Bagchi, J. - (1.) These three appeals at the instance of three different set of claimants, in a proceeding under the L. A. Act read with the relevant provisions of the Calcutta Improvement Act, 1911 arise out of the three awards, rendered by the Improvement Trust Tribunal, covered by the one and same judgment delivered by the President of the said Tribunal. "These three valuation references Involving common questions of fact and law were heard together at the desire of parties. They arise out of the acquisition of three premises for the purpose of the Calcutta Improvement Trust Scheme No. VII (Manicktolla) published on May 25, 1950 under Section 43 (2) of the Calcutta Improvement Act, 1911. For valuing the disputed premises. May 25, 1950 shall be treated as the material date, and not September 2. 1954 which was the date of publication of the declaration under Section 6 of the Land Acquisition Act, 1894. The subject-matters of Cases Nos. 35, 36 and 38 are respectively premises Nos. 34, 35 and 33. Bagmari Lane situated on a private common passage from that lane. These premises originally belonged to what was then known as 10, Bagmari Lane of which the owner was Amulya Chandra Ghose. He carved out that premises into several lots on paper and created a common passage also on paper for giving access to these lots and gifted the three lots in question to three of his sons with a plan attached to each deed of gift. Lots E. F and G were respectively gifted to Ashim Chandra Ghose, Prokas Chandra Ghose and Sushil Chandra Ghose and subsequently these lots were numbered as premises Nos. 33, 34 and 35. The claimant in Case No. 34 is Prokash Chandra Ghose and that in Case No. 35 is Sushil Chandra Ghose. Ashim Chandra Ghose died in 1937 or 1938 leaving him surviving his widow and five sons. The widow died subsequently. The Collector made a joint award in favour of the five sons, Adinath, Pareshnath, Pashupatinath, Alokenath and Amarnath. Amarnath is a bachelor and it is stated that he has not been heard of since July 31. 1947. The remaining four brothers are the claimants in Case No. 38. The Collector awarded Rs. 28441-15-1 as compensation for the market value of l b. 9 k. 15 ch. 1 sq. ft. of land (solid --12k. 60 eh. 31 sq. ft. and tank -- 17 k. 8 ch. 15 sq. ft.) comprises in premises No. 33 which is the subject-matter of Case No. 38. His award in respect of 1 b, 10 k. 10 ch. and 21 sq. ft. of land (solid --12 k. 8 ch. 19 sq. ft. and tank--18 k. 2 ch. 2 sq. ft.) comprised in premises No. 34 of case No. 35 was Rs. 26882-6-4 and that in respect of 1 b. 1 k. 8 ch. 19 sq. ft. of land, treated as solid but low land, was Rs. 18473-12-0. He did not allow any statutory compensation under Section 23 (2) of the Land Acquisition Act. Not being satisfied with the awards, the claimants applied for reference claiming compensation at the Rs. 1500 per kotta in respect of the land of each of the premises Nos. 33 and 34 and at Rupees 2000 per kotta in respect of the land of premises No. 35. They also prayed for an order of payment of statutory allowance at 15%. At the trial the claims were reduced to Rs. 1344 per kotta. Rs. 1338 per kotta and Rs. 1918 per kotta respectively for the lands of premises Nos. 33, 34 and 35. Along with each reference the Collector submitted a statement of grounds contemplated by Section 19 (1) (d) of the Land Acquisition Act. In support of their case the claimants examined Sushil Chandra Ghose, one of the claimants, and Mr. P. C, Chatterjee, an engineer and valuer, as expert witness. The State examined four witnesses Including Mr. Sukumar De, Assistant Valuer, Calcutta Improvement Trust, who supplemented and in effect modified the Collector's valuation and reduced his Award. One of the points for determination in this case is the valuation of the land of the three premises in question. The Collector considered four transactions of sale: (1) sale dated 10th January, 1949 of premises No. 12, Bagmari Lane, having an area of 2 k. 0 ch. 0 sq. ft. for Rs. 4250 at Rs. 2125 per kotta, (2) sale dated 14th February, 1949 of premises No. 5/3. Bagmari Lane, having an area of 1 k. 7 ch. 22 sq. ft. for Rs. 3000 at Rs. 2040 per kotta, (3) sale dated 4th April, 1949, of premises No. 5/4, Bagmari Lane, having an area of 1 k. 8 ch. 6 sq. ft. for Rs. 3500 per kotta at Rs. 2333 per kotta and (4) sale dated 7th December, 1951 of premises No. 27G, Bagmari Lane, having an area of 2 k. 4 ch. 32 sq. ft. for Rs. 2294 (with huts) at Rs. 997 per kotta (with huts). The claimants' valuer, Chatterjee relied on the sales of 5/3 and 5/4, Bagmari Lane and not on the other two sales referred to by the Collector, He discarded the transaction relating to 12, Bagmari Lane and 27G, Bagmari Lane for good reasons. According to him, 12, Bagmari Lane is unbuildable. That is