# Smt. Kailasho Devi v. State of U.P. & Anr

- **Citation:** (2022) 4 ILRA 617
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-06
- **Case number:** First Appeal No. 546 of 1994
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kailasho-devi-v-state-of-u-p-anr-48279
- **Pages:** 9

## Headnote

A. Civil Law - Land Acquisition Act,1894 -
Section 23 - Uttar Pradesh Avas Evam
Vikas Parishad Adhiniyam, 1965 - Section
28 - Land Acquisition - Compensation -
determination of market value - While
fixing the market value of the acquired
land, one is required to keep in mind the
following
factors
:
-(a)
Existing
geographical situation of the land (b)
Existing use of the land. (c) Already
available advantages, like proximity to
National or State Highway or road and/ or
developed area (d) Market value of other
land situated in the same locality/ village/
area or adjacent or very near the acquired
land - Market value can be determined on
the basis of price paid within a reasonable
time in bona fide transactions of purchase
of the lands adjacent to the lands acquired
and
possessing
similar
advantages
-
Exemplars - it is the general rule that the
highest of the exemplars, if it is satisfied,
that it is a bona fide transaction has to be
considered and accepted - It is not that
the lowest available rate amongst the
exemplars that is to be regarded as the
embodiment of a genuine and truthful
transaction (Para 17, 19)

Notification u/s 28 published on 29.09.1979 -
High Court found that the acquired land was in
the vicinity of a stadium and close to two
highways & a high yielding land, the acquired
land not located very far away from the village
abadi also - large number of exemplars showed
private sale of small portions of land varied
between Rs.100/- to Rs.200/- per square yard -
High
Court
held
appellant
entitled
to
compensation at the rate of Rs.99/- per square
yard - statutory entitlements, such as solatium,
additional compensation and interest to be
worked out accordingly (Para 19, 21)

List of Cases cited:-

## Text

4 All. Smt. Kailasho Devi Vs. State of U.P. & Anr.
617
----------
(2022)04ILR A617
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.04.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

First Appeal No. 546 of 1994

Smt. Kailasho Devi ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Sri Bishnu Sahai, Sri Ashok Kumar Tripathi (Now
Ashok Tripathi), Sri B. Dayal, Sri P.K. Rajput, Sri
R.P. Singh Yadav, Sri R.P.S. Raghav, Sri R.P.S.
Yadav, Sri Sanjay Srivastava, Sri V. Sahai, Smt.
Anjali Rajput

Counsel for the Respondents:
S.C., Sri Nipun Singh

A. Civil Law - Land Acquisition Act,1894 -
Section 23 - Uttar Pradesh Avas Evam
Vikas Parishad Adhiniyam, 1965 - Section
28 - Land Acquisition - Compensation -
determination of market value - While
fixing the market value of the acquired
land, one is required to keep in mind the
following
factors
:
-(a)
Existing
geographical situation of the land (b)
Existing use of the land. (c) Already
available advantages, like proximity to
National or State Highway or road and/ or
developed area (d) Market value of other
land situated in the same locality/ village/
area or adjacent or very near the acquired
land - Market value can be determined on
the basis of price paid within a reasonable
time in bona fide transactions of purchase
of the lands adjacent to the lands acquired
and
possessing
similar
advantages
-
Exemplars - it is the general rule that the
highest of the exemplars, if it is satisfied,
that it is a bona fide transaction has to be
considered and accepted - It is not that
the lowest available rate amongst the
exemplars that is to be regarded as the
embodiment of a genuine and truthful
transaction (Para 17, 19)

Notification u/s 28 published on 29.09.1979 -
High Court found that the acquired land was in
the vicinity of a stadium and close to two
highways & a high yielding land, the acquired
land not located very far away from the village
abadi also - large number of exemplars showed
private sale of small portions of land varied
between Rs.100/- to Rs.200/- per square yard -
High
Court
held
appellant
entitled
to
compensation at the rate of Rs.99/- per square
yard - statutory entitlements, such as solatium,
additional compensation and interest to be
worked out accordingly (Para 19, 21)

List of Cases cited:-

1. Uttar Pradesh Avas Evam Vikas Parishad Vs
Ganga Saran (Dead) through LR & ors., (2020)
14 SCC 238

2. Meerut Development Authority Through its
Secretary Vs Basheshwar Dayal (Dead) Through
L.Rs. & anr., 2013 SCC OnLine All 13200

3. Bhule Ram Vs U.O.I. & anr., (2014) 11 SCC
307

(Delivered by Hon'ble J.J. Munir, J.)

