D.K. Seth, J.
1. This appeal is directed against the judgment and award dated 4th April, 1989 passed by the learned Additional District Judge, 1st Court, Land Acquisition Tribunal, Howrah in L.A. Case No. 57 of 1986.
Submission on behalf of the Appellants
2. The claimants/appellants had preferred this appeal being aggrieved by the aforesaid judgment on various grounds. Mr. S.P. Roychowdhury, learned counsel for the appellants, submits that the assessment made by the learned Judge is arbitrary and has been made without considering the expected value of the land as on the date of notification. It has overlooked the potential value of the land. None of the considerations relevant for assessment of valuation of the land has been considered. The situation, size, shape was not taken into account. It has also committed gross error in the valuation of the building, which on record appears to have been constructed 10/15 years before acquisition. The rejection of the valuation report by the valuer, PW 2 was unjustified. He had also contended that the principle of valuation has not been followed, particularly, it has not taken into consideration the price of the similarly situated land which was conveyed within the reasonable proximity of the time of acquisition. In support of his contention, he relied on the decisions in The State of Uttar Pradesh v. Ram Swarup and Ors., : (1971)3SCC857 ; The All India Tea & Trading Co. Ltd. v. The Collector of Darrang and Anr., : AIR1971SC1253 ; Administrator General of West Bengal v. Collector, Varanasi, : [1988]2SCR1025 and Chimanlal Hargovinddas v. Special Land Acquisition Officer, Poona and Anr., : AIR1988SC1652 .
Submission of behalf of the Respondent
3. Mr. Himangshu Kumar Basu, learned counsel for the respondent, on the other hand, contends that the learned Judge has overlooked the principle of belting method, which was correctly adopted by the Collector. The valuation is required to be based on the date of the Notification under Section 4(1a) of West Bengal Land (Requisition and Acquisition) Act, 1948 (Act II of 1948). But the learned Judge has completely ignored the same. He had also pointed out from the materials on record that one of the buildings was constructed 25 years before the issue of the Notification and the last of the buildings was constructed 15 years before the issue of the Notification. The valuation has been made in excess both in respect of the land as well as the building. He had pointed out that the report of the Valuer, PW 2 was rightly rejected because it lacked in material particulars. The valuation made by the department is perfectly in order and the Court should have followed the same. He also contended that the valuation has to be made having regard to the various methods and manners as has been prescribed in law. He referred to Parks on Valuation, 1998 Edition, Page 334 Chapter XIII relating to building and estate in support of his contention. He referred to the decision in State of Haryana v. Ram Singh, : [2001]3SCR1178 and Shaji Kuriakose and Anr. v. Indian Oil Corporation Ltd. and Anr., : AIR2001SC3341 . According to him, the burden lay on the claimants to prove the valuation as it being claimed. But they having been unable to establish the same, they cannot claim any benefit therefor. In support he relied on Parameshwari Devi v. Punjab State Electricity Board and Anr., : AIR1994SC1142 . According to him, this matter requires to be remitted to the learned trial Court for deciding the question appropriately under Order 41 Rule 23A of the Code of Civil Procedure (CPC).
Reply by Appellants
4. In reply Mr. Roychowdhury pointed out that the matter is already delayed for a long time, therefore, at any rate the matter should not be remanded. This Court should decide the case here on the basis of the materials already available finally, without remanding the same to the learned trial Court.
Facts
5.1. In order to appreciate, the respective cases advanced by the learned counsel for the respective parties, it would be necessary to briefly refer to the facts of the case. The land was sought to be acquired for the construction of the Second Hooghly Bridge by the State Government on Howrah Side under the West Bengal Land (Requisition and Acquisition) Act, 1948 (1948 Act). The Notification under Section 3(3) of the 1948 Act (Exhibit-6A) was issued on 7th of June, 1980. The possession was taken on 8th of June, 1980. On 31st of December, 1981 a Notification under Section 4(1a) of 1948 Act was issued seeking to acquire the said land for public purpose. Out of the estimated compensation, 80% was paid at the time of taking of possession. The compensation was awarded by the Collector ultimately on 11th of August, 1986. The amount of compensation as awarded was received by the claimants on 13th of August, 1986. A reference under Section 8 of the 1948 Act was made by the claimants on 19th of September, 1986. This was registered as L.A. Case No. 57 of 1986.
