SHARADCHANDRA CHIMANLAL v. STATE — 1986 DIGILAW 55 (GUJ)

B. K. MEHTA, J. ( 1 ) A few facts need be noticed in order to appreciate the claim made in this appeal. ( 2 ) BY notification issued by the State Government in the Revenue Department dated 10/01/1974 under sec. 4 of the Land Acquisition Act the intention to acquire the property bearing City Survey No. 3/3222 comprising the land bearing S. No. 126 and the building standing thereon situate within the town limits of Khambhat was declared for public purpose for Vegetable Market Yard. It should be recalled that the land in question is of the ownership of one religious public trust namely Galiyara Panch and Kalka Mataji Temple Trust Khambhat and permanent lease hold rights were granted in respect thereof to one Kavidas Parshottamdas who died during the pendency of these proceedings by registered lease deed of 31/03/1924 The building consists of a bungalow and 9 rooms attached thereto which were constructed by the leasee. The State Government published a notification under sec. 6 acquiring the said property on 1/05/1975 General notices under sec. 9 (1) and (2) of the said Act had been published on 24/07/1975 The individual notices as required under sec. 9 (3) and (4) have been served upon the concerned persons. In pursuance of notices under sec. 9 the land owner preferred claim for compensation for the land at the rate of Rs. 35. 00 per sq. yard and prayed that the amount of compensation as determined may be apportioned in the proportion of 75:25 between the Trust (hereinafter referred to as the landowner) and said Shri Kavidas Parshottamdas (hereinafter referred to as the lessee ). They declared before the Land Acquisition Officer that they had no concern with the construction of the super- structure and consequently for the compensation thereof. As far as the lessee was concerned it appears from the award of the Land Acquisition Officer that the lessee has not submitted any claim for compensation in respect of the land and/or structure. The Land Acquisition Officer determined the price of the land which was admeasuring Are 26-30 sq. metres which is equivalent to 2630 sq. metres at Rs. 13150. 00 and granted additional compensation at the statutory rate of 15% of the market price amounting to Rs. 1 972 which aggregated to Rs. The Land Acquisition Officer determined the price of the land which was admeasuring Are 26-30 sq. metres which is equivalent to 2630 sq. metres at Rs. 13150. 00 and granted additional compensation at the statutory rate of 15% of the market price amounting to Rs. 1 972 which aggregated to Rs. 15 122 But of the aggregate amount of compensation as above the Land Acquisition Officer apportioned the same between the land owner and the lessee in proportion of 60:40. As regards the superstructure the Land Acquisition Officer assessed the value of the construction as shown at P in the map prepared by the Deputy Engineer at Rs. 371 after deducting the amount of depreciation of Rs. 16 160 from the value of the construction of Rs. 16731. He apportioned this amount between the land owner and the lessee in the same proportion and awarded Rs. 222-60 to the landlord and Rs. 148-40 to the lessee. He awarded additional compensation at the statutory rate of 15% on both these amounts to the land owner and the lessee ( 3 ) AT regards the valuation of the structure shown at Q in the aforesaid map the land Acquisition Officer assessed it at Rs. 652/- after deducting the depreciation of Rs. 28 342 from the value of the structure at Rs. 28 994 Since this was constructed by the lessee the entire amount of Rs. 652. 00 together with additional compensation at the statutory rate of 15% thus aggregating to Rs. 749-30 to the lessee. ( 4 ) IT appears that both the land owner and the lessee being dissatisfied with the offer made by the Land Acquisition Officer vide his award of 30/06/1976 as aforesaid sought reference under sec. 18 of the Land Acquisition Act which was granted and they were numbered as Land Acquisition Case No. 39 of 1976 by the land owner and Land Acquisition Case No. 40 of 1976 by the lessee. It should be noted that so far as the lessee was concerned though he had not preferred any claim of compensation before the Land Acquisition Officer he claimed compensation for the land at the rate of Rs. 45. 00 per sq. yard and accordingly claimed compensation for the land in sum of Rs. 1 32 30 and claimed Rs. 50 0 as compensation for building. 45. 00 per sq. yard and accordingly claimed compensation for the land in sum of Rs. 1 32 30 and claimed Rs. 50 0 as compensation for building. He also claimed solatium for acquisition at the statutory rate in sum of Rs. 20 0 In all he claimed Rs. 2 2 30 and after deducting the amount of compensation of Rs. 7 54 as awarded by the Land Acquisition Officer he claimed additional compensation of Rs. 1 94 976 On the other hand the land owner claimed compensation for the land at the rate of Rs. 38. 00 per sq. metre amounting to Rs. 92 221 and after deducting the amount of compensation of Rs. 9 73 as awarded by the Land Acquisition Officer they claimed additional compensation of Rs. 83 147 and on the basis of the proportion adopted by the Land Acquisition Officer namely 60 between the land owner and the lessee they claimed that they should be awarded additional compensation of Rs. 50 0 ( 5 ) BOTH these compensation cases were consolidated for purposes of hearing by the learned Extra Assistant Judge Nadiad before whom these matters reached for hearing. It should be noted that both the claimants led their oral evidence but as far as the documentary evidence was concerned they produced and relied on the common evidence. The Land Acquisition Officer has also led evidence and produced some documentary evidence of sale instances in support of the offer made by him. So far as the claimants were concerned they relied on the award made by the Court of learned Extra Assistant Judge in Land Acquisition References Nos. 46 47 and 48 of 1971 produced at Ex. 25 and also on the award made by the learned Extra Assistant Judge in Land Acquisition Reference No. 25 of 1974 produced at Ex. 63. Besides these two awards the claimants placed reliance on sale instances evidenced by the sale deed dated 29/07/1971 produced at Ex. 43 and agreement of sale produced at Ex. 38/1 before the Court. The acquiring body on the other hand produced and relied on two sale instances evidenced by sale deeds of 30/07/1975 and sale deed of 15/12/1975 produced at Exs. 90 and 91. 