JUDGMENT [ENTITY], J.
1. These four first appeals are under [SECTION] of the [ACT] read with [SECTION], [ACT] and are against a common judgment and decree dated 2nd of January, 1[SECTION][SECTION]2 passed by the VIth Additional District Judge, Bulandshahr in Land Acquisition Reference Nos. 5[SECTION]8 of 1[SECTION][SECTION]1, 5[SECTION][SECTION] of 1[SECTION][SECTION]1, [SECTION]00 of 1[SECTION][SECTION]1 and [SECTION]01 of 1[SECTION][SECTION]1. All the aforestated Land Acquisition References were directed against the award dated 22nd of July, 1[SECTION][SECTION]1 delivered by Special Land Acquisition Officer, Bulandshahr in Land Acquisition Case No. [SECTION]3 of 1[SECTION]8[SECTION]. All the references were consolidated and were decided by a common judgment and Reference No. [SECTION]58 of 1[SECTION][SECTION]1. [PRECEDENT] giving rise to the First Appeal No. 338 of 1[SECTION][SECTION]1 was treated as the leading case. In this Court also the learned Counsel for the parties agreed that the First Appeal No. 338 of 1[SECTION][SECTION]4 may be treated as leading case and the judgment shall govern the remaining appeals as the point in issue is identical in all these matters.
2. For the purposes of construction and establishment of Alawas Dam the State Government acquired certain piece of land of village Haldauna, Pargana Dankaur, Tehsil Sikandrabad, district Bulandshahr by issuing notifications under [SECTION] and [SECTION] of the [ACT]. These notifications were published on 25th of February, 1[SECTION]8[SECTION] and 3rd of August, 1[SECTION]8[SECTION], respectively. The details of plots as their number, area and name of the owners are given below:
PLOT Nos. AREA NAME OF THE OWNER [SECTION]42 0-4-1 [ENTITY] [SECTION]52 2-4-5 [ENTITY] [SECTION]21 3-5-8 [ENTITY] [SECTION]24 3-2-5 [ENTITY]. [ENTITY].
3. Total area of the acquired land is 15-14-0 bighas equivalent to [SECTION]-811 acres. The Special Land Acquisition Officer by the award dated 22nd of July, 1[SECTION][SECTION]1 awarded the compensation at the rate of Rs. 30,[SECTION]27.83 per pucca bigha and treated the sale deed dated 11th of February, 1[SECTION]88 with respect to the Plot No. 14[SECTION] area 1-[SECTION]-2 bigha in favour of [ENTITY] executed by [ENTITY] as the exemplar. He also found that the quality of all the lands, thus, acquired is the same. Aggrieved therewith, the respondents herein asked the District Magistrate to make reference under [SECTION] of the [ACT] to the civil court to determine the market value of the acquired land on the relevant date. The court below by the impugned award has determined the market value of the land on the relevant date at the rate of Rs. 1,40,000 per pucca bigha and awarded solarium at the rate of 30 per cent and additional compensation at the rate of 12 per cent per annum. Feeling aggrieved by the aforesaid award the State of U. P. has preferred the present appeal.
4. Heard learned Counsel for the parties and perused the record. Before the reference court the claimant respondent produced a certified copy of sale deed dated 25th of March, 1[SECTION][SECTION]1 executed by [ENTITY] in favour of [ENTITY], a photostat copy of agreement dated 25th of April, 1[SECTION]8[SECTION] executed by [ENTITY] in favour of [ENTITY] and a photostat copy of the agreement dated 24th of April, 1[SECTION]8[SECTION] executed by [ENTITY] in favour of [ENTITY], as documentary evidence. [ENTITY] one of the claimants examined himself as P.W. 1 and one [ENTITY] as P.W. 2. On behalf of the State Government one [ENTITY] was examined as D.W. 1. The reference court rejected the sale deed dated 11th of February, 1[SECTION]88 which was relied upon as exemplar by the Special Land Acquisition Officer on the ground that it was too remote to the date of the notification under [SECTION] of the [ACT]. There is about a year's gap in between the said sale deed and the notification under [SECTION] of the [ACT]. It also preferred not to place reliance upon the sale agreement filed by the claimant respondents. The award of the reference court is based merely on the sale deed dated 25th of March, 1[SECTION][SECTION]1, as also the oral testimony of P.W. 1 and P.W. 2.
