1. These five Appeals Nos. 287 and 293 to 301 of 1908 are preferred by Kailas Chandra Mitra, executor to the estate of the late Rai Abhoy Charan Mitra Bahadur, and they arise out of a reference under Section 18 of the Land Acquisition Act of 1891. The lands are part, of a very considerable area taken by the Government for the improvement of the Port of Chittagong. On the 9th of November 1903, a declaration was made in respect of these lands under Section 6 of the Land Acquisition Act. The Collector took possession in February 1903, and an award was made by him which was confirmed on appeal by the District Judge of Chittagong.
2. Now, the lands may be conveniently considered under two heads: first, there are what have been termed the dock lands to which Appeals Nos. 2 37, 298, 299 and 301 relate, and secondly, what have been termed the brick lauds to which Appeal No. 300 relates. In respect of the dock lands which measure 2.26 kanis, the award was at the rate of Rs. 100 per kani; in respect of the brick lands which measure 10.3 kanis, the award was Rs. 10 per kani. What we have to ascertain in this case is whether these awards represent that to which the appellant before us is entitled as representing and being the market-value of the land at the date of the publication of the declaration relating thereto under Section 6. The market-value of land may be roughly described as the price that an owner willing, and not obliged to sell, might reasonably expect to obtain from a willing purchaser with whom he was bargaining for the sale and purchase of the land: and, can we say that the figures at which the Collector arrived-figures which have been confirmed by the District Judge- represent the market-value in this sense? In my opinion, we cannot.
3. I will deal first with the dock lands in respect of which the claimant alleges that he has a kaimi ryoti interact. This allegation is not controverted and may be taken to represent the fact. The one hundred rupees per kani awarded in respect of these lands rests on the theory of the Judge that they could not be taken at more than two years' purchase. This estimate of two years' purchase is not based on any direct evidence; it is an inference drawn by the Judge, and based on the rate of erosion of the river in the past. It is not as if no expert evidence could have been given on this point. Mr. Williamson, the Government expert, was called; he produced certain maps but he was not questioned as to whether in his opinion the rate of erosion was such that no more than two years' purchase could be given; and, we find that the facts are opposed to the Judge's theory. What has to be estimated was the market-value of the land in 1903 and the Judge came to his determination on the 24th of March 1908. The maps in the case show that in 1906 this land had not been eaten up by this process of erosion, except that in October 1906, a very small part of it had been worn away. There was no evidence given before the District Judge that two years later when the case was before him in 1908-there had been any further erosion, so that five years after the date, in reference to which the value was to be ascertained, the acquired land, for all that appears in the evidence, was still in existence. Had it disappeared, it is hardly to be supposed that evidence to that effect would not have been given. It, therefore, appears to me that the learned Judge was not justified in allowing so small a multiplier of the annual produce of the land. The matter does not rest there. We find as a fact that other dock lands similarly conditioned were taken under the same declaration of November 1903. They are not very far removed from those with which we are concerned, and in respect of those lands, an award was made by the Judge of Rs. 1,840 per kani. What is the explanation of this remarkable difference? The learned Judge has vouchsafed an explanation but it fails to convince me. On the evidence, it appears to me that these lands may be fairly taken as capable of furnishing three docks, as they have been called, and I think on the evidence the fair annual produce of each dock may be taken at Rs. 65. That would come to Rs. 195 for the three docks: and taking that at twelve years' purchase, which appears to me to be a reasonable rate of purchase, having regard to the evidence before us-we get the figure of 2,340 which should be allowed in respect of the dock lands, in other words Rs. 1,040 per kani.
4. Now I come to the brickfield lands as they have been termed. The history of these lands is that some few years before the declaration, they had been purchased by the claimant's father, Rai Abhoy Charan Mitra Bahadur, from the Government at a price representing Rs. 92 per kani. They were sold as B lands. The Collector has awarded in respect of those lands, for which the Government got Rs. 92 per kani, Rs. 10 per kani, and this has been confirmed by the District Judge. It seems to me that there must have been something wrong here. The first thing that we have to ascertain is whether these lands were rightly placed in the category of waste lands. The evidence on that point stands thus. They undoubtedly were, at the time they were bought, the lands in which there were pits, and that they could not have been used for the purpose of cultivation without some expenditure on them. It is sworn on the part of the claimant that an expenditure was made, the lands were levelled and they became arable lands. Prima facie, that would go to show that they no longer could be described as waste lands at the time of the declaration. Now, what have the Government brought forward by way of opposition to this evidence? It would have been very easy for the Government to have called either one of their own officers or some one from the neighbourhood who could have said that this was absolutely false, that these lands were not cultivated, that there were pits, that they were not levelled or capable of cultivation. That would have been a very simple case for the Government to make out, if there was anything in it. As a matter of fact, no witness has been called to depose to it. On the contrary, the evidence indicates that the lands were under cultivation. I refer in particular to the evidence of Mr. Williamson who says that he did not observe any pits, and the lands appeared to him as any other cultivated lands: so that I think it is clearly established that these lands were wrongly included in the category of waste land in respect of which there was an allowance of Rs. 10 per kani.
5. Then the only thing that we have to consider is what should be allowed in respect of these lands. The matter has been placed before us very fairly and very clearly by the Government Pleader, and I think we should be justified in this case in accepting his figures as correct. I think, therefore, we may, taking into account the produce of paddy, produce of straw, justly estimate the value of the produce at Rs. 22 and, making a deduction of Rs. 2 to meet all charges, fix the net annual proceeds at Rs. 20 per kani; and, though the Government Pleader has pressed upon us that we should not in this case adopt what appears to me to have been universally adopted in these cases, the standard of twenty years' purchase, I think, we ought to take that as the correct multiplier for the purpose of arriving at the capital value. Therefore, the claimant will be entitled to have the land valued at Rs. 20 per kani and this at 20 years' purchase would come to Rs. 400.
6. The only question then is as to the area. The figures are briefly these: The whole area is 10.3 kanis: Of this area 3.3 kani is taken up with roads, and that leaves a balance of 9.97 kanis of arable land. We think we may properly take the number of kanis, for the purpose of calculation, to be the round figure of 10, and estimate accordingly, so that the amount to be awarded in respect of the brickfield land which is held to be arable land, will be Rs. 4,000.
7. The claimant will also get the usual statutory allowance and interest.
8. In appeals other than in No. 300, each party will bear his own costs both in this Court and in the lower Court. In appeal No. 300, each party will get his costs in this Court and in the lower Court in proportion to his respective success in this Court.