43 and agreement of sale produced at Ex. 38/1 before the Court. The acquiring body on the other hand produced and relied on two sale instances evidenced by sale deeds of 30/07/1975 and sale deed of 15/12/1975 produced at Exs. 90 and 91. The learned Judge rejected the evidence produced and relied upon by the acquiring body since they were post notification sales and were not comparable in point of time with the relevant date of the acquisition since the relevant date of the notification under sec. 4 for the acquisition in question was 21/11/1983 while the sale deed on which reliance was placed by the acquiring body was of July and December 1975 The learned Assistant Judge also could not persuade himself to consider the sale instance evidenced by sale deed dated 29/07/1971 produced at Ex. 43 at the instance of the claimants since it was also not comparable in point of time since a long period elapsed between the date of the said sale deed and the date of sec. 4 notification for the present acquisition. As regards the award of the learned Assistant Judge Nadiad produced at Ex. 25 by the claimants and which was rendered in Land Acquisition Cases Nos. 46 47 and 48 of 1971 and which was heavily relied upon by the claimants it did not impress the learned Assistant Judge because according to him since they were merely awards they could not be considered better than offers and therefore that evidence is not worthy of acceptance and therefore could not assist the case of the claimants. As regards another award rendered in Land Acquisition Reference No. 25/74 of the same Court produced at Ex. 63 the learned Assistant Judge surprisingly failed to refer to this important evidence since it was so nearer in point of time and therefore we have no benefit of his view in that behalf. The learned Assistant Judge in the circumstances therefore thought fit to assess the market value of the land by capitalising it. 63 the learned Assistant Judge surprisingly failed to refer to this important evidence since it was so nearer in point of time and therefore we have no benefit of his view in that behalf. The learned Assistant Judge in the circumstances therefore thought fit to assess the market value of the land by capitalising it. He found that the amount of compensation offered by the Land Acquisition Officer on the method of capitalisation of annual value would give 25 years purchase but in his opinion the capitalisation should have been made by working out on 20 years purchase basis which would give less than what has been offered by the Land Acquisition Officer and therefore he did not think fit to grant any additional compensation on account of the land. However as regards the structure the learned Assistant Judge was not impressed by the evidence of the claimants nor by the evidence of the Deputy Engineer of the State Government who was cited as a witness of the acquiring body but having regard to the admission made by the Chairman of the Market Committee Khambhat for which this acquisition was made that the market value of the structure would be about Rs. 12 0 decided to enhance the compensation of Rs. 120 as offered by the Land Acquisition Officer to Rs. 12000. 00 as admitted by the Chairman of the acquiring body. He accordingly awarded additional compensation and apportioned the same in the proportion of 60:40 between the land owner and the lessee He granted solatium at the statutory rate then prevailing at 15% of the market price of the building on the amounts respectively coming to the share of the land owner and the lessee. He awarded interest at the rate of 42% per annum from the date of taking over possession that is 30/06/1976 till payment on this enhanced compensation. He made an award accordingly by his order of 31/03/1978 It is this award of the learned Assistant Judge which has been challenged in this appeal at the instance of the lessee. The land owner have filed their cross-objections. ( 6 ) MR. S. R. Shah learned Advocate appearing for the appellant- claimants urged two contentions in support of this appeal. The land owner have filed their cross-objections. ( 6 ) MR. S. R. Shah learned Advocate appearing for the appellant- claimants urged two contentions in support of this appeal. In the first place he submitted that the learned Assistant Judge was clearly in error on the matter of principle in refusing to consider the evidence of a comparable say instance evidenced by the award made particularly in Land Acquisition Reference No. 46/71 which was in connection with the acquisition of land for the very market yard by notification under sec. 4 of the Land Acquisition Act dated 9/01/1969 where the same court of the learned Extra Assistant Judge Nadiad has fixed the market price of the land in question which was admeasuring about Are 23 sq. metres equivalent to 2321 sq. metres at Rs. 38. 00 per square metre. In submission of Mr. Shah this instance is comparable in the point of time with the land under acquisition inasmuch as the purpose of the acquisition of the said piece of land was this very Vegetable Market Yard to be set up in Khambhat and having regard to the situation of the land which is just in the vicinity of the land under acquisition. Secondly he made a grievance that the learned Judge completely lost sight of another award made by that very Court in Land Acquisition Reference No. 25/74 in respect of a piece of land admeasuring Are 13-15 sq. metres of S. No. 111 which was also acquired for the very market yard under sec. 4 notification dated 28/06/1973 which was belonging to the lessee before us where the Court has fixed the market price of the said land at Rs. 15. 