JUDGMENT Hon’ble A.K. Tripathi-II, J.—Heard Sri Manoj Kumar, learned counsel for the appellants and Sri Ashwini Kumar Mishra, for the respondent and perused the record. 2. Briefly stated facts are that first floor of the House No. D35/182, Jangam Badi, Mohalla Bangali Tola, Varanasi, was leased to post office since 1958 at the rate of Rs. 80/- per month. Lease expired in 1963, but Post Office’s occupation continued in, without lease. 3. The previous owner Harendra Nath Bose was living in Calcutta and finding it difficult to manage the property which was in occupation of Union of India, the property was sold to Badri Prasad Seth on 8.3.1982 for Rs. 1,00,000/-. Post office was defaulter in payment of rent, so notice under Section 106 Transfer of property Act was given to the Union of India through Secretary, Ministry of Communication (Department of Post and Telegraph), Sanchar Bhawan, Ashok Road, New Delhi, on 19th November, 1982 claiming the rent for the period of March 8, 1982 to November 9, 1982 as per provisions contained under Section 20 (2) (a) of U.P. Act No. 13/72 and later on a suit for eviction was filed in Small Causes Court, Varanasi, by the purchaser claimant on 17.1.1983. The suit was decreed in favour of claimants on 4.2.1984. Union of India filed a revision in the Court of District Judge, Varanasi, which was dismissed on 18.9.1984. Against this dismissal order, a Civil Misc. Writ Petition No. 7191 of 1986 was filed in this Court. This writ petition was also dismissed in limine on 6.8.1986 and six month time was granted to the Union of India to vacate the premisses, (vide page No. 127 to 132 of the paper book supplied by Senior Superintendent of Post Offices, Eastern Division, Varanasi). A Special Leave Petition was filed, which was also dismissed and four month time was granted to vacate the house (page No. 125-126 of paper book of Senior Superintendent of Post Offices). The Apex Court has held that this shall however, be without prejudice to the right of government to acquire the property under Section 6 of the Land Acquisition Act 1894. 4. In view of this, acquisition proceeding started for acquiring 0.058 acre ( 2323 sq. feet) land alongwith house No. D35 182, Jangam Badi, Mohalla Bangali Tola, Varanasi. The Apex Court has held that this shall however, be without prejudice to the right of government to acquire the property under Section 6 of the Land Acquisition Act 1894. 4. In view of this, acquisition proceeding started for acquiring 0.058 acre ( 2323 sq. feet) land alongwith house No. D35 182, Jangam Badi, Mohalla Bangali Tola, Varanasi. Notification under Section 4 (1) of the Land Acquisition was published on 9.5.1987, thereafter, notification under Section 6 was published on 8.6.1987. An award was made on 10.8.1987 and the S.L.A.O. has awarded Rs. 1,62,500/- as compensation for the land and house. Thereafter reference under Section 18 was made. Previously, the reference was rejected on 1.12.1982 holding the reference to be time barred. A Civil Misc. Writ Petition No. 21178 of 1988 was filed in the year 1988 and this Court had quashed the order dated 1.12.1987 and direction was given to the respondent No. 3 to forward the reference under Section 18 of the Act to the Court concerned (page No. 113 to 122 of the paper book supplied by Senior Superintendent of Post Offices, Eastern Division, Varanasi). Thereafter, reference was made which was numbered as L.A.R. No. 39 of 1996 Badri Prasad Seth v. Collector, Varanasi and another. 5. Learned reference Court framed following issues.—”Whether the compensation fixed by S.L.A.O. is inadequate, what is the justified compensation for the acquired land and building and lease as to what may be provided to the claimant? 6. The reference was decided on 13.11.2001 holding that the market value of the land and building including ground floor and first floor is Rs. 7,89,000/- alongwith other statutory benefits. Feeling aggrieved, both these appeals in the nature of cross appeals have been filed. 7. Since both the appeals have arisen out of the same Judgment, hence they are being taken together. 8. It has been argued from the side of Senior Superintendent of Post Offices, that valuation of the property can not be assessed more than 1,00,000/- as on 8.3.1982. There was no proof of escalation of price from the side of claimants. Property was rented since 1958 @ Rs. 80/- per month to the government department. Claimant has purchased this property knowing these facts for a very low price only with intention to make money. Property in dispute was very old construction and it was never in the possession of the purchaser. Property was rented since 1958 @ Rs. 80/- per month to the government department. Claimant has purchased this property knowing these facts for a very low price only with intention to make money. Property in dispute was very old construction and it was never in the possession of the purchaser. Reference Court has considered the deeds related with the year 1999 and 2000 for