1. This first appeal is directed against
a judgment and award of Mr. M.P.S. Tejan,
the then 7th Additional District Judge,
Bulandshahr
dated
24th
July,
1991
rejecting L.A.R. No.233 of 1987 and
affirming an award of the Special Land
Acquisition
Officer
(Second),
Uttar
Pradesh Avas Evam Vikas Parishad, Kamla
Nagar, Agra (for short, 'the SLAO') dated
11.10.1984,
awarding
the
claimantappellant compensation at the rate of
Rs.29.08 per square yard for her land
acquired by the Uttar Pradesh Avas Evam
Vikas Parishad (for short, 'the Parishad').

2. One Kallan son of Ganga Sahai had
agricultural land in Village Tanda, Pargana
618 INDIAN LAW REPORTS ALLAHABAD SERIES
Baran, Tehsil and District Bulandshahr
comprising Khasra No.157 admeasuring 1
bigha 17 biswa and Khasra No.158
admeasuring 2 biswa. The land was of
good quality and described as class 'Sinchit
Bada'. It was assessed to land revenue in
the sum of Rs.12.50 per bigha. The land
aforesaid shall hereinafter be referred to as,
''the acquired land'. A notification under
Section 28 of the Uttar Pradesh Avas Evam
Vikas Parishad Adhiniyam, 1965 (for short,
'the Act') relating to the acquired land was
published on 29.09.1977 in the State
Gazette.
This
was
followed
by
a
notification under Section 32 of the Act
dated 25.11.1979, also published in the
Official Gazette. On 11.10.1984, an award
was made under the Act by the SLAO,
assessing the value of the land at Rs.38.77
per square yard. After deducting 25% per
square yard, compensation for Kallan's land
was assessed at the rate of Rs.29.08 per
square yard.

3. In accordance with the award made
by
the
SLAO,
Kallan's
substantive
compensation for the acquired land worked
out to a figure of Rs.1,71,535.65. Adding to
it 30% solatium and 12% additional
compensation, besides interest, a total sum
of Rs.3,27,854.67 was determined.

4. Aggrieved by the award made by
the SLAO, Kallan prefered a reference
under Section 18 of the Land Acquisition
Act, 1894 to the District Judge, Meerut. It
must be clarified here, for the sake of
record, that pending proceedings before the
Judge and not before Kallan's evidence was
recorded in Court, he passed away on
03.12.1990, leaving behind him, as his sole
heir and LR, his married daughter Smt.
Kailasho Devi wife of Malwant Singh.
Kallan's
estate
devolved
upon
Smt.
Kailasho and she was substituted in his
stead in the pending reference before the
Judge. Kallan and after him, his heir and
LR, Smt. Kailasho, shall hereinafter be
referred to as ''the appellant', unless the
context otherwise requires. Kallan in his
time, while moving the reference, came up
with a case that his acquired land fell
within the local limits of the Nagar Palika,
Bulandshahr, but the SLAO had proceeded
to determine its value on fallacious
grounds. It was urged that though the
SLAO has admitted the fact that the
acquired land has housing potential, he had
not looked into the exemplar sale deed
relating to land lying in front of the
acquired land, that was executed before the
time
when
the
notification
dated
29.09.1979 under Section 28 of the Act was
published. This exemplar clearly indicates
that between the willing buyer and the
willing seller, the sale consideration, that
was settled and paid, was Rs.100/- per
square
yard.
A
number
of
other
contemporaneous exemplars were referred
to, where the rate of land, that was settled
and paid by willing buyers to willing sellers
for land, similarly circumstanced as the
acquired
land,
was
Rs.100/-.
These
exemplars were from Khasra Nos.56 and
72. It was pleaded that the acquired land
had in its vicinity a wholesale market of
foodgrains (अनाज मि़ी) and developing
residential and commercial sites. It was the
appellant's demand in the reference that the
rate of land assed by the SLAO for the
purpose of compensation was clearly
fallacious and he was entitled to Rs.100/-
per square yard.