00 per sq. yard. Mr. Shah urged that the learned Judge was in error on matter of principle in apportioning the compensation in the way in which he did. In submission of Mr. Shah the learned Judge was required to apply correct principles in the matter of apportionment applicable in cases between landlord and permanent tenant where the landlord has merely right to receive rent and the right of the reversion of the lease hold rights at the end of the stipulated period and there cannot be any fixed straight jacket formula for apportioning the amount of compensation. In any case Mr. In any case Mr. Shah urged that the learned Judge was in error on matter of authority since this Court has held that the rough method of apportioning compensation in cases of permanent lease hold rights is to divide the compensation in the proportion of 75:25 between the permanent tenant and the landlord as held in Saraswati v. Bharatkhand Textile Mfg. Co. A. I. R. 1967 Guj. 36. Mr. Shah also claimed that the appellant-claimants are entitled to the benefit of the amended provisions of sec. 23 (2) and 28 of the Land Acquisition Act 1984 ( 7 ) ON behalf of the respondents it was claimed that the appellant- claimants are not entitled to any compensation in excess of the offer made by the Land Acquisition Officer inasmuch as the appellant- claimants have not preferred any claim whatsoever after notice to them under sec. 9 (3) and (4) as prescribed by sec. 25 of the Land Acquisition Act before its amendment in 1984 where the Court was not entitled to grant any additional compensation in excess of the compensation claimed before the Land Acquisition Officer and therefore the present appeal is incompetent on that ground. ( 8 ) WE may first of all dispose of the preliminary contention raised by the learned Assistant Government Pleader about the competency of the appeal by the appellant-claimants. It is no doubt true that under sec. 25 as it stood before its amendment by sec. 17 of the Amending Act (No. 68 of 1984) where the applicant has made a claim to the compensation pursuant to any notice given under sec. 9 the amount awarded to him by the Court shall not exceed the amount so claimed or be less than the amount awarded by the Collector under sec. 11. The legal position before the amendment of sec. 25 was that not only the person interested on receiving a notice under sec. 9 was to lay a claim but he was under an obligation to claim a specific amount and consequently therefore the award of the Court could not exceed the sum so claimed (see: Goverdhan Mahanta v. State of Bihar (1974) 4 SCC 330 In other words if no claim has been preferred by a person interested in the land acquired the Court would be precluded from awarding any compensation higher than that offered by the Land Acquisition Officer. It is with a view to remove the mischief contained in this provision that sec. 17 of Act No 68 of 1984 deleted sec. 25 as it then stood and substituted the following section in its place:"25 The amount of compensation awarded by the Court shall not be less than the amount awarded by the Collector under sec. 11". ( 9 ) SEC. 25 as it stands now obviates the necessity of any claim being led in response to the notice under sec. 9 of the Act because the only limitation on the power of the Court which has now been prescribed under the amended sec. 25 is that the amount of compensation awarded by the Court shall not be less than the amount offered. In other words the Court cannot in a reference application reduce the amount of compensation as offered by the Land Acquisition Officer. The resultant position emerging from the amended section is that even without any such claim the Court can award compensation in excess of what has been awarded by the Collector which position was not available prior to 1984 since there was a limitation also on the power of the Court in the pre-amended section that the Court would not award compensation beyond that claimed by a person interested. In other words the position prior to 1984 was that failure to make a claim despite receiving notice under sec. 9 without sufficient cause precluded the Court from awarding a sum in excess of the Collectors award. The learned Assistant Government Pleader therefore urged that this benefit of the amended section would not be available to the present appellants since at the time when the award was made by the Court that is on 31/03/1978 the amended provision was not on the statute book and since this provision is not retrospective the benefit of the amended provision cannot be pressed into service by the appellant claimants in appeal before us which is an appeal from the award of the Court. We do see some force in this contention but we find that no objection has been raised on behalf of the land Acquisition Officer as well as the acquiring body to the jurisdiction of the Court in reference under sec. 18 of the Act on the ground that no claim was laid by the appellant-claimants in response to the notice served on them under sec. 18 of the Act on the ground that no claim was laid by the appellant-claimants in response to the notice served on them under sec. 9 and therefore this plea cannot be raised for the first time in this appeal (see: State of Punjab v. Lachman Das AIR 1964 Pandh 68 and Land Acquisition Collector v. Parvati Devi AIR 1964 HP 32 It should be further noted that since this plea was not raised in the written statement no appropriate issue has been raised consequently since this would be a question of fact as to whether the Government has been able to discharge the burden of proof of establishing that a given claimant has not laid a claim in response to sec. 9 notice which plea requires to be investigated inter alia into the question as to whether notice under sec. 9 (3) and (4) has been properly served on the claimant or not. In that state of the pleadings we do not think that this plea can be now available and pressed into service on behalf of the respondents. ( 10 ) THAT takes us to the question of adequacy of the compensation awarded by the learned Assistant Judge the apportionment thereof and the benefit of the amended secs. 23 and 28 of the Land Acquisition Act. Before we take up this question we must note one fact that the appellant-claimants have in this appeal restricted their claim to the additional compensation of Rs. 36 0 and paid courts-fees accordingly It is in this context of the restricted claim that we shall be required to consider as to whether additional compensation is justified and if so to what extent. Re: Adequacy of compensation of land and building; ( 11 ) THE learned