deciding the reference which is wholly illegal. In the present case, the principles of multiplier of annual rent by 20 times is the only way to assess the compensation. The reference Court has without considering the rent to be Rs. 80/- treated monthly rent to be Rs. 13320/- and multiplied by 12x20. The property is a residential property not a commercial building, therefore, while calculating the amount of compensation no commercial value of the building should have been attached. The reference Court has not found a single genuine, legal and reasonable ground in the documentary evidence as well as principles of law to enhance the value of acquired property. The valuation report submitted by Parmatma Nand Pandey, Ret. Ex. En. P.W.D., dated 15.10.1999, is not a valid valuation report, because he was neither registered valuer nor had got any experience to give such reports. 9. It was argued from the side of appellant in F.A. No. 328 of 2007 that the entire acquired land and house is situate at a distance of one furlong from the roadside which connects Godauliya to Sonarpura. Market and shops are situated nearby the building and house in question is in the heart of the city. The entire area is full of commercial potentiality and house in question is also of commercial importance. In fact the SLAO could not find any sale-deed in vicinity of the land for assessing compensation itself shows that in that area nobody is willing to part with their property, hence the property is to valuable and not available for sale in market. The reference Court has wrongly reduced, the valuation calculated by the expert by 1/3rd. This was done without any justification. The valuation was calculated on the basis of the year 1997 and has rightly been assessed to Rs. 23,66,650/-. The Statement of Sankar Deo, P.W.3, has clearly stated that the property in question is situated in an area having commercial potentiality. This was done without any justification. The valuation was calculated on the basis of the year 1997 and has rightly been assessed to Rs. 23,66,650/-. The Statement of Sankar Deo, P.W.3, has clearly stated that the property in question is situated in an area having commercial potentiality. Even Dadu Prasad D.W. 2 has also stated that the house is situated in commercial area. The reference Court in the year 1999 has calculated the total rent as Rs. 33,300/- per sq. feet and to get the rental value of 1987 he has deducted 5% per year and then, it fixed Rs. 13,332/- per month rent of 2222 sq. feet house, but it has further committed manifest error and again deducted 60%, 5% per year, twice he has deducted 60% which is not permissible. 10. Learned counsel for the Senior Superintendent of Post Office, and Union of India has relied upon the decision of Smt. Tribeni Devi and others v. Collector, Ranch, AIR 1972 SC 1417 , Dinanath Mahajan and others v. Collector, Land Acquisition, Jammu, AIR 1981 SC 971 , Periyar and Pareekanni Rubbers Ltd. v. State of Kerala, AIR 1990 SC 2192 , Shri Kishan Das and others v. State of U.P. and others, JT 1995 (7) SC 158. 11. The counsel for the claimant has also relied upon the case of Smt. Tribeni Devi and others v. Collector, Ranch (supra), Dinanath Mahajan and others v. Collector, Land Acquisition, Jammu (supra) and in addition relied upon Special Land Acquisition Officer Davangera v. P. Veerabhadarappa etc., AIR 1984 SC 774 , Secretary Karnataka Electricity Board v. Assistant Commissioner, Gadag and others, 1995 Supplementary (2) SCC 1, Assistant Commissioner-cum-Land Acquisition Officer, Bellary v. S.T. Pompanna Setty, (2005) 9 SCC 662 , Land Acquisition Officer, A.P. v. Kamadana Ramakrishna Rao and another, (2007) 3 SCC 526 and State of U.P. v. Bechan and others, 1987 AWC 254. 12. A perusal of the award shows that, while giving the award the S.L.A.O. has searched for sale-deeds that were executed from 28.3.1987 for that area. He found only four sale-deeds. Three sale-deeds were regarding plot No. 494 and 499 which according to the S.L.A.O. were 3 to 4 Kms. away from the acquired plot and house. He got only one other sale-deed by which the land and house acquired was purchased by the claimant for Rs. 1,00,000/-. He found only four sale-deeds. Three sale-deeds were regarding plot No. 494 and 499 which according to the S.L.A.O. were 3 to 4 Kms. away from the acquired plot and house. He got only one other sale-deed by which the land and house acquired was purchased by the claimant for Rs. 1,00,000/-. He could not get any other sale-deed of the vicinity, so he relied upon the sale-deed and found that since the house was purchased five years earlier then there must be appreciation in land value and depreciation in value of the house, so he fixed the market rate on the date of notification to be Rs. 1,00,000/-. He accounted the depreciation in currency so he added 25% and fixed the market value Rs. 1,25,000/- after awarding 30% solatium, 12% additional compensation and 9% interest from the date of possession till the payment. The reference Court has held that this is inadequate. 