SHAFIUR RAHMAN, J.---This appeal has been filed as a matter of right under Article 185(2)(e) of the Constitution. It challenges the enhancement of compensation of the land acquired for the requirements of the appellant, from Rs.372.60 per kanal to Rs.150 per marla or to, Rs.3,000 per kanal by the High Court vide its judgment dated 5-6-1989.
2. 50 kanals 15 marlas of land belonging to respondents Nos. 1 to 6 was required for a public purpose namely establishing Market Committee Kanganpur in District Kasur. A notification with regard to it under section 4 of the Land Acquisition Act, 1894 appeared on 7-4-1972 followed by other notifications, ultimately ending up in an award dated 29-4-1975 whereunder compensation, on the average sales of one, year preceding the notification under section 4, was worked out in the estate @ Rs.372.60 per kanal and the same was awarded to the respondents. The respondents objected to it and riled a Reference under section 18 of the Land Acquisition Act which was dismissed on 10-7-1984. In the Reference Application the respondents had claimed compensation a Rs.1,000 per marla. They put in certain sale mutations in support of their claim before the Senior Civil judge, the District Court for the purposes. The-Court dealt with the claim in the following words:-- "Accordingly from the petitioners side there is no evidence at all to support their contention that the compensation awarded by the Land Acquisition Collector to them was either inadequate or that they were entitled to enhanced rate of compensation. Even otherwise the Mutations Nos.2069 of 1967 and 30-50 of 1973 cannot support the claim of the petitioners that they are entitle to enhanced rate of compensation because these two mutations are solitary examples of sale of agricultural land for the years 1967 and 1973 respectively and further that these sales were not registered sales and were only sales through oral statements. On the other hand the Land Acquisition Collector had based his award on the basis of average prepared by the patwari and on the basis Revenue Record at the relevant time."
In granting relief to the objectors, notice was taken of the deficient interest and compensation for the standing crop and an observation with regard to it made in the following words:-- "Before concluding I have to observe that the petitioners are entitled to interest on the total amount of award which is Rs.21,745.87 from the date of award till the date of actual payment. I allow them simpsle interest @ 10% on the total amount of Rs.21,745.87 from the date of award which is 29-4- 1975 till the date of payment which shall be calculated by the department and paid to the petitioners accordingly. In addition a copy of Roznamcha Waqiati has been filed which shows that when possession of the dispute land was taken over from the petitioners, compensation for the plaintiffs' garden measuring 3 kanals was awarded to them by Revenue Authorities which is for an amount of Rs.5,000. This has also not been paid to the, petitioners. The petitioners are, entitled to this amount of compensation as well which shall be, paid by the department to them alongwith the principal amount of compensation and interest thereon.The petition is accordingly accepted partly with the above directions to pay them interest @ 10% per annum from, 29-4,1975 till the actual payment alongwith Rs.5,000;as compensation and that the original .Award is maintained with the above two directions.
Aggrieved by the judgment of the Senior Civil Judge an appeal was filed in the High Court. Wherein the additional documentary evidence, was admitted. Out of four mutations of sale sought to be produced evidence for claiming enhancement in-compensation, only two were taken into consideration and these are mentioned in. The judgment as hereunder:--'
Out of the four mutations(copies Exhs. A to A-4) only one, whose copy is Exh. A-1relates to sale of land which took place before the publication of notification under section 4. This Mutation (No.2069) records sale of 4 kanals 5 marlas of chahi land lying in the area of village Kanganpur for Rs, 8,500. The next. Mutation (Copy Exh A2),.- entered on the 19th February and attested on the 24th February,: 1973, incorporates sale of 4 kanals 1,marla of land of Kanganpur estate for Rs.14,000; According to the first, sale price per Marla of land comes. To Rs.100 and according to the, second to Rs..173.
The High Court also noted 1h at the land in dispute was located alsonoted that the land in dispute was location along Thing- Kanganpur Road: It was dose to 'the Railway; Station and the Canal Rest House. It also appeared to the Court that after acquiring the land and investing in its levelling and improvement about Rs.2,00,000the same was made out into plots of three marlas four marlas and five marlas, and auctioned for Rs.3,OQ0 to Rs.5,000 each for establishing market.From this fact it was concluded that by spending less than Rs.200 per Marla, the appellants had "leaped a rich benefit by the sale of the land in dispute'. The factors which the High Court took into consideration for enchancing the price from Rs:200 or less,to,Rs3,00 upto 5,000 were recited as hereunder:-- .
"Keeping in view the location of the land, sale- prices of the lands incorporated in the mutations; copies Exhs: A-l -and- A-2, and how thelandhas been Sold by; theMarket Committee, it would not beunreasonable to-fix the market value of the land at the `time of itsacquisition at the-rate of Rs.150 per Maria."
