JUDGMENT :- Being dissatisfied with the amount of compensation given under the award dated 27-3-1984 passed by the Special Land Acquisition Officer (5), Bombay Suburban District, under section 11 of the Land Acquisition Act, 1894 (hereinafter called the Act), the claimants applied to him for a reference being made under section 18 of the Act to this Court. Accordingly, the Special Land Acquisition Officer has made this reference for determination by this Court on the question of amount of compensation. The relevant facts which need to be noted are as under: The plots of land bearing Survey No. and Hissa No. 17/2 Part, 17/8 Part and 44-B (C.T.S. No. 161 Part), situated at village Bandivali, Taluka Andheri are contiguous plots totally admeasuring 6139.70 Square metres. They belonged to Messrs. Western India Match Company Ltd. (WIMCO-Claimant No.1) and they along with the structures thereon were in possession and occupation of Messrs. Golden Chemicals Ltd. (Claimant No.2) as tenant thereof. By a notification dated 3-12-1975 issued under section 4 of the Act and published in the official gazette dated 18-12-1995 major portion admeasuring 5999.60 Sq. metres of the land was acquired for the Bombay Electric Supply and Transport Undertaking (BEST) for its bus stand. It appears that at that time, through inadvertence, a small portion of the land admeasuring 140.10 Sq. metres was left out of acquisition. Hence, by a subsequent notification dated 10-8-1978 published in the official gazette dated 15-2-1979 the land was also acquired. After following the necessary formalities and completing the inquiry the Special Land Acquisition Officer by his award granted a total compensation of Rs. 14,93,200/- and the same was apportioned in equal shares of Rs. 7,46,600.40 each to the two claimants. This is at the rate of Rs. 165/- per sq. metre and Rs. 215/- per sq. metre for the major and smaller portion respectively. The possession of the land was taken and handed over to the acquiring body BEST on 11-7-1984. By a subsequent order dated 16-11-1986, the Special Land Acquisition Officer observed that an additional amount of Rs. 14,50,542.45 was payable to the Claimants on account of the provisions of section 23 (1)-A of the Act. 2. It may be pointed out that before the Special Land Acquisition Officer initially Claimant No.1 claimed compensation of Rs. 27,08,981/- which claim was later on enhanced to Rs. 14,50,542.45 was payable to the Claimants on account of the provisions of section 23 (1)-A of the Act. 2. It may be pointed out that before the Special Land Acquisition Officer initially Claimant No.1 claimed compensation of Rs. 27,08,981/- which claim was later on enhanced to Rs. 57,14,962/- in view of the report of the expert valuer M/s C. P. Vaidya and while applying for a reference under section 18 it was claimed that the total compensation payable would be Rs. 99,93,600/-. Claimant No.2 claimed compensation of Rs. 76,65,000/- and in doing so reliance was placed on report of the expert valuer R. C. Shah. 4. Before this Court evidence was laid by Claimant No. 1 (WIMCO), who examined in all three witnesses, but mainly relied upon the evidence of its expert valuer Harshad Maniar. The other two witnesses are Nathubhai Lad who speaks about one of the sale transactions which is relied upon by Maniar as a comparable sale instance, and Yashwantrai Rawal, the Commercial Manager of Claimant No.2, who speaks about the agreement between the two Claimants to share the amount of compensation equally. No evidence was adduced on behalf of the Special Land Acquisition Officer and Claimant No.2. 5. The expert valuer Maniar is an engineering graduate who worked with the Bombay Municipal Corporation in various capacities for 30 years and after taking voluntary retirement in 1994, he has been practising as a valuer. He stated that on the request of Claimant No.2 he visited the site on 10-7-1999 and inspected the same. He prepared his valuation report (Exhibit C) only for the land. Maniar has valued the major portion of 5999.60 sq. metres of the acquired land at the rate of Rs. 315/- per sq. metre and the smaller portion of 140.10 sq. metres at the rate of Rs. 376/- per sq. metre. He has accepted the value of structures and fuel value of the trees as made by the Special Land Acquisition Officer. The final valuation of the acquired land as per Maniar is Rs. 22,20,931.60 (Rs. 18,89,874/- + Rs. 52,677.60 + Rs. 2,78,130/- + Rs. 2501/-). He has also made it clear that in addition to the said amount, the owners are entitled to 30 per cent solatium under section 23(2) and 12 per cent component under section 23(1)(A) of the Act. The final valuation of the acquired land as per Maniar is Rs. 22,20,931.60 (Rs. 18,89,874/- + Rs. 52,677.60 + Rs. 2,78,130/- + Rs. 2501/-). He has also made it clear that in addition to the said amount, the owners are entitled to 30 per cent solatium under section 23(2) and 12 per cent component under section 23(1)(A) of the Act. Maniar has worked out the amount of compensation by adopting the method of comparable sales and for that purpose he has relied upon three sale instances of land situate in the same area. The first is dated 25-6-1973 and the second is dated 29-4-1969. The third instance is the compensation awarded by this Court in Land Acquisition Reference No. 12 of 1980 on 29-8-1994, wherein the relevant date of valuation was 29-8-1974. In working out the valuation of the acquired land, Maniar has taken into consideration various factors, viz. situation, location, relevant date of valuation, permissible F.S.I., frontage, return frontage, level, encumbrances