13. Learned counsel for the claimant has argued that the sale was distress sale and it cannot be treated as ordinary sale. 14. In case of State of U.P. v. Bechan (supra), the Division Bench of this Court has held that the market value of the land on the date of the publication of the notification under Section 4 (1) of the Act should be ascertained in order to award the compensation. It has also been held that there may be cases in which a sale-deed might have been executed by a person who was in pressing necessity for money and no buyer was available, in that event he may sell for a lesser price than what may have been the actual market value. In this situation we are of the opinion that a guess work in arriving at the market price of the land as envisaged by Section 23 (1) of the Act is inevitable. 15. As stated above, the land and building was in possession of Union of India without renewal of the lease, Union of India was also defaulter in depositing the rent, the owner of the house lived in Calcutta and property was managed by one Kanu Babu Ghosh. It has come in the evidence that it is a double story house and situated in the heart of the city. The house owner was getting Rs. 80/- only per month as rent. It has come in the evidence that it is a double story house and situated in the heart of the city. The house owner was getting Rs. 80/- only per month as rent. In this circumstances, it can safely be assumed that the house became a liability to the land lord instead of an asset. As observed by a Division Bench of this Court in State of U.P. v. Bechan (supra), the sale-deed of such type of house might have been executed by a person who found it difficult to manage the property and there was no buyer to house being occupied by the Union of India. 16. It is also on record that after purchase the claimant had to fight up to Supreme Court to get the order of vacation of the house. Though he succeeded in getting order in his favour, but the house and land was acquired by Union of India, thus he was deprived of the fruit of the investment and labour. 17. One more fact is very much important. It has come in the evidence that S.L.A.O. could not find any sale-deed of the vicinity within three years. This clearly goes to show that nobody was willing to sell his property in that locality, so this makes the property valuable and priceless . 18. In case of Smt. Tribeni Devi v. Collector, Ranchi (supra), the Apex Court has held that general principles for determining compensation have been set out in Sections 23 and 24 of the Act. The compensation payable to the owner of the land is the market value which is determined by reference to the price which a seller might reasonably expect to obtain from a willing purchaser. 19. We have discussed above that it was a distress sale and in the circumstances given above, the seller could not have got the genuine market value of the land and house. In view of this, the finding given by the reference Court is correct and we endorse the finding given by the reference Court. 20. Now we have to see as to whether the reference Court has committed any illegality in deciding the market value of the property in dispute and, if yes, then what should be the adequate compensation. 21. It has been noted above that no sale-deed was executed prior to three years in the vicinity where the property in question situated. 20. Now we have to see as to whether the reference Court has committed any illegality in deciding the market value of the property in dispute and, if yes, then what should be the adequate compensation. 21. It has been noted above that no sale-deed was executed prior to three years in the vicinity where the property in question situated. It reveals that there was no evidence from the side of Senior Superintendent of Post office to show the valuation of the house and land. S.L.A.O. tried to obtain a report from Executive Engineer, P.W.D. regarding the valuation of the land and house, which is evident from page No. 111 of the paper book, which is order sheet dated 2.5.1987, but the award shows that no such valuation was submitted by the Executive Engineer P.W.D. 22. In view of the above, we have to ascertain the market value of the land and house at the time of notification under Section 4 considering evidence adduced by the claimant and, if the evidence is also not clear on this aspect then what method should be applied for calculation of market value. 23. A perusal of the Judgment of the reference Court reveals that the acquired land is 2323 Sq. feet and constructed area is 2222.50 sq. feet. 24. The reference Court has considered three evidences regarding assessment of the market value : 1. An advertisement was published in the news papers on 18.6.1984 in which the post office had tried to invite offers from willing land lords for obtaining a house for rent for the use of Post Office. Offer was given by Lallu Ji Mukundi Lal and other in which they proposed to let out house at the rate of Rs. 4/- per sq. feet per month. This is no evidence to determine the rate of rent per sq. feet, because it was never materialised. 