not so. As a matter of fact, it was found built upon by a long tiled shed and Cl. shed. It is not, however a normal or regular plot as its frontage on, Bagmari Lane is 15 ft, only and its average depth is nearly 100 ft. Premises No. 27G. Bagmari Lane had not the same disposition at the material date with reference to which it was valued by the Collector. There was no common passage at that date and it was then part of a big factory site which was subsequently carved out and sold in lots. The Collector himself awarded Rs. 1500 per kotta for land though the sale price was Rs. 997 per kotta. The Collector himself did not accept that rate, and awarded a higher value. Since the claimants' expert was justified in rejecting the transactions relating to 27G and 12, Bag-mail Lane and since both the Collector and the claimants' expert relied upon the transactions concerning 5/3 and 5/4, Bagmari Lane, it would be advisable to value the properties in question with reference to those two transactions after giving suitable allowances because premises Nos. 5/3 and 5/4 enjoy advantages which the disputed premises do not. They are not similar plots. Similarly situated and enjoying similar advantages. Nevertheless, as no other comparable transactions were placed before the Court, it had no option but to value the disputed premises with reference to those premises after making such deduction as are reasonable and proper in the circumstances of the case."
(2.) The President considered the valuation of the Collector and experts examined both sides. He repeated the evidence of the appellants' expert Chatterjee regarding valuation as being perfunctory, unhelpful and unworthy of acceptance, observing that upon the claimants burden lay to establish that the Collectors' valuation was wrong, the learned President held that the burden was not discharged by the claimants in the reference cases in question. After considering the materials in the record the President upheld Collector's award in respect of premises Nos. 33 and 34. Regarding Collector's award in respect of premises No. 35, the President made a slight modification and arrived at the modified valuation at Rs. 20,194-6-5 p. Material date for the purpose of valuation of the premises in Question according to the Tribunal was 25th May, 1950, the date of publication of notification under Section 43 (2) of Calcutta Improvement Act. 1911 in view of the provisions of Section 74-C (ii) of the Calcutta Improvement Act, as Introduced by amending the original Act, by the amending W. B. Act XXXII of 1955. The President held that the market value of land comprised within any improvement scheme framed by the Board and published under Section 49 of the Act shall be deemed to be the market value according to the disposition of the land at the date of publication of the notification under Section 43 (2) of the Calcutta Improvement Act, 1911. The President held that the change in the law was a change in the procedural law and as such had no retrospective effect since none had a vested right in the law of procedure. Further the President held that the Collector's awards having been passed after the Amending Act had come into force, the Collector was correct in taking 25th May, 1950 as the date for determination of the market value and was justified in not taking 2nd September, 1954 as the date for determination of the market value. The President held that even if the material date was not May, 1950 but was September, 1954, there having had not been any increase of land value during the intervening period the market value in 1950 was the same as in 1954. Relying on the amended Section 74-C (i) of Calcutta Improvement Act 1911, which came into force on 20th October, 1955 the President disallowed 15% additional compensation as provided for by Section 23 (2) of Land Acquisition Act and upheld the Collector's awards that also disallowed such additional compensation. The valuation in regard to premises Nos. 33 and 34 made by the Collector's award was upheld (page 98 of the paper book in F. A. No. 227 of 1957). Though the President observed that valuation of Collector regarding premises No. 35 required slight modification (page 98 of the paper book in F, A. No. 227 of 1957) he by his final order (page 102 of the paper book in F. A. No. 227 of 1957) dismissed the valuation case No. 35 with cost to the State. As regards valuation Cases Nos. 33 and 34, the final order of the President speaks not a word. We may take it that in Valuation Case Nos. 33 and 34 Collector's awards were upheld but nothing more.
(3.) The claimants in each of these Valuation Cases Nos. 33, 34 and 35 preferred those appeals against the Tribunal's judgment and awards respectively which have been heard analogously and shall be governed by this judgment.;