5.2. In the award, a belting method was adopted and the valuation of the land was made at a sum less than Rs. 7,000/- per cottah. The learned L.A. Judge had passed the judgment and award on 4th of April, 1989 enhancing the value of the land of Rs. 10,000/- per cottah and awarding solatium @ 30% per annum and interest @ 9% per annum for the first year and 15% per annum for the second year on the enhanced compensation. The claimant was awarded interest @ 12% under Section 23A of the Land Acquisition Act, 1894 (1894 Act). This was corrected on 25th of July, 1989 by deleting the word 'per annum' after the percentage rate of solatium and that the interest would be available @ 9% for the first year and @ 15% for subsequent years, from the date of possession till payment. Additional compensation @ 12% from 1974 till 11th of August, 1986 was awarded. The award was corrected further on 31st August, 1989 awarding interest @ 12% on additional compensation from the date of Notification, namely, 3rd December, 1963 till the date of the award or possession whichever is earlier.
Scope of Act II of 1948 ; Manner of determining valuation
6. Before we proceed to look at the merit of the case, we may first find out as to whether the solatium, additional compensation and interest have been correctly awarded by the learned Judge. Sub-section (1A) of Section 4 of 1948 Act provides that on the date of publication of notification under this sub-section, the requisitioned land may be acquired by the State Government. Under Sub-section (2) thereof on the issue of such notification, the land vests absolutely in the State Government free from all encumbrances and the period of requisition comes to an end. Compensation is paid in terms of Section 7 of 1948. Section 8B provides for on account payment. Reference is permissible under Section 8. Section 8A provides for appeal from a reference to this Court.
6.1. Section 7 in Sub-section (1) of 1948 Act provides that the compensation is to be calculated in the manner and in accordance with the principles set out in Sub-section (1) of Section 23 of the 1894 Act as far as may be applicable. Under the proviso thereto the valuation of the land is to be calculated with reference to the date of publication of the notice under Section 4(1a) of 1948 Act. Under Sub-section 2(a) of Section 7 of the 1948 Act, the award is to be made according to Section 11 of the 1894 Act, but no amount referred to in Section 23(2) of the 1894 Act shall be included in the award. However, interest @ 6% from the date of publication of the notification under Section 4(1a) of 1948 Act until payment is to be awarded. After the award is passed, the Collector has to make the payment in accordance with the provision of Sections 31, 32 and 33 of the 1894 Act as far applicable. For the purpose of requisition, a person is entitled to damages done during the requisition of such land. Sub-section (4) of Section 7 of 1948 Act prescribes the principles to be followed in determining the compensation payable for requisition. Cases where agreement is not possible between the parties, a reasonable amount is to be awarded or the same may be referred to under Section 8 of 1948 Act. In the present case, no such reference was made before publishing the award under Section 7 of 1948 Act. In the award, the Collector has included the compensation for requisition payable under Section 7(3) of the 1948 Act. However, on a reference being so made under Section 8 of 1948 Act against the award, this question is open to be determined by the Court.
Solatium included after West Bengal Act 69 of 1978
7. Section 7 of 1948 Act makes it clear that the compensation is to be determined in the manner provided under Section 23(1) of the 1894 Act. The market value is to be calculated on the same principle as provided in Section 231) of 1894 Act on the basis of the market value as existed on the date of notification under Section 4(1a) of the 1948 Act. However, no amount referred to in Sub-section (2) of Section 23 of the 1894 Act is supposed to be included in the award made under Section 7 of the 1948 Act. This was, however, amended by WB Act 69 of 1978 amending the 1948 Act, substituting the phrase that the amount referred to in Section 23(2) of the 1894 Act shall also be included in the award. In the present case, solatium payable under Section 23(2) of 1894 Act is payable as a component of the compensation awarded under Section 7(1) and (2) of the 1948 Act. The learned Judge had rightly allowed solatium.