and area etc. 6. Shri C. M. Korde, learned senior Advocate for Claimant No. 1 pointed out that no evidence has been adduced on behalf of the Special Land Acquisition Officer or the acquiring body (BEST). Relying upon the decision in Chimanlal vs. SLAO, Poona, AIR 1988 S.C. 1652 , Shri Korde submitted that this reference not being an appeal against the award passed by the Special Land Acquisition Officer, the material relied on by him cannot be acted upon and accepted by this Court, since the same is not produced and proved in this reference. He farther submitted that the award made by the Special Land Acquisition Officer is merely an offer and this Court has to treat this reference as an original proceeding and determine the market value of the acquired land afresh on the basis of the material produced and proved before it. As regards the valuation made by Maniar, Shri Korde submitted that it is quite proper and reasonable. He pointed out that there is absolutely no cross-examination of Maniar on certain material points with the result that his evidence on those points will have to be accepted. 7. Shri U. J. Makhija, the learned Advocate for the acquiring body (BEST), on the other hand, made a scathing criticism on the evidence of Maniar and pointed out several mistakes committed by him in working out the valuation. 7. Shri U. J. Makhija, the learned Advocate for the acquiring body (BEST), on the other hand, made a scathing criticism on the evidence of Maniar and pointed out several mistakes committed by him in working out the valuation. According to him, as an expert valuer, Maniar ought to have made fair assessment of the market value but he has applied different yardsticks. Shri Makhija also contended that the sale instances relied upon by Maniar cannot be regarded as comparable instances for a variety of reasons. In short, according to Shri Makhija, the Claimants having failed to prove that the compensation offered by the Special Land Acquisition Officer under his award is inadequate and improper, the said award would stand. 8. Before turning to the rival contentions vis-a-vis the evidence on record, it would be necessary to understand the situation and location of the land under acquisition. It is situate just outside the Jogeshwari Railway Station on the Western Railway track. The eastern boundary of the plot abuts a road leading to the Railway Station. Thus, the land has a frontage of 400 ft. on the Jogeshwari Station Road. The land is a levelled land, having almost a rectangular shape. It falls in residential zone and all civic amenities are available within a walkable distance. There was an industrial shed and other structures existing upon the land at the time of its acquisition but later on they were demolished and the BEST has constructed a bus station and staff quarters upon it. There is no dispute about these facts. 9. In Chimanlals case (supra), the Supreme Court has pointed out the factors which have to be borne in mind while determining the market value of land. Since the Claimants rely upon the instances method, reference may be made to the following factors : (i) Only genuine instances have to be taken into consideration. (ii) The most comparable instance out of the genuine instances have to be identified on the basis of proximity from time angle and proximity from situation angle. (iii) 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. (iii) 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. (iv) 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. (v) 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 Supreme Court illustrated the plus factors and minus factors as under: Plush 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.Remoteness from developed locality 5.Level vis-a-vis land under acquisition. 5.Lower level requiring the depressed portion to be filled up. 6.Regular shape6.Irregular shape 7.Special value for an owner of adjoining property to whom it may have some very special advantage.7.Some special disadvantageous factor which would deter a purchaser. (* Note mentioned in the report judgment). 10. The first sale instance relied upon by Maniar is in respect of the land bearing C.T.S. No. 219 of village Bandivali which was transferred along with structures by MIs Patel Engineering Co. Ltd. under a deed of conveyance dated 25-6-1973. C.W. No.1 - Nathubhai Lad who was the Secretary of the buyer Mill has stated that he and G. R. Mehta, the Director of the Company took part in the negotiations and the price was fixed at Rs. 12,75,000/-. The structure on the land consisted of a shed with an office building of two floors. The certified copy of the sale deed is at Exhibit A. 11. In his report (Exhibit C), Maniar has considered the comparative merits and demerits of both the lands in relation to various factors as under: Details Land under Land under Plus and minus acquisition instance of Village factors Bandivali Situation. Abutting Railway 0.9 Km. away Station. And betterJogeshwari Situation. Railway situation. Location Surrounded by Surrounded by developed locality. In his report (Exhibit C), Maniar has considered the comparative merits and demerits of both the lands in relation to various factors as under: Details Land under Land under Plus and minus acquisition instance of Village factors Bandivali Situation. Abutting Railway 0.9 Km. away Station. And betterJogeshwari Situation. Railway situation. Location Surrounded by Surrounded by developed locality. Under developed Relevant date 18-12-1975 andlocality of valuation 21-9-197815-121972 15% rise per year, excluding The period of Emergency. Permissible 1.001.00 Nil F.S.I. Frontage 400 Rft. on S. V. 210 Rft. On S.V Nil Road Return120 ft. on260 Rft. on 30 ft. Nil FrontageJogeshwari Railwaywide internal road. Station Road. Level Levelled land.Levelled land.Nil EncumbrancesVacantVacant Area6139 sq. metres5601.83 sq. metresNil Structuresfactory shedsfactory sheds Nil admeasuring 28,160 admeasuring sq.ft. and in vacant21,795.03 sq. ft. possession. and in vacant possession. 