5. A written statement was put in on
behalf of the State Government represented
by the Collector of Bulandshahr. It was
pleaded that Village Tanda has been
included in the local limits of the Nagar
Palika after the first notification was
4 All. Smt. Kailasho Devi Vs. State of U.P. & Anr.
619
published for acquisition. It must be
remarked here that the notification for
acquisition of the appellant's land, along
with a large number of other similarly
situate lands in Village Tanda, was for the
purpose of a housing scheme to be
developed by the Parishad. It was the
State's case that the appropriate exemplar
had been selected after searching through a
number of them. It was also pleaded that
upon knowledge of a housing scheme being
floated, there were sale transactions at
inflated rates entered into, that did not
represent the true value of the land. The
acquired land was agricultural and had no
housing over it. It was employed for
agriculture. The Mandi site had been
constructed after the acquisition. It was
broadly on these counts that the appellant's
case was contested.

6. In support of his case, Kallan, the
original appellant, testified in the dock
before the Judge on 29.11.1989 and was
thoroughly
cross-examined.
For
the
exemplar that the appellant relied on, a
certified copy of the sale deed dated
04.04.1979 was filed, where land similar to
the acquired land, admeasuring 216 square
yards was sold by one Pt. Ghasiram son of
Pt. Munshiram to Makkhan Lal and
Narendra Pal Saxena for a total sale
consideration of Rs.21,600/-. The rate
indicated by the said exemplar was
Rs.100/- per square yard. The said sale
deed was assigned paper No. 30C.

7. The learned Judge did not accept
the appellant's case for an enhanced value
of the acquired land, that he urged. It was
noticed by the learned Judge in the
judgment impugned and the fact is not in
dispute that the entire parcel of land, of
which the acquired land is a part, acquired
by the Parishad, was located on two main
Highways, that is to say, BulandshahrShikarpur Highway and the BulandshahrAnupshahr Highway. The appellant's land
was found to be located close to the
Bulandshahr-Shikarpur
Highway.
Upon
scrutiny of the various exemplars, that were
filed by the appellant and similarly situate
land oustees, it was opined that the sale
deeds listed at serial Nos.23-26 were close
exemplars. Amongst these, the sale deed at
serial No. 26 dated 07.07.1979 executed by
Om Prakash in favour of one Dinesh
Kumar, conveying to the latter an area of
245 square yards of land, was held to be a
true exemplar. It represented the correct
value of the acquired land. The rate of land
indicated in the said exemplar was
Rs.38.77 per square yard. After deducting
25%, the rate of compensation was worked
out to be Rs.29.08 per square meter. The
learned Judge took note of the sale deed
dated 04.04.1979, that was relied upon by
the appellant as well as another claimant,
Niranjan Singh, whose reference was
decided as the leading case by the
Reference Court.

8. It was remarked that the rate of
land reflected by sale deeds of smaller
areas of land could not serve as valid
exemplars. The learned Judge in the
Reference Court has observed that it is
true that where it is found that the
acquired land is of good quality and has
factories etc. in its vicinity, a higher
compensation should be determined for it.
The Judge, however, felt that it is not
necessary that a sale deed of higher value
may be the true exemplar. About the saledeed executed by Ghasiram, on which the
appellant has relied, it has been noticed
that the relative land is located to the north
of the road, whereas towards the south,
there is a College and the Anupshahr Bus
Stand.
620 INDIAN LAW REPORTS ALLAHABAD SERIES

9. About the appellant's land, it has
been
observed
that
in
his
crossexamination, the appellant has said that he
had not filed on record sale deed for the
past three years, because he did not know
that it was necessary. It has also been
admitted by the appellant that the acquired
land has not been declared an abadi by the
by S.D.O. The acquired land is located at a
distance two furlongs from the ShikarpurBulandshahr
Highway
and
from
the
Anupshahr-Bulandshahr Highway at a
distance of one and a half furlongs. It has
been remarked by the learned Judge that
the appellant agrees that the acquired land
is located not towards the Anupshahr
Highway. It has been observed that the
most valuable land is that which is located
on the Anupshahr Highway and not on the
Shikarpur Highway. It has also been
observed that the witnesses, who have
appeared in the appellant's case and the
connected matters, have accepted that the
land gets submerged under flood-water.
The SLAO's award was perused by the
Judge
to
opine
that
the
SLAO
acknowledges the fact that the acquired
land is located close to two main highways,
where
they
have
in
their
vicinity
commercial sites and abadi. The learned
Judge has suspected most of the exemplars
as evidencing inflated rates that were
executed after notification of the housing
scheme. He has gone with the SLAO to
hold that the sale deeds at serial Nos. 23-26
represent the correct value. It is broadly on
the aforesaid reasoning that the learned
Judge has agreed with the SLAO.

