in the above mentioned three cases. Hence, the claimint filed the Appeals Nos. 338. 339 and 340 of 1960 against the judgment and decree passed in L. A. Case Nos. 104, 107 and 109 of 1954, of the Court of Special Judge Alipure respectively. The L. A. Collector fixed the market value of Danga and Sali lands in all these cases at the rate of Rs. 260/- per bigha. The doba and tanks were valued at the rate of Rs. 130 per bigha, the lands covered by the road were fixed at rate Rs. 65/- per bigha. The trees were separately valued. Those valuations were accepted by the Special Judge.
5. The claimants challenged the compensation awarded by the Special Judge in these appeals.
6. That is, in short, the history to show how the three appeals have come before us for our consideration. As already stated the appeals are against the same judgment and decree passed by the Spl. L. A. Judge. We have consolidated them for hearing and as the same being heard analogously this judgment will govern all of them.
7. At the very outset we like to say that the claimant wanted to have an excess amount of compensation awarded in all these cases.
8. Mr. Gupta, learned Advocate appearing for the claimant has taken the following points:
(1) that the Spl. L. A. Judge has failed to assess the correct market value of the land as existed on the date of notification.
(2) that the Spl. L. A. Judge has not considered the potentiality of land acquired due to which the Judge has fallen into an error.
(3) that the market value of the danga and sail lands ought to have been fixed at a sum of Rs. 1,200/- per bigha instead of 260/- as found by Spl. L. A. Judge.
(4) that the Spl. L. A. Judge ought to have allowed 15% S. A. on the value ofthe trees which, though separately assessed is nothing but part and parcel of the value of the land.
(5) that the claimant is entitled to get interest at the rate of 6% on the excess amount.
9. It may however, be mentioned that the claimants did not challenge price of the trees awarded and the market value of the tank, doba and the roads as fixed by the L. A. Collector.
10. Mr. Sengupta, learned Govt. pleader has, however submitted that the judgment passed by Spl. L. A. Judge is fool proof and it should not be disturbed. In addition 'to that Mr. Sengupta has taken a technical objection that as the claimant accepted the money awarded by L. A. Collector without any protest the reference made by the L. A. Collector was incompetent.
11. Before we proceed to consider the main points involved in these cases we like to examine the technical point which has been raised by Mr. Sengupta that the reference was incompetent as the money was accepted by the claimant without protest and as such the proceeding started before the Spl. L. A. Judge was bad in law and as such void and accordingly the claimant has lost chance to agitate in that matter as the same has already been barred by tune. In support of the contention Mr. Sengupta has submitted that a reference to be competent must be shown to have been made by the claimants who have refused to receive the compensation or have accepted it under protest and desired a reference. Our attention has been drawn to pages 6, 7 and 9 of the paper book in Appeal No. 338 of 1960. Serial Nos. 2, 4, 6 and 11 in the proceeding under Section 11 of the Act 1 of 1894 (hereinafter referred to as the said Act), in Case No. D 9/1 of 1951-52 would show that the compensation was received by the claimants under those serial numbers under protest and the same fact has been noted by Shri K. Ghosh, Land Acquisition Officer. But in the cases which were considered in serial Nos. 5, 8 and 10 in the L. A. Case the money was received by the claimant by different cheques on 15-1-1954 but there is no endorsement made by any Land Acquisition Officer indicating that the said sum was received by the claimant under protest. From this it has been contended that the money was received by the claimant without any protest. The said argument though attractive cannot be said to be sound. Firstly, the endorsement made by the Land Acquisition Collector cannot bind the claimant in any way. There is nothing to show that the claimant accepted that amount without any protest. For this purpose we directed the learned Government Pleader toproduce before this court the original records. Unfortunately, in spite of the time granted, the learned Government Pleader failed to produce the same. On examination of the materials on record we, on the contrary, are satisfied that the claimant received the money under protest. The same will appear from the following facts: The claimants filed a petition for reference on the 23rd May, 1952. Long before the money was received by them on 15-1-1954 such an application was filed. On the basis of which the L. A. Collector referred the matter to the Land Acquisition Judge, 24-Parganas at Ali-pore. From the said fact, it transpires that he lodged protest at the very initial stage i.e., on the 23rd May, 1952. and long after the money was received. That fact itself shows that the claimant did accept the award under protest. Moreover when the Land Acquisition Collector decided to refer the matter under Section 18 of the Act, his decision in that respect would be final. When in fact he considering the materials on record, refers the same for the determination of the court, a legal presumption arises that L. A. Collector was, prima facie, satisfied as to the right of the claimant to refer the same to the Judge. This is, essentially a question of fact. The record also shows that this point was not taken before the Spl. L. A. Judge. This is for the first time in these appeals, the learned Government Pleader wants to raise the point. We are of the view that it is in the province of the Collector alone to decide for himself whether he should make the reference or refuse to do so. In fact when he decides to refer, the right of the Collector on that account cannot be questioned by the State. A similar question though in different context came for consideration before P. Chatterjee and T.P. Mukherjee, JJ., in the case of State of West Bengal v. Bhutnath Chatterjee reported in : AIR1965Cal620 . Their Lordships held:
'It was sought to be argued that the first notification was never published at convenient places in the locality as required by Section 4(1) of the Act. This point was never raised before the learned L. A. Judge. The question of publication in accordance with law is a pure question of fact which cannot also be raised in the present proceeding.'