12. Maniar has stated in his report (Exhibit C) that the value of the instance land is Rs. 187.06 per sq. metre. After considering the abovementioned plus factors of the land under acquisition, he has added 25 per cent to the value and worked out the value of the land under acquisition at Rs. 294.00 per sq. metre. Shri Makhija, however, pointed out that Maniar has ignored some material factors of this sale instance which really show that it is not a comparable instance. Under the sale-deed (Exhibit A) certain benefits are conferred upon the purchaser and Maniar has admitted in paragraph 11 of his evidence that he had not taken into consideration those benefits. Secondly, the evidence of Nathubhai Lad (C. W. 1) shows that the said land being adjacent to the Companys premises, they were keen to purchase it. This is factor No.7 of the norms laid down by the Supreme Court, but Maniar has not taken it into consideration. Thirdly, he has also ignored the fact that in the instance sale transaction, the purchaser was given the facility of making payment by installments. It is normal experience that whenever installment facility is given, the price is raised. I find much substance in the submission of Shri Makhija, with the result that this sale instance cannot furnish a basis for arriving at the market value of the land under acquisition and the same will have, therefore, to be ignored. 13. It is normal experience that whenever installment facility is given, the price is raised. I find much substance in the submission of Shri Makhija, with the result that this sale instance cannot furnish a basis for arriving at the market value of the land under acquisition and the same will have, therefore, to be ignored. 13. The second sale instance relied upon by Maniar is the sale deed dated 29-4-1969 made between one Chamanlal Ramsharan and others and the Shivner Co-operative Housing Society in respect of the land bearing Survey No. 84A Hissa No. 1A (Part) of village Ambivali. The certified copy of the sale deed (Exhibit D) shows that this land was sold for Rs. 1 lakh. The total area of the land is 683.40 sq. metres and the rate thus works out to Rs. 146.32. The Claimants did not examine any of the parties to the said transaction and have relied upon the certified copy of the sale deed only to furnish market value basis for the land under acquisition. At this stage, it would be necessary to refer to an important objection raised by Shri Makhija with reference to the proof of the instance sale. 14. According to Shri Makhija, the Claimants not having examined the vendor or buyer of the instance sale transaction as a witness in this case, the sale deed (Exhibit D) cannot be used to form basis to determine the compensation. In this respect, he relied upon two decisions of the Supreme Court in Manipur Tea co. Pvt. Ltd. vs. Collector of Hailakandi, AIR 1997 SC 1779 and Special Deputy Collector vs. Kurra Sambsiva Rao, AIR 1997 SC 2625 . In the former case, the Reference Court and the High Court relied upon the sale statistics earlier relied upon by the Land Acquisition Officer without examining any witness. It was observed by the Supreme Court that the sale statistics relied on by the Land Acquisition Officer are not proof unless persons connected with the sale deeds and the documents, also made part of the record are examined. In the latter case, it was pointed out that the relevant factors are to be taken into consideration to prove the market value of the acquired land as on the date of notification under section 4(1) of the Act. It was observed: "This would be established by examining either the vendor or the vendee. In the latter case, it was pointed out that the relevant factors are to be taken into consideration to prove the market value of the acquired land as on the date of notification under section 4(1) of the Act. It was observed: "This would be established by examining either the vendor or the vendee. If it is proved that they are not available, the scribe of the document may also be examined in that behalf. Section 51-A of the Act only dispenses with the production of the original sale deed and directs to receive certified copy for the reason that parties to the sale transaction would be reluctant to part with the original sale deed since acquisition proceedings would take long time before award of the compensation attains finality and in the meanwhile the owner of the sale deed is precluded from using the same for other purposes vis-a-vis this land. The marking of the certified copy is per se not admissible in evidence unless it is duly proved and the witness, viz. the vendor or the vendee, are examined. This principle has been repeated in a catena of subsequent decisions of this Court." 