JUDGMENT Hon’ble Arvind Kumar Tripathi (II), J.—The present appeal has been filed by the Collector, Mirzapur against the judgment in Land Acquisition Case No. 8/1986 dated 30.11.1987 by which the reference Court has decided the market value of the acquired land to be twenty five lakh, solatium @ 30 % on that amount and 12 % additional compensation total thirty seven lakh, twenty thousand for land alongwith compensation for fruit bearing trees alongwith solatium, stone pillars alongwith solatium, compensation for two houses alongwith solatium and compensation for well alongwith solatium. 2. Total 18 bigha 7 biswa 1 dhur land including trees, wells and constructed Pakka house was acquired for industrial area, Chunar from village Usmanpur, Pargana Haveli Tehsil Chunar, district Mirzapur. 3. Notification under Section 4 of the Land Acquisition Act (hereinafter referred to as the Act) was published on 4.3.1978 and the notification under Section 6 of the Act was published on 30.5.1978. The possession of the land was taken on two dates i.e. 20.5.1979 and 20.9.1979. The award was given on 24.1.1986 and the market value of the land was fixed as @ Rs. 12,698.41 per bigha for the land falling under the category of Palo-one and Rs. 2,721.09 per bigha for the land falling under category of Palo-3. Thus the total award for the land was fixed to be Rs. 87054.44 solatium 30 % Rs. 26,111.33 and 12% interest from the date of publication of notification under Section 4 (1) Land Acquisition Act upto the date of taking possession Rs. 16,366.23 total Rs. 1,29,537/- alongwith that compensation for trees was fixed alongwith solatium to be Rs. 48,950.50, the compensation for stone pillars was fixed alongwith solatium to be Rs. 3,666, the compensation for wells and construction was fixed alongwith solatium to be Rs. 39,899.60 and Rs. 2,22,415.70 respectively. 4. Feeling aggrieved a reference was filed before the Collector, who referred the same to Civil Court for disposal. The reference was decided vide judgment dated 30.11.1987 as indicated above. Feeling aggrieved by this judgment, Collector, Mirzapur has filed the present first appeal. 5. We have heard Sri R.S. Chaubey, learned standing counsel for the appellant and Sri. D.P. Singh, learned Senior counsel alongwith Sri S. Niranjan for the respondent. 6. It was argued from the side of the appellant that the Court below has erred in enhancing the compensation ignoring the facts and law. 5. We have heard Sri R.S. Chaubey, learned standing counsel for the appellant and Sri. D.P. Singh, learned Senior counsel alongwith Sri S. Niranjan for the respondent. 6. It was argued from the side of the appellant that the Court below has erred in enhancing the compensation ignoring the facts and law. The Special Land Acquisition Officer (hereinafter referred to as SLAO) has relied upon the exemplar sale-deed in favour of Smt Tetri executed by Radhey Shyam area 3 Biswa, 3dhur, village Usmanpur for a sale price of Rs. 2000/-. The acquired land is agricultural land and the same was cultivated by the tenure holder. The exemplar relied upon by the SLAO was of agricultural land and only exemplars of agricultural land could have been relied upon. The learned reference Court has committed illegality in fixing the market value of the acquired land on the basis of circle rate fixed by the District Magistrate. Compensation can only be awarded under the provisions of Act and not on the basis of circle rate fixed under the Stamp Act. The reference Court has erred in relying on the sale-deed which was regarding land of another village. The SLAO has rightly fixed the compensation on the basis of the exemplar sale-deed which was executed with respect to the same village. 7. It was argued from the side of respondent that the land includes two buildings, one- two storied Pukka construction and other three storied Pukka construction. There are many trees, so the nature of the land is of grove. Pukka wells are situated in the land and there is a boring alongwith pumping set. The land abuts Mirzapur-Varanasi road towards west. It abuts to the road which goes towards railways colony and there are residential quarters of railways employees of Chunar railway station. The land falls in the area of Chunar Nagar Palika and the State Government is charging stamp duty @ Rs. 8/- per sq.ft. So the market value of the acquired land has been correctly decided by the reference Court. The land is surrounded by market, residential colonies and factories so the land has potential value of being converted into residential colonies and factories. 8. 8/- per sq.ft. So the market value of the acquired land has been correctly decided by the reference Court. The land is surrounded by market, residential colonies and factories so the land has potential value of being converted into residential colonies and factories. 8. A perusal of the reference Court’s decision reveals that as per reference Court the land abuts to NH-7, so the land has potential value of residential use and thus it cannot be said to be an agricultural land and since the valuation for the residential area for stamp duty has been fixed as Rs. 8/- per sq.ft. Some of the land falls under the category of Palo-1 and some under the category of Palo-3, so the market value of the acquired land being decided as to be Rs. 5/- per sq.ft. 9. A perusal of the judgment also reveals that from the side of claimant/respondent, Nand Kishore Agrawal has been examined as P.W. 1, P.W.-2 Lakshmi Niwas Dalmia, P.W.3 Dharampal Nanda, P.W.-4 S.Irtaza Hussain, and D.W. 1 Vishnu Prasad, D.W. 2 Vindhvasini Prasad Srivastava were examined from the side of State. 10. There was some dispute also regarding apportionment of the compensation between Nand Kishore Agrawal and others. The following issues were framed: 1. Whether the compensation granted by opposite party No. 1 of the Land acquired is inadequate? If so, whether claimant is entitled to get compensation @ Rs. 8/- per sq.ft.? 2. Whether claimant is entitled to the entire amount of compensation as alleged by him or he is entitled to one third share only as alleged by opposite parties No. 2 and 3? 