- (1.) S. C. Mohapatra, J. Claimant land owners are appellants in this appeal under Section 54 of the Land Acquisition Act, 1984 (hereinafter referred to as 'the Act' ).
(2.) ON basis of preliminary notification under Section 4 (1) of the Act published on 1-11-1983, 4 bighas of land in plot Nos. 77 an 69 belonging to various owners were acquired for construction of approach road and subsi diary roads to the fly over on State Highway No. 24 in revenue village Chipiniya Bujurg. Land of appellants measures 2 bighas 14 biswas which is part of plot No. 77. Land Acquisition Collector carved out the entire acquired area into three belts of 100 metres with each. Market value of land in the first belt adjacent to Grant Trunk Road was determined at Rs. 72 per sq. yard. For the second belt adjacent to first belt market value was determined at Rs. 54 per sq. yard and for the third belt market value was determined at Rs. 48 per sq. yard. Claimant appellant were demanding compensation at the rate of Rs. 325 per sq. yard for plot No. 77 on basis of the circle rate fixed by Collector under Section 47-A of the Stamp Act (U. P. Amendment) at the rate of Rs. 300 per sq, yard in the year 1982 which was increased to Rs. 500 per sq. yard in 1985. Being dissatisfied with the rate offered, claimant appellants requested for a reference under Section 18 of the Act to civil court for determination of market value. Land owners of plot No. 69 also requested for a reference. Land Acquisition made two references i to civil court which were heard together and impugned award under Section 26 of the Act was made. This appeal is confined to 2 bighas 14 biswas of land in plot No. 77 belonging to appellants. Claimant in a reference proceeding stands in position of plaintiff in a suit. In the proceeding in civil court onus lies on him to prove that award under Section 11 of the Act by the Collector is wrong on facts and law and also to prove the rate of prevailing market value of acquired land on the date of publication of preliminary notification under Section 4 (1) of the Act. For determination of market value claimant is to satisfy the civil court that the rate at which he claims compensation is the rate which a seller expects and a bona fide purchaser was willing to pay on the date of publication of notification under Section 4 (1) of the Act, when the land acquired was subject-matter of sale transaction before a few days of preliminary notification, the same would be the best evidence for determination of market value unless the rate received by the seller is explained to be low for any special reasons. Claimant is to explain the same. Where the land acquired was not the subject-matter of any transaction but a part of the same plot which also includes the acquired plot, was subject-matter of sale transaction within a short period before preliminary notification, rate available in the transaction would be a safe guide to determine market value of the acquired land. If claimant demands compensation at a higher rate, he is to satisfy the court why the rate at which consideration was paid for a portion of the plot was low. Where such transaction is also not available, court would search for contemporaneous transactions of land in the vicinity of the acquired land with similar advantages. If the same is also not available, court would not be justified to reject a claim altogether on the ground that claimant could not prove the prevailing market value of acquired land but shall make a reason able guess work from the available materials whether in shape of oral evidence of other documentary evidence on record. Authorities empowered to determine market value for compensating a land owner should not treat the proceeding as a civil suit and decide the issue in strict standards of appreciation of evidence in a suit. It is to be remembered that owner of the land not willing to part with the same is being compulsorily deprived of his land for public purpose and is entitled to just compensation which should not be sound of profit to him at the cost of the State Exchequer or he should not be penalised because he is not able to provide best evidence. It is, however, always to be remembered that normally the best evidence would be brought to record by a person who seeks adjudication in his favour. Where court is not satisfied about the market value on basis of contemporaneous transactions or such materials are not available it reverts to method of capitalisation of annual profit of the land owner from the acquired land and awards compensation from which claimant can get profit which would be just equivalent to the loss of annual profit. If no material is available to adopt this method also Court would search for valuation by experts. Where materials are available for all the three methods, court would be justified to con sider them together for determination of market value. It, is however, to be remembered always that no two areas may be same either in respect of situation or the extent or the potentiality and it is not always possible in all cases to have reliable materials from which valuation can be accurately deter mined. Thus, estimation of market value in many cases must depend largely on evaluation of many im ponderables and it must necessarily be to some extent a matter of conjuncture or guess. However, the said guess or con juncture should not have a look of arbitrariness or favouritism and therefore, court has to depend upon its judicial experience where it would support its estimation by reasons.
(3.) LEARNED Trial Judge has accepted the belting of the acquired land as has been made by the Land Acquisition Collector. He accepted the sale transaction of a portion of plot No. 77 by the appellants in the year 1983 a few months before the publication of notification under Section 4 (1) which reflected a rate of Rs. 105 per sq. yd. and from that estimated the market value of the acquired land in three belts at Rs. 72 as determined by Land Acquisition officer though he was of the view that it should have been Rs. 70. 35 per sq. yd. He determined market value of 2nd belt at Rs. 63. 31 and of 3rd belt at Rs. 56. 28. This is grievance of the claimants. Belting of acquired land measuring only 2 bighas 14 biswas in plot No. 77 is seriously contested in appeal in view of smallness in area and situa tion of land having grand trunk road on one side and bye- pass on another side connecting the Grand Trunk Road. Existence of a village road in the middle of plot No. 77 is also highlight to submit that in absence of any evidence that any part of the acquired land cannot be conveniently be used without development, method of belting should not have been accepted. There appears to be some force in contention of appellants. On the facts of this case we are inclined to hold that the entire area of 2 bighas 14 biswas have the same advantages and belting was not appropriate.;