2. The second evidence which was considered by the reference Court is a copy of plaint filed by the claimant in case of Mukundi Lal Agrwal v. State Bank of India, O.S. No. 2 of 2000. Judgment of this suit was also filed in which the rate of rent was found to be Rs. 4.67 per sq. feet. 2. The second evidence which was considered by the reference Court is a copy of plaint filed by the claimant in case of Mukundi Lal Agrwal v. State Bank of India, O.S. No. 2 of 2000. Judgment of this suit was also filed in which the rate of rent was found to be Rs. 4.67 per sq. feet. On a perusal of the plaint reveals that the land and premises on which the Bank was located, included parking in front and on rear side and portico facility, so this also could not be a proper exemplar, as the acquired house has no parking facility. 3. Third evidence considered by the reference Court was the evidence and report given by witness Parmatma Nand Pandey, who had retired as Junior Engineer from P.W.D. He had measured the land and construction and submitted his report that the value of the land and house is Rs. 23,66,650/-. 25. It was submitted from the side of Sri Manoj Kumar, learned counsel for the appellant that this witness is not an expert and his report is not supported by any documentary evidence regarding approved rate of construction, by P.W.D. 26. We find force in the submissions made by learned counsel Sri Manoj Kumar. 27. What the reference Court has done is that it had calculated the value of the land and construction on the basis of above three pointers and found that the rate given by Parmatma Nand Pandey is the lowest and since the house is old, so he deducted 2/3rd from that valuation and fixed one third of that to be the market value. 28. This method of assessing the market value by the reference Court is not supported by any law or any decision of this Court or Apex Court. 29. Learned Counsel Sri Manoj Kumar argued that in these circumstances rent is the appropriate method to calculat market value as has been held in the case of Smt Tribeni Devi’s case (supra). It has been mentioned in this Apex Court decision. 29. Learned Counsel Sri Manoj Kumar argued that in these circumstances rent is the appropriate method to calculat market value as has been held in the case of Smt Tribeni Devi’s case (supra). It has been mentioned in this Apex Court decision. “The compensation payable to the owner of the land is the market value which is determined by reference to the price which a seller might reasonably expect to obtain from a willing purchaser, but as this may not be possible to ascertain with any amount of precision, the authority charged with the duty to award compensation is bound to make an estimate judged by an objective standard. The land acquired has therefore, to be valued not only with reference to its condition at the time of the declaration under Section 4 of the Act but its potential value also must be taken into account. The sale-deeds of the lands situated in the vicinity and the comparable benefits and advantages which they have, furnish a rough and ready method of computing the market value. This however, is not the only method. The rent which an owner was actually receiving at the relevant point of time or the rent which the neighbouring lands of similar nature are fetching can be taken into account by capitalising the rent which according to the present prevailing rate of interest is 20 times the annual rent. But this also is not conclusive method. The methods of valuation to be adopted in ascertaining the market value of the land on the date of the notification under Section 4 (1) are: (I) Opinion of experts, (ii) the price paid within a reasonable time in bona fide transaction of purchase of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages; (iii) a number of years’ purchase of the actual or immediately prospective profits of the lands acquired. These methods, however, do not preclude the Court from taking any other special circumstance into consideration, the requirement being always to arrive as near as possible at an estimate of the market value. These methods, however, do not preclude the Court from taking any other special circumstance into consideration, the requirement being always to arrive as near as possible at an estimate of the market value. In arriving at a reasonably correct market value, it may be necessary to take even two or all of those methods into account inasmuch as the exact valuation is not always possible as no two lands may be the same either in respect of the situation or the extent or the potentiality nor is it possible in all case to have reliable material from which that valuation can be accurately determine 30. It is to be noted that only the ground floor of the house was leased, for the post office of the monthly rent Rs. 80/- per month in the year 1958. It has been admitted by the post office that the lease expired in the year 1967, but post office continued to occupy the house. The house owner was residing at Calcutta and the tenancy continued without renewal of the lease, so if we calculate the market value of Rs. 80/- per month for the whole building in the year 1987 then it will be unjustified. 