JUDGMENT 1. This is an appeal filed by the State of U. P. against the judgment and order dated 27-11-80 passed by Sri B. D. Agarwal, the then learned Distt. Judge, Saharanpur, allowing reference under S. 18, Land Acquisition Act, 1894 (for short the Act) and decreeing the claim of plaintiff respondent for a sum of Rs. 42317.12 P. as compensation besides simple interest at the rate of 6% per annum, minus the amount already paid, in respect of an area 0-13-0 in plot No. 8/1, in village Shekhpura, Tehsil Rurki, Distt. Saharanpur. 2. Facts of the case are almost admitted. The notification under S. 4(1) of the Act was made on 16-4-75 and corrigendum was issued on 3-5-75 which was published on 9-8-75. It preceded the notification under S. 6 of the Act dated 29-5-76 published on 29-7-76. The purpose for acquisition was the expansion of the Sub-Jail Roorkee. The possession was taken on June 15, 1979. The award was pronounced on 28-9-79. The sale deed executed on 17-6-74 in respect of an area of 869 sq. ft. for consideration of Rs. 726/- was taken to be the exemplar. The claimant asserted that the amount of compensation payable in accordance with the provisions of S. 23 of the Act was inadequate as it was determined on the basis of exemplar dated 17-6-74 without taking into consideration the potentiality of the land acquired. The State of U. P. the defendant appellant however refuted the claim of plaintiff respondent. Learned Distt. Judge, taking into account relevant case law on the subject and other relevant factors including potentiality of the land, its surroundings and situations passed impugned order. 3. Learned Standing Counsel urged that the exemplars taken into consideration by the learned Distt. Judge were for a small piece of land as compared to the land acquired and the sale deeds in respect of smaller properties cannot indicate the proper guidelines for determination of compensation in respect of the larger area. It was further urged that the basis for awarding compensation at a higher rate than the rate awarded by the Land Acquisition Officer was erroneous, unwarranted and beyond the provisions of S. 23 of the Act. 4. Learned counsel for the respondent on the other hand urged that the compensation enhanced by the learned Distt. Judge was perfectly correct and legal. 4. Learned counsel for the respondent on the other hand urged that the compensation enhanced by the learned Distt. Judge was perfectly correct and legal. Udder the facts and circumstances of the case while determining the compensation some allowance has to be made for a guess work as no two lands or its site, situation and surroundings including the potentiality could he equal. Impugned judgment calls for no interference. 5. Having heard learned counsel for the parties short question that falls for our determination is as to whether the sale deeds in respect of small area can serve as the guideline for large tracts of land and whether the potentiality of the land was such that the order of the Distt. Judge enhancing the compensation could be maintained. 6. At the very outset it may be pointed out that the statutory provision for the award of compensation is contained under S. 23 of the Act. The relevant statutory provision is set out below: "23(1). In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration: firstly, the market value of the land at the date of the publication of the notification under S. 4, sub-sec. (1); secondly, the damage sustained by the person interested by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof; thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land; . fourthly, the damage (if any) sustained by the person interested, at the time of Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings; fifthly, if, in consequence of the acquisition of the land by the Collector the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under S. 6 and the time of the Collector's taking possession of the land." 7. The intendment of the legislature is obvious that the compensation would he awarded considering the market value of the land on the date of publication of the notification under section 4(1) of the Act. The market value has to be determined considering a number of factors. It is a fact that the instances of small plots would serve no guideline for large tracts of land but where the land acquired itself is small in area and the sale deeds filed by either parties are also in respect of small area then what must be criteria in such situation to determine the market value of the land acquired, is to be considered. 8. In the present case, area of the land acquired was only 13 hiswa which itself was small portion of big plot No. 8/ 1. On behalf of both the parties exemplars were filed for smaller areas than the area acquired. The claimant filed sale deed dated 29-3-71 in respect of plot No. 9 area 0-2-3 (2336 sq. feet) of village Sheikhpura for consideration of Rs. 4672/- only the rate being thus Rs. 2/- per sq. foot and another sale deed dated 18-5-76 executed by Mailal to Dr. T. R. Singh for 1300 sq. ft. in village Sheikhpurj comprised in plot No. 134 the consideration being Rs. 4000/- and the rate thus coming to approximately Rs. 3/- per sq. ft. On behalf of State reliance was placed on solitary sale deed dated 17-6-74 executed by Ghulam Rasel and others in favour of Kharak Singh in respect of plot No. 8/2 area being 171/2 biswansis (968 sq. feet) for consideration of Rs. 726/- only, the rate coming to about Rs. 75 per sq. ft. It is accordingly obvious that the sale deeds filed by present defendant appellant to serve as the guideline was in respect of much smaller area than the land actually acquired. Similarly the sale deeds filed by the claimant were also in respect of smaller area. Thus no sale deed was exactly of the date or year when the notification under section 4(1) of the Act was issued i.e. on 16-4-75. One sale deed on behalf of claimant was of the year 1971 and the other was of the year 1976 whereas the sale deed on behalf of State was of year 1974. Thus no sale deed was exactly of the date or year when the notification under section 4(1) of the Act was issued i.e. on 16-4-75. One sale deed on behalf of claimant was of the year 1971 and the other was of the year 1976 whereas the sale deed on behalf of State was of year 1974. In such situation how S. 23 of the Act has to be applied to determine the market value of the land on the date of publication of notification under section 4(1) of the Act. The market value is also not to he determined on the basis of negotiations with the person whose land has been acquired. In our considered opinion in such situation determination of the market value of the land on the date of publication of notification under section 4(1) of the Act remains a moot question to be determined with making allowance for guess work. In other words, in such matters there is bound to he some amount of arbitrariness. The determination of market value by the Court should not he on mechanical or scientific exactitude's. It's market value ceases to remain between two private purchasers and sellers : rather it is statutory and compulsory purchase made by the State where the wishes or convenience of the prospective vendors do not count. It is hound to be an assumed consideration payable by the State to the claimant which could he determined on the basis of evidence available. 