Patna High Court
Jute And Gunny Brokers Private Ltd. And ... vs The State Of Bihar on 21 December, 1979
Equivalent citations: AIR1980PAT225, AIR 1980 PATNA 225
JUDGMENT Chaudhary Sia Saran Sinha, J.
1. First Appeals 11 to 24, each of the year 1966, arise out of a common judgment dated 21-8-1965 of the learned special Land Acquisition Judge II, Patna, by which he disposed of 185 land acquisition cases. All these 185 land acquisition cases arose on references being made under Section 18 of the Land Acquisition Act, 1894 (Act 1 of 1894). Two of the several awardees were Jute and Gunny Brokers Private Limited, referred to in the impugned judgment as Birla Company and M/s. Surajmal Mohta & Company (hereinafter referred to as the company'). These two awardees are appellants before this court, the Birla Company being appellants in First Appeals 11, 12, 13, 14, 17, 18, 23 and 24 and the company being the appellants in First Appeals 15, 16, 19, 20, 21 and 22, All the above 185 land acquisition cases were tried analogously, the awardees having adduced common evidence, both oral and documentary. With the consent of the counsel for the parties and for the sake of convenience and brevity, all these appeals have also been heard together and are being disposed of by this judgment.
2. 177.91 acres of land, undisputedly, agricultural lands producing crops, except 92-1/2 decimals of land which contained orchard, were acquired by the State of Bihar for the construction of quarters for the gazetted and non-gazetted Government servants of the State of Bihar for which notification under Section 4 of the L. A. Act was issued on 18-12-1957 and delivery of possession in respect of the lands acquired were effected on 19-3-1958. These lands, though situate In three different villages, namely, Dhakanpura, Sherullahpur and Sekhpura, are in one continuity running east to west. The eastern portion of the acquired lands are situated in village Dhakanpura while its middle portion in village Sherullahpur and the western portion in village Sekhpura, These lands lie to the north of the Bailey Road which goes even beyond Danapur though they are at some distance from this road intervened by P. W. D. quarters, the land belonging to the State Government as also to the public.
3. Compensation for all these lands was awarded by the Collector at a flat rate of Rs. 5790/- per acre which approximately comes to Rs. 180/- per katha, as against the claim of the appellants that they were worth about Rs. 2,000/-per katha. On a consideration of the evidence and for reasons stated in the impugned judgment, the Land Acquisition Judge allowed compensation at a flat rate of Rs. 8350/- per acre which, undisputedly, comes to near about Rs. 261/-per katha. As against the claim of the appellants for interest from the date of delivery of possession, interest at the rate of 6 per cent per annum was allowed to the appellants over the excess compensation determined by the impugned judgment with effect from 27-2-1959, the date when the order staying the further proceedings of the land acquisition cases was vacated by the State Government.
4. Undisputedly, there was an orchard on about 92-1/2 decimals of the acquired lands which had been valued by the Land Acquisition Officer (O. W. 2) at Rs. 3226.25. Holding that the amount of Rs. 3226.25 was based on imaginary figure, the court below allowed compensation at the rate of Rs. 8350/- per acre for the 92-1/2 decimals of land contain-
ing orchard also. There were certain wells on the disputed land and in one of the wells on plot No. 854 was fitted a boring. Certain compensation was allowed by the Collector for these wells and they were approved by the Trial Judge. However, as regards the boring, he allowed the appellants only a sum of Rupees 300/- as cost for taking out the machinery of the boring. Lastly, the Land Acquisition Judge allowed statutory compensation to the awardees including the appellants at the rate of 15 per cent over the excess amount of compensation allowed by him.
5. By relying upon certain oral and documentary evidence, out of the mass of such evidence, the judgment of the Land Acquisition Judge was assailed by Shri Kaushal Kishore Sinha, learned counsel for the appellants, on various grounds, which will be dealt with hereinafter one by one, the contention of the learned counsel for the State being to the contrary.