For the reasons stated we hold that the technical point as to the maintainability of the reference which was sought to be raised by Mr. Sengupta is not sustainable at this stage. Accordingly, that point fails.
12. Let us now come on the merit of the case. It has been stoutly asserted on behalf of the claimant that the compensation awarded is not only unjust and inequitable but it is also unfair too. Mr.Gupta has drawn our attention to the fact that the property was purchased by the claimant in the year 1939. Ext. 3 (a) is the document by which the claimant purchased those lands, along with other lands on the 6th June, 1939, by means of a registered sale deed executed by Jatia Proprietary Company Ltd. The properties recorded in Khatian No. 229 of Mouza Suryapore, in Khatian Nos. 193 and 118 of mouza Nilgunj and also in Khatian No. 229 of Mouza Suryapore were purchased by the claimant. The price of the properties recorded in Khatian No. 229 was paid at the rate of Rs. 416 per bigha. That in Khatian No. 193 the properties were purchased at the rate of Rs. 300/- per bigha. The lands of Khatian No. 439 was valued at Rs. 160/- per bigha, and the lands recorded in Khatian No. 229 was valued at Rs. 225/- and the price was paid on that basis. If the average of the valuation of the properties so sold, be taken, it is seen that the properties were purchased by the claimant at the rate of Rs. 278/- per bigha. The Collector award the market value of the same at the rate of Rupees 260/- per bigha. From this it has been contended by Mr. Gupta that the L. A. Collector has overlooked this fact and arbitrarily fixed the market value at the sum of Rupees 260/- per bigha, and that the said valuation has also been accepted by the Special L. A. Judge without any acceptable reason. From this fact it has been submitted that the market value so assessed by the learned Special Judge has arbitrarily been made and in consequence it has hard-hit the claimant.
13. The materials on record will show that the learned Special L. A. Judge has not considered that case in its proper perspective. He has completely overlooked the time factor which is involved in this case. The property was purchased in the year 1939. The acquisition was made in the year 1950. The question which will arise for our consideration is whether the price at which the claimant purchased has gone down or there was possibility of increasing the same or in fact it was actually increased. The evidence, if considered, will clearly show that the land value in that area was gradually increasing. P. W. 1 stated in his evidence 'Land value is increasing since 1939 and is still on the increase. The peak increase in land value was in 1949-50. The land value has increased 3 to 4 times in West Bengal including mufassil areas. Low valued land prices have increased more than the high valued land prices'. He further stated in cross-examination that 'irrespective of the nature, quality and situation of the lands, the value of lands everywhere in West Bengal has increased'. That apart even the witness who was examined on behalf ofthe State i.e., witness No. 1 for the opposite party No. 1 has frankly admitted in his evidence that the land value Ha? increased after partition. He undoubtedly, meant 'partition' of undivided Bengal which took place in the year 1947-48. From the above evidence it is established that the price of the land which was purchased by the claimant in the year 1939 cannot be at least less than that. There is other evidence to show that the brick fields were growing up in that area raising the price of the land. That aspect of the case was also not considered by the Special Land Acquisition Judge In the background of the evidence and also for the reasons that after partition of Bengal there was great influx of refugees in West Bengal and particularly in Calcutta or in the places surrounding the City, it would clearly show that the valuation of the land did not remain stagnant rather it increased. A similar question came into consideration in the case of All India Tea and Trading Co. Ltd. v. Collector of Darrang, reported in : AIR1971SC1253 , wherein it has been laid down that the evidence relating to gradual rise in prices in area under acquisition should be considered. In the instant case that consideration was not given by the learned Special Land Acquisition Judge. Accordingly, la our view the judgment and decree which have been passed by the learned Special Judge suffer from that lacuna. We shall deal with this matter hereinafter when we shall consider as to the market value of the land acquired.