Additional compensation not included till Act 25 of 1996
8. Sub-section (1A) of Section 23 was inserted in 1894 Act by Act 68 of 1984. Section 30 of the said Act 68 of 1984 provided for transitional provisions. It prescribed that Sub-section (1A) of Section 23 of 1894 Act shall be applicable in respect of cases which were pending on 30th of April, 1982 in which award was not made before that date by the Collector. In the present case, the proceedings for compensation was pending on 30th of April, 1982 and no award was made till that date. Inasmuch as the award was made in 1986, namely, long after. But Section 23(1A) of 1894 Act cannot be attracted in determining compensation under Section 7(1) and (2) of the 1948 Act. Inasmuch as, until 1948 Act was amended by West Bengal Act 25 of 1996, additional compensation payable under Sub-section (1A) of Section 23 of 1894 Act was not included in Sub-section (1) and (2) of Section 7 of 1948 Act. The provisions of Section 23(1A) of 1894 Act was for the first time introduced or inserted in Section 7(1) and (2) of 1948 Act through Section 2 of West Bengal Act 25 of 1996. The provisions of West Bengal Act 25 of 1996 were given deemed effect to come into force on 1st April, 1994. Therefore, additional compensation payable under Section 23(1A) of 1894 Act could not be included in the award under Section 7(1) and (2) of the 1948 Act where the award was made before 1st of April, 1994.
8.1. In West Bengal Act 4 of 1989 while including solatium payable under Section 23(2) of 1894 Act in the award to be made under Section 7(1) and (2) of 1948 Act, transitional provision was provided for under Section 5 of West Bengal Act 4 of 1989. Thus, the legislature had intended to give benefit of Section 23(2) of 1894 Act in respect of matters covered under the transitional provisions provided in Section 5 of West Bengal Act 4 of 1989. But the legislature did not include any transitional provision while including the benefit of Section 23(1A) of 1894 Act in the award to be made under Section 7(1) and (2) of 1948 Act. At the same time, the transitional provision provided in Section 30 of Act 68 of 1984, introducing Section 23(1A) in 1894 Act, related to the proceedings under the 1894 Act. Since Section 23(1A) of 1894 Act was not included in Section 7(1) and (2) of 1948 Act until West Bengal Act 25 of 1996, the legislature had never intended to give benefit of the transitional provisions provided in Act 68 of 1984.
8.2. Inasmuch as, while legislating West Bengal Act 25 of 1996, the legislature had not borrowed any provision from Act 68 of 1984. It has borrowed the provision from the 1894 Act. Such borrowing does not include borrowing of a provision of an amending Act, for the simple reason that those transitional provisions of the amending Act were not made part of the principal Act amended by the amending Act. The provisions as available in the principal Act being borrowed by West Bengal Act 25 of 1996, it is only the provision as provided in the principal Act is only borrowed/imported in the 1948 Act. A legislation by adoption is confined only to the provisions adopted. Such legislation by adoption does not extend to adoption of something else, which is not part of the legislation since adopted. Therefore, no additional compensation could be included in the award. That apart, in 1989, by no stretch of imagination, additional compensation could be included in the award when the learned L.A. Judge had passed the award/ decree. On the ground that the matter is still pending because of the pendency of this appeal when the 1996 amendment had come into force, benefit of Section 23(1A) of 1894 Act also could not be made applicable in the present case on the strength of the transitional provision provided in Act 68 of 1984, in the absence of any express provision provided in West Bengal Act 25 of 1996. Thus, the learned Judge had allowed additional compensation wrongly.
Interest : Payable
9. Interest @ 6% per annum was allowed on the compensation from the date of publication of the notice under Section 4(1a) of 1948 Act till the payment, which is also to be included in the amount payable under the award. This interest @ 6% has since been substituted by 9% under West Bengal Act 4 of 1989 together with a proviso, similar to Section 34 of the 1894 Act, that if such amount is not paid within one year from the date of publication of the notification, interest shall be payable @ 15% after the expiry of one year till the compensation is paid either whole or in part, which has not been paid or deposited before the expiry of such date. Section 5 of the 1989 Amendment under Clause (a) makes this amended provision applicable to a case where possession has been taken before 30th April, 1982, but compensation has not been paid until 30th April, 1982. In this case the compensation has been paid on 11th of August, 1986 or at best on 13th of August, 1986, namely, after 30th of April, 1982.