6. One of the contentions raised on behalf of the appellants was that though possession over the acquired lands was obtained on 19-3-1958, which was admitted by O. W. 2, the trial Judge wrongly disallowed interest from 19-3-1958 till the date of the payment. The circumstances in which the claim on account of the interest was not allowed by the Land Acquisition Judge is discussed in Para 23 of his judgment, the reasons assigned being that in spite of delivery of possession being obtained on paper, the actual physical possession remained with the awardees and that, in order to succeed in their efforts to obtain release of the acquired lands, they obtained postponement of payment of the compensation money. O. W. 2, no doubt, stated that from the order sheet it appeared that delivery of possession over the acquired lands was given on 19-3-1958 but he further stated that actually the awardees continued to be in possession over the said lands even after delivery of possession and that the Government was not in possession over the same even after delivery of possession. It is undisputed that after the issue of notice under Section 4 of the L. A. Act, awardees moved heaven and earth for getting the lands in question released as would be evident from the various petitions filed by them marked Ext. A series, all of which were filed after 19-3-1958, the date shown in the order sheet as the date of obtaining delivery of possession and, in fact, they succeeded in obtaining stay of the further proceedings of these reference cases vide the letter marked Ext. J/4 dated 1-7-1958. There was some correspondence with the Government and ultimately, as the letter marked Ext. J/2 dated 24-2-1959 would show, the State Government vacated the stay order by taking a firm attitude that the notification under Section 4 of the L. A. Act shall stand. The sattas regarding irrigation of the acquired lands marked Ext. M series, the receipts marked Ext. O series and the khasras marked Exts. L and L/1 for the years 1958-59 and 1959-60 respectively proved by competent witnesses, namely, O. W. 6 and O. W. 8, also indicate that the awardees continued in actual possession of the lands acquired in spite of delivery of possession on paper. Learned counsel for the appellants referred to the evidence of Jai Narain Rai Sharma (A. W. 37), Manager of the appellants of these appeals, wherein he stated that the delivery of possession was obtained by the State Government on 19-3-1958 and further denied that the awardees remained in possession of these lands till June, 1960. Being the Manager of the appellants, A. W. 37 is a highly interested witness and his evidence cannot be accepted without a grain of salt. His evidence discloses that he was out to support the case of the appellants. The appellants were, undisputedly, growing crops in the acquired lands before acquisition. As stated by him, A. W. 37 used to send accounts of income to the Calcutta office of the appellants in respect of this income but the account books which would have indicated the period up to which the appellants were in actual physical possession of the disputed lands have been withheld and the explanation offered for the non-production cannot be regarded as satisfactory. One Inder Kuer, aunt of A. W. 40, Ramdeo Singh, was one of the awardees. He (A. W. 40) gave a different version and stated that the State Government took possession of the lands, obviously the lands acquired, in March, 1960. It is further undisputed that the acquired lands contained crops at the time when delivery of possession was obtained. But it is undisputed that none of the awardees including the appellants preferred any claim in respect of the standing crops which is also a circumstance in favour of the case of the State of Bihar. It is true that O. W. 2 stated that no step was taken for taking possession under Section 47 over the acquired lands after the stay order was vacated and that there were no papers in the department to show that the department gave up possession after the date of delivery of possession and again took up possession after the stay order was vacated. But having once obtained the delivery of possession on paper, the department might not have considered it necessary to take out writ of delivery of possession again after the vacation of the stay order. Ext. H, the order sheet of the land acquisition cases, further shows that the Deputy Minister, presumably on the petitions filed by the awardees, desired that the payment of the compensation money be stayed for some time and, accordingly, the interested persons were also informed that the payment of the compensation money which was to be made from' 21-10-1958 to 24-10-1958 was postponed. Thus the finding of the Land Acquisition Judge in confirming the action of the Land Acquisition Officer in not allowing interest over the compensation money to the awardees on account of the awardees including the appellants continuing in possession over the acquired lands and, secondly, on account of their unwillingness to receive the payment of the compensation money appears to be correct and is confirmed and this being so the claim for interest, as contended by the learned counsel for the appellants, has to be negatived.