14. The cardinal principle for ascertaining the market value of the land is to find out what price a willing vendor might reasonably expect to obtain from a willing purchaser of the land acquired. The further question which comes in such cases, is to find out the market value of the land which can be fixed by a consideration of price that has been obtained in the past for land in similar quality and in similar position. It sometimes becomes difficult to find the transactions of lands of similar description and with similar advantages in order to compare the same with the lands the market value of which is to be calculated. In such matters there is always scope for conjectures. Experience has shown, that with mathematical precision and accuracy the valuation of the land cannot be made in order to find its market value with reference to other transactions. It is always difficult to get the transaction of sale of lands similarly placed with similar advantage. Therefore, some conjectures have got to be made. But it is always advised that the conjectures should be minimised as far as possible and in cases wherever possible conjectures should be avoided. Still then the scopeof rule of thumb remains though in such cases it should be judicially applied.
15. Mr. Gupta has next contended that the learned Special Judge has rejected the scheme which was prepared by P. W. 1 Shri Hiran Kumar Sarkar, an Engineer and Valuer of repute. He had the opportunity to go to the locality and to prepare the map and his report. His report has been marked Ext. 1. According to him, the value of the land should under no circumstances be less than Rs. 1,200/- per bigha. His report shows the possibility of the development into actuality. That is the potentiality which is attached to the land acquired. From the evidence of P. W. 1 and also from his report it is seen that the plots acquired are adjacent and in a compact block. The same is situated on the tarmacadam portion of Nilgunj Road, which branches off from the road from Baraset to Barrack-pore at about the middle of the latter road. The acquired land is also near the road from Barrackpore to Baraset through which there is a bus service. It has transpered in evidence that the buses ply through that route at an interval of 15 minutes. On each side of the acquired land, the municipality of Barrackpore and that of Baraset is situated at a distance of 2 to 3 miles. The lands acquired are at a distance of 14-15 miles off from Shambazar area, a locality in the city of Calcutta. The acquired lands are commonly known in the locality as 'Pitterson's bagan bari'. On the eastern portion of the acquired land there is a canal commonly known as 'Noakhal' which has got its connection with the river Ganges. On the other side of the canal there is a ''hat' known as Nilgunj Hat which sits twice in a week. P. W. 1 considering all these factors, was of the view that the land, if not acquired, would have served as a very suitable locality for development of the same for building purposes and ideal village by parcelling the same in different small plots for selling the same to the landless or land hungry people and particularly so after partition of Bengal. The prospect of that development was heightened for the reasons that some brick manufacturing kilns were already started in the locality. That the land acquired was suitable for building purposes will appear from the very fact that the same was acquired by the State Government for the purpose of building certain structures for the establishment of Central Jute Agricultural Research Station. These are the possibilities which were attached to the land in question. The learned Special Judge did not consider all these factors. But he took pains to find fault with the scheme prepared by P. W. 1. It is no doubt true that there was enough scope for further improvement of the scheme by which P. W. 1wanted to lay out different plots for building purposes. In case the view of the Special L. A. Judge be accepted, the scheme could have been improved in the way indicated by the Special L. A. Judge. The value in that case might have been increased more. P. W. 1 wanted to make out a scheme which might be utilised by the ordinary middle class people. In this connection the reputation of the claimant for carrying on business in the land development matters was already established. It has transpired from the evidence that the claimant company did business in land development. They purchased lands, developing the same into small plots and sold them to public. The company, in fact, developed the Tollygunge, Patipukur, Rishra and Dum Dum areas. In Rishra area a cottah of land developed by them was sold at Rs. 1,000/-, at Patipukur they were sold at Rs. 1,500/- to Rs. 1,600/- per cottach. That fact could not be denied by the opposite party L. A. Collector. In evidence it has also transpired that some brick manufacturing concerns offered some premium for taking lease of the same for manufacturing bricks. The claimant did not agree to that proposal. It is in evidence that they purchased the land in the year 1939 and since then it is lying fallow. What was the object of investment of so much money by the claimant without deriving any profit whatsoever either by means of cultivation or by letting out to others From this fact it is argued by Mr. Gupta that the claimant had an idea to develop that area and to sell the same to different persons for the construction of their houses there, which place, according to Mr. Gupta, was eminently suited for that purpose.