15. Section 51A of the Act which was introduced in 1984 reads as under: "Acceptance of certified copy as evidence - In any proceeding under this Act, a certified copy of a document registered under the Registration Act, 1908 (16 of 1908), including a copy given under section 57 of that Act, may be accepted as evidence of the transaction recorded in such document." (emphasis provided) 16. The question as to what is meant by the words "may be accepted as evidence of the transaction" again came for consideration before a three Judge-Bench of the Supreme Court in the case of Land Acquisition Officer vs. V. Narasaiah, 2001 AIR SCW 867. The Court overruled the earlier two decisions in Inder Singh vs. Union of India, 1994 AIR SCW 1552 and P. Ram Reddy vs. L.A.O., Hyderabad, 1995 AIR SCW 871 taking the view that in land acquisition references certified copies of sale deeds cannot be relied upon without examining the vendor or the vendee. The Court held that sale deed relating to similar land situated in the vicinity can be relied upon examining the vendee or the vendor or anybody else connected with the sale. The Court held that sale deed relating to similar land situated in the vicinity can be relied upon examining the vendee or the vendor or anybody else connected with the sale. Pointing out the legislative object for introducing section 51(A) in the Act, the Court observed: "If the only purpose served by section 51A is to enable the Court to admit the copy of the document in evidence there was no need for a legislative exercise because even otherwise the certified copy of the document could have been admitted in evidence." "It must be remembered that the State has the burden to prove the market value of the lands acquired by it for which the State may have to depend upon the prices of the lands similarly situated which were transacted or sold in the recent past, particularly those lands situated in the neighbouring areas. The practice had shown that for the State officials it was a burden to trace out the persons connected with such transaction mentioned in the sale deeds and then to examine them in Court for the purpose of proving such transactions. It was in the wake of the aforesaid practical difficulties that the new section 5lA was introduced in the L.A. Act. When the section says that certified copy of a registered document "may be accepted as evidence of the transaction recorded in such document" it enables the Court to treat what is recorded in the documents, in the respect of the transactions referred to therein, as evidence. " xxxxx "The words "may be accepted as evidence" in the section indicate that there is no compulsion on the Court to accept such transaction as evidence does not mean that the Court is bound to treat them as reliable evidence. Merely accepting them as evidence does not mean that the Court is bound to treat them as reliable evidence. What is sought to be achieved is that the transactions recorded in the documents may be treated as evidence, just like any other evidence, and it is for the Court to weigh all the pros and cons to decide whether such transaction can be relied on for understanding the real price of the land concerned." 17. The decision in Manipur Tea Co. The decision in Manipur Tea Co. Ltd.s case (supra) was rendered by a Bench of two Judges while that in the case of Kurra Sambsiv Rao (supra) was by a Bench of three Judges. However, it appears that both these decisions were not brought to the notice of the Bench of three Judges who decided the case of L.A.O. vs. V. Narsaiah (supra). Under these circumstances, I think that it would be proper to follow the latest decision, i.e. the decision in L.A.O. vs. V. Narasaiah. Consequently, the sale deed (Exhibit D) in respect of the second instance has to be accepted as evidence of the transaction stated therein. The objection raised by Shri Makhija cannot, therefore, be sustained. 18. Coming to the second sale instance. Maniar has in his report (Exhibit C) pointed out the comparative position of the two lands as under: DetailsLand under Land Rate decided inPlus and minus Acquisition the Land Acquisitionfactors Reference SituationAbutting Railway1.1 Km. away from+10% Station and betterAndheri and Situation.Jogeshwari Railway Station LocationSurrounded bySurrounded by+5% developed locality developed locality Relevant date 18-12-1975 and 29-A-1969+10% per of valuation21-9-1978 from 1969 to 1972 and 15% raise from 1972 to 1975, excluding Emergency Period Permissible 1.001.00 Nil F.S.I. Forntage 400 Rtf. on S.V. 60 ft. on 44’ wide 5% Roadroad known as Bharawadi Road Return 120 on Jogeshwari No return frontage 10% Frontage Railway Station Road and 400 along S.V. Road LevelLevelled landLevelled land Nil Emcum-VacantVacant Nil brances Area6139.7070683.40 Sq.metres -21% NallaNilOn the South and +15% West of Plot 20’ Wide open Nalla is Abutting. 19. The value of the instance land as on the date of sale, i.e. 29-4-1969 is worked out at Rs. 146.32 per sq. metre. Adding thereto 24 per cent benefit of the plus factors shown above, Maniar has shown the value of the acquired land at Rs. 181.43 per sq. metre. Thereafter he has proceeded to give 10 percent rise for the period from 29-4-1969 to 28-4-1972 which comes to Rs. 50.1)4 per sq. metre and 15 per cent rise from 1972 to 26-6-1975, which comes to Rs. 121.50. The total comes to Rs. 352.97 per sq. metre but he has shown the same at Rs. 362.97 per sq. metre and rounded the same at Rs. 317/- per sq. metre. There is no explanation as to why it is reduced by Rs. 45/- per sq. metre. 20. 121.50. The total comes to Rs. 352.97 per sq. metre but he has shown the same at Rs. 362.97 per sq. metre and rounded the same at Rs. 317/- per sq. metre. There is no explanation as to why it is reduced by Rs. 45/- per sq. metre. 