7. The second contention was that the Land Acquisition Judge should have allowed a reasonable amount to the appellants towards the timber of the trees standing in the orchard having an area of about 92-1/2 decimals of land and reliance was placed in this connection by the learned counsel for the appellants on the evidence of O. W. 2 who stated that he had fixed the price of the orchard, that is to say, the trees including the land on which they stood at Rs. 3226.25. Undisputedly the orchard in question was almost wholly covered with trees and this being so its market value should be determined for the land including the trees as a whole and not by valuing the trees separately from the land for the simple reason that the land wholly covered with trees cannot yield any usufruct independent of the usufruct of the trees, and, without the trees such a land may have very little value. The definition of the expression 'land' in Section 3 of the L.A. Act includes trees standing thereon. The Land Acquisition Judge rejected the valuation of Rupees 3226.25 as being imaginary and fixed the market value of the orchard land at the same rate as the other lands,-namely, at the rate of Rs. 8350/- per acre which works out at a rate higher than the price fixed by O. W. 2. The view taken above is supported by a decision of this Court reported in AIR 1962 Pat 406 (Surendra Nath v. State of Bihar). It would thus appear that there is nothing wrong in the fixation of the market value of the orchard by the Land Acquisition Judge and the finding of the Land Acquisition Judge in this respect is confirmed. This contention, therefore, fails.
8. The third and the main contention centered round the market value of the agricultural lands acquired, the main grievance of the learned counsel for the appellants being that the price thereof have been fixed by the Land Acquisition Judge in an arbitrary manner by overlooking several sale deeds filed by them as also the judgment of this court marked Ext. 7 and the two awards marked Exts. 10 and 10 (a) and the learned counsel relied in this respect on three decisions, all of the Supreme Court. In the case of Padma Uppal v. State of Punjab reported in AIR 1977 SC 580, their Lordships of the Supreme Court held that the measure of compensation to be awarded to the owners of immovable property acquired by the State is enshrined in Section 23 (1) of the Act which is designed to award just and fair compensation for the acquisition and which states that in awarding the compensation the court shall take into consideration the market value of the land on the date of the publication of the notification under Section 4 (1) of the Act. Their Lordships held that, according to this provision, compensation has to be awarded on the basis of the market value prevalent on the date of the publication of the notification under Section 4 (1) of the Act and that the said market rate must be determined by reference to the price which a willing vendor might reasonably expect to obtain from a willing purchaser. It was also observed that for ascertaining the market rate the court can rely upon such transactions which would afford a guide to fix the price. Price paid for a land acquired within a reasonable time from the date of acquisition of the land in question, as their Lordships further held, would certainly be the best piece of evidence and the price paid for a land possessing advantages similar to those of the land acquired in or about the time of notification will also supply the data for assessment of compensation. While doing so, it has, however, to be remembered that the value fetched for small plots of land cannot safely be applied to the lands covering a very large extent as a large area of land cannot possibly fetch a price at the same rate at which small plots are sold. In the case of the Special Land Acquisition Officer, Bangalore v. T. Adinarayan Setty reported in AIR 1959 SC 429, their Lordships held, inter alia, that the methods of valuation for awarding compensation may be (1) opinion of experts (2) the price paid within a reasonable time in bona fide transactions of purchase of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages and (3) a number of years purchase of the actual or immediately prospective profits of the lands acquired. It was further held that where the court adopts the second method but takes into consideration only some of the transactions of alienation made by the claimant, during the particular period without giving sufficient reason why the other transactions were left out the court commits an error of principle by adopting a wrong method in ascertaining the market value of the land at the relevant time and the arbitrary selection of such transactions would vitiate the finding of the court. In the case of State of Madras v. A. M. Nanjan reported in AIR 1976 SC 651 their Lordships held that the awards given by the Collector are at least relevant material and may be in the nature of admission with regard to the value of the land on behalf of the State and if the land involved in the awards is comparable land in the reasonable proximity of the acquired land, the rates found in the said documents would be a reliable material to afford a basis to work upon for determination of the compensation on a later date and this being the position the awards cannot be dismissed as inadmissible for the purpose of determination of the compensation.
