# Pradeep Kumar & Ors v. State Of U.P. & Ors - **Citation:** (2016) 7 ILRA 135 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-07-04 - **Bench:** Surya Prakash Kesarwani - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pradeep-kumar-ors-v-state-of-u-p-ors-43989 - **Pages:** 13 ## Text 7 All. Pradeep Kumar & Ors. Vs State Of U.P. & Ors. 135 decide matters with wisdom truly and legally. Judgment does not depend upon the arbitrary caprice or a Judge, but on settled and invariable principles of justice. Though there is an element of guess work in a ''best judgment assessment', it shall not be a wild one, but shall have a reasonable nexus to the available material and the circumstances of each case. Though sub section (2) of Section 12 of the Act provides a summary method because of the default of the assessee, it does not enable the assessing authority to function capriciously without regard to the available material." 11. Here, both the assessing authority as well as Tribunal have failed to discharge this statutory obligation which stood placed upon them. All that the two authorities have done is to assess the revisionist on the basis of the rough/provisional balance sheet which was found in the premises during the course of survey. This, in the opinion of the Court, does not comply with the mandatory obligation placed upon the statutory authorities by and under the provisions of sub section (3) of Section 7 of the 1948 Act. 12. In view of the above, the order of the the Tribunal cannot be sustained. The revision shall accordingly shall stand allowed. The order of the Trade Tax Tribunal dated 25 November 2004 passed in Second Appeal No. 87 of 2001 as also that of the assessing authority dated 30.12.1999 are hereby set aside. The matter shall stand remanded to the assessing authority to proceed in the matter afresh, if so permitted in accordance with law. ----------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 04.07.2016 BEFORE THE HON'BLE SURYA PRAKASH KESARWANI, J. First Appeal No.- 139 Of 2009 & Connected With Other Cases Pradeep Kumar & Ors. ...Appellants Versus State Of U.P. & Ors. ...Respondents Counsel for Appellants: Surendra Tewari, Madan Mohan, R.P. Mishra Counsel for Respondents: S.C., R.P. Singh, Rahul Sahai, SC. Briefly stated facts giving rise to these appeals are that an area of 902.2046 acres land of village Khora, Pargana Loni, Tehsil Dadri, district Ghaziabad was acquired by a Notification No.11208 dated 17.3.1988, which was published in the U.P. Gazette dated 19.3.1988 under Section 4 (1) of the Land Acquisition Act, 1894 ( hereinafter referred to as the 'Act'). However, possession was taken only of 337.892 acres. The award 136 INDIAN LAW REPORTS ALLAHABAD SERIES was passed by the Special Land Acquisition Officer (SLAO) on 1.2.1991 awarding a sum of Rs.70/- per sq. yard along with statutory benefits and interest to the claimants land holders. At the instance of the claimants/land holders various references were made under Section 18 of the Act, and by a common judgment dated 26.5.1999 in 34 references, the compensation was enhanced to Rs.106/- per Sq. yard along with statutory benefits and interest. Court after considering the submissions the following questions are framed :- (i) What would be the appropriate amount of compensation of the acquired land of village Khora as on date of acquisition i.e., 19.3.1988 ? (ii) Whether the claimants- appellants are entitled to compensation at the rate of Rs.297/- per Sq. yard in respect of their acquired land, in view of the Division Bench judgment in the case of Pradeep Kumar (supra) ? Considering the evidences on record and the facts of the cases, the market value of the acquired land as on the date of acquisition, does not appear to be more than Rs.130/- per Sq. yard and consequently, the market value of the acquired land is determined at Rs.130/- per Sq. Yard, which would be the just and fair compensation for the acquired land. The question No.1 framed above, is answered accordingly. Court observed that the contention of the claimants-appellants that they are entitled to the same rate of compensation, as has been determined by a Division Bench in the case of Pradeep Kumar and others v. State of U.P. and another in respect of another village Makanpur, is not tenable. In the case of Kanwar Singh and others v. Union of India, (1998) 8 SCC 136, Hon'ble Supreme Court clearly held that if we go by the compensation awarded to the claimants of the adjoining village, it would not be correct assessment of the market value of the land acquired in village Rangpuri. While determining the market value, court took the support from the principles/guidelines given by Hon'ble Supreme Court in the case of Chiman Lal Hargovinddas v. Special Land Acquisition Officer, Poona and another, (1988) 3 SCC 751. All the appeals filed by the Claimants-appellants deserve