Advocate for the appellant-claimants has in support of the additional claim of compensation heavily relied upon the two documents namely award in Land Acquisition References Nos. 46 47 and 48 of 1971 on the file of the Assistant Judge Nadiad and produced at Ex. 25 and another award in Land Acquisition Case No. 25 of 1974 on the file of the Assistant Judge Nadiad and produced at Ex. 63. Now so far as the instance at Ex. 46 47 and 48 of 1971 on the file of the Assistant Judge Nadiad and produced at Ex. 25 and another award in Land Acquisition Case No. 25 of 1974 on the file of the Assistant Judge Nadiad and produced at Ex. 63. Now so far as the instance at Ex. 25 is concerned the learned Assistant Judge could not persuade himself to accept this evidence as a comparable one since in his opinion this award was no better than an offer mate. 9 by the Land Acquisition Officer. We will therefore set out what the learned Assistant Judge has observed in this behalf while refusing to accept the evidence at Ex. 25 relied upon by the appellant-claimants on Ex. 25:"however in this case the claimants have relied on instances of compensation and therefore the question of prominence or potential of the acquired land in only academic. On behalf of the claimants reliance is placed on judgment Ex. 25. This is a judgment of this Court awarding compensation in Compensation Cases Nos. 46 47 and 48 of 1971. It is in evidence of the applicant Panachand Ex. 24 that it is in respect of the acquisition of the lands of vegetable market which is near the acquired property and by this judgment the compensation awarded was Rs. 31. 00 per square metre. However there is nothing on the record to show whether the award by this judgment was accepted by both the parties or whether any appeal is preferred against the same. An award is a mere offer and unless it is accepted by both the parties it cannot be relied for the determination of the compensation of the acquired property in the present case. I therefore do not propose to rely on the judgment Ex. 25". ( 12 ) WE agree with the learned Advocate for the appellant-claimants that the learned Assistant Judge was clearly in error on matter of principle as well as authority in discarding this important evidence in the nature of an award made by the Civil Court in a reference under sec. 18 of the Land Acquisition Act as of no consequence since it is no better than an offer made by the Land Acquisition Officer. 18 of the Land Acquisition Act as of no consequence since it is no better than an offer made by the Land Acquisition Officer. In fixing compensation for land acquired the market price fixed in respect of contiguous land which is also acquired can be taken into consideration and compensation is to be fixed in light thereof after comparing the relative situation and importance of the two plots (see: Daisy and Another v. State of Kerala AIR 1971 SC 2272 ). It does not require much of logic to support this principle since one of the principles which govern the question of assessment of market value is that the value of the land in general can be measured by consideration of prices that it is obtained in the past for land of similar quality and in similar position (see: Collector of Jabalpur v. Babulal (1977) 4 SCC 471 ). This Court has also in Udayan Girja Prasad v. Special Land Acquisition Officer Ahmedabad (1976) 17 Guj. L. R. 668 has ruled that the market price is that price which a normal and prudent buyer would pay after evaluating the prices prevailing in the round about area and which a normal and prudent seller is willing to accept. The actual transaction with respect to a specific land of recent date is a safe guide which the Courts should not disregard when called upon to fix the amount of compensation. The best evidence is that of sale of a land similar in quality and the characteristic which is proximate in point of time to the date of notification under sec. 4. (see: Dollar and Co. Madras v. Collector of Madras AIR 1975 SC 1670 ). If the Court has to assess the market price on the basis of the 6ale instances of land proximate in point of time to the date of sec. 4 notification for acquisition land of similar nature in quality and its peculiarities we have not been able to appreciate as to how the learned Assistant Judge thought fit to disregard the evidence of most comparable instances where the market price was fixed under the awards of the learned Judge in reference under sec. 18 of the Land Acquisition Act. 4 notification for acquisition land of similar nature in quality and its peculiarities we have not been able to appreciate as to how the learned Assistant Judge thought fit to disregard the evidence of most comparable instances where the market price was fixed under the awards of the learned Judge in reference under sec. 18 of the Land Acquisition Act. the learned Judge was therefore clearly in error in rejecting in a cryptic manner one of the best pieces of evidence which was available on the record and thereby falling back on another method of assessing the fair market price namely capitalising it on a number of wears purchase. If we look to Ex. 25 we find that the very Court of the Assistant Judge of Nadiad has in respect of a piece of land measuring about Are 23-21 sq. metres equivalent to 2321 sq. metres awarded compensation of Rs. 35. 00 per sq. metre in Land Acquisition Case No. 46/71. It should be recalled that the acquisition was for the very purpose of vegetable market yard with which we are concerned. The relevant notification under which the intention for acquisition in respect of the said land was declared was of 9/01/1969 It is no doubt true that the land under acquisition which is admeasuring about Are 26-30 sq. metres is situated on the back of the land with which the Court was concerned in Land Acquisition Reference No. 46/71. It is also true that the land under acquisition is slightly at a higher level than that piece of land with which that Court was concerned in the said reference case. Nonetheless these two desimilarities namely being on the back of the marketing yard and at a higher level than the road level is off-set by the increase in the prices during the period between the date of sec. 4 notification declaring the intention of acquiring the land involved in that reference and the date of sec. 4 notification in respect of the present acquisition. The land which was subject matter of reference in Case No. 46/71 was sought to be acquired by notification under sec. 4 dated 9/01/1969 while the date of sec. 4 notification in the present case before us is 21/11/1973 Thus there is a difference of about five years between these two acquisitions. 