10. Heard Mr. Ashok Tripathi,
learned Counsel for the appellant, Mr.
Awadhesh
Kumar,
learned
Standing
Counsel appearing on behalf of respondent
no.1 and Mr. Nipun Singh, appearing on
behalf of respondent no.2.

11. Mr. Ashok Tripathi, learned
Counsel for the appellant has seriously
assailed the award as one contrary to the
evidence on record, both documentary and
oral. He has drawn the attention of this
Court to a copy of the sale deed dated
04.04.1979, paper No. 30C and the
testimony of Kallan in the dock. Besides
that, he has placed before the Court a copy
of the judgment of their Lordships of the
Supreme Court in Uttar Pradesh Avas
Evam Vikas Parishad v. Ganga Saran
(Dead) through LR and others, (2020)
14 SCC 238. The judgment was rendered
relating to the same award covered by the
same notification relating to Village
Tanda, where a different Court of
Reference had enhanced the compensation
in LAR No. 128 of 1987 from Rs.29.08
per square yard to Rs.99/- per square yard.
This Court had dismissed the first appeals,
whereagainst
their
Lordships,
after
considering the various factors that the
Reference
Court
took
into
account,
because the judgment of this Court had not
considered much evidence, opined the
assessment to be correct. It is impressed
upon this Court that the said assessment of
compensation is squarely applicable to the
facts here.

12. Mr. Awadhesh Kumar, learned
Standing Counsel appearing on behalf of
respondent no.1 and Mr. Nipun Singh,
learned Counsel appearing on behalf of
respondent
no.2,
have
opposed
the
submissions and said that the Reference
Court here has carefully distinguished
relevant factors in judging the suitability of
the appropriate exemplar to follow and has
reached a correct conclusion that ought not
to be disturbed.

13. This Court has carefully gone
through the evidence on record.
4 All. Smt. Kailasho Devi Vs. State of U.P. & Anr.
621

14. What cannot be ignored is the fact
that the acquired land is located close to
two highways, the Bulandshahr-Anupshahr
Highway and the Bulandshahr-Shikarpur
Highway. Whether the land is located
closer to one highway or the other, would
not be of such decisive significance so as to
trifle the value of the acquired land from
what is evidenced by the exemplar cited by
the appellant, paper No. 30C and support
the meagre assessment made by the Trial
Judge and the SLAO.

15. A perusal of the extract of the
Khasra, paper No. 26C clearly shows the land
to be of good quality, that is described as
Sinchit Bada, which is irrigated land. There is
no documentary evidence about the land
getting submerged by flood waters. In his
examination-in-chief, Kallan has said that the
acquired land is near the stadium and I.P.
Degree College, besides houses. No doubt,
the appellant has said that he has not filed on
record the exemplar of sale deeds for the past
three years, but that appears to be more the
result of a grueling cross-examination than a
well-evidenced fact. The exemplar that has
been filed is a sale deed dated 04.04.1979,
whereas the notification under Section 28 of
the Act in the present case was published on
29.09.1979. Thus, the exemplar relied upon
by the appellant is very proximate in point of
time to the notification under Section 28, that
is relevant for the purpose of determination of
the market value. In his cross-examination,
Kallan, after admitting the fact that the
acquired land did not house any abadi and
had farming done over it, has said:

"इस जम़ीन से सशकारपुर वाल़ी सडक दो फलाांग
दूर िै और अनूपशिर वाल़ी सडक 1 या 1-1/2 फलाांग
दूर िै। नई मन्ड़ी क़ी स्र्थापना इस िूसम को अध्यासपत
करने से पिले हुई र्थ़ी। इस िूसम से नई मन्ड़ी 30-40गज
क़ी दूऱी पर िै। एक सकलोम़ीिर दूर दूर नि़ीं। मेरे िेत से
यसद अनूपशिर रोड पर आकर नई मन्ड़ी को जावे तो
250 गज क़ी दूऱी िै। स्ट्ेसडयम िाई पुरा वाल़ी जम़ीन में
नि़ीं िै बण्डल्क िांडे क़ी जम़ीन में िै। अध्यासपत़ी के समय
काश्त क़ी जम़ीन 50 िजार रूपये ब़ीघा के सिसाब से
सबक़ी िै। उसके बैनामें ि़ी िै।

