P L D 1963 Dacca 962 (PLP)

(b) clauses (ii) and (iii) shall be omitted." This amendment came into force on the 26th October 1957. Thereafter it was further amended by East Pakistan Ordinance No. XXV of 1959. After successive amendments the provisos to section 7 (e) of Act XIII of 1948 comes to be read as follows: [Provided that

(i) Subject to the provisions of clauses (i1) and (iii) of this proviso, the market value of any immovable property for the purposes of this section shall be the market value of the property at the date of the order of its requisition under section 3 ; (ii) the market value of any immovable property within a radius of 15 miles from the respective Collectorate buildings of Dacca and Chittagong shall be the market value of such property in 1953; (iii) when there has been any transfer of ownership of any t such immovable property after 1953, the market value of such immovable property shall be the price paid by the owner plus 15 per centum thereof."]

9. As to the first contention, the learned Advocate for the appellants, refers to Exh. A (Award made by the Collector of Chittagong, at page 22, Part II of Paper Book) and contends that the basic calculation was made not with reference to provisos (ii) and (iii) of section 7 (e) of the East Bengal (Emergency) Requisition of Property Act (Act XIII of 1948) but with reference to "Land value calculated at the following rate approved by Govt. vide Memo. No ...dt...l. Homestead @ Rs. 20,000 per acre." There is no reference in this award made by the Collector to any market value of the land for basic calculation. It only refers to a rate approved by the Government and in order to show the approved rate of the Government it refers to a memo., but no number nor any date has been given. Even if the compensation was assessed on the basis of the approved rate, we cannot under stand, how it can be done contrary to the provisions of section 7 (e) and provisos there under of the said Act. It is surprising that the learned District Judge without scrutinising the Collector's award and, as it seem to us, even without reading the Collector's award, has made the observation that : "The market value of the property, as it appears, was assessed according to the pro visions of the said Act". Therefore, this contention of the learned Advocate for the appellants urged in the presence of the Government Pleader, who could not meet it for want of materials, seems to us to be of substance.

10. The second part of the first contention is that even if the provisions of section 7 (e) apply to this case for determina tion of compensation, on account of the omission of the provisos (fi) and (iii) by the Amending Act of 1957, the compensation can not be calculated or assessed on the basis of the provision of these provisos. The learned Government Pleader refers to proviso (i) to clause (e) of section 7 of the Act which provides: " . . . . the market value of any immovable property for the purpose of this section shall be the market value of the property at the date of the order of its requisition under section 3." In view of the fact that at the time when the requisition was made on 11‑7‑50 clauses (ii) and (iii) in the proviso were in force, the market value is to be assessed with reference to the date of requisition, as provided in the proviso (i) of clause (e) of section 7 of the Act and in case of immovable property within the radius of 20 miles from the Court of the District Magistrate of Chittagong (and it is not disputed that the disputed property is within that radius) the market value shall be the market value of the property on or before the 12th day of June 1947. Sub sequent omission of these provisos cannot affect the assessment under the law as it was in force at the time of requisition. The learned Advocate for the appellants, relying on the omission of privosos (ii) and (iii) by the amendment of 1957 and also relying on the fact of acquisition in 1954 when these clauses (ii) and (iit1 under the proviso were not in force contended that market value of the property could not have been market value of the property on or before the 12th day of June 1947 but the market value on the date of notice of the acquisition i.e., on 11‑11‑

54. We are unable to accept this contention, because, the market value is to be determined not with reference to the date of acquisition under section 5 but with reference to the date of requisition under section 3 of the Act as provided in the proviso (i) to clause (e) of section "7 which proviso is again subject to clause (iii) of the proviso in this case.

11. The second contention of the learned Advocate for the appellants also seems to be very well founded. The only witness examined in this case on behalf of the opposite‑party the Collector of Chittagong, is Amarendra Lal Das Gupta, witness No. 1 for the opposite‑party, who stated in his deposition (page 25 at page 26 of the paper‑book): "The land value was assessed in the sale rate gathered from 1945 to the date of partition and actual price given exceeds the rate". Then he says at page 26 line about 20: "I have no personal knowledge of the assessment nor can I say from my own knowledge as to the prevailing price of land of these area before June, 1947".

12. We have already referred to the award made by the Collector. The basic calculation was not on the basis of the sale rate gathered from 1945 to the date of partition and the Collector's ward belies the statement made by the witness O. P. W. 1 who has no personal knowledge of assessment nor can he say from his own knowledge as to the prevailing price of land of this area. We do not understand how the learned District Judge could base his judgment on such evidence of O. P. W. 1 who nowhere in his deposition stated that on the basis of the sale rate gathered from the quotation of transactions the average value per acre would come to Rs. 7,

279. Be that as it may, the judgment and the finding of the learned District Judge are not based on any materials on record and I have never come across such a slipshod judgment. of a District Judge.

