Narasimham, C.J.
1. This is an appeal from the judgment of the District Judge of Berhampur, awarding compensation at a certain figure to the appellant, on a reference made to him under Section 18 of the Land Acquisition Act, 1894.
2. The appellant purchased 3.33 acres of land appertaining to survey Nos. 226 and 224 in village Sankarpur, from the previous owners by a sale deed, Ex. 1 dated the 10th December 1947 for Rs. 27,500/- The plots are situated in the outskirts of Berhampur town, and abut the Berham-pur-Aska high Rd. That area was steadily developing for industrial purposes, and adjacent west of the plots there was already in existence a timber depot belonging to another person. The appellant being the wife of a marwari businessman, obviously purchased the plot, not for the agricultural purposes, but, as stated by her husband P. W. 7 for the purpose of establishing some industry or workshop. The land was somewhat on a lower level than the Aska Road, and the owner raised it by filling it with earth. A compound wall was also built all round the land and a residential house with appurtenant structures was also built on the southern portion of the two plots. The northern portion was kept as garden with some cement benches, a well and some trees.
On the 2nd April 1949 Government issued a notification under Section 4(1) of the Land Acquisition Act (see Ext. B) declaring their intention to acquire the northern portion having a total area of 1.79 acres of which 1.48 acres appertain to survey plot No. 224 and 31 acres appertain to plot No. 226. There was the usual controversy as regards the market value of the land undet acquisition. The Revenue authority estimated the market value at Rs. 8258/- per acre by his award dated the 6th Aug. 1957 on the basis of the price paid by the appellant herself to her previous vendor. Structures such as buildings and walls standing on the land and crops and trees were estimated at Rs. 8116/- and after making some minor additions and also adding 15 per cent. for the compulsory nature of the acquisition, the total compensation to be paid was fixed at Rs. 26370.58 nP.
On the appellant's objection a reference was made to the learned District Judge who modified the award in the following respects. He gave an additional sum of Rs. 2034/- towards expenses incurred by the owner in filling up the acquired portion with earth with a view to raise its level and also awarded enhanced compensation at the rate of Rs. 2/- per cent. (Rs. 200/- per acre) towards increase in the price of the land during the period of 15 months from the date of purchase by the appellant (10th Dec. 1947) till the date of notification under Section 4(1) of the Act (2nd April 49). He also made some further additions for incidental expenses and ultimately directed that a sum of Rs. 3287/- plus and additional 15 per cent. on the same, should be granted to the appellant in addition to the sum awarded by the Revenue authorities.
3. Mr. Dasgupta for the appellant challenged the decision of the learned District Judge on tho following grounds :
(i) The rate of Rs. 2/- per cent. given by the District Judge as representing the increase in the value of the land for the period 10th Dec. 1947 to 2nd April 1949 was abnormally low.
(ii) The learned District Judge should not have arbitrarily reduced the estimated value of the earth work done on the land as given by the Minor Irrigation Overseer (Ext. 11) on the 30th November 1954 and should have allowed the entire sum as estimated by that Overseer.
(iii) He should have allowed a reasonable sum for the damage caused to the remaining portion of the appellant's land by severing it from the portion acquired, as permitted by clause fourthly of Section 23(1) of the Land Acquisition Act.
4. The second and third grounds may be dealt with first. It is admitted that after purchase the owner filled up the land with earth and thereby raised its level. The Minor Irrigation Overseer visited the spot, took measurement and submitted a report (Ext. 11) to the Tahasildar in which he estimated the total quantity of earth work done on the acquired portion at 2,33,372 cft. and the cost of filling at Rs. 9357/- On the side of the respondent no evidence was led to show this estimate made by the Overseer was an over estimate. But the learned District Judge after personally inspecting the spot on the 19th December 1959 (nearly 5 years later) thought that the Overseer's estimate was a gross over estimate and that the level was raised only to an average height of 9 inches and not 3 feet as stated by the Overseer. Hence he reduced the amount to Rs. 2034/- only. This portion of the reasoning of the learned District Judge cannot be supported. There was an interval of nearly five years between the date on which the Overseer inspected the spot and prepared his report (Ext. 11) on the one hand and Ithe date on which the District Judge made his legal inspection on the other.
It is notorious that due to heavy rainfall insuccessive years loose earth deposited on anyland is washed away unless it is carefully embanked on all sides. No doubt there was a compoundwall put around the disputed land but there is noevidence to show that there was no drain throughwhich water accumulating inside the land couldescape through the compound wall. Moreover thespot map prepared by the District Judge shows thata portion of the compound wall had fallen downon the date of his inspection. Ever since the issueof the notification under Section 4(1) of the LandAcquisition Act in 1949 the owner lost all interestin preserving the land and admitted that the gardenwas uncared for. During the long interval thatelapsed the filling-up earth must have been steadily washed away during the rains. Hence merely because on the 19th December 1959 the learned District Judge after personal inspection noticed thatthe earth was filled up only to an average heightof 9 inches he should not have jumped to the conclusion that even on the date of issue of the notification the height of the filled up earth was only9 inches. The Minor Irrigation Overseer's estimategiven in Ext. 11 in 1954, should have been accepted in the absence of any evidence to show thatit was an over estimate, at the time of his reportin 1954. .