9. Let us examine the matter keeping in view the principles of fixing compensation as settled by the Supreme Court The Land Acquisition Judge fixed the market value of the acquired land by taking into consideration the average sale rate of the transactions of sale evidenced by the sale deeds marked Exts. 6. (z12) dated 25-2-1957 and 6 (z13) dated 14-3-1958 which related to the lands of one of the three mouzas, with which we are concerned, namely, Sherullahpur, filed by the appellants as also the sale deeds Exts. S and S/1 filed by the State of Bihar which were executed in June, 1957 in respect qf the land of mouza Sekhpura. It would thus appear that though the appellants filed sale deeds with respect to the sale of land in mouza Dhakanpura, the third mouza, with which we are also concerned, no such sale deed was taken into consideration by him. Since, as stated above, the three mouzas run in one continuity, this by itself may not introduce any infirmity in the judgment. While there should be no arbitrary selection of the transactions of sale, only such sale deeds have to be considered as were executed in reasonable proximity of the time of the date of notification under Section 4 (1) of the L. A Act and which dealt with lands having similar advantages and are comparable lands. What sale deeds filed by the parties should be deemed to have been executed within reasonable proximity of the date of notification will depend upon the facts and circumstances of each case keeping uppermost in mind that justice has to be done to the parties and no rigid formula can be laid down regarding the same. In the facts and circumstances of this case particularly with a view to include sale deeds executed in respect of the lands of the three mouzas with the prime object of doing justice to the parties, it may be reasonable and fair to take into consideration such of the transactions of sale as relate to the period from June, 1956 to December, 1957, the date of notification under Section 4 (1) of the L. A. Act being 18-12-1957, there being no question of abnormal rise in price of lands in between this period, subject of course to those sale deeds satisfying other tests as laid down by the Supreme Court. This being so the sale deeds executed prior to June, 1956 and those executed after December, 1957 may not be regarded as a safe guide for the determination of the compensation payable and they have rightly been ruled out of consideration by the Land Acquisition Judge. It would, therefore, be unnecessary to discuss the details of the other sale deeds filed by the parties for the non-consideration of which the Land Acquisition Judge has assigned cogent reasons. The learned counsel for the appellants contended that even sale deeds executed prior to June, 1956 and after December 1957 may be taken into consideration in view of the evidence of A. W. 37 wherein he stated that the value of the lands in the locality went about four times higher between 1948 and 1957 and that the value of the land for construction of houses in that locality was four times that of agricultural lands. A W. 37, besides being interested, cannot be regarded as a competent witness on this point as he never sold or purchased any land and it may not, therefore, be safe to act upon the above statement of A. W. 37.
10. If we adopt the above standard which would be fair and reasonable and which also appears to be necessary to do justice to the parties, the sale deeds marked Exts.' 6 (Q) dated 7-6-1956, 6 (220) dated 7-6-1956, 6 (z17) dated 13-7-1956 and 6 (z18) dated 17-9-1957 relating to the lands of mouza Dhakanpura, 6 (z11) dated 5-11-1956 relating to the lands of mouza Sekhpura, 6 (z15), 6 (z13), 6 (z12) and 6 (z!6) dated 20-8-1956, 14-3-1957, 25-2-1957 and 28-11-1957 respectively relating to the lands of mouza Sherullahpur, all filed on behalf of the appellants, would come up for consideration. Similarly, two out of the sale deeds filed by the State of Bihar, namely, Exts. S and S/1, each executed in June, 1956, relating to the lands of mouza Sekhpura would also come up for consideration.