20. Shri Makhija pointed out that though the sale deed (Exhibit D) of the second instance is dated 27-4-1969, the agreement of sale had taken place on 267-1968. Thus, in point of time the transaction of the sale instance is earlier to the acquisition of the Claimants land hy about 7 years. He also pointed out that the acquired land is nearly 10 times bigger in size than the instance land. However, these factors do not make the sale instance uncomparable with the acquired land particularly when it is possible to bring them on par after making due allowance for plus factors and discount for the minus factors. Otherwise; it is not always possible to find out an exact comparable instance which is on all fours with the acquired land in respect of various factors. Valuation by is after all not a straight jacket formula with mathematical accuracy and exactitude valuation comparison is possible by giving certain credit and discount for some disparities. 21. Shri Makhija relied upon the decision in State of J. & K. vs. Moh. Mateen, (1998) 6 SCC 233 wherein it was observed that instances of small area cannot be said to be comparable sale instances. In that case the acquired land was admeasuring 642 Kanals and 42 Marlas, whereas the sale instances related to small parcels of lands not more than 3 or 4 Marlas. It will thus be seen that instance land was more than 100 times smaller than the acquired land and as such there could not have been any comparison between the two to form a basis for price or value. In the case on hand, the difference in size of the two lands is not so much as to render the comparison between the two impossible. 22. Shri Makhija then contended that certain allowances and discounts given by Maniar are excessive and improper. According to him, allowance of 10 per cent in favour of the acquired land on account of situation and existence of a Nala respectively is not proper. 22. Shri Makhija then contended that certain allowances and discounts given by Maniar are excessive and improper. According to him, allowance of 10 per cent in favour of the acquired land on account of situation and existence of a Nala respectively is not proper. He pointed out that the Nala is not within the instance land but outside it. Shri Korde, however, countered this submission by contending that Maniar is not at all cross-examined on these points. According to Shri Korde, evidence on the points on which there is no cross-examination at all will have to be accepted. hi this respect, Shri Korde drew my attention to certain observations made in relation to section 138 of the Evidence Act in "Sarkar on Evidence", 15th edition, pages 2178-79 which is to the effect that an omission or neglect to challenge the evidence in chief on a material or essential point by cross- examination would lead to an inference that the evidence is accepted. This is, however, not an absolutely correct proposition. The evidence of a witness, though not challenged on some points during the cross-examination, does not by itself become reliable and acceptable, if there are inherent improbabilities. In the instant case, the evidence of Maniar about the factual aspects about situation of both the lands and the existence of a Nala on the South and West of the instance land cannot be disputed by the acquiring body (BEST) for want of cross-examination on those points; but the opinion of Maniar about the quantum of allowances being given to the acquired land on these two counts is not necessarily binding upon the Court. 23. I shall consider the propriety of the allowance and discounts given by Maniar a little later because that point is common with the third sale instance. Therefore, it will now be proper to refer to the evidence pertaining to the third instance. It is an acquisition case of two lands bearing Survey No. 105 Hissa No. 6 and Survey No. 122-A Hissa No.5 totally admeasuring 4979.59 Sq. metres and situate at village Ambivali. The said land was notified for acquisition under section 126(4) of the M.R.T.P. Act, 1966 on 29th August, 1974. The acquiring body was the Municipal Corporation of Greater Bombay and the compensation awarded by the Special Land Acquisition Officer was at the rate of Rs. 180 per sq. metre. metres and situate at village Ambivali. The said land was notified for acquisition under section 126(4) of the M.R.T.P. Act, 1966 on 29th August, 1974. The acquiring body was the Municipal Corporation of Greater Bombay and the compensation awarded by the Special Land Acquisition Officer was at the rate of Rs. 180 per sq. metre. The claimant in that case, however, filed a reference in the High Court, being Land Acquisition Reference No. 12 of 1980. The High Court awarded compensation at the rate of Rs. 200 per sq. metre by considering the relevant date of valuation as 29-8-1974. The comparative merits and demerits as also the plus and minus points are shown by Maniar in his report (Exhibit C) in the following tabular form : DetailsLand under Land Rate decided inPlus and minus Acquisition the Land Acquisitionfactors Reference Situation Abutting Jogeshwari 1.2 Km. away from+15% Railway StationJogeshwari Railway Station and 1.4 Km. From Andheri (West) Station. Location Surrounded bySurrounded by+10% developed localityundeveloped area. Relevant date 18-12-1975 and 21-9-1978+15% rise per of valuation21-9-1978year excluding Emergency period Permissible 1.001.00Nil F.S.I. Forntage 400 Rtf. on S.V. 72 ft. 6 Inch. Versova5% RoadRoad (Jaiprakash Road) Return 120 ft. on Jogeshwari 426 ft. on VeeraNil Frontage Railway Road.Desai Road. LevelLevelled landRequires filling ofNil About 4 ft. to 5ft. Emcum-VacantVacantNil brances Area6139.704779.59 Smt. The report shows that Maniar has given a total 40 per cent weightage to the acquired land on four counts, viz., (i) situation + 15 per cent, (ii) location + 10 percent, (Hi) frontage + 5 per cent, and (iv) level + 10 per cent. Column No.4 in respect of the item "Level" mentions "Plus and Minus factors" as "Nil" but Maniar has clarified that it is only a mistake through oversight. The explanation given in by him need not be discarded because the whole calculation of valuation made by him is on the basis of 40 per cent additional benefit in favour of the acquired lands. Maniar has stated in his report the value of the acquired land at Rs. 200/- per sq. metre as on 29-8-1974 and after adding benefit of 40 per cent, he has worked out its value as on 29-8-1974 at Rs. 280/- per sq. metre. Thereafter he has proceeded to give 15 per cent rise for period of 9 months and 27 days, excluding the period of emergency, which comes to Rs. 34.64 per sq metre. metre as on 29-8-1974 and after adding benefit of 40 per cent, he has worked out its value as on 29-8-1974 at Rs. 280/- per sq. metre. Thereafter he has proceeded to give 15 per cent rise for period of 9 months and 27 days, excluding the period of emergency, which comes to Rs. 34.64 per sq metre. Thus he has worked out the valuation of the acquired land on the relevant date, i.e., 1812-1975 at Rs. 314.64 per sq. metre (rounded off to Rs. 315/-). As regards the rise in the value of the smaller portion of the land which was subsequently acquired, the relevant date is 21-9-1978. Maniar has given a rise of 15 per cent for the same for the period of one year, 3 months and 3 days (excluding the emergency period) and worked out the rise at Rs. 61.28 per sq. metre and the value of the acquired land (smaller portion) at Rs. 376/ per sq. metre as on 21-9-1978. The total valuation of the entire acquired land as made by Maniar is as under: Valuation: (i) Value of land admeasuring 5999.60 sq. metres at Rs. 315/-per sq. metre Rs. 18.89,874.00 (ii) Value of land admeasuring 140.10 sq. metres at Rs. 376/- per sq. metre Rs. 52,677.00 (iii) Value of structures (as adopted by Special Land Acquisition Officer) Rs. 2,78,130.00 (iv) Fuel value of tree (as adopted by Special Land Acquisition Officer) Rs. 250.00 Rs.22,20,931,60 24. In this case, the land was acquired in two lots; the first lot being of 5999.60 sq. metres and the second of 140.10 sq. metres. The acquisition was on two different dates. So also the dates of gazette publication of the notifications under section 4 of the Act. In respect of the larger portion of the land, the date of publication is 18-12-1975 and that in respect of the smaller portion, 21-9-1978. These two dates are the crucial dates with reference to which the market value of the acquired land has to be determined. The transaction in the second sale instance is dated 29-4-1969 and that in the third instance (notification under section 4 of the Act) is dated 29-8-1974. The third instance is obviously nearer to the acquisition in question in point of time. The transaction in the second sale instance is dated 29-4-1969 and that in the third instance (notification under section 4 of the Act) is dated 29-8-1974. The third instance is obviously nearer to the acquisition in question in point of time. The land in second instance is about ten times smaller than the land under acquisition, whereas the land in the third instance is a little more than the half of the land under acquisition. In his report, Maniar has mentioned the area of the land in the third instance as 4779.59 sq. metres. But the judgment in Land Acquisition Reference No. 12 of 1980 (Exhibit E) gives its area as 3396.28 sq. metres. There is no cross-examination of Maniar on this discrepancy about area but Shri Korde, the learned counsel for the Claimants submitted that Maniar appears to have made some confusion of yards and meters. The acquired land is a levelled land and as per the report of Maniar, the land in the third instance requires filling of about 4 ft. to 5 ft. He has also mentioned that the acquired land is surrounded by developed locality about which there is no dispute. But this mention that the land in the third instance is surrounded by undeveloped area does not appear to be correct, in view of the following description given by this Court in Land Acquisition Reference No. 12 of 1980 : "The area in which the land is situated is a fully developed area with all facilities such as communication, market, etc. The land is abutting the main road connecting Andheri (West) with Versova " It will thus be seen that as between the second and third instance, the latter is more comparable with the land under acquisition. 25-26. In Messrs Printers House Pvt: Ltd. vs. Mst. Saiyadan, AIR 1994 SC 1160 , it was observed : "But, difficulty arises when the comparable sales or awards are not of the same kind and when each of them furnish a different price basis. This difficulty cannot be overcome by averaging the prices fetched by all the comparable sales of awards for getting the "price basis" on which the market-value of the acquired land could be determined. It is so for the obvious reason that such "price basis" may vary largely depending even on comparable sales or awards. This difficulty cannot be overcome by averaging the prices fetched by all the comparable sales of awards for getting the "price basis" on which the market-value of the acquired land could be determined. It is so for the obvious reason that such "price basis" may vary largely depending even on comparable sales or awards. Moreover, "price basis" got by averaging comparable sales or awards which are not of the same kind, cannot be a correct reflection of the price which the willing seller would have got from the willing buyer, if the acquired land had been sold in the market. Therefore, when there are several comparable sales or awards pertaining to different lands, what is required of the Court is to choose that sale or award relating to a land which closely or nearly compares with the plot of land the market-value of which it has to determine, and to take the price of land of such sale or award as the basis for determining the market-value of the land under consideration." Therefore, the price of the land involved in the third instance will have to be adopted as the basis for determining the market value of the land under consideration. It cannot be worked out by averaging the value of the lands in the second and third instances. 