JUDGMENT
L. Mohapatra, J.
1. The State Government acquired some lands belonging to different persons In mouza Chauliapalanda for construction of Paradeep Phosphates Ltd. and compensation was awarded at the rate of Rs. 12.500/- per acre. Not being satisfied with the valuation of the property, claims were raised for higher compensation and the Land Acquisition Collector, Jagatsinghpur, referred the claims under Section 18 of the Land Acquisition Act (‘the Act’, for short) for fixation of fair amount of compensation in respect of the lands acquired belonging to several persons. These reference gave rise to 25 land acquisition cases which were tried and disposed of by the learned Civil Judge (Senior Division), Jagatsinghpur, and compensation was fixed at the rate of Rs. 50,000/- per acre. Challenging the said award made by the learned Civil Judge (Senior Division), Jagatsinghpur, in all the 25 cases, the present First Appeals have been filed by Paradeep Phosphates Limited.
2. It appears from the records that 1,260.15 acres of land were proposed to be acquired in mouza Chauliagalanda, P.S. Tirtol Tahsil Kujang in the district of Cuttack (now Jagatsinghpur). Government notification under Section 4(1) read with Section 17(4) of the Act were issued by the Revenue Department vide Notification No. 49561/R dated 30-7-82 and No. 49562/R dated 30-7-82 and the said Notifications were published in the Extraordinary Issue of Ortssa Gazette No. 1188 dated 10-8-82. Out of the lands proposed to be acquired 1,021.07 acres belonged to private persons and 239.08 acres were recorded as Anabadi. While evaluating the market value of the said land it was observed that the lands proposed to be acquired were originally recorded as Sarada, Patita (new and old), Kulakhi, Huda, Panabaraji, jungle, homestead, tank and Paninala Kisam in the current settlement records. Twenty-four sale deeds were also considered and those sale deeds were of the years 1981 and 1982. Considering the prices at which those lands were sold under the said registered sale deeds as well as the nature of the land, the market price of the land was valued at Rs. 12,500/- per acre.
3. Applications were filed under Section 18 of the Act before the Land Acquisition Collector claiming higher a compensation on the following grounds :
(1) The acquired land is adjacent to Paradeep Port and the declared village comes under Paradeep Port Trust.
(2) The land acquired is adjacent to railway station, Paradeep Port and the bus-stand.
(3) The land acquired is very close to Paradeep Industrial Estate, Express Highway, National Highway, Paradeep College, Hospital, School, Police Station, Government Offices and Business Centres.
(4) There is availability of communication, electricity and water supply.
(5) Productivity of the acquired land was too high and two crops were being raised per annum.
(6) There is great demand for the acquired land due to Paradeep Port, industrialisation, etc.
(7) Paradeep Port Trust is letting sale lands on lease basis at the rate of Rs. 2 lakhs per acre and those lands are inferior than the lands acquired.
(8) The market price of the land In the adjacent villages of the acquired land is too high and increasing rapidly.
(9) The potentiality of the land has not
been taken into consideration.
On these grounds compensation at the rate of Rs. 1 lakh per acre was claimed.
4. After reference made by the Land Acquisition Collector the case was taken up before the learned Civil Judge (Senior Division) , Jagatsinghpur, and in course of hearing the claimants examined four witnesses and exhibited registered sale deeds of 12th May, 1982 and two lease deeds dated 14-12-77 and 19-3-77. To disprove the claim and in support of the award made by the Land Acquisition Collector two witnesses were examined and three documents were exhibited, namely, the ground of valuation and two judgments delivered in two separate land acquisition cases. Considering the materials on record, the trial Court found that the sale deeds taken into consideration by the Land Acquisition Collector in arriving at the market value cannot be accepted as the Land Acquisition Collector did not examine any vendee or vendor of the said 24 sale deeds. Considering the oral evidence adduced on behalf of the present respondents, excepting respondent No. 1, the trial Court came to a conclusion that the market price of the said land should be fixed at Rs. 50,000/- per acre.
5. Shri S. Misra-2, learned counsel appearing for the appellant, has challenged the findings of the trial Court on the following grounds :
(a) The evidence, both oral and documentary, led on behalf of the opposite parties –respondents were not considered at all by the trial Court.
(b) The presumption under Section 114 of the Evidence Act is not available in the case of valuation in respect of sale deeds and the decision reported in AIR 1969 Ker 265 has been misread and misinterpreted by the trial Court.