31. The Apex Court in the case of Mrs. Saradamani Kandappan v. Mrs. S. Rajalakshmi and others, AIR 2011 SC 3234 , has held that it is now well-settled that laws, which may be reasonable and valid when made, can, with passage of time and consequential change in circumstances, become arbitrary and unreasonable. The Apex Court has relied upon its decision made in May, 1986 in Rattan Arya v. State of Tamil Nadu, AIR (1986) 3 SCC 1444. The Apex Court has held that ‘We are entitled to take judicial notice of the enormous multi fold increase of rents throughout the country, particularly in urban areas. It is common knowledge today that the accommodation which one could have possibly got for Rs. 400 per month in 1973 will today cost as least five times more.” 32. In the case of Dinanath Mahajan and others v. Collector Land Acquisition Jammu (supra) the Apex Court has held that “when the property sold is land with building, it is often difficult to secure reliable evidence of instances of sale of similar lands with buildings proximate in time to the date of the notification under Section 4. In the case of Dinanath Mahajan and others v. Collector Land Acquisition Jammu (supra) the Apex Court has held that “when the property sold is land with building, it is often difficult to secure reliable evidence of instances of sale of similar lands with buildings proximate in time to the date of the notification under Section 4. Therefore the method which is generally resorted to in determining the value of the land with buildings especially those used for business purposes, is the method of capitalization of return actually received or which might reasonably be received from the land and the buildings.” 33. In the case of Trishala Jain and another v. State of Uttaranchal and another (supra) 2006 SCC 47 , the Apex Court has laid down the principles controlling the application of guesstimate are: “ More often than not, it is not possible to fix the compensation with exactitude or arithmetic accuracy. Depending on the facts and circumstances of the case, the Court may have to take recourse to some guess work while determining the fair market value of the land and the consequential amount of compensation that is required to be paid to the persons interested in the acquired land.” 34. The Apex Court has further laid down the principles controlling the application of guesstimate are: “(a) Wherever the evidence produced by the parties is not sufficient to determine the compensation with exactitude, this principle can be resorted to. (b) Discretion of the Court in applying guess work to the facts of a given case is not unfettered but has to be reasonable and should have a connection to the date on record produced by the parties by way of evidence. Further, this entire exercise has to be within the limitations specified parties by way of evidence. Further, this entire exercise has to be within the limitations specified under Sections 23 and 24 of the Act and cannot be made in detriment thereto.” 35. The Apex Court has further held that “Guess as understood in its common parlance is an estimate without any specific information while “calculation” are always made with reference to specific data. “Guesstimate” is an estimate based on a mixture of guesswork and calculations and it is a process in itself. At the same time “guess” cannot be treated synonymous to “conjecture”. “Guesstimate” is an estimate based on a mixture of guesswork and calculations and it is a process in itself. At the same time “guess” cannot be treated synonymous to “conjecture”. “Guess” by itself may be a statement or result based on unknown factors while “conjecture” is made with a very slight amount of knowledge, which is just sufficient to incline the scale of probability. “Guesstimate” is with higher certainty than mere “guess” or a “conjecture” per se.” 36. As we have discussed above that there is no evidence regarding valuation from the side of Senior Superintendent of Post Offices for the land and building except sale-deed of the acquired house and the evidence adduced by the claimant are also not fit exemplar for determining the market rate then guess work based on certain facts is to be done. 37. Since the notification under Section 4 was published on 9.5.1987 so we have to guess the market value on that date. 38. The market value of any property depends upon its proximity to commercial area, road and also whether it is tenanted or what cost will have to be incurred in evicting the tenant and how much time will be consumed and whether the attempt to evict the tenant will succeed or not. 39. It has been mentioned in the evidence of Dadu Prasad D.W.2 that building is located in commercial area. It has also come in evidence that it is situated near Godoulia crossing, which is main commercial hub of Varanasi. As the building was leased to Post Office then it can safely be assumed that building is near the road or is assessable to general public of the locality. 