- (1.) S. C. Mohapatra, J. Notification under section 4 (1) of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') was published on 14-9-1985 for compulsory acquisition of 13 acres 75 dicimals of land belong ing to the three respondents in three first appeals in Plot No. 606, 616, 617 and 619 for the purpose of construction of building for the degree College at Lalitpur outside Nagar Palika, Lalitpur. On that basis declaration under Section 6 of the Act was published and notices were issued to the land owners under Section 9 of the Act. Deceased Nand Kishore filed Civil Suit No. 93 of 1987 to avoid the compulsory acquisition. An order to maintain status quo was obtained which having been vacated, appeal was filed which was dismissed. Thereupon, Nand Kishore filed the writ applica tion to avoid the acquisition. Acquisition proceeding continued Land Acquisition Officer made the awards under Section 11 of the Act and offered compensation at approximately 57 paise per sq. ft. whereas Land owners were claiming compensation at the rate of Rs. 8 to Rs. 10 per sq. ft. Owners not being satisfied with determination of market value by the Land Acquisition Collector requested for reference. On basis of the requests under Section 18 of the Act three references made to civil court. In the reference proceed ings land owners who stand in position of plaintiffs in suit and on whom onus lies to prove market value, proved eight sale deeds as contemporaneous transaction of land similarly situated to be exemplars for determination of market value. They also examined witnesses to prove the nature and situation of the Land Acquisition Collector examined witnesses in support of reasonableness of the rates at which compensation was offered. Consider ing the materials on record, learned Additional District Judge awarded compensation at the rate of Rs. 5 per sq. ft. Three appeals under Section 54 of the Act have been filed by State Government against the three awards under Section 26 of the Act.
(2.) APPEALS were filed beyond period of limitation for which applications for condonation of delay were filed. A learned single Judge of this Court has condoned the delay. It is submitted that such condonation would not be valid without entering into the validity. We permitted to make submissions on the question. After hearing both parties, we are satisfied that sufficient cause has been made out and accordingly, delay has rightly been condoned. It is submitted that an application for withdrawal of the writ application has been filed. In view of this writ petition is dismissed as abandoned without going into merits of the same. Mr. Bisaria learned Standing Counsel for appellants submitted that in case the writ petition is allowed there would be no scope for determination of any market value as notification under Section 4 (1) of Land Acquisition Act would be quashed. Since writ petition filed by the land owner is being heard also, we called upon learned Counsel for the claimants to make submissions in support of the same. Very fairly the learned Counsel for the land owners submitted that writ petition is not pressed since they are not interested in quashing of notification at this stage. Learned standing counsel submitted that acquired land was not utilised for the purpose for which it was acquired accordingly, market value ought to be reduced where acquired land has not been used for the purpose for which it was acquired. This submission has no force. Market value is to be determined under Section 23 (1) of the Act. Non-user of the land subsequent to the acquisition for the purpose for which it was acquired is not a ground for reducing the market value.
(3.) LEARNED Standing Counsel submitted that rate per sq. ft. should not have been adopted by learned District Judge as Land Acquisition Collector determined market value per acre. This submission has also no force. Acre is not unit of measurement as sq. ft. is. Value of land is neither reduced nor enhanced by adopting a smaller unit of measurement. Therefore, no blame can be put on the learned Addl. Dist. Judge for adopting a smaller unit when some of the exemplars also recite the rate per sq. ft. This rate when multiplied by 43560 becomes the rate per acre as an acre is equal to 43560 sq. ft. Now coming to the question of consideration of exemplar adopting rate available, it is well-known that best evidence for determination of market value is transaction of the very land which has been acquired in case the transaction was made a few days earlier to the preliminary notification. In absence of such evidence, transaction of a portion of land at such time would be good evidence for the purpose of determination of market value if that portion of the land has similar advantages as the land acquired. It is not in dispute that in the present case some of the owners have sold a portion of the plot from the land balance of which was acquired through two sale deeds dated 19-1-1983 and one dated 18-10-1984 which have been marked as exhibits 1 to 3. In exhibit, 1,200 sq. ft. land was sold at the rate of Rs. 5 per sq. ft. Learned Counsel for respondent submitted that this exemplar can be accepted for enhancement of the market value in the minimum. Learned Standing Counsel submitted that these sale deeds were executed at high rates after it was decided to acquire the land in question for which proposal was sent to the State Government and same was known to owners. Thus, the transactions were not bonafide. It is true that transactions which were not bonafide ought not to be relied upon for determination of market value though they are before the publication of notification under Section 4 (1) of the Act. Similarly, transactions which are made to over reach a preliminary notification for getting higher com pensation not being bonafide transactions, cannot be basis for determination of market value. In this case, however, there is no iots of material to doubt the transactions being bonafide. Strong evidence ought to have been laid by the party who claims a transaction not to be bodafide. Hence, we are satisfied that these three exemplars can be considered for determination of market value.;