(c) It was not necessary to examine the vendor’s or vendees of the 24 sale deeds considered by the Land Acquisition Collector.
(d) The valuation mentioned In Ext. 1 being Rs. 2,000/-, the trial Court should not have accepted the oral evidence to the effect that at the time of registration the land had been undervalued to avoid stamp duty.
6. Shri Kishore Jena, learned counsel appearing for respondents — private parties, supports the judgments on the ground that there ts no infirmity in the findings and he has drawn the attention of the Court to Ext. A and submits that the last 3 sale deeds dated 25-8-82, 28-8-82 and 26-8-82 which indicate much higher valuation have not been taken into consideration by the Land Acquisition Collector while arriving at a conclusion with regard to market price of the land.
The learned Additional Standing Counsel appearing for the State submits that the last three sale deeds as indicated by Shrl Jena cannot be taken Into consideration as they relate to very small patch of lands and therefore, the Land Acquisition Collector was justified in not taking into consideration those three sale deeds.
7. Several decisions have been cited by Shri Misra appearing for the appellant and Shrl Jena appearing for the respondents.
7.1 In the decision reported in AIR 1969 SC 429, Special Land Acquisition Officer, Bangalore v. T. Adlnarayan Setty, the Apex Court held that the function of the Court in awarding compensation under the Act is to ascertain the market value of the land at the date of the notification under Section 4(1) and the method of valuation may be (a) opinion of experts, (b) the price paid within a reasonable time in bona fide transactions of purchase of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantage, and (c) number of years purchase of the actual or immediately prospective profits of the lands acquired.
7.2 More or less similar view has also been taken in the three other decisions cited by the learned counsel for the parties. In the decision reported in AIR 1984 SC 774; Special Land Acquisition Officer, Devangore v. P. Veerabhadrappa, etc., the Apex Court took a similar view and observed that normally the method of capitalising the actual or immediately prospective profits or the rent of a number of years’ purchase should not be resorted to if there ts evidence of comparable sales or other evidence for computation of the market value. It can be resorted to only when no other method ts available. This Court in the decision reported in (1983) 56 Cut LT 100 : (AIR 1984 Orissa 6); Land Acquisition Officer, Ganjam v. A. Krishna Murty Patnaik, held that the best way to determine the market value is to consider the prices obtained by contemporaneous sale deeds whether of the same land or of lands in the vicinity. Various factors are to be taken into consideration, namely, the size and shape of the land, the locality and its situation, the tenure of the property, the user, the potential value and the rise or depreciation of the value of the land in the locality. This Court further observed that where, however, no contemporaneous sale deed is available on record, the Courts can take into consideration the awards in earlier cases for similar lands provided the similarity is established through oral evidence. A similar view as that of this Court has also been taken in the decision, reported in AIR 1969 Ker 265, State of Kerala v. Mariamma Abraham.
7.3 In a decision reported in AIR 1972 SC 1417, Smt. Tribeni Devi v. Collector, Ranchi, the Apex Court held that the compensation payable to the owner of the land is the market value which is determined by reference to the price which a seller might reasonably expect to obtain from a willing purchaser, but as this may not be possible to ascertain with any amount of precision, the authority charged with the duty to award compensation is bound to make an estimate judged by an objective standard. The land acquired has, therefore, to be valued not only with reference to its condition at the time of the declaration under Section 4 of the Act but its potential value also must be taken into account. The sale deeds of the lands situated in the vicinity and the comparable benefits and advantages which they have, furnish a rough and ready method of computing the market value.
7.4 Similar view has also been taken by the Apex Court in the decision, reported in AIR 1971 SC 1253, M/s. All India Tea and Trading Co. Ltd. v. Collector of Darrang, and by this Court in the decision reported in AIR 1978 Orissa 74, State of Orissa v. Dunda Oram.
7.5 In the decision, reported in AIR 1976 SC 2403, Land Acquisition Officer, City Improvement Trust Board, Bangalore v. M. Narayanaiah, the Apex Court held that judgment not inter paries would be relevant if they relate to similarly situated properties and contain determinations of value on dates fairly proximate to the relevant date, in computing the market value or a particular piece of land.
7.6 A similar view has also been taken by this Court in the decision, reported in AIR 1976 Orissa 76, Chintamani Sahu v. Collector, Cuttack.