11. Let us now consider whether in spite of these sale deeds which, in the facts and circumstances of this case, may be regarded as being in reasonable proximity of the time of the date of notification under Section 4 (1) of the L. A. Act, all of them satisfy the other tests also which are by now well settled. Ext. 6 (q) is the same document as Ext. 6 (z20). It relates to plot No. 804 of mouza Dhakanpura. The level of this plot is, undisputedly, the same as that of the acquired land and may be regarded as comparable lands with similar advantages. The Land Acquisition Judge has not considered these sale deeds on the ground that portion of plot No. 804 is 'practically situated in the village having houses on the north, south and east of the eastern portion of this plot'. On the materials on record this distinction does not appeal to reason. This land has been described in the sale deed as agricultural land (Kast Raiyati) and the boundary given therein does not show the existence of any house on its boundary. The northern boundary, no doubt, shows a 3 feet wide Rasta but the further recitals show that it was on account of agreement among the different holders of neighbouring lands that a 3 feet wide land was to be left by all presumably for access. It is true that the area sold in this deed is only 2 kathas as against the vast area of the land acquired in the instant case. But this cannot detract from the genuineness of the sale deed as such transactions of sale for construction of houses is not an unusual feature. It may, therefore, be reasonable and safe to rely upon this sale deed. As regards Ext. 6 (z11), it is dated, 5-11-1956 and relates to land of mouza Sekhpura. This sale has been discussed, in para 15 of the judgment of the Land Acquisition Judge, and, for reasons stated therein, he has not relied upon the sale deed. This sale deed was executed in favour of Shrimati Madhuli Devi wife of late Shri T. P. Singh, I. C. S. Late Shri T. P. Singh, I. C. S. had a very big compound of several acres of land just by the side of the main road going to Danapur and this land is, undisputedly, adjoining to his compound. Only four decimals of land were transferred under the sale deed and its western boundary has been described to be the land of the purchaser. In such circumstances, the possibility of the purchaser paying consideration money at the rate higher than the prevalent one, which the Land Acquisition Judge has described as fancy consideration, may not be ruled out and as such it has rightly been discarded by the Land Acquisition Judge. Next comes Ext. 6 (z17). It relates to land of mouza Dhakanpura. It was executed in respect of 1 katha of land of plot No. 405 for a consideration of Rs. 1500/-. In para 16 of the judgment, the Land Acquisition Judge has discarded it on the ground that this land was sold along with the house standing on it which fact was not refuted by the learned counsel for the appellants. This apart, the eastern boundary of this land has been described as road and the land itself has been described as homestead as distinguishable from agricultural lands, with which we are concerned. It cannot, therefore, be regarded as comparable land with similar advantages and consequently it may not be safe to rely on this document as a reasonable basis for determination of the market value of the lands acquired. 12. Then comes the sale deeds Exts. 6 (z15) and 6 (z16) which relate to mouza Sherullahpur. While observing, in para 20 of the judgment, that these two sale deeds may be helpful in determining the market value of the lands under acquisition, the Land Acquisition Judge has not relied on them on the ground stated in para 18 of the judgment that these plots are very close to the Basti and they are slightly superior to the lands under acquisition. The lands transferred under these two sale deeds have been described therein as kast Raiyati lands fit for being used as homestead land (Layak sakna). It was contended on behalf of the appellants that there was no satisfactory evidence to show that the lands transferred under these two sale deeds were near the populated part of the village and were superior to the lands under acquisition on that account. The boundaries of the lands transferred under these two sale deeds do not indicate their existence near the populated part of the village. Even assuming it to be so, if the lands were fit for being used as homestead, their nearness to the populated part of the village in the facts and circumstances of this case cannot lead to the inference that price at inflated rate must have been paid for these lands. Being comparable lands with similar advantages, it may not be unsafe or unreasonable to rely on these two sale deeds. Coming to the sale deed, Ext. 6 (z18), it relates to land of mouza Dhakanpura and the lands transferred thereunder has been described as kast Raiyati lands. But the recital of the sale deed shows that this land was purchased for the purpose of construction of house. The boundary of this land, as shown in the sale deed, shows that to its adjoining west is a Municipal road. Existence of a Municipal road by the side of the land is one of the important factors which the buyer and the seller keep in view while negotiating the price of such lands particularly when the same is purchased for the purpose of construction of houses. In the absence of any satisfactory evidence on behalf of the appellants about existence of similar facilities and advantages in respect of the acquired lands, it may not be reasonable or safe to treat the price paid in this sale deed as a safe-guide for assessing the market value of the lands acquired and it may be ruled out of consideration. We are thus left with the sale deeds, Exts. 6 (z 12) and 6 (z 13) which have been dealt with in para 18 of the judgment of the Land Acquisition Judge. Plots Nos. 89 and 1-94 of mouza Sherullahpur were transferred under Exts. 6 (z 12) and 6 (z 13) respectively, plot No, 194 being one of the plots acquired under the notification in question. These two sale deeds were executed only six months before the publication of the notification under Section 4 of the L. A. Act. It appears that, on a petition filed by the awardees, the court held a local inspection of the lands acquired in presence of the learned lawyers for both the parties. The local inspection report was also placed before the learned lawyers for both the parties after it was prepared and no objection appears to have been raised regarding the same. Para 18 of the judgment of the Land Acquisition Judge shows that the local inspection revealed that these two plots were similar in quality with the lands acquired and were of similar level. These two sale deeds were, therefore, rightly relied upon along with other sale deeds by the learned Land Acquisition Judge. While not disputing the genuineness and bona fide character of these sale deeds, the learned counsel for the appellants contended that, as these two sale deeds were not filed on behalf of the appellants, the price stated therein cannot be binding on the appellants. As all the land acquisition cases including those relating to the appellants have been tried analogously without any objection from the appellants, no such argument can be available to the learned counsel for the appellants.