16. In this connection we are to consider whether the potentiality of a land can be judged by reference to the possibility of the same being used in a particular manner before the same was acquired. In order to ascertain the potentiality of the land, that fact has invariably got to be considered in the manner as suggested above. A similar question came for consideration in the case of Sri Raja Vyricherla Narayana Gajapatiraju Bahdu Garu v. The Revenue Divisional Officer, reported in 43 Cal WN 557 = (AIR 1939 PC 98). Their Lordships of the Privy Council had observed like this:
'It is plain that in ascertaining its value, the possibility of its being used for building purposes would have to be taken into account. It is equally plain, however, that the land must not be valued as though it had already been built upon, a proposition that is embodied in Section 24(5) of the Act and is sometimes expressed by saying that it is the possibilities of the land and not its realised possibilities that must be taken into consideration.'
Their Lordships further held that: 'the truth of the matter is 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.'
In the instant case the land possessing the possibility of being used for building purposes has been stated by P. W. 1. The position of the lands, its surrounding features, its proximity to two of the municipal towns and also it being situated near Calcutta having bus route service at an interval of 15 minutes, go to show that the potentiality of the land for building purposes cannot be said to be an imaginary one. Had the land not been acquired, the claimant company could have developed that area for letting out the same in different small plots for selling the same to different persons. Accordingly, we are of the view that the said possibility for development of that area for building purposes cannot be ruled out.
17. The next question for further consideration is whether future possibility can be considered in the matter of finding out the value of the property. A similar point was raised in the case of Atmaram Bhagwant Ghadgay v. The Collector of Nagpur, reported in 33 Cal WN 458 = (AIR 1929 PC 92). The observation of their Lordships is as follows:
'When lands have been acquired under the Land Acquisition Act, the owner is entitled to the value to himself of the property in its actual condition at the time of expropriation with all its existing advantages and with all its future possibilities excluding advantage due to the carrying out of the scheme for the purposes for which the property was acquired.'
In the instant case there is no evidence that after acquisition the price of the land has gone high. Only one construction has been made for the purpose of establishing Central Jute Agricultural Research Station. It is not an industry or no industrial organisation was set up there. It is only a research institution accommodating some persons. Be that as it may, there is no evidence that after the establishment of the said institute there, there was any scope of increasing the valuation of the land in that locality, if it is so increased it is increased for its suitableness for building purposes having different advantages attached to the land or its surrounding as already stated. Similar point also came in for consideration in the case of Province of Bengal v.Uma Charan Law, reported in (1944) 48 Cal WN 609. Mitter and Akram, JJ., held:
''the basis for the determination of the market value of the land within Section 23(1)(i) of the Land Acquisition Act is the value of the land to the owner.
But the value of the owner must be judged by an objective and not a subjective standard. Ordinarily obejctive standard would be the price, that an owner willing and not obliged to sell might reasonably expect to obtain from a willing purchaser. The property must be valued not only with reference to its condition at the time of declaration but its potential value must be taken into consideration excluding any advantage due to the carrying out of the scheme for which the land is compulsorily acquired.'
On the consideration of the above facts, we agree with Mr. Gupta that in such cases potentiality, if any, attached to the land, must be taken into consideration.
18. Considering the nature and situation of the land acquired it is not only to consider the present purpose for which the land was used at the time when it was acquired but it has also got to be seen whether the same could have been used for more profitable purposes. The special adaptability of land for building purposes is an element to be taken into consideration for fixing the compensation. But at the same time the potential value cannot be based on any speculation or conjectures as to the use to which the land may be put to a distant future. In the instant case, however, the evidence on record and particularly from the evidence of the valuer it has been established that the lands acquired were fit for the purpose of being used for building purposes.
19. The main factors now for our consideration is how the market value of the land acquired is to be determined. The following factors may be considered in that respect:
(1) price paid for adjacent land;
(2) price offered within a reasonable tune;
(3) opinion of valuer or expert.