9. As suggested by learned standing counsel if it is accepted that the sale deed in respect of smaller area could not serve as the guideline, no sale deed of the area equal to the area of the land actually acquired was filed by either of the parties, therefore, if the argument advanced on behalf of State is accepted in toto, that would amount to determination of market value just on the basis of oral evidence led by the parties. The claimant claiming higher rate of market value whereas the State claiming inadequate consideration payable to the claimant. In such situation we consider it proper that a compromising forum has to he evolved taking into account the exemplars in respect of smaller areas coupled with the surroundings of the land whether the same was undeveloped or semi-developed area or area being close to the industrial area, educational institutions and other important places. In such situation we consider it proper that a compromising forum has to he evolved taking into account the exemplars in respect of smaller areas coupled with the surroundings of the land whether the same was undeveloped or semi-developed area or area being close to the industrial area, educational institutions and other important places. The potentiality of the land has to he taken into account. The Court has also to keep in mind as to what a prospective buyer could have paid to a prospective seller in accordance with the price rise which has become a national or international phenomenon. (See Kausalya Devi Bogra v. Land Acquisition Officer, Aurangabad, AIR 1984 SC 892 ). 10. Learned Distt. Judge has taken into consideration oral evidence of the claimant and one Anand Mohan, and the potentiality of the land while deciding issue 1 that on two sides of the land there were buildings for residential use. The land was within the municipal limit situated just 15 feet away from main gate of sub-Jail. There were educational institutions in the vicinity including Polytechnic College, Brahmin Sanskrit Inter College, Govt. Inter College. A Branch of the State Bank of India is situate about two furlong away. At a distance of about four furlongs there is cinema house and the gap intervening from the main road is of about 70'-80' only. A branch of the post office exists about three furlongs away besides a small clinic in the neighbourhood and there are the facilities of water supply, electricity and telephone. The land is situate within the developed area. These considerations were consistent with the observations of their Lordships of Supreme Court in Collector, Raigarh v. Dr. Hari Singh Thakur, AIR 1979 SC 472 . The land is situate within the developed area. These considerations were consistent with the observations of their Lordships of Supreme Court in Collector, Raigarh v. Dr. Hari Singh Thakur, AIR 1979 SC 472 . The relevant observations under para 5 are set out as follows :- "The question as to whether a land has potential value as a building site or not is primarily one of fact depending upon several factors such as its condition and situation, the user to which it is put, suitability for building purposes, its proximity to residential, commercial and industrial areas and educational, cultural or medical institutions, existing amenities like water, electricity and drainage and the possibility of their future extension, whether the nearby town is a developing or a prospering town with prospects of development schemes and the presence or absence of pressure of building activity towards the land acquired or in the neighbourhood thereof." 11. As regards the exemplars, even though the notification under S. 4(1) of the Act was issued on 16-4-75 and in case no exemplar of the same year is available as the sale deed filed by the State, the appellant is dated 17-6- 74 and the sale deed filed by the claimant is dated 29-3-71, the price hike has also to be taken into account. The same has also been taken into consideration under the impugned order. There is no evidence that there ever was adverse effect in the price rise. Under these circumstances the calculation of the market value at the rate of Rs. 2.50 per sq. foot appears to be correct and on that basis the solatium at the rate of 15% has also been awarded. It is however open to the claimant to claim solatium and interest etc. at the enhanced rate in view of the provisions and amendment made under S. 23 of the Act, after the decision of Constitution Bench of the Supreme Court. 12. It is not inapt to refer to the similar position under English Law. Under the English Law First Land Clauses Act, 1845 did not provide the principles for determination of compensation, it was however, developed by the judicial decisions. In Cedars Rapids Manufacturing and Power Co. 12. It is not inapt to refer to the similar position under English Law. Under the English Law First Land Clauses Act, 1845 did not provide the principles for determination of compensation, it was however, developed by the judicial decisions. In Cedars Rapids Manufacturing and Power Co. v. Lacoste, 1914 AC 569 : ( AIR 1914 PC 199 ) it was pointed out that the compensation payable to the person, whose land was acquired must be assessed on the basis of value of the land to the owner, on the date of service of notice to treat (i.e. corresponding to the date of notification under S. 4(1), Land Acquisition Act, 1894). To put it differently every man's interest shall be valued REBLIS SIC STANTI BUS, just as it occurs at the very moment when the notice to treat was given. At the same time this has also to be ascertained as to what the person from whom land was taken was to lose by having it taken from him. The probable use to which land might be put i.e. the potential value of the land, had to be considered. It is because the value to him was enhanced by the probability to a more profitable future use. (See Fraser v. City of Fraser Ville, 1917 AC 187, In Re Lucas and Chesterfield Gas and Water Board, (1909) 1 KB 16). 13. In Stebbing v. Metropolitan Board of Works, (1870) LR 6 QB 37, it was observed as follows : "the question is not what the person who takes (acquires) the land will gain by taking it, but what the person from whom it is taken will lose by having it taken from him." 14. The Privy Council, however, in Vyricherla Narayana Gajapatiraju v. Revenue Divisional Officer, AIR 1939 PC 98 held that where the value exists only for the acquiring body, even then it can he taken into consideration in fixing the price. 15. In view of the premises aforesaid, we do not find any merit in the present appeal and the same is dismissed. We however, refrain from making any order as to costs.