to be allowed to the extent that the appellants shall be entitled to receive compensation @ 130/- per Sq. yard along with all statutory benefits and interest after adjustment of the amount already received by them. The deficiency in Court fees shall be recovered from the Claimants-appellants at the time of preparation of final decree. All the first appeals succeed and are hereby allowed to the extent indicated above, with cost of Rs. 5,000/- to each appellant which the respondents shall pay to the appellants within one month from today. (Delivered by Hon'ble Surya Prakash Kesarwani, J.) 1. Heard Sri Anurag Khanna,learned Senior Counsel assisted by Sri Surendra Tiwari, Sri Madan Mohan and Sri Sanjeev Singh, learned counsel for the appellants, Sri Rahul Sahai and Sri Amit Manohar, learned counsel for respondent No.3 and Sri S.S.Shrinet, learned standing counsel for the State- respondents. 2. This bunch of 28 first appeals filed under Section 54 of the Land Acquisition Act, involves common facts and issues and as such with the consent of the learned counsels for the 7 All. Pradeep Kumar & Ors. Vs State Of U.P. & Ors. 137 parties, these appeals have been heard together and are being decided by a common judgment, treating First Appeal No.139 of 2009 as the leading appeal. 3. Briefly stated facts giving rise to these appeals are that an area of 902.2046 acres land of village Khora, Pargana Loni, Tehsil Dadri, district Ghaziabad was acquired by a Notification No.11208 dated 17.3.1988, which was published in the U.P. Gazette dated 19.3.1988 under Section 4 (1) of the Land Acquisition Act, 1894 ( hereinafter referred to as the 'Act'). However, possession was taken only of 337.892 acres. The award was passed by the Special Land Acquisition Officer (SLAO) on 1.2.1991 awarding a sum of Rs.70/- per sq. yard along with statutory benefits and interest to the claimants land holders. At the instance of the claimants/land holders various references were made under Section 18 of the Act, and by a common judgment dated 26.5.1999 in 34 references, the compensation was enhanced to Rs.106/- per Sq. yard along with statutory benefits and interest. 4. Aggrieved with the aforesaid judgment passed by the Court of Xth Additional District Judge, Ghaziabad, the above noted appeals have been filed by the claimants- appellants, praying for enhancement of compensation to Rs. 125/- per Sq. yard. Submission of the Parties 5. Learned counsel for the appellants submits that village Khora is adjoining to village Makanpur. In respect of village Makanpur, the matter went up before Hon'ble Supreme Court and it was remanded. In remand proceedings a Division Bench of this Court recently considered the matter and determined market value of the acquired land of Village Makanpur in respect of the acquisition made in the year 1988 at Rs.297/- per Sq. yard in First Appeal No.522 of 2009, Pradeep Kumar and others v. State of U.P. and another, decided on 21.4.2016. He submits that the reference court itself has noted the boundaries of the acquired land and found it to be surrounded by developed residential colonies and commercial establishments connected with NH2. He submits that with respect to the similarly situated village Makanpur and other villages, the compensation has been awarded for the acquired land at Rs.297/- per Sq. yard and consequently, the claimants are also entitled to compensation at the same rate in view of the judgment of this Court in the case of Pradeep Kumar (supra). 6. Sri Rahul Sahai supports the impugned judgment. Sri Amit Manohar submits that the claimants-appellants have filed evidences in the form of sale deed exemplars showing sale consideration from Rs.125/- to Rs.200/- per Sq. yard for land of Village Khora, sold by registered sale-deeds of different dates near to the date of acquisition. He submits that no evidence has been led by the claimants to establish that lands of village Makanpur and village Khora stand on the same footing and potentiality. He relies upon a decision of Hon'ble Supreme Court in Kanwar Singh and others v. Union of India, (1998)8 SCC 136 ( Paragraph-9). He submits that the mere fact that two villages are adjoining, the lands of both the villages can not have the same market value and potential. He submits that no evidence has been led by the claimants to demonstrate that the lands acquired possessed higher market value than awarded, as on the date of acquisition. He also 138 INDIAN LAW REPORTS ALLAHABAD SERIES relies upon a judgment of Hon'ble Supreme Court in Chiman Lal Hargovinddas v. Special Land Acquisition Officer, Poona and another, (1988)3 SCC 751 and the provisions of Section 23 of the Act, and submits that the market value of the land has to be settled after considering the evidences on record. The judgment of Hon'ble Supreme Court in the case of Ashok Kumar and another v. State of Haryana, (2016) 4 SCC 544 is distinguishable on facts. The situation of the land of village Khora was different. 