मैनें अध्यासपसत के समय असधकाऱी के समक्ष त़ीन
फसलों क़ी बावत िसरा दाण्डिल सकया र्था। और यिाँ ि़ी
दाण्डिल सकया िै सजसमें त़ीन से िादा फसले सलि़ी िै।
पिवाऱी फसलों क़ी पडताल करता र्था।"

16. A perusal of the said crossexamination shows that the acquired land is
located at two furlongs from the Shikarpur
Highway and one and a half furlong from
the Anupshahr Highway. The learned
Judge says that the land on the Anupshahr
Highway is more valuable. The land being
valuable on a particular highway does not
mean that it should be virtually within the
control area of that highway. A land, that is
at a distance of one and a half furlong from
the Anupshahr Highway, would be entitled
to all the benefits that accrue from the
higher value of lands located on that
highway. This particular land is in the
vicinity of the two highways and would,
therefore, be logically more valuable; may
be like others similarly situate. The fact
that the stadium was built prior to the
acquisition has been specifically asserted
by the appellant in his cross-examination,
about
which
he
has
neither
been
contradicted
or
confronted
with
any
previous statement or material.

17. The agricultural value of the land
has been described as Rs.50,000/- per
bigha. The land has been asserted to be one
yielding three crops a year and this fact has
also not been disputed on behalf of the
State. The land that is shown in the
exemplar relied upon by the appellant more
or less represents the true value of lands
located in the vicinity of the two State
Highways. There is no particular feature
about the acquired land that may diminish
622 INDIAN LAW REPORTS ALLAHABAD SERIES
its value compared to others. In the context
of parameters on which value of acquired
land may be assessed, reference may be
made with profit to the decision of a
Division Bench of this Court in Meerut
Development Authority Through its
Secretary v. Basheshwar Dayal (Dead)
Through L.Rs. and another, 2013 SCC
OnLine
All
13200.
In
Meerut
Development Authority v. Basheshwar
Dayal (supra), the principles, governing
assessment of compensation based on
various decisions of their Lordships of the
Supreme Court, have been culled out thus:

"11. Having heard and considered the
contentions of the learned Counsel for the
parties and perused the material available
on
record
including
the
impugned
judgments of the Reference Court, we now
first proceed to summarize the legal
principles settled by Hon'ble Supreme
Court in various judgments relevant for
determination of market value, as under:

(i) Function of the Court in awarding
compensation under the Act is to ascertain
the market value of the land on the date of
the notification under section 4(1),

(ii) The method for determination of
market value may be:

(a) Opinion of experts,

(b) the price paid within a reasonable
time in bona fide trans-actions of purchase
of the lands acquired or the lands adjacent
to the lands acquired and possessing similar
advantages,
(c) a number of years purchase of the actual
or immediately prospective profits of the
land acquired.

(Ref. Jawajee Nagnatham v. Revenue
Divisional Officer [(1994) 4 SCC 595 para
5.] ). (iii) While fixing the market value of
the acquired land, comparable sales method
of valuation is preferred than other methods
of valuation of land such as capitalisation
of net income method or expert opinion
method. Comparable sales method of
valuation is preferred because it furnishes
the evidence for determination of the
market value of the acquired land at which
a willing purchaser would pay for the
acquired land if it had been sold in the open
market at the time of issue of notification
under section 4 of the Act. However,
comparable sales method of valuation of
land for fixing the market value of the
acquired land is not always conclusive but
subject to the following factors:--

(a) Sale must be a genuine transaction,

(b) the sale-deed must have been
executed at the time proximate to the date
of issue of notification under section 4 of
the Act,

(c) the land covered by the sale must
be in the vicinity of the acquired land,

(d) the land covered by the sales must
be similar to the acquired land,

(e) the size of plot of the land covered
by the sales be comparable to the land
acquired.

(f) if there is dissimilarity in regard to
locality, shape, site or nature of land
between land covered by sales and land
acquired, it is open to the Court to
proportionately reduce the compensation
for acquired land.