27. This takes me to the plus factors attributed and credit given to the acquired land by Maniar. As seen from the comparative table given above, he has attributed plus points to the acquired land on the counts of situation, location, frontage and level and given added credit of 15 per cent, 10 per cent, 5 per cent and 10 per cent respectively on those counts. So far as the factors of location and level are concerned, I have already pointed out in paragraph 25 that the allowances given by Maniar to the land under acquisition are not justified. Hence, the same will have to be discarded. Shri Korde also did not press for the allowances being given on these two factors. 28. The acquired land is just abutting the Jogeshwari Railway Station (a station for local trains on the Western Railways). The instance land is, howeyer, at a distance of 1.2 Kms. from the Jogeshwari Station and 1.4 Kms. from Andheri Station. Maniar has, therefore, given 15 per cent allowance to the acquired land. 28. The acquired land is just abutting the Jogeshwari Railway Station (a station for local trains on the Western Railways). The instance land is, howeyer, at a distance of 1.2 Kms. from the Jogeshwari Station and 1.4 Kms. from Andheri Station. Maniar has, therefore, given 15 per cent allowance to the acquired land. But that, in my view, is rather excessive. Closeness to the Railway Station is no doubt a matter of convenience but not of comfort. The acquired land is situated in residential area. High frequency of local trains and long distance trains create a lost of noise resulting in the disturbance of peace of those who reside close to the railway tracks. Maniar has not considered this aspect. Moreover, distance of 1.2 Kms. from the railway station is not too much to put the instance land at disadvantage. One can easily approach both Jogeshwari station and Andheri Station within 15 minutes by walk. Considering this position, I think that it would be proper to reduce the 15 per cent advantage given to the factor of situation to 7 and 1/2 per cent. 28A. As regards the frontage factor, it may be noted that the acquired land has a frontage of 400 ft. on the Swami Vivekanand Road. As against this, the instance land has a frontage of 72 ft 6 inch on Versova Road. Considering the areas of both the lands, it is clear that proportionately the frontage of the acquired land is much more than that of the instance land. Therefore, allowance of 5 per cent made by Maniar in favour of the acquired land appears to be proper. 29. Both the lands have return frontages. The acquired land has 10 ft. return frontage on Jogeshwari Station road, whereas the instance land has a return frontage of 426 ft. on Veera Desai Road which is more than three and half times bigger and considering the respective areas of the two lands, the proportion of return frontage goes upto nearly seven times. Despite this fact, Maniar has not given any allowance to the instance land. I think that a discredit of 5 per cent must be given to the acquired land on this count with the result that the acquired land does not get any allowance on the frontage factor (+ 5 - 5 = 0). 30. Despite this fact, Maniar has not given any allowance to the instance land. I think that a discredit of 5 per cent must be given to the acquired land on this count with the result that the acquired land does not get any allowance on the frontage factor (+ 5 - 5 = 0). 30. The last count of allowance to be considered is the rise in the price of real estate. In this respect, Maniar has given 15 per cent rise excluding the emergency period which was of nearly 10 months. It is not disputed before me that during the emergency period, the prices of real properties remained stagnant. Shri Makhija, however, submitted that 15 per cent rise is rather on the higher side. Shri Korde drew my attention to the award by this Court in Land Acquisition Reference No. 12 of 1980 wherein, the same instance was given 12 and 1/2 per year rise per sq. metre. Shri Makhija then pointed out that in the said judgment no reason is given for arriving at 12 and ½ per cent rise rice per in the price. It appears that the learned Judge has found out a via medium to balance both the figures. I do not think that there is anything wrong in this method because it is common experience that a party claiming compensation gives a higher figure, whereas the party who has to pay the compensation gives a lower figure. The truth, however, lies somewhere between the two figures. Moreover, it will be in keeping with the principle of judicial discipline to adopt the same figure of rise in the price. 