20. Let us take the first point as indicated above in order to consider the evidence which have been adduced by the parties concerned. We shall first of all discuss the documents produced on behalf of the State in support of their valuation. Ext. A' (1) is a sale deed dated 24-3-1949. The area of 97 acre was sold at a sum of Rs. 400/-. That document was executed by one Sri Rajendra Nath Sardar in favour of Santosh Kumar Karmakar on the 24th day of May, 1949. The said Rajendra Nath Sardar has been examined in this case as witness No. 2 for the claimants. It has transpired from his evidence that the properties in Ext. A (1) which is identical as in Ext. 3 (b) was reconveyed by Santosh Kumar to Rajendra Nath on the 17th April, 1951 by means of the document Ext. 3 (c). From the evidence of P. W. 2 it was sought to be established that either the said transaction was a mortgage or it was a loan in substance. Whatever it might be the agreement was that after sometime the land covered by Ext, A (1) was to be returned to the original owner Rajendra P. W. 2. From his evidence it has also transpired that the land covered by Ext. A (1) is situated about a mile away from the land acquired. He is undoubtedly a responsible person being the President of Siuli Union Board. For the reasons stated the kibala Ext. A (1) cannot be taken as a document to find out the real value of the land at a time when they were sold under the circumstances mentioned above. Ext. A (2) is another sale deed executed by Anukul to Tarak on 30th May, 1949. .45 acre of land was sold at a sum of Rs. 100/-. The said Anukul, the vendor has been examined by the claimant as their witness No. 3 (P. W. 3). He has stated that Tarak Chandra Mallick was his servant. It was a danga land. As he was his domestic servant, he wanted to gift certain land as a consideration of his faithful service which he rendered. But instead of executing the same as a deed of gift he mentioned the same as a deed of sale. The said explanation goes to show the reasons for under valuation made for the purpose of transferring that property to Tarak. his servant. Ext. A (3) is another sale deed which is dated 16th March, 1950. By that deed, .20 acre of land was sold at a sum of Rs. 50/-. That was an undivided share sold by one co-sharer to another. The property was sold at so grossly inadequate price as the vendor decided to leave that village and to live elsewhere. These are the properties referred to above and covered by the abovementioned documents and are all situated at Suryapore. The last document is Ext. A which is dated 1-12-50. The property sold is .45 acre of land at a sum of Rs. 100/-. That was the property sold in the year 1950 by a Muslim. At that time a very uncertain situation was created after the partition of Bengal. Accordingly, the said sale which was effected by a muslim cannot be taken as a standard of price with which the value of the land acquired can be compared. Accordingly, none of the documents which have been produced by the State can be accepted as comparable unit to determine the true value of the land acquired.
21. We now turn to the documents produced on behalf of the claimants. The first document is Ext. 2 (a). It is a lease for 10 years executed by one Umedali in favour of Kamala Prosad Singh. That patta has been marked Ext. 2 (a) It is dated 7-5-1950, 4.86 acres of land of mouza Nilgunj was settled by means of this document for a term of 10 years. The amount of rent per year was fixed at Rs. 1,900/-. In other words, the annual rental of a bigha of land comes to Rs. 126/-. If the valuation is to be calculated on the basis of this deed then the annual rent of Rs. 126/- should be capitalised, at least 10 times in order to get the proper value of the land. This lease was made for manufacturing bricks. In this connection if Ext. 2 (b) be considered, it is seen that one Mangal Mudi took lease of 4.42 acres of land of the mouza Nilgunj at an annual rental of Rs. 2,140/-. This lease was also taken for manufacturing bricks. The annual rental is thus seemed to be Rs. 152/- per bigha. On the basis of this deed if the market value of the land is calculated, then 10 times of the yearly rental may be taken to be proper, value of the land covered by that deed. The abovementioned two deeds, therefore, give an idea of the valuation of such lands to be more than Rs. 1,200/- per bigha. We have already referred to the deed. Ext. 3 (b) while considering Ext. A (1). In that connection Ext. 3 (c) was also considered. We need not discuss those documents over again as it has elaborately been discussed at the proper place. Ext. 3 is a very relevant document for the purpose of consideration of the point at issue. This is also a sale deed executed by Giribala Dasi in favour of one Nagendra Nath Bhowmick in respect of certain properties situated in mouza Nilgunj. .85 acre of land was sold at a price of Rupees 1500/- or in other words the price of each bigha of land come to about Rupees 580/-. Mr. Sengupta has challenged the deed on the ground that this deed was of the year 1953 long after the date of acquisition. Accordingly, Mr. Sengupta's contention is that this document should not be taken into consideration. We have already held that there are no materials on record to show that after the publication of the notification there was a rise in the price of the lands of that locality. We are therefore, of the view that in the instant case in the absence of such materials showing unexpected rise of the price of the lands in the locality, we cannot but hold that the document Ext. 3 was a bona fide one and the price fetched for the lands sold under that deed was the true market value of such lands at the time when the lands were acquired. In this' connection we may refer to a decision of the case of State of West Bengal v. Secretary, Union Club Purulia, reported in : AIR1972Cal225 wherein Arun Kumar Mukherjee and M.M. Dutt. JJ., held:
'There is no rule that a post notification transaction of sale of land similar to the acquired land cannot be looked into. If in considering a post notification sale, the court finds that after the publication of the notification, the price of the lands in the locality has been affected, in that case, it will not be proper for the court to rely on such a transaction of sale, for it will not be of any guide for the determination of the market value of the acquired land.'