7. Sri Anurag Khanna, learned Senior Advocate, in reply to the submissions of Sri Rahul Sahai and Amit Manohar, submits that the judgments have also been held to be admissible in evidence and copies of such judgments have also been filed as additional evidences in First Appeal No.139 of 2009. He submits that this Court may take judicial notice of the judgment of Hon'ble Supreme Court in the case of Pradeep Kumar (supra ). He submits that there is no ceiling or cap on the upper side of compensation, although there is a cap on the lower side of compensation. He submits that even if the claimants- appellants have not made any claim for specific amount of compensation yet it is to be awarded to the claimants-appellants on the basis of the market value, as on the date of acquisition. He submits that the Act is a welfare legislation intended to protect the land holders to enable them to get appropriate amount of compensation. If the Court finds market value higher than claimed, the Court is bound to determine the amount of compensation at the higher rate. Discussions and Findings 8. I have carefully considered the submissions of the learned counsel for the parties and perused the records. Considering the submissions the following questions are framed :- (i) What would be the appropriate amount of compensation of the acquired land of village Khora as on date of acquisition i.e., 19.3.1988 ? (ii) Whether the claimants- appellants are entitled to compensation at the rate of Rs.297/- per Sq. yard in respect of their acquired land, in view of the Division Bench judgment in the case of Pradeep Kumar (supra) ? 9. Perusal of the impugned judgment shows that before the reference court, the claimantsappellants have led documentary as well as oral evidences. They have filed evidences in the form of sale-deeds of dates near to the date of acquisition to demonstrate that the market value of the acquired land of village Khora as on the date of acquisition was; as under : Paper No. Date of Saledeed Description of Plots of Village Khora (Sold ) Boundaries of the Vended plot Selling rate per Sq. Yd. 15C 21/01/88 Plot No.529 measuring 400 Sq. Yard sold for East- Plot West- Road North-Plot Rs.125/- 7 All. Pradeep Kumar & Ors. Vs State Of U.P. & Ors. 139 Rs.50,000/- South-Plot 16C 22/03/88 Plot No.42 measuring 200 Sq. Yard for shops sold for Rs.28,000/- East- Park West- Main Road North- Plot shops of Champat Ram South- 15 Ft wide road Rs.140/- 17C 04/04/88 200 Sq. Yard of Khasra Plot No.785 sold for Rs.30,000/- East- Abadi of Gajraj Singh West-16 Ft wide road North- Abadi of Balraj Singh South- Abadi of vendor Vijendra Singh Rs.200/- 10. The documentary evidences as led by the claimants/appellants before the Reference Court being sale-deeds Paper No.15-C, 16-C and 17-C clearly demonstrate that these sale-deeds were executed on 21.1.1988, 22.3.1988 and 4.4.1988, while, the acquisition in question was made by Notification under Section 4(1) of the Act, published on 19.3.1988. The above noted sale-deed being Paper No.15-C is about two months prior to the date of acquisition, the sale deed being Paper No.16-C is three days after the acquisition and the sale-deed being Paper No.17-C is about 15 days after the present acquisition. Paper No.17-C was the sale-deed executed by one of the claimants/appellants on whose instance Reference No.145 of 1992 was filed and decided by the impugned common judgment of the Reference Court. No other documentary evidences in the form of sale-deeds were led by the Claimants-appellants. These Sale-deeds clearly demonstrate that certain plots of the village in question were sold at the then prevailing market rate by the land holders including one of the Claimants-appellants @ Rs.125/- , Rs. 140/- and Rs. 200/- per Sq. yard depending upon its location. These plots were small size plots of 200 Sq. yards and 400 Sq. yards. The boundaries, as mentioned in the sale-deed, clearly shows that all the three plots were on road. Paper No.16-C shows that there was road on two sides of the plot and was meant for shop as noted in the sale-deeds itself. These Sale-deeds exemplars are nearest in date to the date of present acquisition. The aforesaid three Sale-deeds exemplars record that the consideration mentioned therein is the prevailing market value of the plot sold. Thus, it is evident that residential or commercial plots situate on main road were being freely bought and sold at the rates ranging from Rs.125/- to Rs.200/- per Sq. yard. Thus, the maximum market value of small plot of 200 Sq. yard comes to Rs.200/- per Sq. Yard, while the market value of comparatively larger plot of 400 Sq. yard comes to Rs. 125/- per Sq. yard. Thus, as per documentary evidences on record, the market value of the acquired land measuring 337.25 acres could have been determined after appropriate deduction towards development costs etc. and smallness of the sale deed exemplar plots which this Court assumes it to be not less than 30% under the present set of facts. The sale-deed instances 140 INDIAN LAW REPORTS ALLAHABAD SERIES (Paper No. 15C, 16C and 17C being nearer to the point of time of the present acquisition under section 4 of the Act, are best pieces of evidence of the market value of the acquired land as on the date of acquisition. 