4. Ch. Inayat Ullah, Advocate, the learned counsel far the, appellant has contended that there was no justification for admitting .Additional evidence as it was related to sales after the notification.
Under, section 4 had appeared. It is also contended that irrelevant factors have been taken into consideration. In enhancing the compensation and those are the investments made and the price taken subsequently of these plots. It was contended that the average of the sales during the: course of 12,fmonths preceding the notification under section 4 should not have been ignored or lost, sight, of, in working out the compensation.
5. This appeal is shown to be, barred by time. The explanation for it is that it was filed as a. Petition for leave to appeal and on an office objection that direct appeal lay, suitable rn4fications in the Memorandum' of Appeal were made and the appeal was refiled as a direct appeal. The petition for leave to appeal had been presented within time prescribed for direct' appeal "and the return' of it had occasioned delay which was bona fide and can be condoned. There is 1nothing on the record to rebut or to doubt this statement: Hence, delay of two days in-filing the appeal is condoned.
6. There is no objection by the respondents to the locus stand of the appellant to- -file an appeal against the enhancement of the amount of compensation...
7. The relevant section of the Land Acquisition Act (Section 23) as amended in the Province of Punjab; governing the grant of compensation and the factors to be considered reads' as hereunder:--. .
"23. Matters to be considered in determining compensation.---(1) In determining the 'amount of compensation to be awarded for landacquired under this Act, the Court shall take into consideration---.
First the market-value of the land at the -date of the publication of the notification under section 4 subsection .
Explanation.-For the purpose of determining the market-value, the Court shall take into. Account transfer of. Land similarly situated and in similar use.The potential value of the land to acquired if put to a different use shall only be taken into consideration if 'it is proved that land similarly situated and previously in similar use has, before the date of the notification under subsection (1) of section 4; been transferred with a view to being put to the use relied upon as affecting the, potential value of the land to be acquired:
(i) if the market-value has been increased in consequence of the and being' put to a use which is unlawful or contrary to public policy that use shall be disregarded and, the market value shall be deemed, to be the market-value of the land if it were put to ordinary use; and
(ii) if the market-value of any building has been increased m consequence of the building being so overcrowded as to be dangerous to the health of the immates, such overcrowding shall be disregarded and the market-value shall be deemed to be the market-value of the building if occupied by such number of persons only as can be accommodated in it without risk of danger to health from overcrowding. secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof; thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land; fourthly the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the: acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings; fifthly,if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and sixthly,the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector s taking possession of the land.
(2)In addition to the market-value of the land as above provided, the Court shall award a sum of fifteen per centum of such market-value, in consideration of the compulsory nature of the acquisition, if the acquisition has been made for a public purpose and a sum of twenty-five per centum on such market-value if the acquisition has been made for a Company."
Section 24 of the Land Acquisition Act which prohibits the Court from taking into consideration certain factors in assessing the compensation have also been listed, and these are as hereunder:- - "24. Matters to be neglected in determining compensation.- But the Court shall not take into consideration- --first, the degree of urgency which has led to the acquisition; secondly, any disinclination of the person interested to part with the land acquired; thirdly, any damage sustained by him which, if caused by a private person, would not render such person liable to a suit; fourthly, any damage which is likely to be caused to the land acquired, after the date of the publication of the declaration under section 6, by or in consequence of the use to which it will be put; fifthlyany increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired; sixthly, any increase to the value of the other land of the person interested likely to accrue from the use to which the land acquired will be put; or seventhly any outlay or improvements on, or disposal of, the land acquired, commenced, made or effected without the sanction of the Collector after the date of the publication of the notification under section 4, subsection (1):,
8. There are four, if we may say so with utmost respect, legal errors in the impugned judgment of the High Court. Firstly, as reproduced above, the High Court has taken into consideration and has been swa yed by the fact that the appellant by investing less than Rs.200 per marla was able to reap a rich benefit of the sale by auction of these plots on exorbitant prices of Rs.700 to Rs.1,000 per marla. The law reproduced above contains an express prohibition that the Courts shall not take into consideration any increase to the value of the land acquired, likely to accrue from the use to which it will be put when acquired. The assessment made by the High Court is vitiated on that account.
9. Secondly without finding fault or deficiency in the one year's average of sales during the year preceding the notification, the same could not have been rejected or kept totally out of consideration. Such average of sales is seldom decisive but always relevant, for it provides objective material, diverse in nature, numerous in numbers and unaffected by notification under section 4 or any Scheme relating to it. Unless shown or found to be deficient for any reason, it, could not have been left out of consideration. In the Special Land Acquisition Officer, Banglore v. T.
