JUDGMENT Lindsay, J.
1. This is an appeal under Section 18, Land Acquisition Act, in which the property in dispute has been acquired by the Improvement Trust of Cawnpore.
2. The appellant before us, Makhan Das claimed compensation at the rate of Rs. 5,000 a bigha. He is dissatisfied with the compensation awarded by the Collector. The Tribunal which sat for the determination of his claim affirmed the award of the Collector. The appellant in his appeal before us complains that a proper method of calculation has not been observed in awarding him compensation, and he objects in particular to his being awarded compensation for a portion of the land in question as if it were merely agricultural land. So far as this portion of the land is concerned, the award is valued at Rs. 150 a bigha. The evidence is very scanty, but the following facts are established.
3. The total area in dispute is 5 bighas, 2 biswas, 1 biswansi. The land is situated close to a main road from Cawnpore, apparently the Kalpi road. There can, we think, be no doubt that the land lies within what may be described as the industrial area of Cawnpore. According to the claimant's evidence, which is not rebutted, there is an oil-mill close by and two tanneries; there is also a cotton mill close to the land, and further, Anwarganj Railway station is only two furlongs from the site. The appellant acquired this property many years ago and we may say at once that there is nothing here to suggest that Makhan Das bought this property as a speculation calculating that some day later on an Improvement Trust would be constituted which he might constrain to award him a fancy price for his property.
4. The evidence of one Abdul Majid, who is a surveyor of the Cawnpore Improvement Trust, shows that out of these five bighas and odd a portion measuring 1 bigha, 1 biswa and 13 biswansis is occupied by an oil-mill owned by one Binda Prasad:. This area has been leased by Makhan Das to the owner of the oil-mill at the rate of Rs. 132 a year. Then we have another portion of this land which measures 2 bighas, 10 biswas and 17 biswansis. Obviously this land at the time of its acquisition was covered with small huts and sheds. Abdul Majid, who measured it for purposes of acquisition, states that when he surveyed in the beginning of 1921, there were 99 huts on it. Makhan Das's story was that he was able to let out small sites on this land to poor people who erected huts and paid him petty rents amounting altogether to some Rs. 700 a year. The rest of the area is described as "uncultivated on account of trees," but the compensation officer treated it for the purpose of the award as agricultural land for which he awarded compensation at the rate of Rs. 150 a bigha. We do not know how this rate has actually been obtained, but we are informed that it is prescribed by the Board of Revenue in circulars issued many years ago. We think that there is force in the argument which has been placed before us on behalf of the appellant. There can be no doubt that a substantial portion more than half the area in dispute, has not been used for agricultural purposes at all but has been used for industrial and residential purposes, and so it is fair, we think, to argue that the rest of the site ought to be treated as being of the same character. We may state at once that the principle laid down by the learned President of the Tribunal in his judgment does not appear to be correct. Dealing with the case put forward by Makhan Das the learned President of the Tribunal says: His main contention is that the land is well within Municipal limits, and that it has residential areas close to it. This contention fails to help him because the land must be valued as it was used.
5. The correct principle to be applied for the assessment of compensation for land acquired compulsorily is to be found in the case of Narsingh Das v. Secretary of' State A.I.R.1925 P.C. 91. There their Lordships cited with approval a decision in Fraser v. City of Fraserville (1917) A.C. 187. The relevant passage is as follows.
6. The seller is entitled to the value to him of the property in its actual condition at the time of expropriation with all its existing advantages and with all its possibilities, excluding,any advantage due to the carrying out of the scheme for the purpose for which the property is compulsorily acquired.
7. It is rightly argued, therefore, that the existing advantages and the possibilities of the land must be taken in to account in awarding compensation. That has not been done in this case. We may point out too that the land which has been assessed as agricultural land, was not as a matter of fact, used as agricultural land at all. We think we ought to treat all the land as being of the same character. It is clear that the claimant has been able to let a considerable portion of this land to advantage, and there is no reason why the rest of the land might not have been in the course of time let in a similar way.
8. For the portion other than that treated as agricultural the Tribunal a warded compensation at the rate of 16 2/3; years purchase of the rental value. This works out at the rate of Rs. 120-9-0 per annum per bigha. With regard to the valuation of the land at the rate of 16 2/3; years purchase of the rental, Dr. Katju claims that this is too little, regard being had to the value of the land at Cawnpore, and he has referred us to a decision of this Court Lachman Prasad v. Secretary of State A.I.R. 1921 All. 402, to which one member of the present Bench was a party. It was there pointed out that the rate of 16⅔ years purchase of the rental is too low and in that case a rate of 20 years' purchase of the rental was allowed. Mr. Justice Tudball, who was a party to this decision, was District-Judge of Cawnpore for many years and had a wide knowledge of the local conditions. We have decided therefore, that a proper compensation would be at the rate of 20 years' purchase of the rents. We applied the rate of Rs. 123-9-0 to the entire area and working out the account on this basis we get a total sum of Rs. 13,881-4-0. That is the compensation which in our opinion 'should be allowed to the appellant for his land and to this has to be added the usual 15 per cent, for compulsory acquisition. Some other small items have also been awarded by the Court below in respect of houses, trees and other matters. The amounts so awarded will stand.
9. We therefore, allow this appeal and vary the decree of the Court below in the manner indicated, that is to say, the sum awarded to Makhan Das is declared to be Rs. 13,881-4-0 plus 15 per cent for compulsory acquisition he is also to get the other smaller amounts allowed to him, by the Court below as compensation in respect of the houses, trees, etc. Makhan Das will get his costs of this suit both here and in the Court below.