13. While taking the average of the sale rate evidenced by the sale deeds, the Land Acquisition Judge, relied also on the sale deeds marked Exts. S and S/1, each dated 20-6-1956, out of the several sale deeds filed by the State of Bihar which were also relied upon by the Land Acquisition Officer. They relate to plots Nos. 963 and 944 of village Sekhpura and, as stated in para 20 of the judgment of the court below, these two plots along with other plots are also the subject-matter of acquisition in the instant case. The learned counsel for the appellants contended that these two sale deeds should not be relied upon as neither the vendors nor the purchasers thereof were examined on behalf of the State. The exhibit list shows that these two sale deeds were marked on formal proof being dispensed with O. W. 2 stated, in his evidence, that the lands of the three villages which were acquired in this case were all similar and that the acquired lands of villages Sherullahpur and Dhakanpura were exactly similar to the acquired lands of village Sekhpura. He further satisfactorily stated that the acquired lands of villages Dhakanpura and Sherullahpur were similar to the lands of the two sale deeds dated 20-6-1956, namely, Exts. S and S/1, and that for these reasons he recommended the awarding of compensation at the average rate of these two sale deeds which was accepted by the State Government. It further appears from his evidence that he had recommended this valuation after the local inspection of all the lands under acquisition as also the lands transferred under Exts. S and S/1. In spite of these previous references of these two sale deeds no satisfactory and reliable evidence is forthcoming on behalf of the appellants to discredit either the genuineness or the bona fide character of these two sale deeds. It was next contended that since O. W. 2 did not maintain notes of inspection concerning the inspection of lands made by him, no reliance can be placed on the local inspection. The local inspection by a Land Acquisition Officer is made at a stage when the awardees are not in picture in the sense that the law necessitates that the local inspection should be made by the Land Acquisition Officer at the initial stage in presence of the awardees. Besides apart from the local inspection, there is the direct evidence of O. W. 2 in court and nothing has been elicited in his cross-examination for which his evidence on this point should be discredited. In these facts and circumstances the court below, it must be held, was perfectly justified in considering the sale deeds Exts. S and S/1 along with other relevant sale deeds for assessing the market value of the land in question.
14. In view of the observations aforesaid, it would be reasonable and safe to rely upon the sale deeds marked Exts. 6 (Q), 6 (z 15), 6(z 16), 6 (z 13), 6 (z-12) and Exts. S and S/1, all of which are found to be genuine documents of sale of bona fide character involving comparable lands with almost similar advantages as safe-guides for assessing, the market value of the lands acquired at the relevant time.