31. The net result of the foregoing discussion is that the land under acquisition is entitled to get 7 and 1/2 per cent allowance on the factor of situation of the land. In addition, it will be given 12 and 1/2 per cent rise per annum in the price excluding the emergency period. The basis for determining the market value of the acquired land will be Rs.200/- per sq. metre as per the price of the land in the third sale instance. Thus, the final market value of the acquired land can be worked out as under: Market Value of the larger plot of land admeasuring 5,999.60 sq metres. Particulars Rs. Ps. Per Sq. metre (A) Market value of Sale No.3 as on 29-8-1974. metre as per the price of the land in the third sale instance. Thus, the final market value of the acquired land can be worked out as under: Market Value of the larger plot of land admeasuring 5,999.60 sq metres. Particulars Rs. Ps. Per Sq. metre (A) Market value of Sale No.3 as on 29-8-1974. 200.00 (B) Add an allowance of + 7.5% for better situation of acquired land over instance land. 15.00 (C) Market value of acquired land as on 29-8- 1974. 215.00 (D) Add 12.5% per annum for rise in prices from 29-8-1974 to 26-6-1975 (date of commencement of Emergency)(301 days) 22.16 (E) Hence market value of acquired land as on 18-12-1975 (for 5,999.60 sq. metres) SAY 237.00 Market Value of the Smaller Plot of land admeasuring 140.10 Sq. metres A. Market value as on 21-3-1977 237.00 B. Add for rise from 11-3-1977 to 21-9-1978 (one year and 194 days) at the rate of 12.5% per annum (for 1 year and 194 days). 44.50 281.50 SAY 281.00 On the basis of the above-mentioned rate of the larger portion and smaller portion of the acquired land, the compensation payable to the Claimants can be worked out as under: CALCULATION SHEET Particulars Rs. Ps. (A) (i) Market value of 5,999.60 squares metres of land at the rate of Rs. 237/- per sq. metre. 14,21,905.20 (ii) Market value of 140.10 sq. metres of land at the rate of Rs. 281.00 per sq. mt. 39,368.10 (iii) Value of structures 2,78,130.00 (iv) Fuel value of trees 250.00 (B) Total market value of the property: 17,39,653.30 (C) Less: Market value of the property as awarded by the Special Land Acquisition Officer. (-)12,98,435.50 (D) Additional market value payable to the Claimants. 4,41,217.80 (E) Interest on (D) above at 9% per annum under section 28 of the Land Acquisition Act, 1894 from 11-7-1984 (date of possession) to 10-7-1985. 39,709.60 (F) Interest on (D) above at 15% per annum under section 28 of the Land Acquisition Act, 1894 from 11-7-1985 to 9-7-2001 (15 years, 363 days) 10,58,746.23 (G) Interest on (C) above at 9% per annum under section 34 of the Land Acquisition Act, 1894 from 11-7-1984 (date of possession) to 10-9-1984 (date of payment of the sum awarded by the Special Land Acquisition Officer) (62 days). 19,850.05 (H) 30% solatium on (B) above under section 23(2) of the Land Acquisition Act, 1894. 19,850.05 (H) 30% solatium on (B) above under section 23(2) of the Land Acquisition Act, 1894. 5,21.895.99 (I) Less :- 30% solatium on (C) above under section 23(2) of the Land Acquisition Act. (-)3,89,530.60 (J) 12% additional cOJ;nponent on A(i), (iii) and (iv) above under section 23( 1-A) of the Land Acquisition Act, 1894 from 18-12-1975 to 27-3-1984 (8 years, 100 days). (-)16,88,213.20 (K) 12% additional component on (A)(ii) above under section 23(1-A) of the Land Acquisition Act, 1894 from 21-9-1978 to 27-3-1984 (5 years, 188 days) 26,053.80 (L) Less: 12% additional component on (C) above under section 23(1-A) of the Land Acquisition Act, 1894 awarded by the Special Land Acquisition Officer. (-)12,55,777.55 (M) Additional compensation payable to the Claimants as on 9-7-2001 (D+E+F+G+H-I+J+K-L) 21.50,378.52 Say 21.50,378.00 Further interest will be payable on (D) above at 15% per annum under section 28 of the Land Acquisition Act, 1894 from 10-7-2001 till payment. Claimant Nos. 1 and 2 are each entitled to 50 per cent of the compensation amount. Therefore, the Special Land Acquisition Officer (4), Mumbai Suburban District, is directed to pay Claimant No.1 a sum of Rs. 10,75,189 (Rupees Ten Lakhs Seventyfive Thousand One Hundred and Eightynine only) together with interest at the rate of 15 per cent per annum from 10th July, 2001 till date of payment and for realisation on the sum of Rs. 2,20,608.90. The Special Land Acquisition Officer (4), Mumbai Suburban District, is directed to pay to Claimant No.2 a sum of Rs. 10,75,189/- (Rupees Ten Lakhs Seventyfive Thousand One Hundred and Eightynine only) together with interest at the rate of 15% per annum from 10th July, 2001 till the date of payment and/or realisation on the sum of Rs. 2,20,608.90. The next question is regarding grant of interest under sections 28 and 34 on the additional amount of solatium granted under section 23(2) and the component awarded under section 23(1-A). In (1996) 2 SCC 71 Premnath Kapur and anr. vs. National Fertilizer Corporation of India and Ors., the Apex Court has taken the view that no interest under section 28 is payable on solatium under section 23 (2) or on an additional amount granted under section 23(1-A) of the Act. In this regard, it may be noted that the Apex Court in (1999) 2 SCC 89 Kapur Chand Jain and Ors. vs. State Government of H.P. and Ors. In this regard, it may be noted that the Apex Court in (1999) 2 SCC 89 Kapur Chand Jain and Ors. vs. State Government of H.P. and Ors. has referred this issue to the larger Bench in view of the difference of opinion in the judgments of the Apex Court reported in (1996) 2 SCC 71 (cited supra) and (1991) 4 SCC 212 , Narain Das Jain vs. Agra Nagar Mahapalika and Ors. Liberty is granted to the Claimants to apply for interest in case the larger Bench of the Apex Court upsets the view taken in the case of Premnath Kapur and Another vs. National Fertilizer Corporation of India and Ors., (1996) 2 SCC 71 . No order as to costs. Certified copy expedited. Order accordingly.