4 notification in respect of the present acquisition. The land which was subject matter of reference in Case No. 46/71 was sought to be acquired by notification under sec. 4 dated 9/01/1969 while the date of sec. 4 notification in the present case before us is 21/11/1973 Thus there is a difference of about five years between these two acquisitions. We can take a judicial notice of the fact that the prices have gone up appreciably during this period of five years intervening between the said two acquisition. Of course we have no evidence as to by what precise percentage the market have gone up but want of evidence on that count would not be an impediment in our way here because the appellant-claimants are claiming additional compensation at the rate of Rs. 38. 00 per sq. metre in the present appeal before us. We are therefore of the opinion that the learned Assistant Judge was clearly in error in refusing to consider the evidence furnished by the award made by the Civil Court in reference under sec. 18 of the Land Acquisition Act namely Ex. 25 and refusing to fix the market price accordingly. We are of the opinion that we can safely assess the market price of the land under acquisition before us on the basis of the important evidence furnished by Ex. 25 where the very Court of the Assistant Judge Nadiad had fixed compensation in respect of the land notified to be acquired under sec. 4 notification of 9/01/1969 at the rate of Rs. 38 per sq. metre. We are therefore of the opinion that the market price of the land under acquisition would be Rs. 38 per sq. metre. ( 13 ) IN that view of the matter we need not go into the question as to how far another award rendered by the very Court in Land Acquisition Case No. 25/74 in respect of a piece of land of S. No. 1011 acquired for this very market yard and produced at Ex. 63 is of any assistance to the case of the appellants. It is no doubt true that the market price fixed under the said award was in respect of a land intended to be acquired by sec. 4 notification of 28/06/1973 and the market price assessed by the learned Assistant Judge Nadiad was Rs. 15. 00 per sq. metre. 63 is of any assistance to the case of the appellants. It is no doubt true that the market price fixed under the said award was in respect of a land intended to be acquired by sec. 4 notification of 28/06/1973 and the market price assessed by the learned Assistant Judge Nadiad was Rs. 15. 00 per sq. metre. It is no doubt true that the relevant date of sec. 4 notification is proximate in point of time to the date of notification under sec. 4 with which we are concerned in the present appeal. But the important point which must be emphasised is that the land with which the learned Assistant Judge was concerned in the said reference No. 25/74 was agricultural land while the land with which we are concerned is a non-agricultural land bearing city survey number We therefore do not think that the award at Ex. 63 can be pressed into service justifiably for purposes of urging that the market price which should be fixed must be on the basis of the price as determined under Ex. 63. In that view of the matters therefore we fix the market price of the land under acquisition at Rs. 38. 00 per sq. metre and on that basis the amount of compensation would be to the tune of Rs. 99 940 ( 14 ) THIS will take us to the consideration as to what should be the compensation of the superstructure. In Udayan Girja Prasads case (supra) the Division Bench of this Court consisting of J. B. Mehta and T. U. Mehta JJ. (as they then were) in a situation where a composite property was to be evaluated ruled that the property in question should ordinarily be valued as whole composite unit and aggregate of valuations of its different components such as land and structure would normally not give an idea of its market value. We are required ordinarily on matter of principle to evaluate the composite property with which we are concerned as a whole. But in our opinion that exercise would be academic for the obvious and simple reason that in that case the price of the composite property would ordinarily be more than the price of the land and having regard to the fact that the appellant-claimants have restricted their claim to Rs. 36 0 we need not undertake that elaborate exercise. But in our opinion that exercise would be academic for the obvious and simple reason that in that case the price of the composite property would ordinarily be more than the price of the land and having regard to the fact that the appellant-claimants have restricted their claim to Rs. 36 0 we need not undertake that elaborate exercise. We therefore proceed on the basis that the market price of the composite property is that equivalent to the market price of the land for purposes of this appeal having regard to the fact that there is a restricted claim. The question which would therefore immediately arise would be that what should be the appropriate percentage in the matter of apportionment of this compensation. The learned Assistant Judge has proceeded on the basis as if there is a straight jacket formula for apportionment of the compensation. Secs. 23 and 24 of the Land Acquisition Act lay down the principle of compensation and there is no provision in the Act or in the Rules indicating the principles of apportionment. We have therefore to fall back on the principles as enunciated by the Court in that behalf. ( 15 ) IN Re. Pestanji Jahangirji 14 Bombay L. R. 507 the Bombay High Court ruled that what the Collector and the Courts have to do is to apportion the sum awarded amongst the persons interested in proportion to the value of their interest and that it was not possible to lay down any general rule which can be followed. The market value of any interest if ascertained may afford some guidance towards