15. The further contention raised by Shri Kaushal Kishore Sinha was that the Land Acquisition Judge failed to consider the certified copy of judgment of this court in First Appeal 399 and others of the year 1958, which has been marked Ext. 7 as also the awards Exts. 10 and 10 (A) which, as contended by him, should be treated as in the nature of admission of the State of Bihar. It is not correct to say that the court below has not considered these three documents. Rather, he has considered the same in his judgment and for reasons stated therein, which appear to be cogent and convincing, he has not relied on them. The principle of law enunciated in the judgment, Ext. 7, cannot be disputed but the notification under Section 4 of the L. A. Act was published in that case much earlier to the notification issued in the instant case i.e. on 2nd February, 1955. The award of the Collector in that case was also made on 30th July, 1956 and possession was taken on 29th September, 1956. Since Section 23, necessitates determination of the market value of the land at the date of the publication of the notification it will not be safe to regard the rate allowed in this judgment as the basis for determination of the market value of the lands acquired. The decree of this judgment has not been filed by the appellants. The judgment itself does not specifically show the names of the three mouzas to which the 20.43 acres of land, which were acquired, appertained. The sale deed that was considered in that case related to village Mahuli, Duzra and Chak Arab which are different mouzas than the three mouzas concerned in the instant case. In such circumstances, the court below was perfectly justified in not acting on the sale rate fixed by Ext. 7. Exts. 10 and 10 (a) have been considered by the court below in para 19 of this judgment. The award (Ext. 10) concerns the land of village Mahuli with which we are not concerned. The lands of Ext. 10 (a) related to plot No. 651 of village Dhakanpura and it was acquired for construction of building of the central P. W. D. Ext. 8, the map, no doubt shows that plot No. 651 of village Dha-khanpura is close to plot No. 653 of that village, the same being the eastern extremity of the acquired lands, intervened by plot No. 652 but, in course of local inspection by the court, which has been referred to in para 19 of the judgment, It was found that plot No. 651, was about 2 feet higher in level than the lands acquired in the instant case and this being so plot No. 651 of village Dhakanpura cannot be treated as lands comparable to the lands of village Dhakanpura acquired in the instant case. This apart, the award, Ext. 10 (A) does not show as to what was the date of notification under Section 4 of the L, A. Act in respect of this acquisition which is a vital matter for consideration in this context, and the decree prepared in pursuance of this award, which might have thrown some light on this point, has not been filed by the appellants. In case of a reference being made under Section 18 of the L. A. Act at the instance of an awardee, generally the onus lies on him to prove the claim by satisfactory materials on record. The State Government might be in the know as to what was the date of notification in the instant case but the onus being on the awardee no adverse inference can be drawn against the State for their not bringing on record the date of notification of the acquisition evidenced by Ext. 10 (A). For these reasons, the court below was justified in not treating the award Exts. 10 and 10 (A) as the basis for determination of the market value of the lands acquired,
16. Transactions of sale, as we are aware take place under different circumstances according to the necessity for sale and purchase and it cannot be doubted that these circumstances have some bearing on the sale rate that is negotiated and settled. It has also to be remembered that the value fetched for small plots of land cannot safely be applied to the lands covering a very large extent, These may justify the taking of average rate evidenced by the sale deeds as a safe guide for determination of the market value. The learned counsel for both the sides were also at one that in such circumstances taking the average sale rate of the genuine and bona fide sale transactions executed at a time reasonably approximate to the date of notification under Section 4 of the L. A, Act may provide a safe-guide, the only difference among the parties being about the particular sale deeds which should be relied upon for such consideration, the further submission on behalf of the appellants being that in so doing the potential value of the lands acquired should also be kept in view. On taking the average sale rate of the transactions of sale evidenced by Exts. 6 (z 12), 6 (z 13) 6 (z 15), 6 (z 16) and 6 (Q) filed on behalf of the awardees and the sale deeds Exts. S and S/1 filed by the State of Bihar, the approximate price per katha, undisputedly, comes to Rupees 301/-. If we multiply this amount by 32, the average sale rate evidenced by these sale deeds would come approximately to Rs. 9632/- per acre.
17. The learned counsel for the appellants, however, contended that the court below erred in law in not taking into account the potential value of the lands in question. According to the learned counsel for the appellants, the area in question was a fast developing one and he referred in this connection to certain oral evidence adduced in this case. O. W. 9, surveyor of the L. A. Department, stated in cross-examination that the quarters of P. W. D. are to the contiguous south of the lands acquired, almost similar being the admission of O. W. 2 at page 13 of his deposition. As stated by A. W. 37, all the acquired lands are within the Patna Municipal Corporation which was established in 1954. It also appears from his evidence that a portion of the acquired lands is about two furlongs from the Government House and about four to five furlongs from the New Secretariat. There being the Ganges, there is no scope for development in the