9.1. Under the first and second proviso to Section 7 of 1948 Act, interest is payable on the compensation. The expression 'compensation' has not been defined either of the two Acts. The word 'compensation' is to be understood in its ordinary meaning having regard to the provisions contained in the 1894 Act. The factors, those are to be included in or excluded from the consideration for determining compensation are provided in Sections 23 and 24 of 1894 Act respectively. Section 34 of 1894 Act provides for payment of interest on the amount of compensation by the Collector. Section 28 of 1894 Act prescribes for payment of interest on the compensation determined by Court in excess of the award. Therefore, interest is payable on compensation. Compensation includes all the components that are included in the award. The interest provided in Sections 34 and 28 of 1894 Act respectively are not components of the award. Interest under these two sections is given to the claimant for the deprivation of the use of the money representing compensation. In support of the above proposition, we may refer to Seshan v. Special Tehsildar LAO, : [1996]1SCR1058 ; D. Block Ashok Nagar (Sahibabad) Plot Holders Association v. State of Uttar Pradesh, : [1997]3SCR1096 and Shyam Lal Narula v. Commissioner of Income Tax, : [1964]53ITR151(SC) . As such interest on compensation including solatium though was rightly allowed but from wrong dates. It is allowable from dates other than those specified in the said award/decree as pointed out hereafter.
From which date interest is payable
10. There is a distinction between 1948 Act and 1894 Act. Under 1894 Act, interest is payable from the date of taking possession. Such possession can be taken only after issue of notification under Section 4(1) of that Act. But under 1948 Act, possession is taken with the issue of notice under Section 3(3) of that Act. Such possession is a possession on requisition. Such possession entitles the owner to receive rent compensation under Section 7(3) of 1948 Act calculated on the principle laid down in Section 7(4) thereof. Only upon issue of notification under Section 4(1a) of 1948 Act the land vests in the State and the claimant becomes entitled to compensation under Section 7 Sub-section (1) and (2) thereof. Therefore, no compensation for any period anterior to the date of issue of notification under Section 4(1a) of 1948 Act can be paid. As such no interest could be payable for any period prior to such date.
10.1. From the award as corrected, it appears that the interest was allowed from 31st of December, 1963 by order dated 3rd August, 1989. Whereas additional compensation was allowed from 1974. These two orders appear to be wholly incorrect. Inasmuch as the date of notification as mentioned in the order dated 3rd of August, 1989, namely, 3rd December 1963 was the date on which the general notification was issued empowering the Collector, Howrah to exercise the jurisdiction of the Collector under Section 3 of the 1948 Act. It was not the notification in relation to the requisition or acquisition of the land. Admittedly, in this case, the notification for requisition under Act II of 1948 was published on 7th of June, 1980. Therefore, no interest could be payable on the award from 3rd of December, 1963. The notification under Section 3(3) of 1948 Act was issued on 7th June, 1980. The possession was taken on 8th of June, 1980. The notification under Section 4(1a) of 1948 Act was issued on 31st December, 1981. Therefore, for the period between 8th of June, 1980 till 31st of December, 1981, the claimants are entitled to the compensation in terms of Sub-section (3) of Section 7 of the 1948 Act to be calculated on the principle provided in Section 7(4) of 1948 Act. In an award under Section 7 of 1948 Act, compensation payable under Section 7(3) forms a component of the award. Therefore, on the amount of compensation calculated under Section 7(4) interest is payable in terms of proviso to Section 7(2) from 8th June, 1980 till the date of the award or payment. On the compensation payable under Section 7(1) and (2) of 1948 Act interest is payable from the date of the notification under Section 4(1a) of that Act, viz. 31st December, 1981, till award or payment. The payment of additional compensation from 1974 till 11th of August, 1986 is also a misconceived order. In any event, additional compensation cannot be included in the award passed under Section 7 Sub-section (1) and (2) of 1948 Act.
Compensation under Section 7(3) of 1948 Act
11. The compensation payable on account of requisition for the period between 7th of June, 1980 till 31st of December, 1981, namely for a period of one year six months twenty two days (viz, the said period) is to be determined on the basis of the rent that might have been fetched by the property if let out. Some portions of the property were let out to the tenants and the rest were being used as residence by the owners. The Collector has decided the question. We do not find any reason to interfere with the same. Mr. Roychowdhury has also not insisted much upon the same. He was not able to make out any case for altering the said compensation already granted and received by the claimants. Having regard to the facts and circumstances of the case, we, therefore, accept the same to be 16% per annum for the said period as decided by the Collector.