11. Under the circumstances, the market value of the acquired land as on the date of acquisition, on the basis of highest selling rate of Sale-deeds exemplar (Paper No.17-C) and after deduction of 35% towards development cost etc., comes to Rs.130/- per Sq. Yard. No other evidence relating to market value of land of village Khora as on the date of present acquisition or near to it, could be led by the Claimants-appellants. In the memorandum of appeal also the Claimants-appellants have prayed for enhancement of compensation to Rs.125/- per Sq. Yard. 12. Considering the evidences on record and the facts of the cases, the market value of the acquired land as on the date of acquisition, does not appear to be more than Rs.130/- per Sq. yard and consequently, the market value of the acquired land is determined at Rs.130/- per Sq. Yard, which would be the just and fair compensation for the acquired land. The question No.1 framed above, is answered accordingly. 13. The Claimants-appellants have placed much reliance on a Division Bench judgment in the case of Pradeep Kumar (supra). I have perused the said judgment and I find that it was passed on the ground that in respect of acquisition of the year 1986, compensation was determined at the rate of Rs.297/- per Sq. Yard and, therefore, in respect of subsequent acquisition in the year 1988, the Claimants/land-holders are entitled for compensation at least on the same rate, as was given for the acquisition in the year 1986. The acquisition in the case of Pradeep Kumar (supra) was of land of village Makanpur. No evidence has been led by the claimants-appellants even before this Court to establish that the acquired land of village Khora and the acquired land of village Makanpur are situationally the same. The concept of adjoining village cannot be stretched to such an extent that similar amount of compensation be given in ignorance of the legislative mandate of Section 23 (1) of the Act, and the law settled by Hon'ble Supreme Court in various cases that market value of the acquired land has to be determined as on the date of acquisition. 14. In the case of Ashok Kumar and another v. State of Haryana (2016) 4 SCC 544, Hon'ble Supreme Court relied upon the amended provision of Section 25 (effective from 24.9.1984) and the judgments in the cases of Bhag Singh v. Union Territory of Chandigarh (1985) 3 SCC 737 (Para 3), Krishi Utpadan Mandi Samiti v. Kanhaiya Lal (2000) 7 SCC 756 and Bhimasha v. Land Acquisition Officer, (2008) 10 SCC 797 and held that the amount of compensation that a Court can award is no longer restricted to the amount claimed by the applicant, inasmuch as it is the duty of the Court to award just and fair compensation taking into consideration the true market value and other relevant factors, irrespective of the claim made by the owner. In the case of Ashok Kumar (supra), Hon'ble Supreme Court noted the arguments of compensation similar to that awarded for lands of adjoining village, but rejected the same holding as under : "2. Around 46.93 acres of Land was acquired by the respondent- State of Haryana initiating the proceedings by Notification dated 19-9-1983 issued under Section 4 of the Land 7 All. Pradeep Kumar & Ors. Vs State Of U.P. & Ors. 141 Acquisition Act, 1894. The purpose of acquisition is residential and commercial for Panchkula, Sector-21. The acquired property is in Village Fatehpur. In respect of the same development, we have seen that this court in many cases has based the fixation of the land value based on acquisition proceedings initiated in 1981 in Village Judian. Those properties in village Judian had access to State Highway and the value fixed by this Court was Rs. 250/- per square yard. In respect of properties situated in the adjoining village of the appellants namely, Devi Nagar, we have fixed land value at the rate of Rs. 250/- per square yard that was the acquisition initiated in the year 1987 and that property had extensive national highway frontage. 3. The Learned counsel for the appellants submitted that in all the adjoining villages for the properties acquired for the same purpose, this court having fixed the land value at Rs. 250/- per square yard and above, the appellants may also be granted the same value. 