The abovementioned decision also sup-ports our view that in certain circumstances post notification transaction of sale can also be taken into consideration, in the matter of calculation of the market value of the land. In this case we are of the view that after the notification for acquisition of land concerned, there was no impact on the price of the lands of that locality as such the price of land) covered by the Ext. 3 may also be taken as a guiding factor in the determination of the market value of the lands acquired. We shall have occasion to refer to this document over again, when we shall consider the actual market value of the land calculated on the basis of other factors.
22. Mr. Gupta has drawn our attention to the document Ext. 3 (a) the kobala by which the property was purchased by the claimants in the year 1939. We have already pointed out that on the basis of the valuation of the land as noted in Ext. 3 (a) the average value of the land covered by that document is more than Rs. 260/- per bigha. Mr. Gupta further contends that the learned Acquisition Judge has totally omitted to consider the time factor which is involved in this case. The property purchased in the year 1939 at a certain price can never be sold at a lesser amount about 12 years after. The market value of the land depends upon a situation, special adaptability, advantages and inherent potentiality in the light of the demand of the land. It is an undisputed fact that in the year 1950 uprooted people from the then East Pakistan (now Bangladesh) had to come to West Bengal in a helpless condition. In West Bengal they came in millions and had to be rehabilitated. Thus it is seen that the situation having changed in between the year 1939 and 1950 the value of the acquired land must be changed, particularly, the same being situated 'near Calcutta as well as near two other municipal towns, namely. Barackpore and Barasat. There must have been great demands of such lands to the people who came from East Pakistan. These are the matters which ought to have been considered by thelearned Special Judge while be considered to find out the market value of the land acquired. The omission on his part to consider the same must have resulted in finding the compensation at a grossly inadequate sum.
23. Coming now to the second factor which is to be considered in the matter of finding out the market value of the land acquired. If any person is found to have offered to purchase any land at a price near about the relevant date of acquisition, it becomes a relevant fact for consideration. In the instant case, however, we have noticed from the evidence that some persons offered to take lease of such lands for the manufacture of bricks. The claimants declined to grant that lease. From this fact it has been contended by Mr. Gupta that the annual rental of the lands, if let out by the claimants, could not have been less than the annual rental as noticed in the Exts. 2 and 2 (a). That one D.N. Mukherjee wanted to establish a brick field on the acquired land has been established by the evidence of P. W. 2. That is a circumstance which should be borne in mind at the time of finding out the real market value of the property in question.
24. The last factor which comes in for our consideration before we fix the market value of the land acquired is the opinion of the valuer or the expert. In the instant case P. W. 1 Hiran Kumar Sarkar, B. E. of the Calcutta University, an Engineer and valuer was appointed to assess the market value of the land in question which might have been prevalent in the year 1950. He inspected the C. S. plots. According to him, some plots were situated in mouza Nilgunj and others were situated in mouza Suryapore. He found the plots to be adjacent in a compact block. In the year 1959 he found the acquired land, situated on the tarmacadam portion of Nilgunj road. The acquired lands were found very near the road from Barrackpore to Barasat through which there is a bus route from Calcutta. On the eastern side of the acquired land there is a canal commonly known Noakhal. The lands were found to be high and according to him. suitable for building sites. Apart from that, the hat did take place twice in a week that is the evidence of P. W. 1. We have discussed about this previously at the relevant place. He also noted that since 1950 brick manufacturing concerns sprung up in that locality. From the above consideration he was of the view that the lands acquired were suitable for building purpose.
25. On the basis of laying out of plots he wanted to parcel the lands in small area for the purpose of construction of buildings. He took into consideration the expenses to make the lands in question suitable for building plots. He also considered the delay in getting the income out of the investment which could have been made for making the acquired lands suitable for building purposes. On this consideration he found that the market value of the lands must have been at the rate at least of Rs. 1,200/- per bigha.
26. He also considered two documents Exts. 2 and 2 (a) and came to a conclusion that on the basis of these documents if the market value is calculated, Rs. 1,200/- per bigha could be expected as the price of the same.