Valuation of the structure/building
12. The report of the PW 2 does not disclose any date. Non-disclosure of date may not be much relevant for discarding the said report. We have gone through the report. According to us, the report does not correctly produce the situation. The report was said to have proceeded on the method of valuation guided by the Parks' Valuation, In the Chapter for valuation of land and building detail has been provided for, providing the rate of labour and materials in respect of structures, giving the basis of the unit and the rates as prevailing in 1937-38, 1957-58, 1968-69 respectively. The three stages of 10 years have been provided for. In the present case, the property was acquired in 1981. The buildings were constructed 10-15 years earlier, which takes us to 1971 or even prior to that. If we take 15 years, as is apparent from the records, it would definitely go to a period earlier than 1968-69. If we take the rates given in Parks on Valuation for the year 1968-69 as the basis, then we find that the valuation that has been made does not tally with that of the guideline prescribed by Parks in his Valuation. According to us, the valuation of the structure that has been made does not appear to be justified. In any event Mr. Roychowdhury has not insisted upon the valuation of the structure much. The main contention that weighed with him related to the valuation of the land and not the structure. The Collector's valuation of the structure, according to us does not seem to be on the lower side and nor it appears to be unjustified. We, therefore, do not propose to interfere with the valuation of the structure by the Collector since affirmed by the learned trial Judge. From the materials on record, we also do not find any reason to interfere with the valuation of the structure having regard to the facts and circumstances of the case.
Land with building : Valuation
13. There are two views prevailing with regard to the valuation of an acquired land with building for determining compensation. One view is that land and building constitute one unit and the value of the entire unit must be determined with all its advantages and its potentialities. The claimant is not entitled to the assessment of value of land and the building separately and compensation on both. If the value of the land is assessed, valued of the building cannot again be separately assessed. It is a settled law that the measure of assessment of building should be based on either the rent received from the property with suitable multiplier or the value of the building. The claimant is entitled to compensation on either of the two methods but not both. Ratan Kumar Tandon v. State of Uttar Pradesh, (1997)2 SCC 161.
13.1. When the property sold is land with building, it is often difficult to secure reliable evidence of sale instances of similar land with buildings proximate in time to the date of notification under Section 4. Therefore, the method generally resorted to in determining the value of the land with building is the method of capitalisation of return actually received etc. Compensation cannot be determined by ascertaining the value of the land and the 'break-up-value' of the building separately. The land and the building constitute one unit, and the value of the entire unit must be determined with all its advantages and potentialities. Under Section 23, compensation has to be determined by taking into account the market value of the land at the date of notification and the damages, if any, under any head secondly to sixthly in Section 23(1) (State of Kerala v. P.P. Hassan Koya, AIR 1968 SC 1201.
13.2. The other view is that it can be estimated separately. It has been held by the Supreme Court in case of Administrator General of West Bengal v. Collector, Varanasi, : [1988]2SCR1025 that it is permissible to value property estimating separately market value of land with reference to the date of preliminary notification and add to it value of structures as at that time. So, the District Judge was justified in assessing the value of the structures separately or that the valuation on this score was not excessive. The Calcutta High Court and Punjab High Court have followed such view in Collector L.A. Darjeeling v. Sudhangsu Sil, : AIR1992Cal246 (DB) and Sharan Pal Singh v. State of Punjab, respectively.
Valuation of the land
14. The question of determining market value is a paradox. What is fair, reasonable compensation is always a question of fact depending on the nature of evidences, circumstances and probabilities in each case. Market value envisaged in Section 23(1) of the 1894 Act has designed the award just and fair compensation for the land acquired and postulates a price of the land prevailing on the date of publication of the notification under Section 4(1) of 1894 Act. In case of 1948 Act, the relevant date is the date of publication of the notice under Section 4(1a) of 1948 Act. The concept of market value is a phenomenon evolved by the Courts to fix the price of land arrived at between the hypothetical willing buyer and willing seller bargaining as prudent persons without a modicum of constraints or without any extraordinary circumstances. But the condition of free market is the very opposite of the condition of the compulsory purchase which is ex hypothesi, a situation of constraints. It was for this reason the Court attempted to solve the riddle evolving the principle that the value of the land shall be taken to be the amount that the land if sold in the open market by a willing seller might be expected to realise from a willing purchaser. The compensation must, therefore, be determined by reference to the price which a willing vendor might reasonably expected to obtain from a willing purchaser with all its existing advantages and potentialities as on the date of the notification under Section 4(1a) of 1948 Act. The disinclination of the seller to part with his land and the urgent necessity of the vendee to purchase the land must, alike, be disregarded and neither of them must be considered as acting under compulsion. The Court should be alive to the factors mentioned in Section 24 of the Act, keep them at the back of the mind and should not be influenced by the future or later development in the locality or neighbourhood and should not get influenced by the prevailing situation as on the date of determination of the compensation.