(iv) The amount of compensation
cannot be ascertained with mathematical
accuracy. A comparable instance has to be
identified having regard to the proximity
from time angle as well as proximity from
situation angle. For determining the market
value of the land under acquisition, suitable
adjustment has to be made having regard to
various positive and negative factors vis-avis the land under acquisition which are as
under:

Positive factors
Negative factors
(i) smallness of size
(i) largeness of area
4 All. Smt. Kailasho Devi Vs. State of U.P. & Anr.
623
(ii) proximity to a
road

(ii) situation in the
interior
at
a
distance from the
road
(iii) frontage on a
road
(iii) narrow strip of
land
with
very
small
frontage
compared to depth
(iv)
nearness
to
developed area
(iv)
lower
level
requiring the area
depressed
portion
to be filled up
(v) regular shape
(v)
remoteness
from
developed
locality
(vi) level vis-a-vis
land
under
acquisition
(vi) some special
disadvantageous
factors
which
would
deter
a
purchaser.
(vii) special value
for an owner of an
adjoining property
to whom it may
have
some
very
special advantage

(v) For ascertaining the market value of
the land, the potentiality of the acquired land
should also be taken into consideration.
Potentiality means capacity or possibility for
changing or developing into state of actuality.

(vi) Deduction not to be done when land
holders have been deprived of their holding
15 to 20 years back and have not been paid
any amount.

(vii) In fixing market value of the
acquired land, which is undeveloped or
under-developed, the Courts have generally
approved deduction of 1/3rd of the market
value towards development cost except when
no development is required to be made for
implementation of the public purpose for
which land/is acquired. (Ref. Valliyammal v.
Special Tahsildar Land Acquisition, [(2011)
8 SCC 91.] paras 13, 14, 15, 16, 17, 18 and
19).

(viii) When there are several exemplars
with reference to similar lands, it is the
general rule that the highest of the exemplars,
if it is satisfied, that it is a bona fide
transaction has to be considered and
accepted.
When
the
land
is
being
compulsorily taken away from a person, he is
entitled to the highest value which similar
land in the locality 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.

(Ref.
Mehrawal
Khewaji
Trust
(Registered), Faridkot v. State of Punjab
[(2012) 5 SCC 432 : 2012 (114) AIC
268.] ).

(ix) In view of section 51-A of the Act
certified copy of sale-deed is admissible in
evidence, even the vendor or vendee
thereof
is
not
required
to
examine
themselves
for
proving
the
contents
thereof. This, however, would not mean
that
contents
of
the
transaction
as
evidenced by the registered sale-deed
would automatically be accepted. The
Legislature advisedly has used the word
''may'. A discretion, therefore, has been
conferred upon a Court to be exercised
judicially,
i.e.,
upon
taking
into
consideration the relevant factors. Only
because a document is admissible in
evidence, the same by itself would not
mean that the contents thereof stand
proved. Having regard to the other
materials brought on record, the Court may
not accept the evidence contained in a deed
of sale.

(Ref. Cement Corpn. Of India Ltd. v.
Purya [(2004) 8 SCC 270 para 28 and
38,]).

(x) While fixing the market value of
the acquired land, the Land Acquisition
624 INDIAN LAW REPORTS ALLAHABAD SERIES
Collector is required to keep in mind the
following factors:--

(a) Existing geographical situation of
the land.

(b) Existing use of the land.

(c) Already available advantages, like
proximity to National or State Highway or
road and/or developed area,

(d) Market value of other land situated
in the same locality/village/area or adjacent
or very near the acquired land.

(xi) section 23(1) of the Act lays
down what the Court has to take into
consideration while section 24 lays down
what the Court shall not take into
consideration and have to be neglected.
The main object of the enquiry before the
Court is to determine the market value of
the land acquired. The market value is the
price that a willing purchaser would pay
to a willing seller for the property having
due regard to its existing condition with
all its existing advantages and its
potential possibilities when led out in
most advantageous manner excluding any
advantage due to carrying out of the
scheme
for
which
the property
is
compulsorily acquired. The determination
of market value is the prediction of an
economic event viz. a price out-come of
hypothetical sale expressed in terms of
probabilities. For ascertaining the market
value of the land, the potentiality of the
acquired land should also be taken into
consideration.
Potentiality
means
capacity or possibility for changing or
developing into state of actuality.

(xii) The question whether a land has
potential value or not, is primarily one of
fact depending upon its condition, situation,
user to which it is put or is reasonably
capable of being put and proximity to
residential, commercial or industrial areas
or institutions. The existing amenities like
water, electricity, possibility of their further
extension, whether near about town is
developing.