12. In the case of the appellants herein, it is an admitted position that the properties do not abut the national highway. Admittedly, it is situated about 375 yards away from the national highway and it appears that there is only the narrow Nahan Kothi Road connecting the properties of the appellants to the national highway. Therefore, it will not be just and proper to award land value of Rs.250/- per square yard, which is granted to the property in adjoining village. Having regard to the factual and legal position obtained above, we are of the considered view that the just and fair compensation in the case of appellants would be Rs. 200/- per square yard. 13. Therefore, these appeals are disposed of fixing the land value at Rs. 200/- per square yard and the appellants shall also be entitled to all the statutory benefits. The amount as above shall be paid and deposited after adjusting the deficit court fee, if any, before the Executing Court within a period of three months from today." 15. In the case of Kanwar Singh and others v. Union of India, (1998) 8 SCC 136 (Paras 9,10 and 11), Hon'ble Supreme Court rejected the contention of the claimants to award same rate of compensation, as was awarded to the claimants of the adjoining villages and held as under : "9. The contention of appellants' counsel that the appellants deserved to be awarded the same rate of compensation as it was awarded to the claimants of village Masoodpur and Mahipalpur, in the present facts and circumstances of the case, is not tenable. If we go by the compensation awarded to claimants of adjoining village it would not lead to the correct assessment of market value of the land acquired in the village Rangpuri. For example village 'A' adjoins village 'B', village 'B' adjoins village 'C', village 'C' adjoins village 'D', so on and so forth and in that process the entire Delhi would be covered. Generally there would be different situation and potentiality of the land situated in two different villages unless it is proved that the situation and potentiality of the land in two different villages are the same. The High Court in the present case has found that the situation and potentiality of land in village Malikpur Khoi are different than that of village Masoodpur, This finding of the High Court is based on correct appreciation of evidence on record and does not call for interference. Another reason why the High Court declined to rely upon the judgments 142 INDIAN LAW REPORTS ALLAHABAD SERIES referred to above was that the sale instances relating to village Malikpur Khoi were available for determining the market value of the land acquired in village Malikpur Khoi and, as such, there was no need to rely upon the judgments which related to acquired land of different villages. Yet another reason why the two judgments referred to by learned counsel for appellant cannot be relied upon for assessing the market value of acquired land in village Malikpur Khoi was that RFA No. 567/90 filed by the Union of India relating to the grant of compensation in respect of land in village Masoodpur was dismissed summarily, as the only challenge in the appeal was in respect of grant of interest to the claimants which matter was already settled by the Supreme Court. In fact, the High Court had adversely commented upon the working of the Land Acquisition Department of Delhi Administration in not challenging the market value of the land acquired in village Masoodpur as assessed by the. Additional District Judge, in Regular First Appeals although the court fee to that effect was paid. In this connection, it is relevant to reproduce the finding of the High Court, which runs as follows:- "Before leaving the judgment, we are constrained to make a few observations regarding the working of the land Acquisition Department in Delhi Administration and contest of these appeals by the counsel for Union of India. Although an appeal filed by the Union of India against the judgment of the ADJ in LAC 186/91 is pending in this court, this fact was not brought to our notice by the counsel for Union of India. This decision of the ADJ in LAC 186/81 has been substantially relied upon by another ADJ in LAC 15/81. When the appeal against the said decision of the ADJ in LAC 15/81 came before ( RFA 567/90 ) the only question pressed by the counsel for Union of India was in regard to the payment of interest after the amendment in the Land Acquisition Act in 1984. But when we found that the dismissal of the said appeal by the Division Bench was relied upon in Hoshiar Singh V. Union of India, we sent for the file. What is discovered on the file is shocking. The Union of India had purchased stamp worth Rs. 1,19,300. Obviously, the intention was to file an appeal against the quantum of compensation awarded by the ADJ. However, the grounds of appeal mostly relate to the payment of interest in terms of the Amending Act of 1984. The appeal memo was drafted by Mr. Gulab Chandra, Advocate, who also appeared before us in RFA 567/90. Since the questions