14.1. In order to arrive at a market value, one of the methods adopted by the Courts is determining the valuation from comparable sales as exemplars. Where comparable sales are not available then the other valuation is adopted.
14.2. In case of comparable sales/exemplars, the best evidence would be the value of the property acquired in a sale to which the claimant himself was a party in its absence the sales of the neighbouring lands. A land possessing similar advantages to the land in the neighbourhood of the land acquired in or about the time of notification would supply the data to assess the market value. In proof of the sale transaction, the relationship of the parties to the transactions, the market condition, the terms of sale and the date of the sale are to be looked into. These features should be established by examining either the vendor or vendee and if they are not available, the attesting witnesses, who have personal knowledge of the transactions.
14.3. In order to support the above proposition, we may refer to Land Acquisition Officer v. Jasti Rohini, : (1995)1SCC717 ; Periyar and Pareekanni Rubbers Limited v. State of Kerala, : AIR1990SC2192 and Ram Swarup (supra) on which Mr. Roychowdhury placed reliance.
Justification of belting method
15. The belting method is a known principle. But having regard to the facts and circumstances of the case, though we are of the view that the belting method was rightly adopted, yet we do not propose to enter into the said question in the facts and circumstances of the case. Mr. Roychowdhury had relied on the decision in Administrator General of West Bengal v. Collector, Varanasi (supra). He relied on paragraph 4 and 9 respectively in order to contend against the adoption of belting method. Since we do not propose to disturb the finding of the learned trial Court, which had discarded the belting method, in the present case, it is not necessary to discuss the said decision for our present purpose.
Additional Evidence
16. An application for additional evidence has been filed. After hearing the parties, it seems that the application for additional evidence may be allowed though objected to by Mr. Basu, and is hereby allowed. We have gone through the additional evidence, the original certified copy whereof has been produced. This is a Judgment in another case being L.A. Case No. 15 of 1991 relating to a land situated around the same locality delivered on 30th of July, 2002.
16.1. The best way to determine market value is to consider the prices obtained by contemporary sale deeds whether of the same land or of the lands in the vicinity. Where no contemporaneous sale deed is available on record, the Court can take into consideration the awards in earlier cases for similar lands, provided the similarity is established through oral evidence. There must be evidence on record on which a Court could have been in a position to compare the nature, situation and potentiality of the land under acquisition with those lands covered under the earlier awards, (Land Acquisition Officer, Ganjam v. A. Krishna Murty Patnaik, : AIR1984Ori6 ). In Special Tahshildar, Land Acquisition v. Smt A. Mangala Gowri, : [1991]3SCR472a , it was held that exclusion of bona fide and genuine sale transactions in respect of the same land under acquisition and to place reliance on the award of some other land is obviously ilegal.
16.2. In the award adduced in evidence, the valuation of the land has been assessed at Rs. 20,000/- per cottah. We do not know whether any appeal has been preferred against the said judgment or not. In any event the same being a judgment of the Court subordinate to the High Court is not binding on us. The particular facts and details of the case are not available before the Court. On the basis of this evidence, it is not possible to determine as to whether the land involved in the said case is comparable with the land involved in the present case. In the absence of any such material, we are unable to accept the valuation @ 20,000/- per cottah for the land in question.