7.7 In the decision, reported in AIR 1996 SC 3150, Vitthalbhai Bakorbhai (dead) through LRs. etc. v. Executive Engineer, Capital Project the Apex Court has held that in certain cases determination of compensation can also be done on the basis of annual yield income and multiplier of 10 is appropriate.
7.8 In another decision, reported in AIR 1996 SC 3469, G. Narayan Rao v. Land Acquisition Officer, the Apex Court has held that where the vendor or vendee in relation to a particular sale deed has not been examined, no reliance should be placed on such document which is untested.
7.9 Reliance is also placed on a decision, reported in AIR 1984 Guj 93, State Bank of India v. M/s. Pramco Saw Mill, Ahmedabad, where it is held that consideration for a contract cannot be said to be a condition of the contract and oral evidence may be adduced as to what was the exact nature of the consideration.
7.10 Reliance is also placed on a decision, reported in (1999) 88 Cut LT 60 : (AIR 1999 SC 964), Hindu Public v. Rajdhani Puja Samithee, and it is submitted that under Sections 91 and 92 of the Evidence Act oral evidence is permissible to prove the intention of recital of a deed.
8. On consideration of the decisions cited by the learned counsel for parties, we are of the view that the computation of the market value of the lands acquired should be based on the price paid within a reasonable time in transactions of sale of adjacent lands immediately before publication of the notification under Section 4(1) of the Act. Only when such documents are not available, the Court can look into the other methods of computation.
9. So far as the present cases arc concerned, the Land Acquisition Collector has taken into consideration 24 sale deeds and in course of hearing the land owners have relied upon one sale deed. In view of the availability of so many sale deeds which were executed within a year prior to the publication of the notification under Section 4(1) of the Act, we think it proper to adopt the best method while considering the prices and arriving at a conclusion, with regard to the market value of the land on consideration of the prices paid in the sale deeds. There is no dispute about the fact that lands covered under the sale deeds are nearby lands and are almost similar to that of the lands acquired under the notification. The question that remains to be decided is whether on the basis of the sale deeds available on record, the computation of market price at the rate of Rs. 12,500/- per acre by the Land Acquisition Collector is just and proper or the market value computed by the Court is just and proper. While deciding this question, this Court is also required to take into consideration the other factors, such as the potential value of the lands and value of similar land leased out by Paradeep Port Trust which is undisputedly near the lands which have been acquired.
10. The trial Court white considering the sale deed produced on behalf of the land owners, relied upon a decision, reported in AIR 1969 Ker 265 (supra) and contrary to the recitals made in the sale deed with regard to valuation, oral evidence was allowed to be adduced and basing on the oral evidence that the land in question under the sale deed had been under-valued to avoid stamp duty, the trial Court calculated the market value of the land at the rate of Rs. 50,000/- per acre. In our view, this finding is erroneous. Rejection of the sale deeds considered by the Land Acquisition Collector on the ground that neither the vendee nor the vendor of any of those sale deeds was examined, is also not based on any sound principles of law. Since so many sale deeds were available before the trial Court he should have taken into consideration all the sale deeds and arrived at a conclusion with regard to the market price of the lands acquired.
11. We have perused the grounds of valuation done by the Land Acquisition Officer and we find that sale deeds executed in between July, 1981 and September, 1982 have been taken into consideration. The notification under Section 4(1) of the Act was published on 19-8-82 in the Extraordinary issue of the Orissa Gazette No. 1188. It appears from those sale deeds that the maximum price at which similar lands were sold on 12-5-82 was Rs. 12,500/- per acre. The learned counsel appearing for the respondents has drawn the attention of this Court to two lease deeds exhibited as Exts. 2 and 3. Relying on the said two lease deeds, Shri Jena submits that inferior quality of lands leased out under the said two lease deeds near about the vicinity of the lands acquired have fetched much more value than that has been awarded by the Land Acquisition Collector. Our attention has been drawn to the evidence of P.W. 4 who is the Estate Officer of Paradeep Port Trust. In his evidence he has staled that on 14-32-77 Paradeep Port Trust has leased out to the State Bank of India the land for a period of 30 years for a premium of Rs. 50,000/- per acre. He has also stated that Paradeep Port Trust has leased out 3700 sq. ft. of land to Paradeep N.A.C. for a period of 30 years on 19-8-87 for a premium of Rs, 2 lakhs. Relying on the said two lease deeds Shri Jena submits that the present lands were acquired in the year 1982, live years after 1977 when Paradeep Port Trust had leased out the land al the premium of Rs. 50,000/- per acre and further submits that the price of the lands had been enhanced by 75% within a period of 10 years when the second lease deed in favour of the N.A.C. Is taken into consideration. According to him, if the potential value of the land is taken into consideration, keeping in mind the aforesaid two lease deeds, the market price of the present land would be Rs. 1,25,000/- per acre, whereas the trial Court has fixed the market value only at Rs, 50,000/-.