regarding payment of interest after the Amending Act of 1984 are now fully settled by the decisions of the Supreme Court and since that was the only question argued before us by the counsel for the Union of India, the appeal was dismissed by us we had not noticed at that stage that a stamp of Rs.1,19,300 was affixed by the Union of India. This was only discovered now. The purchase of stamp worth Rs. 1,19,300 would show that the claim would be over a crore of rupees. The claimants have been benefited because Union of India did not argue the matter on compensation. Apart from the lack of interest and inefficiency in the Land Acquisition matters on behalf of the Land Acquisition Department, these facts raise grave suspicion about the credibility of the working of the said Department. We, therefore, direct that a copy of this judgment be sent to the Lt. Governor for appropriate action." The judgment of the High Court in RFA No. 567 of 1990 was relied upon in Hoshiar Singh v. Union of India as there was no sale instance In respect of the land in village Mahipalpur available for assessing the market value of acquired land in the village Mahipalpur. It may be seen that in both the cases, the High Court had no occasion to 7 All. Pradeep Kumar & Ors. Vs State Of U.P. & Ors. 143 examine the market value of acquired land in Villages Masoodpur and Mahipalpur and under such circumstances, it is not safe to rely upon two judgments of the High Court for arriving at the market value of the land in Village Rangpuri. 10. The High Court has considered the following sale instances in detail which were from the same village, viz., Rangpuri Sl. No. Ext. No Description of document sale/Regn. Date of Notification Field No., area and Situation Rate per Bigha Rs. 1 A-1 Deed of Sale 14/03/61 14 (2 bighas) Malikpur Kohi 25000 2 A-2 -do- 07/07/62 72 min (6 bis) -do- 4000 3 A-5 -do- 28/04/64 1587/1 (1 bigha ) -do- 5000 4 A-2 -do- 26/10/62 1677 (4 bighas ) -do- 344 5 R-1 Copy of Mutation 09/04/63 769,770 etc. (91 bighas & 1 bis) -do- 300 6 R-2 Deed of Sale 19/08/64 1637,1650,1651, 1652,1653/1& 1653/2 (24 bighas ) -do- 500 and came to the conclusion that sale transaction with regard to Khashra No. 1587/1 is not genuine sale transaction and, as such, it cannot be relied upon for assessing the market value of the land acquired. The High Court also found that the sale instances of the year 1964 at serial No. 4 and 6 which were nearer to the point of time of notification under Section 4 of the Act, are the best pieces of evidence for assessing the market value of the land acquired. 11. After having considered the sale instances, the High Court assessed the market value of the land acquired @ Rs. 3000 per bigha. The judgment of the High Court is neither perverse nor illegal and does not call for any interference, since it is based on correct appreciation of the evidence on record and proper application of law to the established facts. The appeals are, accordingly,dismissed but in the circumstances of the case, there shall be no order as to costs." (Emphasis supplied by me) 144 INDIAN LAW REPORTS ALLAHABAD SERIES 16. In view of the above discussions, the contention of the claimants-appellants that they are entitled to the same rate of compensation, as has been determined by a Division Bench in the case of Pradeep Kumar (supra ) in respect of another village Makanpur, is not tenable. In the case of Kanwar Singh (supra ), Hon'ble Supreme Court clearly held that if we go by the compensation awarded to the claimants of the adjoining village, it would not be correct assessment of the market value of the land acquired in village Rangpuri. For example village 'A' adjoins village 'B', village 'B' adjoins village 'C', village 'C' adjoins village 'D', so on and so forth and in that process, the entire Delhi would be covered. These observations of Hon'ble Supreme Court have direct bearing on the present set of facts and for that reason the claimants-appellants are not entitled to the same rate of compensation , as determined in the matter of land acquisition of the adjoining village Makanpur. The Claimants-appellants have neither pleaded nor proved by leading any evidence that the situation and potentiality of the land in two villages, namely, village "Makanpur" and village "Khora" are the same. Perusal of paras 16 to 39 of the Division Bench Judgment in the case of Pradeep Kumar (supra ) clearly shows that the Division Bench awarded the same rate of compensation with respect to some more land of the same village Makanpur, acquired by a subsequent notification under Section 4 of the Act, which is not the case of the appellants in the present appeals. Thus, the judgment in the case of Pradeep Kumar (supra) is distinguishable on facts. The question No.2 is answered accordingly. 