5. The contention of the learned standing counsel Shri [ENTITY] is that the sale deed dated 25th of March, 1[SECTION][SECTION]1 is not relevant as it is subsequent to the notifications issued under [SECTION] and [SECTION] of the [ACT] and there is a time gap of about one and half years. He further submits that the reference court has not considered as to whether the said sale deed dated 25th of March, 1[SECTION][SECTION]1 was a genuine or sham transaction. The learned Counsel for the respondent, on the other hand, submits that the land in question was situated in a prime locality having great potentiality for building purposes. The said land was included in Greater N.O.I.D.A. as is clear from the public notice being Paper No. 1[SECTION]C issued in pursuance of the State Government G.O. dated 1[SECTION]th of September, 1[SECTION]8[SECTION], whereby and wherein the State Government published a list of various villages which were including within the limits of Greater N.O.I.D.A. for the purposes of industrial development of the area.
[SECTION]. The only question raised in the present appeals is with regard to the determination of market value of the acquired land on the relevant date. It is also an acknowledged legal position that the proceeding before reference court is in the nature of original suit and the claimant is in a position of plaintiff and the State Government is in a position of defendant. The burden to prove as to what was the market value of the land acquired squarely lies on the claimant, i.e., the plaintiff.
7. The market value is the price which is a vendor expects to receive and a willing purchaser is prepared to pay. In the case of [PRECEDENT] , various factors which should be taken into account for the purpose of determination of market value have been discussed by the Apex Court. They are as follows:
While determining market value of land, the following factors have to be borne in mind:
(1) Determined as on the crucial date of publication of the modification under [SECTION] of the [ACT] (dates of Notification under [SECTION] and [SECTION] are irrelevant).
(2) The determination has to be made standing on the date line of valuation (date of publication of notification under [SECTION]) as if the valuer is a hypothetical purchaser willing to purchase, land from the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed that the vendor is willing to sell the land at a reasonable price.
(3) In doing so by the instances method, the Court has to correlate the market value reflected in the most comparable instance which provides the index of market value.
(4) Only genuine instances have to be taken into account. (Sometimes instances are rigged up in anticipation of Acquisition of Land).
(5) Even post notification instances can be taken into account (1) if they are very proximate, (2) genuine and (3) the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects.
([SECTION]) The most comparable instances out of the genuine instances have to be identified on the following considerations:
(i) proximity from time angle.
(ii) proximity from situation angle.
(7) Having identified the instances which provide the index of market value the price reflected therein may be taken as the norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors vis-a-vis land under acquisition by placing the two in juxtaposition.
(8) A balance sheet of plus and minus factors may be drawn for this purpose and the relevant factors evaluated in terms of price variation as a prudent purchaser would do.
([SECTION]) The market value of the land under acquisition has thereafter to be deduced by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors.
The exercise indicated in Clauses (1) to (10) has to be undertaken in a common sense manner as a prudent man of the world of business would do. We may illustrate some such illustrative (not exhaustive) factors:
Plus factors Minus factors
1. smallness of size. 1. largesse of area.
2. proximity to a road. 2. situation in the interior at a distance from the road.
3. frontage on a road. 3. narrow strip of land with very small frontage compared to depth.
4. nearness to developed area. 4. lower level requiring the depressed portion to be filled up.
5. regular shape. 5. remoteness from developed locality.
[SECTION]. level vis-a-vis land under [SECTION]. some special disadvantageous acquisition. factor which would deter a purchaser.
7. special value for an owner of an adjoining property to whom it may have some very special advantage.
The evaluation of these factors of course depends on the facts of each case. There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1,000 sq. yds. cannot be compared with a large tract or block of land of say 10,000 sq. yds. or more. Firstly, while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a layout, carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of an entrepreneur. The factor can be discounted by making a deduction by way of an allowance at an appropriate rate ranging approximately between 20% to 50% to account for land required to be set apart for carving out lands and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or urban area, whether building activity is picking up, and whether waiting period during which the capital of the entrepreneur would be locked up, will be longer or shorter and the attendant hazards.
Every case must be dealt with on its own fact pattern bearing in mind all these factors as a prudent purchaser of land in which position the Judge must place himself.
These are general guidelines to be applied with understanding informed with common sense.
8. In the present case, the land was acquired for the purposes of construction of Alawas dam. The said dam was deconstructed with a view to provide relief from flood as also to provide irrigation facilities to the public at large. It appears that the State Government some times in the year 1[SECTION]8[SECTION] decided to develop an industrial area around Delhi and established Greater N.O.I.D.A. by issuing notification referred to above. In its zeal to develop industrial area the State Government undertook various development activities and the construction of Alawas Dam was a part of it. The point which is intended to bring home is that the development activities were just started in the year 1[SECTION]8[SECTION] which came to full swing subsequently.
