Mudholkar, J.— By a notification under Section 4 of the Land Acquisition Act 1894, (I of 1894), dated September 14, 1948 the Government of Madras decided to acquire 1145 grounds of land comprised in an area roughly bounded by St. Mary's Road on the north, by the Buckingham Canal in the east and south and by Chamier's Road and Pugh's Road on the west in the city of Madras. The land belonged to various owners and the acquisition was for the purpose of constructing houses under the Town Planning scheme which had already been settled. Out of these lands 74 grounds belonged to the appellant. The Land Acquisition Officer divided the lands to be acquired into five groups — Groups I to Group V according to what he considered to be the best lands, the next best lands and so on. In grading the lands in this manner, the Land Acquisition officer bore in mind factors such as proximity to roads in existence, nearness to the Mylapore temple, the market, schools etc. level of land, its distance from the Buckingham canal (which is said to stink a great deal) as well as distance from pits or ponds and so on. This grading has been accepted throughout and is not challenged before us. What is, however, contended on behalf of the appellant is that her lands which are partly placed in Group III and partly in group IV should all have been placed in Group III. After dividing the lands into five groups the Land Acquisition Officer tentatively valued the lands in group I at a particular figure and then made deductions from this figure for the purpose of valuing lands falling in different groups. This method, though deprecated by the Judge of Small Causes Court, before whom an application was made by the claimants challenging the award of the Land Acquisition Officer, was actually adopted by him in valuing the lands. What he, however, did was to give the claimants a little more than what the Land Acquisition Officer had given. In appeal the High Court, while adhering to the classification of lands, has chosen to follow a different principle in valuing lands falling in Group I. What the High Court did was to take the average of the price ascertainable from two sale deeds, Exs. R-19 and Rule 27 and then deducted from it a certain amount in respect of betterment levy. In that way the High Court has regarded Rs 1450 as the appropriate rate for valuing lands in Group I. According to it the value of land in Group III would be at Rs 1400 per ground and Group IV at Rs 1l60 per ground. On behalf of the appellant Mr Ram Reddy contends that in taking an average price the High Court was wrong and that it should have based the valuation of land in Group I on Ex. Rule 19 alone. On that basis, according to him, the value of land in group III would work out at Rs 1900 per ground and that of lands in group IV at Rs 1700 per ground. His second contention is that in fixing compensation, betterment levy under the Madras town Planning Act, 1920 (7 of 1920) should not have been deducted. His third contention is that the appellant's lands should all have been placed in group III.
2. It seems to us that there is substance in the first contention of Mr Ram Reddy. After all when land is being compulsorily taken away from a person he is entitled to say that he should be given the highest value which similar land in the locality is shown to have fetched in a bona fide transaction entered into between a willing purchaser and a willing seller near about the time of the acquisition. It is not disputed that the transaction represented by Ex. Rule 19 was a few months prior to the notification under Section 4, that it was a bona fide transaction and that it was entered into between a willing purchaser and a willing seller. The land comprised in the sale deed is 11 grounds and was sold at Rs 1951 per ground. The land covered by Rule 27 was also sold before the notification but after the land comprised in Ex. Rule 19 was sold. It is true that this land was sold at Rs l096 per ground. This, however, is apparently because of two circumstances. One is that betterment levy at Rs 500 per ground had to be paid by the vendee and the other that the land comprised in it is very much more extensive, that is about 93 grounds or so. Whatever that may be, it seems to us to be only fair that where sale deeds pertaining to different transactions are relied on behalf of the Government, that representing the highest value should be preferred to the rest unless there are strong circumstances justifying a different course. In any case we see no reason why an average of two sale deeds should have been taken in this case.
3. We agree, however, with the High Court that from the amount of Rs 1951 per ground certain deductions will have to be made in respect of betterment levy because under Section 25 of the Town Planning Act betterment levy is a charge on the land as well as in respect of the value of a well and bunk said to be existing on the land comprised in Ex. R-19.
4. We, however, agree with the High Court in regard to the second contention raised by Mr Ram Reddy about upgrading the lands from Group IV to Group III and have nothing to add to the reasons given by it for rejecting similar contention made before it on behalf of the appellant.
5. For these reasons we allow the appeal in part and remit the matter to the High Court for refixing the value of the land in question with advertence to our remarks. In view of the fact that the appeal has only partly succeeded we direct that costs in this Court will be borne as incurred.