ascertaining the amount to be apportioned in respect of that interest. But that can only be considered in relation to the total sum awarded as compensation. We must bear is mind the factual context in which we have been called upon to apportion the amount of compensation. the factual context is that the apportionment is to be made in respect of a large piece of plot of land given on a long term lease of about 999 years to the lessee. In other words the lessee is a permanent tenant. the factual context is that the apportionment is to be made in respect of a large piece of plot of land given on a long term lease of about 999 years to the lessee. In other words the lessee is a permanent tenant. In the matter of apportionment between landlord and a permanent tenant it is settled principle that the landlord should get the capitalised value of the land plus something more on account of the right of reversion vested in him and the balance must go to the permanent tenant in whom the rest of the rights in the land is vested. There is however no fixed basis on which the right of possible reversion can be valued in terms of money (vide: Thakur Govinddasji Maharaj v. Thakur Ramji Maharaj (1962) 2 Allahabad 453 ). In Bharatkhand Textiles case (supra) the Division Bench of this Court consisting of Miabhoy and M. U. Shah JJ. (as they then were) was concerned with the question of apportionment between the landlord and permanent lessee where the District Judge held that the landlords were entitled to 1/4th of the amount of compensation while lessee was entitled to balance of 3/4th of the compensation. The Division Bench in that factual context ruled that in determining the question of apportionment between a landlord and a tenant the task which has got to be performed by the Court is to compensate the landlord and the tenant for the value of the interest that is lost by the acquisition and there is no question of any windfall in determination of the amount of compensation at all; the amount of compensation is determined with reference to the market value of the land as prevailing on the date of the notification and the question is what is the portion of that market value which is attributable to one or the other party and which that party has lost. If the interest of the landlord and tenant can be valued in terms of money with a reasonable precision and exactness that would be the best method of computing the compensation. If in a given case the totality of the amount of compensation does not coincide with the totality of the two interests separately valued then the question would further arise for determination as to how the excess or the shortfall is to be apportioned between the two interests. If in a given case the totality of the amount of compensation does not coincide with the totality of the two interests separately valued then the question would further arise for determination as to how the excess or the shortfall is to be apportioned between the two interests. Some Judges have resolved this problem by dividing the excess or the short- fall in the proportion of the values separately determined in respect of each interest. But whichever of the aforesaid two methods is employed the condition precedent for the employment of such a method is that the Court must be in a position to value to more or less a precise and exact manner each interest. The Division Bench on consideration of the facts and circumstances of the case before it held that since it was not possible to evaluate the interest of the landlord and tenant with reasonable precision in terms of money the first two methods referred to above could not be adopted and therefore the third method of evaluating the interest of the claimants in terms of fraction of the total amount of compensation regarded as a single unit has to be adopted and therefore the proportion fixed by the learned District Judge at 25 and 75 per cent could not be stated to be unreasonable. ( 16 ) IN Dossibai Nanabhoy Jeejeebhoy v. P. M. Bharucha (1958) 60 Bom. L. R. 1208 the Division Bench of the Bombay High Court in the matter of apportionment of the amount of compensation between lessor and lessee held as under;"in apportioning the compensation the Court has to give to each claimant the value of the interest which he has lost by compulsory acquisition. So stated the proposition may appear simple; but in its practical application numerous complicated problems arise in apportioning the compensation awarded. The difficulty experienced is due to the nature of a variety of interests rights and claims to land which have to be valued in terms of money. The compensation awarded for compulsory acquisition is the value of all the interest which are extinguished and that compensation has to be distributed equitably amongst persons having interest therein and the court must proceed to apportion the compensation so that the aggregate value of all interests is equal to the amount of compensation awarded. The compensation awarded for compulsory acquisition is the value of all the interest which are extinguished and that compensation has to be distributed equitably amongst persons having interest therein and the court must proceed to apportion the compensation so that the aggregate value of all interests is equal to the amount of compensation awarded. In disputes between landlords and tenants about apportionment different methods of apportionment have been adopted. The methods which are generally adopted fall into three broad divisions. Under the first method the value of the lessors and the lessees interest may be separately ascertained in terms of money and then out of the total amount awarded the value of the interest of one may be taken out and the amount awarded to the other. The second method is to value the interest of the lessor and the lessee separately and if the aggregate of these two values does not reasonably correspond to the amount of compensation available for distribution the amount may be distributed in the proportion of the two amounts. If reasonably precise valuation of the competing interests is not possible the court may proceed to evaluate the interests of the claimants in terms of fractions of the total amount of compensation regarded as a