27. Above are the materials which are found on the records from which we come to the conclusion as to whether the market value found by L. A. Collector and approved by the Special L. A. Judge was correct. We have already stated that it is difficult to get the value of the similar lands with similar advantages sold at the same time for the purpose of comparison in order to arrive at the correct valuation of the land acquired. But still then some process is to be found out, to find out the market value of the lard so acquired which a willing purchaser can be expected to offer to a willing vendor This is a process which, of course, cannot be always found with mathematical precision or accuracy. In the instant case to avoid that difficulty and to make the valuation and to find the real market value of the lands acquired, we think it proper to take average of certain prices which will be presently noted. It may be considered under four heads, namely.
(1)The average price of the lands sold per bigha in the year 1939 is
Rs. 278/-(2)The L. A. Collector found the market value of such lands per bigha in the year 1950.
Rs. 260/-(3)The market value per bigha of the lands acquired, if calculated on the basis of Exhibits 2 and 2a is:
Rs. 1,200/-(4)The market value per bigha of the land as per opinion of the expert, the valuer, who calculated the same on the basis of laying out in different plots is at least:Rs. 1,200/-
We find, therefore, there is gulf of difference between the amounts on the bases referred to above. If we take an average of the three items described under first three heads, market value of the land per bigha comes to Rs. 580/- approximately. That is the value which wealso find on the basis of Ext. 3, the reference to which has already been made. Considering the above facts and the materials on record we fix the market value of the lands acquired at the rate of Rs. 580/- per bigha. It may, however, be mentioned that it relates to 'the danga and sail lands excluding the trees.
28. In this connection we may mention that the parties failed to adduce any evidence in the matter of price of tank or doba. Accordingly, we accept the said price as has been found by L. A. Collector and approved by the Special L. A. Judge. We may also note here that price of the trees has also not been challenged by the claimants before us.
29. In this connection Mr. Gupta has submitted that the L. A. Collector and Special Land Acquisition Judge committed error in disallowing the statutory allowance as provided in Sub-section (2) of Section 23 of the Act which runs as follows:
'In addition to the market value of the land above provided, the court shall in every case award a sum of 15 percentum of such market value, in consideration of the compulsory nature of the acquisition'.
It is contended that the market value of the land must include the price of the trees as well. Our attention has been drawn to the definition of the land in Clause (a) of Section 3. The expression 'land' has been defined:--
'Expression 'land' includes benefit to arise out of land, Mr. Gupta contends that the trees being profit a pendre the benefit which is derived from the earth, it is only for the convenience of calculation of value of the land, the value of the trees has been separately considered. We find force in the said argument of Mr. Gupta. Mr. Sengupta, on the other hand contends by referring to the paragraph second of Sub-section (1) of Section 23 that the standing crops or trees are to be separately valued by the Collector, and as such it could not come in the purview of Sub-section (2) of Section 23 of the Act. Similar question came for discussion in the case of Chaturbhuj Pande v. Collector, Raigarh reported in : 1SCR412 .
Their Lordships (R.S. Bachawat and K. S. Hedge JJ.) held therein:
'The High Court in our opinion was wrong in disallowing the statutory allowance permitted under Section 23(2) over the value of the trees. The High Court erred in thinking that the value of the trees falls under the 2nd clause of Section 23(1). The 1st clause provides for determining the market value of the land acquired. Section 3(a) prescribes that the expression 'land' includes benefit to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth. Therefore, the trees that were standing on the land were a component part of the land acquired. The High Court failed 'to notice that what was acquired are not trees but the land as such. The value of the trees was ascertained only for the purpose of fixing the market value of the land. On the value of the land as determined the court was bound to allow 15% allowance provided by Section 23(2) of the Act.'
For the reasons stated, the value of the trees is to be added to the value of the land to find the market value and to calculate solatium at the rate of 15% to be Paid on the same. Market value so calculated comes to Rs. 610/- per bigha on an average.
30. As we have already referred to the provisions secondly in Sub-section (1) of Section 23 of the Act we are of the view that the said provisions relate to the value of the crops or trees that may have grown on the land between the date of declaration of the intention to acquire and the date of Collector's taking possession. The said view of ours gets support from the decision of the case of Bhusan Chandra Samanta v. The Secretary of State for India, reported to (1936) 40 Cal WN 1034. We, therefore, hold that the claimants are entitled to get 15% solatium on the value of the trees as well. As the huge sum of money is lying blocked for so many years, we allow Interest at the rate of 6% to be paid on the excess amount found due.
31. The net result of our discussion may further be stated like this:--
In L.A. Case No. D9/1 of 1951-52 13 bighas 12 cottahs and 14 chataks of danga lands were acquired and the same was considered in Serial No. 5.