[SECTION]. The claimant claimed compensation at the rate of Rs. 3 lakhs per bigha on the date of relevant notification. [ENTITY] P.W. 1 in his deposition states that at the time of recording of evidence, i.e., 1[SECTION]th December, 1[SECTION][SECTION]1 the market value of the land was around Rs. 5 lakhs per bigha. He states that Delhi is about 18-1[SECTION] kilometers away. Further the land was irrigated land and was part of industrial area. Plant of Oil and Gas Commission is near to his acquired land so also Super Cassette Industries and other industries. Film city is also there. In his cross-examination he denied the suggestion that due to construction of the dam prices of land have escalated and threat of flood has disappeared. It is not the case that no such sale deed took place during this period when notifications under [SECTION] and [SECTION] were issued. The other witness [ENTITY] has supported the deposition of P.W. 1. This is the state of affair so far as the oral deposition is concerned.
10. There is no explanation as to why the claimants have not produced any sale deed proximate to the time/publication of notification under [SECTION] of the Act. Coming to the documentary evidence the reference court treated the sale deed dated 25th of March, 1[SECTION][SECTION]1 as the best exemplar. The said sale deed was executed by [ENTITY] in favour of [ENTITY] and has been proved by P.W. 2, one of the marginal witnesses. It was incumbent upon the reference court before treating the said sale deed as exemplar to satisfy that the transaction was the genuine transaction. It is very easy to create such evidence by executing a sale deed subsequent to the date of notification to inflate the market price of the land for the purposes of determination of compensation under the [ACT]. Only genuine instances have to be taken into account. Even, as held in the case of [PRECEDENT] (supra) by the Apex Court, post notification instances can be taken into account under certain circumstances if they fulfil the conditions laid down therein. The reference court has adopted double yardstick in ignoring the sale deed dated 11th of February, 1[SECTION]88 relied upon by the Special Land Acquisition Officer as the best exemplar. The said sale deed was ignored by the reference court that it was issued a year earlier to the date of publication of notification under [SECTION] of the Act forgetting that the sale deed dated 25th of March, 1[SECTION][SECTION]1 intended to be relied upon by him was about one and half year after the publication of relevant notification.
11. Apart from the question of genuineness of the said sale deed, the reference court has not taken into consideration the area of the land in respect of which the sale deed dated 25th of March, 1[SECTION][SECTION]1 was executed. The reference court after treating the sale deed dated 25th of March, 1[SECTION][SECTION]1 as the best exemplar to arrive at the market price of the land in question on the relevant date of notification made certain reductions.
The reference court has also omitted to consider the situation of the land covered by the sale deed dated 25.3.1[SECTION][SECTION]1 and its proximity to the land in question. [ENTITY] D.W. 1 has deposed that the land which was sold through the sale deed dated 25th of March, 1[SECTION][SECTION]1 was covered by abadi and the acquired land was at some distance. This fact finds mention in para 8 of the judgment of the reference court but it has not been given any weight. It is further mentioned in the said para that Automobiles Limited purchased a land out of the plot No. 288 on 1st of February, 1[SECTION]8[SECTION]. Market value of it was paid at the rate of more than Rs. 72,000 per bigha. Taking into consideration the entire facts and circumstances of the case, as also the potentiality of the land in question the determination of market value of the land at Rs. 1,40,000 per pucca bigha as done by the court below is excessive and does not represent the market value of the land in question on the relevant date. The sale deed dated 11th of February, 1[SECTION]88 gives the market value of the land at Rs. 30,[SECTION]27.83 which was awarded by the Special Land Acquisition Officer. Within a period of one year when the development activities were at its infancy, escalation in prices of land cannot be more than three times. None of the witnesses has said even a word nor there is any material to show that the sale deed dated 11th of February, 1[SECTION]88 could not be treated as exemplar. However, giving allowance of price escalation and the fact that the State Government issued a notification dated [SECTION]th of September, 1[SECTION]8[SECTION] which is also subsequent to the notification issued under [SECTION] of the [ACT] for the establishment of Greater N.O.I.D.A., it would be appropriate to fix the market value of the land at Rs. 1 lakh per pucca bigha. The fact that there is no evidence on behalf of the claimant respondent that there has been such escalation in the price since year 1[SECTION]88 to February, 1[SECTION]8[SECTION], is also a relevant factor which cannot be ignored altogether. The market value of the land in question, thus, is fixed at Rs. 1 lakh per pucca bigha and the claimant respondents are entitled to get compensation accordingly with solatium at the rate of 30 per cent per annum, additional interest at the rate of 12 per cent per annum and other benefits as admissible in accordance with law.
12. In the result the judgment and decree of the reference court needs modification and is modified accordingly. The claimant respondent would get compensation at the rate of Rs. 1 lakh per pucca bigha alongwith solatium and other statutory benefits as applicable.
In the result all the appeals succeed and are allowed in part. No order as to costs.