northern side. He has further stated that in 1948, there were four or five houses only on the Boring Road though the number of such houses has increased tremendously subsequently. His further evidence is that before 1957, officers' quarters had been built up to the south-east corner of the acquired lands and women's college Patna was also constructed between 1946 to 1948. It cannot, therefore, be disputed that the area locating the acquired lands has been fast developing and a large number of houses have sprung up in that area in the past, some before acquisition and some thereafter, even on culturable lands. Thus it would be fair and reasonable to keep the developing potentiality of these lands in view while considering the market value. It is true that Section 24 of the L. A. Act forbids, inter alia, taking into consideration any increase in the value of land acquired likely to accrue from the use to which it will be put when acquired. But it is well established that the land Is not to be valued merely by reference to the use to which it is being put at the time at which its value has to be determined, namely, the date of notification under Section 4 of the L A. Act, but also by reference to the uses to which it is reasonably capable of being put in the future subject of course to the limitations provided in Section 24 of the L. A. Act. Unlike Exts, 6 (z 15) and 6 (z 16) there is no mention of the 5 and 6 decimals of land transferred under Exts. 6 (z 12) and 6 (z 13) respectively about their being fit for homestead purposes. Similarly, the 1 bigha 1 katha and 9 dhurs of land transferred under Ext. S and the 68 decimals of land transferred under Ext. S/1 have been described as kast Raiyati land and there is no mention about their being fit for construction purposes from which it can reasonably be inferred that these purchases in question were made primarily from the point of view of agricultural purposes. In these facts and circumstances, it would, in my opinion, be fair and reasonable to increase the price of land as evidenced by the above sale deeds by 5 per cent which would come to Rupees 481/- per acre being 20 percent(?) of the amount of Rs/- 9632/- shown above, Thus taking all these aspects into consideration, the market value of the lands acquired on the date of notification under Section 4 of the L. A. Act is fixed in round figures at Rs. 10,100/- per acre instead of the amount of Rs. 8,350/- per acre fixed by the Land Acquisition Judge and their market value is determined accordingly. Obviously, the appellants shall also be entitled to the statutory compensation allowable under Section 23 (2) of the L. A. Act on the excess amount determined by this court with interest on the excess amount at the rate of 6 per cent per annum with effect from 27-2-1959, the date mentioned in para 26 of the impugned judgment, till payment.
18. The last contention raised on behalf of the appellants was that the court below instead of allowing compensation for the surface tube-wells existing on plot No. 746 had allowed a sum of Rupees 300/- only to the appellants as the cost of the removal of the same from the well. This aspect has been dealt with by the Land Acquisition Judge, in Paragraph 25 of the impugned judgment, There were several wells on the lands acquired and reasonable compensation has been awarded for the same regarding which no grievance has been raised before this court, the only grievance raised being about the price of the boring which, as it appears, the Land Acquisition Department lost sight of while considering the amount of, compensation. The appellants claim a compensation of Rs. 10,000/- for this surface tube-well and reference was made to the evidence of three witnesses, namely, A. W. 37, A. W. 61 and A. W. 66. Obviously, the onus to prove that the compensation for the surface tube-well should be Rupees 10,000/- would be on the appellants, O. W. 61 merely stated about the existence of the tube-well on plot No. 746, which is not in dispute. O. W. 66, stated that about Rs. 10,000/- was spent over the fixing of this tube-well by the company but he is an interested witness being the Darwan of the company. He claimed to have supervised the fixation of the surface tube-well but he did not know how the surface tube-well was sunk. None of the mistries or labourers who worked in the fixing of the surface tube-well has been examined, A. W. 37 also came to say that the cost of the boring was about Rs. 10,000/-, He did not, however, state about the details of this amount. The account of the expenses over the sinking of this boring, according to A. W. 37, was kept but the appellants failed to produce the same. In such circumstances, it must be held and found that the appellants have miserably failed to substantiate their claim for Rs. 10,000/-, towards compensation for this boring. There is no satisfactory evidence on behalf of the appellants even to show the year when this boring was sunk or the make of the machineries and the pipes that were used therein to enable this court to determine the reasonable compensation for the same after deducting depreciation. It was in these circumstances that the Land Acquisition Judge passed an order that the appellants may remove the surface boring for which he awarded them a sum of Rs. 300/- as the cost incurred for removal of the same. In the facts and circumstances of this case, it is not possible to interfere with this decision of the Land Acquisition Judge and his finding on this count is also upheld.
19. No other contention was raised before this court. Other documents and evidence on record, which have not been referred to above, were not relied upon on behalf of the parties nor do they take the case of any party any further.
20. In the result, the appeals are allowed in part to the extent indicated above and the judgment and decree of the court are modified accordingly. In the facts and circumstances of this case, however, there will be no order as to costs and the parties are directed to bear their own costs.
Hari Lal Agrawal, J.
21. I agree.