5. The third ground also cannot stand scrutiny. Out of the total area of 3.33 acres purchased by the appellant she is still left in possession of 1.54 acre on the southern portion including her residential house, out houses, an approach road gate and some compound. In 1949 the acquired land was merely used as a garden. No structure had been put up on any portion of the plot for the purpose of setting up an industry or workshop. The appellant's husband (P. W. 7) merely stated that he wanted to erect a saw mill and that the portion now lying left to him (1.54 acres) was somewhat inadequate for the purpose.
On this statement it was urged that by severance of the portion of the plot acquired from the rear, that appellant has sustained injury over which she is entitled to compensation under clause fourthly of Section 23(1) of the Act. But the injury contemplated by that clause is the injury resulting from the anticipated depreciation in the value of the land on account of acquisition and severance of the acquired portion from the remaining portion. Such injury may arise either from dust, noise, loss of profit, construction of a road and similar reasons. But here Government's intention is merely to establish a Police Out-Post on the acquired portion. It is difficult to understand how such establishment of a Police Outpost would injuriously affect the remaining portion of the land containing the residential house left with the appellant. That portion is also abutting the main Aska Berhampur road, and therefore it cannot be said that the appellant has any right of access to the public road. It cannot also be said that there will be a steady depreciation in the value of the residuary portion.
On the other hand the establishment of a Police outpost will give better security and with the steady increase in land values in the area the residuary portion left with the appellant will also appreciate very much in value in due course. But merely because the residuary portion is inadequate for the establishment of a saw mill which was only in contemplation by the owner prior to the issue of notification Under Section 4(1) of the Land Acquisition Act. it, cannot be said that the acquisition has injuriously affected the remaining portion of the land. The claim on account of this objection was, therefore, rightly disallowed.
6. The main controversy is as regards the estimate of the market value. Ever since the decision of the Privy Council in Narayana Gajpatiraju v. Revenue Divisional Officer, AIR 1939 PC 98, it is well settled that the potential value of the land should also be taken into consideration in fixing its market value. By 'potential value' is meant the value on account of the uses to which the land may be put in future. The value of the land should not depend on the actual use to which it was put on the date of the notification under Section 4(1) of the Land Acquisition Act. The land in question is admittedly situated on the outskirts of Berhampur town which is steadily growing. The area in which the land is situated is also developing as an industrial site. Adjacent west of the site was a timber depot. The land was purchased, not for agricultural purposes, but for the establishment of a work-shop or industry. Hence the land should be valued not merely as a vegetable garden but also with reference to other uses to which it can be put in future.
But here the sale deed (Ex. 1) of the land (measuring 3.33 acres) in favour of the appellant itself gives the actual market value on the date of her purchase, viz. 10th December 1947. In fact the recital in the document is that the consideration of Rs. 27500/- is for the 'current market value thereof. Thus when the appellant herself purchased the property on that date and accepted the recital in that sale deed made by the vendors to the effect that the aforesaid sum represented the 'current market value' the learned District Judge was right in saying that on that date the market value of the land (including the potential value) was that sum which works out to Rs. 8258/- per acre. Having correctly stated on this basis however the learned District Judge held arbitrarily that the rise in land values during the period of 15 months from 10th Decr. 1947 to 2nd April 1949 would be Rs. 2/- per cent. (or Rs. 200/- per acre). There was absolutely no data for him to arrive at this estimate. It is true that the value of land has been steadily increasing in that area year by year. But neither the appellant nor the respondent has given any clear evidence to show whether the rise in land prices has been gradual or sudden, or whether they remained stationary for some years and then there was a steep rise after 1950 as urged by the learned Advocate General. One is left in the realm of surmise, but as pointed out by the Privy Council in the aforesaid case the market value of 1949 (as on 2nd April 1949) has to be ascertained as best as the Court can from the material available.
7-8. The appellant has produced sale deeds relating to sales of land in the vicinity immediately before and sometime after the date of notification (His Lordship considered these sale deeds and continued) :
The Court has therefore to estimate the rats of increase in the price of land per year on the basis of the materials available before it. I think, the only reasonable conclusion that can be made in the circumstances is that the rise in price was gradual at the rate of Rs. 1040/- per acre per year as pointed above. This estimate also must be-somewhat approximate, but on the meagre data available before us, no other estimate is possible. Adopting this figure therefore, it must be held that during the period of 15 months from December 1947 to April 1949 the total rise in the value of the acquired land would be only to the extent of Rs. 1300/- (at the rate of Rs. 1040 per year). This, seems a fairer estimate than the figure given by the District Judge on the basis of Rs. 2/- per cent. or Rs. 200/- per acre. Thus the market value of the acquired land on the date of notification (i.e. 2nd April 1949) would be Rs. 8258/- plus Rs. 1300/- i.e. Rs. 9558/- per acre. On the sum thus calculated the appellant would be entitled to a further 15 per cent. for the compulsory nature of the acquisition.
9. I would therefore modify the order of the learned District Judge as indicated below :
(i) The market value of the acquired land (which includes its potential value) as on the date of the notification should be fixed at Rs. 9558/-per acre.
(ii) The appellant will be entitled to 15 per cent. over the figure arrived at on the basis of the market value indicated in (i) above, in view of the compulsory nature of the acquisition.
(iii) She will also be entitled to compensation for filling the land with earth at Rs. 9357 /- as calculated by the Minor Irrigation Overseer in Ex. 11.
(iv) In all other respects the order of the District Judge is maintained. The amount may be recalculated accordingly.
10. The appeal is thus allowed in part, but as the appellant has been claiming an exorbitant sum of Rs. 75000/- I am not inclined to grant her costs. Each party will therefore bear his own costs of this appeal.
Barman, J.
11. I agree.