single unit. That is the third method. Theoretically the aggregate value of the interests acquired must be equal to the amount of compensation to be distributed But in the valuation of competing interests. which from its very nature is dependant upon indefinite factors and uncertain data considerable difficulty is encountered. Indisputably in apportioning compensation the Court cannot proceed upon hypothetical considerations but must proceed as far as possible to make an accurate determination of the value of the respective interests which are lost. The Court must in each case having regard to the circumstances and the possibility of a precise determination of the value having regard to the materials available adopt that method of valuation which equitably distributes the compensation between the persons entitled thereto". ( 17 ) THE Division Bench following the Full Bench decision of Allahabad High Court in Shyamlal v. Collector of Agra (1933) ILR 35 All. ( 17 ) THE Division Bench following the Full Bench decision of Allahabad High Court in Shyamlal v. Collector of Agra (1933) ILR 35 All. 897 adopted the third method to evaluate the interest of the claimants in terms of fraction of the total amount of compensation regarded as single unit and held that having regard to the fact that the land in question was agricultural land given on a long lease of 99 years with the option to the tenant to renew it for another 99 years at enhanced rate the apportionment of the compensation should be in proportion of 6 Anna and 10 Anna between the landlord and the tenant. ( 18 ) IN Kachrulal Hiralal Dhoot v. Gurudwara Board Nandeo AIR 1979 Bom. 31 the High Court of Bombay held that the licence given on that case in respect of the land acquired was irrevocable and permanent as provided in sec. 60 of the Easements Act and therefore in the same position as that of a permanent tenant who remains in possession indefinitely with an obligation to pay the rent reserved either monthly annually or periodically as the case may be and the right of the owners was only to receive every year a certain sum by way of rent and therefore the owners were entitled to claim compensation arrived at upon capitalisation of twenty years income. In view of the above settled legal position so far as this court is concerned we agree with the learned Advocate for the appellants that the learned Assistant Judge was in error in apportioning the compensation in proportion of 60:40 between the lessee and the land owner before us. Assuming that the learned Judge was compelled to adopt the third method in apportioning the compensation in fraction of the respective interest even then he was not justified in adopting 60:40 as the basis since this was not an agricultural land in the first instance and secondly because the rent was fixed and the only right which the land owner has in this land is right to receive rent and the right of reversion. In that view of the matter the learned Extra Assistant Judge ought to have adopted rough formula which has found favour with the Division Bench in Bharatkhand Textiles case (supra) particularly because the ground rent was fixed and the capitalised value thereof as done by the Bombay High Court in Kachrulals case (supra) would not adequately compensate the landlord who has not only right to receive the rent but right to reversion also; maybe that the latter right may not be of much significance. The learned Judge ought to have therefore apportioned the compensation in proportion of 25:75 between the land owner and the lessee respectively. If that had been done by the learned Judge the lessee would have got about Rs. 74 955 approximately while the land- owner would have got Rs. 24 985 The learned Judge has found that the lessee was entitled to total compensation including that awarded by the Land Acquisition Officer to the tune of Rs. 10 60 and the land owner was entitled to Rs. 15 91 We are therefore of the opinion that even if we agree with the learned Advocate for the appellants that the learned Assistant Judge was in error in the matter of apportionment of compensation and that he ought to have atleast followed the rough and ready method of evaluating the respective interests as held by this Court in Bharatkhand Textiles case (supra) even then having regard to the fact that the appellants have restricted their claim for the additional compensation in this appeal to the extent of Rs. 36 0 the total compensation including that which has been already awarded by the Land Acquisition Officer and Civil Court and the additional compensation which we are inclined to grant in the present appeal would fall far short of the amount of compensation which the appellant-claimants are entitled to on apportionment of the compensation as indicated above that is Rs. 74 955 It should be again recalled that the learned Assistant Judge has made apportionment of the total compensation as awarded by the Land Acquisition Officer and by the Court in the proportion of 60:40 between the land owner and the lessee which in our opinion is clearly wrong for obvious reason that apart from the decision of this Court even adopting 20 years purchase for capitalising the value of the interest it would come to about Rs. 12 0 since the fixed ground rent was Rs. 600. 00 per annum and even adding something on account of the reversion interest which is of no consequence in the present case we do not think that the compensation to which the land owner would have been entitled on that basis would exceed the compensation which they now get under the apportionment made hereinabove where their share works out to Rs. 24 985 ( 19 ) THAT takes us to the question as to what would be the net result of the benefit of the amended provisions contained in secs. 23 (2) and 28 of the Land Acquisition Act. It is not capable of any debate that in the present case the claimants are entitled to the benefit of the amended provision under sec. 30 (2) of the Amending Act of 1984 since the proceedings were pending before this Court in April 1982. ( 20 ) THE next question which then arises is as to how the provisions contained in the amended provisions of sec. 23 (2) are to be applied. On plain reading of the said amended provisions we are of the