(xiii) In fixing market value of the
acquired land, which is undeveloped or
under-developed, the Courts have generally
approved deduction of 1⁄3rd of the market
value towards development cost except
when no development is required to be
made for implementation of the public
purpose for which land is acquired.
Deduction of "development cost" is the
concept used to derive the "wholesale
price" of a large undeveloped land with
reference to the "retail price" of a small
developed plot. The difference between the
value of a small developed plot and the
value of a large undeveloped land is the
"development cost".

(Ref. Sabhia Mohammed Yusuf Abdul
Hamid Mulla (dead) [2012 (95) ALR 219
(SC) : (2012) 7 SCC 595 paras 16, 17, 18,
21 and 22.]).

18. Reference may also be made to
the decision of the Supreme Court in Bhule
Ram v. Union of India and another,
(2014) 11 SCC 307, where various factors,
including the provisions of Section 23 of
the Land Acquisition Act, have been
emphasized to assess the market value;
some play for guesswork has also been
permitted. The distance from a National or
State Highway has been emphasized in the
said authority.

19. Here, this Court finds that clearly,
the land is in the vicinity of a stadium,
existing on the date of notification and close
to two highways. It is high yielding land and
there is not much evidence to convincingly
show that the land is submerged by flood
waters. So far as the exemplar relied upon by
the appellant is concerned, there is no reason
to infer it to be a case of sale at inflated rate.
The learned Judge in the Reference Court has
4 All. Smt. Sarita Sharma & Anr. Vs. Mohd. Usman & Ors.
625
virtually suspected every transaction of
contemporaneous sale, but those three that
have supported the lowest rate. It is not the
parameter by which a claim for compensation
is to be judged that the lowest available rate
amongst the exemplars is to be regarded as
the embodiment of a genuine and truthful
transaction. Rather, the large number of
exemplars
noticed
in
the
connected
references that show rates between Rs.100/-
and Rs.200/- per square yard, would clearly
exclude the abysmally poor value of Rs.29.08
per square yard accepted by the Judge.
Though, it is not before this Court on facts
whether the order of the Reference Court,
that was upheld by their Lordships of the
Supreme Court in Uttar Pradesh Avas
Evam Vikas Parishad v. Ganga Saran
(supra) is precisely related to an identically
situate acquired land, but the decision is a
safe index about the true value of the land,
going by the fact that the land acquired is for
the same housing scheme and all of it lies
close to two public roads. It has been
observed in the judgment of their Lordships
of the Supreme Court in Uttar Pradesh Avas
Evam Vikas Parishad v. Ganga Saran
thus:

"10. It is the case of the respondent
claimants that the land which was required
for the purpose of housing scheme is within
the municipal limits and near to residential
and commercial buildings."

20. The fact that the acquired land has
been acquired for the same housing
scheme, makes the observation of the
Supreme
Court
applicable
for
the
assessment of value of the land here as
well.

21. In the opinion of this Court, after
considering all possible dimensions that are
relevant
to
assess
fair
and
just
compensation, the rate of Rs.99/- per
square yard would be correct assessment,
that has been approved for similar land in
Uttar
Pradesh
Avas
Evam
Vikas
Parishad v. Ganga Saran. This inference
is based on the fact that the land relates to
the same scheme and more or less governed
by similar exemplars, where private sale of
small portions of land has varied between
Rs.100/- to Rs.200/- per square yard.
Moreover, the land here is valuable and
located very close to two highways, a
stadium and other upcoming development
on the date of acquisition. It is not located
very faraway from the village abadi also.

22. In the circumstances, this appeal
succeeds and is allowed with costs. The
impugned judgment and award passed by
the Reference Court is set aside and the
reference is accepted in the terms that for
the acquired land, the appellant shall be
entitled to compensation at the rate of
Rs.99/- per square yard. The statutory
entitlements, such as that to solatium,
additional
compensation
and
interest,
would be worked out accordingly.
----------
(2022)04ILR A625
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.03.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

First Appeal From Order No. 1164 of 2015
&
First Appeal From Order No. 1053 of 2015

Smt. Sarita Sharma & Anr. ...Appellants
Versus
Mohd. Usman & Ors. ...Respondents

Counsel for the Appellants: