Stone, C.J:— I agree with the judgment about to be delivered by my learned brother Divatia. But in deference to the very full arguments that have been advanced by counsel, I desire to refer to two features of this appeal about which there has been much discussion. In the first place, the learned Judge in the Court below proceeded on 13th and 14th March, 1940, to view the property and the locality in question. This was done after the parties had closed their evidence, and apparently after the final speeches of the pleaders had been delivered. Some of the pleaders accompanied the learned Judge on this expedition. In the case of the appellants they were represented by their manager who also accompanied the Judge. The Judge made extensive notes of what he saw. In that state of affairs the learned Judge on 29th April, 1940, delivered his judgment. The notes he had made, which extend over ten typewritten foolscap pages, are divided into 33 paras. Two instances will suffice to show their character. Paragraph 6 is as follows:
“We then saw Survey Nos. 532 and 533. The condition of the superstructures on these survey numbers is shabby. The estimate of the future life as made by the Land Acquisition Officer is quite correct.”
2. And para. 27 is as follows:
“The statement made by the expert that the situation of Survey No. 522 is superior to that of Survey No. 460 was also examined during this inspection. I have already observed that the busiest centre of shopping activity of the Ratanpole road ends at the police chowky situated to the south of the entrance to Nagorishala. On an inspection of the whole locality, I am not at all prepared to accept this statement of the expert. In my opinion Survey No. 522 is certainly not superior to Survey No. 460, but that it ought to be inferior to Survey No. 460.”
3. It is O. 18, R. 18 of the CPC, 1908, which provides for inspection by a Judge, and the object and effect of such inspection by a Judge has been considered in a number of cases, and in A.I.R 1937 Pat. 3331 appears this passage in the judgment of Wort J. (p. 334):
“Now, the function of the learned Judge in exercising his rights of local inspection granted by the statute, i.e, under the Code of Civil Procedure, is for the purpose of understanding the evidence and for no other purpose. By ‘understanding the evidence’ is not meant ‘contradicting a witness.’ A witness may make a statement which from the local inspection may appear to be untrue, but the learned Judge is not entitled to say that it is untrue from what he himself observes. The reason for granting this power of local inspection is perfectly obvious. In certain cases facts are complicated and without having the opportunity to see the subject-matter of the witness's evidence it is almost impossible to understand what the witness means and it is for that purpose that the Judge is entitled to inspect the locality.”
4. But, in my judgment, an inspection such as took place in this case can only proceed on the basis that it was made with the consent of the parties, in order that the Judge might determine and decide finally points of conflict on questions of fact appearing in the evidence already given before him. It is most significant that the evidence was closed and that there was no further argument upon it by the pleaders. There is no material before us to show that the learned Judge was wrong in any of his findings of fact, and, in view of the course which these proceedings have taken and the consent of the parties to it, which even if it was not express must certainly be implied: it is not competent, in my judgment, for either party in this appeal to controvert or to appeal against any of the learned Judge's findings of fact.
5. The other feature of this case to which I desire to refer concerns the nature of the scheme itself. In this scheme besides the land actually required for the formation of the carriage-way, foot-ways and drains, the municipality sought to acquire areas of lands and buildings adjacent thereto, some of which were eventually re-sold at a large profit resulting in the whole scheme being put through at comparatively small cost. The releivant section is Section 114 of the Bombay Municipal Boroughs Act, 1925, which provides by sub-s. (1) that it shall be lawful for a municipality to lay out and make new public streets; and the sub-section goes on to provide for power: “to lease or sell any such land, theretofore used or acquired by the municipality for the purposes of such streets.” Sub-section (2) is as follows:
“In laying out, making, turning, diverting, widening, opening, enlarging or otherwise improving any public street, in addition to the land required for the carriage-way and foot-ways and drains thereof, the municipality may purchase the land required for the construction of houses and buildings to form the said street; and, subject to the provisions contained in sub-s. (2) of S. 48, may sell and dispose of such additional land in perpetuity or on lease for a term of years, with such stipulations as to the class and description of houses or buildings to be erected thereon as it may think fit.”
6. The alignment plan produced by Government is a plan signed by the Consulting Surveyor to Government and bearing date 17th March, 1923. When it is examined, it will be seen that in some cases lands and buildings abutting on the site of the proposed new street are to be compulsorily acquired and in some cases they are left, to the great advantage of the owners who will have a frontage on the new street. But in the case of some of the properties abutting on the new street which are taken, the former owners are almost bound to purchase them back, if they retain their back lands and desire to make any use of them; severed as they will be from any egress or access to the new street. There is no more striking example of this than the one which is to be found in the case of the appellants, who retained a large area of land cut off from its former frontage; so that access and egress to the public highway is barred on its principal side. Although some private arrangement appears to have been made for a passage way, the appellants did in fact also buy back at the rate of Rs. 340 per square yard land which had been compulsorily taken from them at the rates of Rs. 40, 50 and 60 per square yard and which was not used by the municipality for the purposes of the new street, foot-ways and drains. The scheme came before this Court in 39 Bom. L.R 12572 in which this Court having taken all facts into consideration held that the scheme was not ultra vires. That action was a representative action and the present appellants were represented, so that it is binding in this appeal: but with great respect to the learned Judges who decided it, I desire to state that I doubt if I should have come to the same conclusion had it been open to us to consider the question in this appeal. But as a result of the construction which has thus been put upon S. 114, there has been placed in the hands of those who have the control of the inception and alteration of these schemes wide powers of a confiscatory nature. While they are apparently at the same time endowed with powers of dispensation which will greatly enhance the value of any land or building abutting upon the new street which they do not choose to take. Looking at the lay out of the scheme it is difficult to follow, and the learned Advocate-General has been unable to give any explanation, why some of the properties abutting upon the new street have been taken and some have been left. Especially is this so when the key to the plan is consulted and it is found that there appears to be no uniform system, so that excluding altogether lands used for religious purposes it will be found that cheap properties are acquired and expensive ones are left and that sometimes the opposite occurs. No explanation of this has been given, and the matter is left in a somewhat unsatisfactory state. At the same time it is only fair to add that there is no evidence at all of any impropriety in this case: but in view of the construction which has up to the present been put upon sub-s. (2) of S. 114 enabling acquisitions to be made which have no continuity of plan or scheme for the construction of houses and buildings to form the new street: it is my opinion that these compulsory powers should be very carefully exercised.
7. Divatia, J.:— This is an appeal arising on a reference under the Land Acquisition Act. The properties, which are situated in the city of Ahmedabad, have been acquired for the purpose of what is known as the Kalupur Relief Road Scheme. This scheme was started in 1928 and the notification under Section 4 of the Land Acquisition Act was for the first time issued on 23rd August, 1925. In 1930, however, the Ahmedabad Municipality gave up the idea of the acquisition of lands for the purpose of the new road and cancelled their resolution for that purpose. However, in 1933 the scheme was revived and in May 1934 a notification was issued under S. 6 about the declaration of the public purpose for which the lands were to be acquired. A notice under Section 9 of the Act was published in 1936 and actual possession of the properties was taken in 1939. The properties of the present claimant, which is fin institution known as the Khoda Dhor Panjara Pole at Ahmedabad through its vahivatdars and trustees, were Survey Nos. 523 to 526, a part of a large Survey No. 527, Survey Nos. 528 to 533 and two small Survey Nos. 2420 and 2421. The total area of these survey numbers is 3254 square yards. The land acquisition officer in his award gave Rs. 1,99,715 to the present claimants as against their claim for Rs. 12,79,578. Being dissatisfied with the award, the claimants applied for a reference to the District Court, and there the claimants made a demand for Rs. 7,53,420. Both sides led evidence before the learned Joint Judge who heard the case. The claimants as well as the opponent relied upon several transactions of sales and other transfers in the neighbouring locality and the learned Joint Judge divided the acquired properties into ten blocks, eight of which he valued ad their market value and two at their rental value. The total amount which he awarded to the claimants was rupees 2,24,629. The lands are situated on a junction of the main Ratan Pole Swaminarayan Temple Koad and the cross road which joins that road with the Gheekanta Road towards the Civil Hospital. A part of the acquired lands which abutted on the corner of the junction of the roads and which was demarcated as Block No. 4 was assessed by the learned Judge at Rs. 150, having regard to its prominent position in a shopping locality. The other plots towards the north were valued less at a lesser amount because on the evidence the learned Judge was of the opinion that the value of the lands became less and less as one proceeded from the south, i.e from the Ratan Pole, towards the north, i.e the Swaminarayan Temple. He thus assessed Block No. 5 at Rs. 125, Block No. 6 at Rs. 120 and Block No. 7 at Rs. 115 per square yard. Then on the western side, i.e on the cross road, Block No. 3, which adjoins Block No. 4, was valued at Rs. 100 and Block No. 1 which lay further to the east was valued at Rs. 65, having regard to the fact that the road on which this block was situated was not a shopping locality. Block No. 2 was just behind Block No. 1 and that was valued at Rs. 35 per square yard. The remaining blocks, viz. Blocks Nos. 8, 9 and 10, were valued by the learned Judge at Rs. 60, Rs. 40 and Rs. 50 respectively. Blocks Nos. 7 and 10 were assessed on a rental basis and the claimants have accepted the valuation put upon them. We may take it, therefore, that their value was Rs. 115 and Rs. 50 per square yard respectively.
8. Before dealing with the evidence, it is necessary to make a few observations about the arguments urged before us as to the evidentiary value of the notes of inspection made by the learned Judge. He went in company of the claimants' manager, the pleaders in two companion references and the Government Pleader for local inspection. He visited not only the site of the acquired properties but the neighbouring localities and also several other properties which were the subject-matter of the sales, etc., relied upon by the parties. Thereafter he made notes of inspection which were shown to the Government Pleader and the two pleaders who appeared in the other reference. Under O. 18, R. 18 of the CPC, the learned Judge had the power to conduct such local inspection and his notes are not only a relevant but an important piece of evidence in the case. It is true that the con-elusion to which the Judge may come on such inspection cannot take the place of sworn evidence, but it is open to him to believe or disbelieve the evidence of witnesses on what he sees on inspection: 35 Bom. 3173. As a general rule, his findings based on such inspection are entitled to great weight by the Court of appeal in the same manner in which findings based on appreciation of oral evidence would be. This would be particularly so when, as in the present case, the party accompanied the Judge for inspection and had an opportunity to explain his case to him. Most of the conclusions arrived at by the learned Judge on his local inspection are, in my opinion, supported by evidence. This Court will, therefore, interfere only if the learned Judge has adopted a wrong principle in arriving at the valuation of the lands or has flagrantly disregarded evidence having a material bearing on the points in dispute. In my opinion, he has done neither of the two and his findings about the valuation of the different blocks must therefore be confirmed. But even apart from his opinion based on local inspection, the learned Judge is, in my opinion, right on the merits.
9. There is one point about the local inspection made by the Judge on which I desire to make a few observations. This inspection seems to have been carried out not only after the whole of the evidence was led but after the arguments of both sides were over. It appears that the notes were shown to the pleaders of the parties and they have simply initialled them. This has an equivocal effect. It may give rise to an inference that they impliedly accepted their truth or it may mean that they initialled them merely to show that they had read them, even though they may not accept their accuracy or truth. As the arguments were over, the pleaders would have no opportunity to challenge them before the judgment was pronounced. This procedure is quite improper. It is always desirable in all cases where local inspection is necessary that the Judge should carry out the inspection at any stage before the arguments are heard, and if he conducts the inspection at the request of the parties, it should be made clear whether the parties have left the matter to be decided as he thinks proper from his inspection or that he is merely inspecting under O. 18, R. 18 of the CPC. If the Judge records his impressions or opinions in his notes of inspection, the parties must have an opportunity to urge their arguments on those notes at the time when the case is generally argued before the Court. In most cases it would be desirable for the Judge to confine his notes to the facts which he observes without recording his impressions or opinions. He is entitled to form his impressions, but if he records them in the notes, the parties should have the opportunity to meet them in their arguments and he should not decide the case merely from his impressions without giving due weight to the evidence. No doubt the Court of appeal would attach due weight to what the Judge observes in his inspection, but the purpose of local inspection is not to make it a substitute for the evidence but to assist in its appreciation. [The judgment next dealt with the question of valuation of plots compulsorily acquired and concluded:] We, therefore, send an issue to the lower Court on this point. The issue will be:
“Whether the claimants prove damage, if any, under clauses 3 and 4 of Section 23 of the Land Acquisition Act; and if so, how much?”
10. The finding of the lower Court should be returned to this Court within three months of the receipt of the record by the lower Court.
11. Costs reserved. After the record is received by the lower Court it should ask the claimants to formulate this demand in terms of money claim and thereafter the opponent would be entitled to put in a written statement against that claim. The parties will be entitled to lead evidence on this point.
12. Order accordingly.
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