13. As to the third contention of the learned Advocate for the appellants, on account of our views taken on the first two points, it is impossible for us to agree with the learned District Judge that the compensation determined by the Collector of Chittagong in the present case is fair and reasonable. We fail to understand how the learned District Judge could say, without applying his mind to the case made out by the appellants‑petitioners and by the Land Acquisition Collector, that the determination of compensation was fair and reasonable.

14. Mr. Mofakhar for the appellants very seriously con tended that for assessment of the compensation the market value prevailing at the time of the acquisition is to be taken to be the market value for the purpose of compensation. But this contention, as we‑have already pointed out, cannot be accepted in view of the provisos to section 7 (e) of the Act which provides for the market value of the property at the date of the notice of requisition under section 3 and not notice of acquisition under section 5 of the Act.

15. Now the question is what should be the basis of compensation in respect of property which was not in existence on or before the 12th of June 1947. It is the case of the petitioners‑appellants that they have purchased the land on 14th September 1948 when it was a low land and they had to incur costs of Rs. 5,000 more for filling earth and thereafter they, constructed the godowns with pucca plinth, wooden frame with balli posts, tarja roofing and walls at a costs of Rs. 35,

000. So the question is how the market value of this property on or before the 12th of June, 1947 is to be determined when the property itself was not in existence at that time.

16. Next question that comes in for consideration is what would constitute land. The expression "land" under section 3 of the Land Acquisition Act, "includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth". That is also the meaning of land under the Transfer of Property Act.

17. As to how the valuation of such property was to be assessed, the matter was sent to the Local Government Pleader for his opinion and the learned Government Pleader opined at page 7 part I of the paper book, thus: "This godown was an investment in the land and both together constituted an inseparable valuable property. In a case like this, rental has generally been taken to be the usual basis of calculating the market value of the land and the buildings together, by the Hon'ble High Courts in India. The calculation has been done at 20 years purchase value of the net annual rental by deducting the Municipal Taxes, rent charges, costs of repairs etc. In this view I think separate valuations of the site and the construction thereon is not legally correct without any definite date based on facts and figures of actual construction costs and actual value of the land at the time of acquisition and without any consideration of the growing state of the town and importance of the site. It appears that the applicants have got a legal and just cause of grievance in the present valuation. If the valuation is made collectively on the annual net rental basis as stated above, it will be fair, equitable and legal and the applicants may not have legal objection from any point of view." Though the District Magistrate referred the matter to the Govern ment Pleader for his opinion has not been considered either by the learned District Magistrate or by the learned District Judge. In assessing the market value of the property, we think, both the value of the land as well as the costs of construction including the costs of improvement, the two together, should be taken into consideration and the assessment should be made on rental basis on the capitalise value of the annual rent.

18. Now the question is what would be the rent. The petitioner‑appellants satisfactorily proved that at the time of requisition the property was let out at a monthly rental of Rs. 500 i.e., Rs. 6,000 a year. For the above purpose, we think, if possible, it has got to be ascertained as to what would be the rent of a similar property similarly located in the vicinity on of before the 12th of June 1947. If it is not available then, having no other alternative, the rent at which the petitioner‑appellants let out the house only one sear and a few months after the 12th of June 1347, should be taken to be rent for the purpose of assessing compensation. In our opinion, compensation is to be assessed by the assessing authority with reference to the market value to be determined in the way suggested above and the requiring body i.e. the Government is to prove what should be the market value and if they prove any market value and if that is not considered sufficient by the petitioner‑appellants, then the burden will shift on them to prove what would be the proper market value. The requiring body will have to prove the market value to the satis faction of the assessing authority, and if that value is not accepted or is disputed by the appellant‑petitioners then the burden will shift on them to prove the market value, otherwise the burden will lie on the requiring body for the purpose of proving the market value.

19. The learned Advocate for the petitioner, appellants further contends that the appellants are entitled to get compensa tion on the actual rental value of the property during the period of requisition before acquisition. This claim of compensation by the appellants for the requisition period has been conceded by the learned Government Pleader who admitted that the appellants are entitled to get compensation at the rate of Rs. 500 per month from the date of requisition up to the date of acquisition after deducting the necessary costs, municipal taxes, rent charges and the costs of repairs.

20. For the purpose of determination of compensation acquisition on the basis of market value as stated above, we had no sufficient materials before us. We, therefore, have got no other alternative than to allow the appeal and set aside the judgment and award of learned District Judge and sent the case back to the District Judge for determination of the amount of compensation, as stated above, on evidence already on record as well as on such other evidence as the parties may choose to adduce only in respect of determination of the market value of the property on or before the 12th of June 1947 and after determining the compensation in the manner suggested above, the learned District Judge will pass necessary award according to law including compensation for requisition period as conceded here by the Government Pleader after deducting the amount already paid to the appellant‑petitioners and the municipal taxes, rent charges and the costs of repair, if any, and liable to be deducted. The result, therefore, is that this appeal is allowed with costs and the judgment and award of the learned District Judge are set aside and the case is sent back to the Arbitrator for disposal in accordance with law and in the light of the observations made above. S.B./A.H. Appeal allowed.