Adinarayan Setty AIR 1959 SC 429, this particular aspect was considered in the following words:-- "We further think that the High Court committed an error of principle in arriving at the figure Rs.13-8 and the error was committed by adopting a wrong method in ascertaining the market value of the land at the relevant time. It is not disputed that the function of the Court in awarding compenstion under the Act is to ascertain the market value of the land at the date of the notification under Section 4(1) and the methods of valuation may be (1) opinion of experts, (2) the price paid within a reasonable time in bona ride transactions of purchase of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages, and (3) a number of years purchase of the actual or immediately prospective profits of the lands acquired. In the case under our consideration the High Court adopted the second method, but in doing so committed two serious errors. There were altogether seven transactions of alienation made by the respondent. One was a gift which must necessarily be excluded. The earliest of the sales was in favour of Munirathnam which was made on May 15, 1945. Another was made on July 18, 1945. This was in favour of Venugopal who was the husband of a grand-daughter of the respondent. Four other transactions in favour of Kapinapathy, Puttananjappa, Shamanna and Rajagopal Naidu were made in August 1945. The Notification under section 4 of the Land Acquisition Act was made on October 4, 1945.
What the learned Judges of the High Court did was to take only four out of the aforesaid six transactions into consideration and then to draw an average price there from. The learned Judges gave no sufficient reason why two of the transactions were left out-----We are of the view that this arbitrary selection of four transactions only out of six has vitiated the finding of the High Court. If all the six transactions of sale are taken into consideration, the average rate comes to about Rs.10-13 per sq. Yard only. Having arbitrarily discarded two of the transactions, the learned Judges of the High Court committed another error in taking a second average. Having arrived at an average of Rs.12-2 per sq. Yard from the four transactions referred to above, they again took a second average between Rs.14, which was the maximum price obtained by the respondent, and Rs.12.-2. Having struck this second average, the learned Judges of the High Court arrived at the figure of Rs.13-8. No sound reasons have been given why this second average was struck except the extraneous reasons to which we have already made a reference. It is obvious that the maximum price Rs.15 per sq. Yard had already gone into the average when an average was drawn from the four transactions.
10. Thirdly, a mutation which related m the sale of a period ten to eleven months subsequent to the notification under section 4 of the Land Acquisition Act was utilised for arriving at the market value of the property. After excluding such evidence or material which has been erroneously utilised by the High Court against the provisions of the law, there remains only the average worked out from one year's average sale price in the locality. It would be reasonable to take into account those other factors which the High Court has taken into consideration namely, the proximity of the Railway Station, the Canal Rest House and the main road.
11. Fourthly besides the evidence was brought on the record to prove that by such acquisition severance of the property of the respondents/landowners had taken place disrupting the compactness of the three blocks. This severance of the property had to be compensated for under clause `thirdly' of section 23 of the Land Acquisition Act: Section 26 of the Land Acquisition Act provides that every award made by the Judge "shall specify the amount awarded under clause first of subsection (1) of section 23, and also the amounts (if any) respectively awarded under each of other clauses of the same subsection, together with the grounds of awarding each of the said amounts". The requirement of this statutory provision has necessarily the effect of making the award more objective and re-viewable.
12. The criteria or factors taken note of as plus and minus factors, have been ~' listed in Chimanlal Hargovinddas v. Special Land Acquisition Officer, Poona and another (AIR 1988 SC 1652) in the following manner:-- Plus factors:
(1) Smallness of size.
(2) Proximity to a road.
(3) Frontage on a road.
(4) Nearness to developed area.
(5) Regular shape.
(6) Level vis-a-vis land under acquisition.
(7) Special value for an owner of an adjoining property to whom it may have some very special advantage.
Minus factors:
(1) Largeness of area..
(2) Situation in the interior at a distance from the road.
(3) Narrow strip of land with very small frontage compared to depth.
(4) Lower level requiring the depressed portion to be filled up.
(5) Remoteness from developed locality
(6) Some special disadvantageous factor which would deter a purchaser."
13. Taking the average sale price in the locality at Rs.400 per kanal (round figures instead of Rs.372- 60 as worked out), the steady increase in prices close to the date of notification is added to it at 50%. Another 50% is added to the value on account of its prized location, proximity to the road and closeness to the developed area. Further, 50% is allowable under clause `thirdly' of section 23 of the Land Acquisition Act on account of severance of the property and the burdensome results of such acquisition on the left out property This yields price of Rs.1,000 per kanal or Rs.50 per marla, at the maximum, which is hereby adjudged as the compensation for the land. Hence, were accept the appeal, set aside the impugned judgment of the High Court and adjudge the compensation payable to the respondents by the appellant to be Rs.50 per marla instead of Rs.150 per marla. In addition, the respondents shall be entitled to the compulsory acquisition charges and the interest at the rates ordered by the High Court. No order is made as to costs.