17. For the reasons and findings recorded in the preceding paragraphs of this judgment, various orders filed by the Claimants-appellants along with Misc. Application No.189998 of 2015 are also distinguishable on the facts of the present appeals. 18. The view taken by this Court in determining the market value of the acquired land of village Khora, also finds support from the principles/guidelines given by Hon'ble Supreme Court in the case of Chiman Lal Hargovinddas v. Special Land Acquisition Officer, Poona and another, (1988) 3 SCC 751 (Para 4) which is reproduced below : "4. The following factors must be etched on the mental screen: (1) A reference under section 18 of the Land Acquisition Act is not an appeal against the award and the Court cannot take into account the material relied upon by the Land Acquisition officer in his Award unless the same material is produced and proved before the Court. (2) So also the Award of the Land Acquisition officer is not to be treated as a judgment of the trial Court open or exposed to challenge before the Court hearing the Reference. It is merely an offer made by the Land Acquisition officer and the material utilised by him for making his valuation cannot be utilised by the Court unless produced and proved before it. It is not the function of the Court to sit in appeal against the Award,approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition officer, as if it were an appellate court. 7 All. Pradeep Kumar & Ors. Vs State Of U.P. & Ors. 145 (3) The Court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it. (4) The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. Of course the materials placed and proved by the other side can also be taken into account for this purpose. (5) The market value of land under acquisition has to be determined as on the crucial date of publication of the notification under Section 4 of the Land Acquisition Act (dates of Notifications under sections 6 and 9 are irrelevant). (6) The determination has to be made standing on the date line of valuation (date of publication of notification under Section 4) 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. (7) 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. (8) only genuine instances have to be taken into account. (Some times instances are rigged up in anticipation of Acquisition of land). (9) 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. (l0) 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. (11) 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 146 INDIAN LAW REPORTS ALLAHABAD SERIES factors vis-a-vis land under acquisition by placing the two in juxtaposition. (12) A balance-sheet of plus and minus factors may be drawn for this purpose and the relevant factors may be evaluated in terms of price variation as a prudent purchaser would do. (13) The market value of the land under acquisition has there after to be deduced by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors. (14) The exercise indicated in clauses (11) to (13) 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. largeness 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. 6. level vis-a-vis land 6. some special disadvantageous under 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. (15) 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 1000 sq. yds cannot be compared with a large tract or block of land of say l0000 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 7 All. U.P. State Industrial Development Corp. Ltd. (Upsidc) Vs Commissioner Of Income- Tax-II, Kanpur 147 preparing a lay out, 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 percent to 50 percent 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 looked up, will be longer or shorter and the attendant hazards. (16) 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. (17) These are general guidelines to be applied with understanding informed with common sense." (Emphasis supplied by me) 19. In view of the above discussion, all the appeals filed by the Claimants-appellants deserve to be allowed to the extent that the appellants shall be entitled to receive compensation @ 130/- per Sq. yard along with all statutory benefits and interest after adjustment of the amount already received by them. The deficiency in Court fees shall be recovered from the Claimantsappellants at the time of preparation of final decree. 20. In result, all the first appeals succeed and are hereby allowed to the extent indicated above, with cost of Rs. 5,000/- to each appellant which the respondents shall pay to the appellants within one month from today. ------------ APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 05.07.2016 BEFORE THE HON'BLE SUDHIR AGARWAL, J. THE HON'BLE PRABHAT CHANDRA TRIPATHI, J. Income Tax Appeal No.- 231 Of 2006 & Connected With Other Cases U.P. State Industrial Development Corp. Ltd. (Upsidc) ...Appellant Versus Commissioner Of Income-Tax-II, Kanpur ...Respondent Counsel for Appellant: S.K. Garg