Potentiality
17. Potential value of the land must be determined as on the date of notification and not after subsequent development (Special LAO Karnataka Housing Board v. P.M. Mallappa, : [1997]2SCR1131 ). The potentiality of agriculture lands may be assessed from its capability of production of crops whether single or multi-crops (K. Padmaraja v. Senior Regional Manager, FCI, Hyderabad, : (1996)10SCC613 ). Where the site is a building site on which a building is situated, the potentiality is to be assessed on the basis of the area as it stood on the date of the notification. In this case, a building is standing on the land. The land is situated in residential area. However, the area is being called commercial by the claimants. The valuation of the land cannot be made in segregation of the building inasmuch as it cannot be considered to have potential as building site since a building is already standing thereon. But commercial potentiality may be taken into account, but as on the date of publication of the notification. On record the existing road was only 9 feet wide while the passage is only 6 feet wide, the roads are virtually lanes, which are so narrow that the commercial potentiality cannot be expected to be much higher on account of its situation around 500 meters away from the main road. There is no material on record to show that the area was a commercially developed area.
Comparable sales method
18. In the present case, we do have on record some evidence of comparable sales/exemplars. We, therefore, propose to examine as to how far the material available on record could be relied upon. In Shaji Kuriakose (supra), the Supreme Court had held that the comparable sales method of valuation is preferred than other methods. We have also propose to adopt this comparable value method as was held in the said decision quoted below:--
'3. It is no doubt true that Courts adopt comparable sales method of valuation of land while fixing the market value of the acquired land. While fixing the market value of the acquired land, comparable sales method of valuation is preferred than other methods of valuation of land........ Comparable sales method of valuation is preferred because it furnishes the evidence for determination of the market value of the acquired land at which a willing purchaser would pay for the acquired land if it had been sold in the open market at the time of issue of notification under Section 4 of the Act. However, comparable sales method of valuation of land for fixing the market value of the acquired land is not always conclusive. There are certain factors which are required to be fulfilled and an fulfillment of those factors the compensation can be awarded, according to the value of the land reflected in the sales. The factors laid down inter alia are: (1) the sale must be a genuine transaction, (2) that the sale deed must have been executed at the time proximate to the date of issue of notification under Section 4 of the Act, (3) that the land covered by the sale must be in the vicinity of the acquired land, (4) that the land covered by the sales must be similar to the acquired land, and (5) that the size of plot of the land covered by the sales be comparable to the land acquired. If all these factors are satisfied, then there is no reason why the sale value of the land covered by the sales be not given for the acquired land. However, if there is a dissimilarity in regard to locality, shape, site or nature of land between land covered by sales and land acquired, it is open to the Court to proportionately reduce the compensation for acquired land than what is reflected in the sales depending upon the disadvantages attached with the acquired land.'
18.1. Mr. Roychowdhury had pointed out to two documents produced by the claimants, namely, Exhibit 2 and 2(a). The notification was issued on 31st of December, 1981. Exhibit 2 is dated 12th of March, 1980, Exhibit 2(a) is dated 28th of January, 1981. Both these deeds are in close proximity of time. Therefore, these can be depended upon for the purpose of making the valuation but not at the ratio as contended by PW 2 in her report. If we take the valuation of the land relying on Exhibit 2, the valuation per cottah comes approximately to Rs. 13,000/-, while that of Exhibit 2(a) comes approximately to Rs. 18,000/- per cottah. In order to arrive at the conclusion as to the market value, these deeds might throw some guideline, but it is not a case of absolute proposition. Inasmuch as on record, it appears that the requisition was made on 7th of June, 1980. Before this requisition, various measurements were undertaken and the schemes were prepared. The two lands involved in Exhibit 2 and 2(a) has not been asserted to have been acquired or requisitioned. If these lands are not requisitioned, in that event, those lands were saved. Admittedly, there was a proposal for construction of the Second Hooghly Bridge widening various roads and if after such acquisition of the present property, the land, which is behind the present land, borders the acquired land, then it would have the advantage of a developed area. The demarcation was complete and measurements were being undertaken since 1977 and that this land remains to enjoy the benefit of the development and as such with the prospect of development, these lands might have acquired greater potentiality and, therefore, could have fetched higher price on account of resultant improvement in development prospect. Therefore, the value shown in those deeds may not be an indicator for accepting the value.
18.2. Whereas it cannot be said that the valuation of this land would also be equally increased by reason of its potential on account of such development. But this principle is not available to an acquired land with reference to the development for which it is being acquired. If the land was acquired subsequently after the development project is complete, then it would have acquired a different potential but the land, which is acquired for the project itself cannot claim potentiality on the basis of such project. Therefore, a balanced and reasonable view is to be accepted.