40. It is also not disputed that S.L.A.O was not able to obtain any sale-deed prior to the date of notification for that locality for use as exemplar. This also indicates that no one of the locality was ready to part with his building at any cost. 41. We are of the view that above factors make the property too valuable. 42. Considering the above factor and also taking into account the time spent and cost of litigation in successfully obtaining the eviction order from Apex Court we are of the view that claimant is entitled to get Rs. 10,00,000( Ten Lakhs) as market value on the date of notification. 43. 42. Considering the above factor and also taking into account the time spent and cost of litigation in successfully obtaining the eviction order from Apex Court we are of the view that claimant is entitled to get Rs. 10,00,000( Ten Lakhs) as market value on the date of notification. 43. It was further argued by learned counsel Sri Manoj Kumar, that no interest on the solatium amount can be awarded without possession which was not with claimant. For that he has relied upon the case of Periyar and Pareekanni Rubbers Ltd. v. State of Kerala (supra). In this case the Apex Court has held that “Section 25 (3) contemplates payment of interests on solatium to re-compensate the owner of the land for loss of user of the land from the date of taking possession till date of payment into the Court. The word compensation has been advisedly used by the legislature.” In the present case, it has been discussed above that the claimant fought to get the building vacated from post office and for that he filed a JSCC Suit in the Court of Small Causes, Varanasi, in the year 1983, which was decreed. The Union of India filed a revision, which was dismissed on 18.9.1984. Against this dismissal order, Civil Misc. Writ Petition No. 7191 of 1986 was filed, which was also dismissed in limine on 6.8.1986 and six months time was granted to the Union of India to vacate the premises. The Union of India preferred a Special Leave Petition in the Apex Court, which was also dismissed and four months time was granted to vacate the house. Thus, had the post office the Apex Court decision of vacating the house, then the claimant would have being in possession of the house at the time of notification. The claimant was deprived of possession due to acquisition by Union of India. Thus, it cannot be said that the claimant is not entitled to solatium as he was not in possession. The suit for eviction was decreed and decree was maintained till Apex Court, but in order to nullify the eviction decree the house was acquired and thus the claimant was deprived of the fruits of the eviction decree. In this peculiar case, we accordingly hold that the claimant is entitled to interest of solatium. 44. The suit for eviction was decreed and decree was maintained till Apex Court, but in order to nullify the eviction decree the house was acquired and thus the claimant was deprived of the fruits of the eviction decree. In this peculiar case, we accordingly hold that the claimant is entitled to interest of solatium. 44. Learned counsel of the appellant, Manoj Kumar again relied upon the case of Shri Kishan Dass and others v. State of U.P. (supra), in which it was held that “ Section 23 (1-A) is a set off for loss in cases of delayed awards to compensate the person entitled to receive compensation otherwise a person who is responsible for the delay in disposal of the acquisition proceedings will be paid premium for dilatory tactics.” In the present case, notification under Section 4 was published on 9.5.1987, which was published in official gazette on 28.5.1987 and date of publication of notification Section 6 is 8.6.1987 and the award was passed on 10.8.1987. 45. Considering the decisions given by Apex Court, we are of the view that the claimant is entitled to 12% per annum additional compensation under Section 23 (1A) from the date of publication of notification under Section 4 up to the date of award and also the appellant is entitled to 30% of solatium under Section 23 (2) of the Land Acquisition Act. Claimant is also entitled to get 9% per annum interest for the first year and after that 15% per annum interest till the date of payment on the enhanced amount. 46. In view of the above, the award of the Civil Court needs modification. The First Appeal No. 150 of 2002 is liable to be dismissed and is hereby dismissed. 47. First Appeal No. 328 of 2007 is liable to be allowed partly and is hereby partly allowed. Claimant is entitled to get compensation of Rs. 10,00,000/- alongwith solatium and other statutory benefits as discussed above. No order as to costs. ———————