12. We have carefully perused the evidence of P.W. 4, in cross-examination he has specifically stated that the lands leased out under the aforesaid two lease deeds are situated in mouza Sandhakuda within the limits of Paradeep town. So price of these lands cannot be equated with that of the lands acquired. At the same time the land leased out not being far away from the lands acquired, an objective guess work has to be made, keeping in mind the price at which, the lands were leased out, and considering the Increase in the rate of land during the period from 1977 to 1987. when Exts. 2 and 3 were executed by the Paradeep Port Trust in favour of State Bank of India and N.A.C., Paradeep, respectively. It is not disputed that the lease value of Rs. 50,000/- in the year 1977 had gone up to Rs. 2 lakhs in 1987. Fixation of market value of the lands acquired by the Land Acquisition Collector also, does not appear to be reasonable. It appears that out of the 24 sale deeds the Land Acquisition Collector did not take into consideration the value of land covered under the last three sale deeds, i.e. sale deed No. 5652 dated 25-8-82 sold at the rate of Rs. 50,000/- per acre, sale deed No. 5609 dated 25-8-82 sold at the rate of Rs. 1,00,000/- per acre and sale deed No. 5653 dated 26-8-82 sold at the price of Rs. 50,000/-per acre. Had he taken the said sale deeds into consideration he would have fixed the market value at higher rate. Considering the valuation of lands mentioned in the sale deeds and the premium at which Exts. 2 and 3 are executed, potential value of the land, we are of the view that value of the land should be Rs. 31,000/- (Rupees thirty-one thousand) per acre. Accordingly we allowthe appeals in part and direct that compensation be calculated at the rate of Rs. 31,000/-per acre. Rest part of the order of the learned Civil Judge (Senior Division) granting additional market value, statutory solatium and interest on the excess amount of compensation is affirmed.
B.P. Das, J.
13. While agreeing with the aforesaid view of my learned brother L. Mohapatra, J., I would prefer to add the following:
In a decision rendered by the Apex Court reported in AIR 1979 SC 869, Krishna Yachendra Bahadurvaru v. Special Land Acquisition Officer, it was observed :
“. . . . .the estimation of market value in many cases must depend largely on evaluation of many imponderables and hence, it must necessarily be to some extent a matter of conjecture or guess.
If the market value of the same quality of land in the same area was Rs. 6/- per sq. yard on 18th April, 1946 and Rs. 12/-persq. yard on 2nd April, 1956, it would be reasonable to take market value on 30th October, 1951 and 28th January, 1954 at Rs. 9/-per sq. yard being the mean between Rs. 6/- and Rs. 12/- per sq. yard.”
(Quoted from placitum)
Apart from, the citation referred to above In a case, reported in AIR 1979 Orissa 147, Collector Puri v. Kamalakanta Das, this Court held that lease granted by the State Government contemporaneously can be utilised as good guidance for determining nearest value.
14. In the case at hand, wide variations in values of the land are found through opposing sets of evidence like sale deeds and lease deeds. The value stated in these deeds can neither be accepted nor disregarded in toto. Thus, a balance has to be struck with prudent guess work taking into account other relevant factors to reasonably determine the market value of the acquired land so that no manifest injustice is caused to either party.
15. Sale deeds relied upon by the Land Acquisition Officer can be good Indication, ‘but cannot be conclusive proof, so far as market value is concerned, since other factors like potentiality etc. have to be considered, as well as the opposing evidence like the lease deeds have to be taken into ac-count. Similarly, lease deeds and values thereof cannot be accepted as conclusive although the same can also be good medicators. On consideration of all the materials on record, it would be reasonable to fix the market value of acquired land at Rs. 31,000/- (rupees thirty one thousand) per acre.
16. Accordingly, the First Appeals are allowed in part. However, there shall be no order as to costs.