opinion that the enhanced rate for working out the compensation to be paid in consideration of the acquisition is 30% of the market price. There was some debate before us as to whether this 30% is for the additional claim made in appeal or 30% of the market price. We do not think that the matter is capable of any serious debate having regard to the provision contained in sec. 23 (2) which even before the amendment entitled a claimant to receive additional compensation which we call solatium at the rate of 15% of the market price and therefore even under the amended provision the additional compensation at the rate of 30% is of the market price (See: Ranchhodbhai Madhubhai v. Special Land Acquisition Officer Ahmedabad 1985 Guj. Law Herald p. 960 ). It is no doubt true that so far as the higher rate of interest which is permissible under the amended provision is on the difference claimed in the appeal. We must add here that the benefit of this amended provision is not of much advantage to the appellant-claimants since in the ultimate analysis the exercise of ascertaining the amount of additional compensation under sec. We must add here that the benefit of this amended provision is not of much advantage to the appellant-claimants since in the ultimate analysis the exercise of ascertaining the amount of additional compensation under sec. 23 (2) at the higher rate of 30% also does not take the case of the appellants any further since they have restricted their claim to Rs. 36 0 in the appeal. . ( 21 ) IN the circumstances therefore we hold that the fair market price of the land under acquisition would be Rs. 38. 00 per sq. metre and on that basis the total compensation for the land would be Rs. 99 940 With the consent of the parties we have taken this amount as the price of the composite property for the obvious reason that there is a restricted claim in this appeal and we have not undertaken the exercise to find out as to what would be the price of the structure or what would be the price of the composite property as a whole. We are of the opinion that the apportionment should have on the facts and in the circumstances of the case in proportion of 75:25 between the lessee and the land owners and accordingly the lessee would be entitled to Rs. 74 955 and the land owners would be entitled to Rs. 24 985 We have not thought fit to undertake the exercise of what additional compensation the claimants would be entitled to under the amended provisions for the obvious reason of the restricted claim in the appeal. We therefore hold that the appellant claimants are entitled to additional compensation of Rs. 36 0 and interest at the enhanced rate of 9% and 15% as the case may be from the date of taking over possession till payment. ( 22 ) AS regards the cross-objections we are of the opinion that they are of no merit since the land owners are not entitled to claim apportionment at 60: 40 basis between the landlord and the lessee on the facts and in the circumstances of the case and as held by this Court ic Bharatkhand Textiles Case (supra) the cross objections have no merit even if we adopt the method of capitalising by 20 years purchase method since in that also the land owners would not be entitled to Rs. 15 91 which is a total amount awarded by the Land Acquisition Officer and the Court Mr. J. B. Patel learned Advocate appearing for the land owners urged that in his cross objections he has claimed apportionment from the enhanced compensation also and therefore he is entitled to compensation which is worked out by this Court on the basis of 75:25 between the lessee and the landlord. Though the submission appears to be attractive it would not stand the scrutiny for the simple reason that the proceedings for compensation and proceedings for apportionment are two distinct proceedings under the Land Acquisition Act and a party aggrieved by the award of the Court in a reference under sec. 18 in the matter of compensation has to prefer an appeal or cross-objections for that purpose and pay court fees accordingly. The land owners in the present case have not done so and therefore they cannot claim the benefit of enhanced compensation which we have awarded in the present appeal. However we are of the opinion that the land owners would be entitled to the benefit of amended provisions under sec. 23 (2) since the appeal and the present cross-objections therein were pending at the relevant date that is 30/04/1982 and Therefore the additional compensation in consideration of acquisition at the rate of 30% and the enhanced rate of interest on such difference can successfully be claimed by the land-owners. We therefore hold that the land owners would be entitled to additional compensation at the rate of 30% of the market price of the property as awarded by the Court viz. Rs. 15 91 and the net additional amount of compensation would be worked out accordingly after adjusting the proportionate amount of solatium at the rate of 15% as awarded by the Court. They would be also entitled to interest at the enhanced rate of 9% and 15% as the case may be on the difference between the amount awarded by the Land Acquisition Officer and the amount awarded by the Court. To that extent the cross-objections are allowed. ( 23 ) THE result is that the appeal is wholly allowed and the cross- objections are partly allowed to the extent indicated above. The appellants shall be entitled to the costs while the respondents shall be entitled to the costs to the extent to which they have succeeded. To that extent the cross-objections are allowed. ( 23 ) THE result is that the appeal is wholly allowed and the cross- objections are partly allowed to the extent indicated above. The appellants shall be entitled to the costs while the respondents shall be entitled to the costs to the extent to which they have succeeded. However they would not be required to pay court-fees and they will furnish undertaking to the Court that they will pay court fees if necessary in light of the decision of the Supreme Court in the appeal pending before it from the decision of this Court in Lady Tanumatis case. The State shall bear its own costs and pay the costs of both the claimants as above. Decree to be drawn accordingly. (ATP) appeal allowed. .