The compensation awarded was on the following head:
1.The market value of the land at the rate of Rs. 260/- per bigha3,547 602.S. A. at the rate of 15% 532 193.Interest at the rate of 6% for one year. 2441204.Price of trees. 364 80
In Seria No. 8, 2 bighas 19 cottahs and 14 chataks danga land and 15 cottahs 12 chataks doba were involved. Compensation was awarded on the following heads by L.A. Collector.
1.The market value of danga land at the rate of Rs. 260/- per bigha.
778 602.The same of doba land at the rate of Rs. 1307- per bigha. 102 603.S. A. at the rate of 15% 132 20
4.Interest at the rate of 6% for a year. 601205.Trees. 103100
Total :--1,177 40
In Serial No. 10 of the Collector's award 196 bighas 13 cottahs and 13 chataks of danga land, 8 bighas 3 cottahs and 5 chataks of tank and 4 bighas 19 cottahs and 13 chataks were the road lands.
The L.A. Collector's award was to this effect:--
1.Value of danga and sali lands at the rate of Rs. 260/- per bigha.
51,139 902.Value of tank at the rate of Rupees 130/- per bigha.
1,061 863.Value of the road land at the rate of Rs. 65/- per bigha. 324 63
Total :--52,515 79
4.S. A. at the rate of 15% 7,8781315.Interest at the rate of 6% for a year. 3,624 406.Trees. 7,765103
Total :--71,794 33
The above award is the subject-matter in Appeal No. 338 of 1960.
In L.A. Case No. D 9/3 if 1852052 before the L.A. Collector 35 bighas 18 cottahs 2 chataks of danga lands were the subject-matter. The compensation awarded was under the following heads:
1.The value of the land at the rate of Rs. 260/- per bigha.Rs. 9,335.62 P.2.S. A. at the rate of 15%.Rs. 1,400.34 P.3.Interest at the rate of 6% for one year.Rs. 644.16 P.
Total :--Rs. 11,380.12 P.
The above is the subject-matter of our consideration in Appeal No. 339 of 1960.
In Serial No. 3 of the award in L.A. Case No. D9/2 of 1951-52. 10 bighas 2 cottahs 1 chatak of danga land was involved. The compensation awarded was on the following head.
1.The value of the land at the rate of Rs. 260/- per bigha.Rs. 2,626.81 P.2.S. A. at the rate of 15%.Rs. 394.02 P.3.Interest at the rate of 6% for one year.Rs. 181.25 P.
Total :--Rs. 3,202.08 P.
The above award is the subject-matter of our consideration in Appeal No. 340 of 1960.
32. The above break up of the compensation in the above mentioned cases have been supplied by Mr. Gupta with a copy to Mr. Sengupta. The correctness of those figures have not been challenged by the learned Government pleader.
33. The above figure had to be supplied only for the purpose of calculation of the excess to be paid to the claimants on the basis of our finding that the market value of the danga and sali lands is @ Rs. 580/- per bigha and also for our finding that the 15% S. A. is payable also on the price of the trees. Those figures are also necessary to be considered for fixing the interest on the excessamount payable to them. We accordingly direct for the modification of the awardin the following terms:
The market value of the danga and sali lands are to be calculated at the rate of Rs. 580/- per bigha, that of tank and doba at the rate of Rs. 130/- per bigha and that of road land at the rate of Rs. 65 per bigha. To the same, the value of the trees which have not, been disputed, will be added. The said amount will be taken into consideration for the purpose of awarding further additional compensation at the rate of 15% on such market value as provided in Sub-section (2) of Section 23 of the Act. From the amount so found, the sum already paid to the claimants on the basis of L. A. Collector's award are to be deducted. The balance thus, found is the excess amount to be paid by the State Government, through the L. A. Collector, with 6% interest on the same to be calculated from 29-1-1951, the date of taking possession of the acquired land till payment of the amount so found due, to the claimants.
34. The excess amount on different heads as indicated above is to be deposited in the court of Special Land Acquisition Judge at Alipore, or to be paid to the claimants within three months from the date of the receipt of the records by the Special Land Acquisition Court.
35. In the result, the appeals are partly allowed with proportionate costs. The judgment and the decree of the Special Judge in the three cases are hereby set aside. The respondent, the State of West Bengal is directed to deposit the excess amount in the manner and within the time as indicated in this judgment, failing which claimants will realise the same in accordance with law.
36. Hearing fee is assessed at 10 Gold Mohurs in each appeal.
R. Bhattacharya, J.
37. I agree.