18.3. In the present case, comparable sales being available, we would like to prefer the comparable sales method to find out the price that may be offered and accepted between a willing seller and a willing buyer.
18.4. Relying on State of Haryana v. Ram Singh, : [2001]3SCR1178 , Mr. Basu contended that there are no material evidence that the comparable sales were not mala fide or sham. He had suggested that these transactions were not genuine transactions. But there is no material to show that these transactions were not genuine transactions. However, we have processed through the proposition of law having regard to the said principle. Therefore, we need not deal with the same further.
18.5. So far as the document in Exhibit 2 is concerned, it was a transaction that took place before the requisition was made. Therefore, we may depend on the valuation given in the said document, particularly, in view of the fact that it is a land adjacent to the land acquired. If we take the valuation of the land given in Exhibit 2(a), which is also in the same vicinity transacted after the requisition but before the acquisition, then both these valuations are to be taken into account. If one is Rs. 13,000/- per cottah and other is Rs. 18,000/- per cottah taking of either as the basis would be contradictory. A valuation is to be made on the basis of the contemporaneous documents having reasonable proximity of time with regard to these documents. Therefore, we can very much rely upon these two documents. When different valuations are coming and one is little higher, in that event, that could not mean the extent of increase of valuation of Rs. 5,000/- within less than one year but that might be for the present project. Normally rise in price is around 71/2% per year, if that is applied, the increase would have been to Rs. 14,000/- from Rs. 13,000/-. Having regard to the development prospect, we ignore the rise by Rs. 5,000/- within a year. If we accept the valuation at Rs. 13,000/- still then on the basis of 71/2% increase, it can become Rs. 13,000/- say roughly Rs. 14,000/-. Adopting this principle, we may fix the valuation of the land of Rs. 14,000/- per cottah. The amount of compensation be calculated on the basis of the market value of the land at Rs. 14,000/- per cottah. Mr. Roychowdhury had relied on the decision in Ram Swarup (supra) and The All India Tea and Trading Co. Ltd. (supra). In M/s. The All India Tea and Trading Co. Ltd. (supra) where the evidence of rising prices was noted. We have duly considered the question of rising prices. In any event the said decision only indicates that rising prices are to be noted and does not specify as to how and in what manner this rising prices are to be calculated or determined.
Question of remand
19. Mr. Basu, on the other hand, had relied on the decision in Ashwinkwnar K. Patel v. Upendra J. Patel and Ors., : AIR1999SC1125 to contend that in such a case the High Court should remand the case. There is no doubt about the proposition. But having regard to the facts and circumstances of the case and on the basis of the material available before this Court, we do not think that this was a case fit for remand since there were sufficient materials to come to a conclusion.
Order
20. In the result the appeal succeeds and is partly allowed to the extent indicated hereafter. The judgment and decree dated 4th April, 1989 passed by the learned Additional District Judge, 1st Court, Land Acquisition Tribunal, Howrah in L.A. Case No. 57 of 1986 is modified. The claimants shall be entitled to compensation at the rate of Rs. 14,000/- per cottah being the market value of the land and the value of the structure as determined by the Collector and solatium @ 30% of the market value comprising of these two components.
20.1. The claimants shall be entitled to interest on the amount of compensation comprising of the land and structure @ 9% for one year from the date of notification, namely, 31st of December, 1981 and @ 15% per annum for the period after expiry of 1st January, 1983 until payment, if not already paid (viz. on the unpaid amount) and till the date of the award in respect of the amount already paid as compensation calculated on that basis.
20.2. They will also be entitled to interest at the same rate as above on the compensation comprising of the component of rent compensation payable under Section 7(1) and (2) from 8th June, 1980 till the award or payment.
20.3. The grant of additional compensation is set aside.
20.4. The rest of the judgment and decree appealed against is hereby affirmed. The payment due, if any, be made by the respondents within 3 months from communication of the certified copy of this order. The judgment and decree stands modified to the extent indicated above.
20.5. There will, however, be no order as to costs. Let the Lower Court Records be sent down to the Court below forthwith.
20.6. If an urgent xerox certified copy of this order is applied for, the same is to be supplied to the applicant at an early date, subject to compliance of all the required formalities.
J. Banerjee, J.
21. I agree.