3. Whether reference is not maintainable as alleged? 4. To what relief if nay claimant on the one hand entitled and or both claimant and opposite party 2 and 3 all jointly entitled? 5. Whether claimant alone or claimant and opposite parties No. 2 and 3 all jointly, are entitled to compensation for alleged. Barbed wire fencing around the land acquired, alleged trees standing out and for other alleged constructions, if any, as alleged? 6. Whether decree passed in Revenue Case No. 139/817/71 was procured by opposite party 2 and 3 by practicing found on the Court? If so, its affect? 7. Whether the claimants not bound by the decree mentioned in issue No. 6 as alleged? 8. 6. Whether decree passed in Revenue Case No. 139/817/71 was procured by opposite party 2 and 3 by practicing found on the Court? If so, its affect? 7. Whether the claimants not bound by the decree mentioned in issue No. 6 as alleged? 8. Whether the claim of claimants barred by the law of estoppel and acquiescence as alleged? 9. Whether the property in dispute was acquired from the lands of M/s Panna Lal Prem Narayan and on dissolution this property fell in the exclusive share of claimant as alleged? 11. Issue Nos. 2, 5, 6, 7, 8 and 9 are regarding apportionment. The reference Court has held that Sri Nand Kishore Agrawal is entitled for compensation. Neither the State nor any other person has challenged this, hence, we will be dealing with the issue Nos. 1 and 4 only. 12. The appellant has relied upon various judgments of Supreme Court in the cases of Jawajee Nagnatham v. Revenue Divisional Officer, Adilabad, A.P. and others, (1994) 4 SCC 595 , Gafar and others v. Moradabad Development Authority and another, (2007) 7 SCC 614 , ONGC Ltd. v. Sendhabhai Vastram Patel and others, (2005) 6 SCC 454 , Ranvir Singh and another v. Union of India, (2005) 12 SCC 59 and Chimanlal Hargovinddas v. Special Land Acquisition Officer, Poona and another, (1988) 3 SCC 751 . 13. In support of their arguments, respondent’s counsel has relied upon the cases of Sangunthala (Dead) Through LRS. v. Special Tahsildar (Land Acquisition) and others, (2010) 3 SCC 661 , Thakur Kuldeep Singh (dead) Through LRS. v. Union of India and others, (2010) 3 SCC 794 and Sunder v. Union of India, 2001 (45) ALR 397. 14. After going through the arguments advanced by the learned counsel for the parties, we are of the view that following points are to be determined : (i) Whether the market value of the acquired land being 18 bigha, 7 biswa and 1 dhur has to be assessed on circle rate of residential area or like an agricultural land per bigha? (ii) What will be the adequate market value of acquired property? Point No. 1 : A perusal of the award dated 24.1.1986 reveals that three sale-deeds were considered by the SLAO. The details are as follows: 15. (ii) What will be the adequate market value of acquired property? Point No. 1 : A perusal of the award dated 24.1.1986 reveals that three sale-deeds were considered by the SLAO. The details are as follows: 15. The SLAO has found that land mentioned in sale-deeds No. 2 and 3 is far away from the road and abadi and the acquired land abuts Mirzapur-Chunar road, hence the sale-deeds No. 2 and 3 are not fit for to be used as exemplars. 16. The SLAO has found that land mentioned in sale-deed No. 1 is in all respect equal to the acquired land, hence the sale-deed No. 1 is the best available exemplar. 17. The claimant Nand Kishore Agrawal has also filed two exemplars out of which first sale-deed is not within three years from the date of notification under Section 4 (1) of Land Acquisition Act, hence, it was rejected by the SLAO. Second sale-deed was of village Dumduma, Pargana Haveli which was rejected by the SLAO on the ground that the land pertains to another village and it can only be considered when sale-deeds from the same village are not available. 18. Learned reference Court has while rejecting the exemplar relied upon by the SLAO, has held that the land of sale-deed No. 1 is not in any way at par with the acquired land as there is no road adjacent to this plot. After rejecting this exemplar, the reference Court has shifted to the circle rate and found that the circle rate for residential plot is Rs. 8/- per sq.ft. per area at this conclusion he has relied upon the statement of D.W. 2, Vindhwasini Prasad who is a Clerk in Collectorate, Mirzapur. Apart from his oral statement, no documentary evidence regarding the circle rate has been filed. 19. In the case of Trishala Jain and another v. State of Uttaranchal and another, (2011) 6 SCC 47 , the Apex Court has held that “where the parties have not brought on record any evidence, then the Court will not be in a position to award compensation merely on the basis of imagination, conjecture, etc. 19. In the case of Trishala Jain and another v. State of Uttaranchal and another, (2011) 6 SCC 47 , the Apex Court has held that “where the parties have not brought on record any evidence, then the Court will not be in a position to award compensation merely on the basis of imagination, conjecture, etc. There are different methods of computation of compensation payable to the claimants, for example it can be based upon comparable sale instances, awards and judgments relating to the similar or comparable lands, method of averages, yearly yields with reference to the revenue earned by the land, etc. Whatever method of determining the compensation is applied by the Court, its result should always be reasonable, just and fair as that is the purpose sought to be achieved under the scheme of the Act.” 20. In the case of Ranvir Singh and another v. Union of India, (2005) 12 SCC 59, the Apex Court has held in para-24 of the judgment that “ We have noticed hereinbefore the concession of Mr. Nariman as regards inadmissibility of the notification issued by the Union of India determining the circle rates. The notifications issued by the Union of India, therefore, whereupon strong reliance has been placed by the High Court cannot form the basis for determining the market value of the acquired lands. 21. In the case of Thakur Kuldeep Singh (dead) Through LRS. v. Union of India and others (Supra) the Apex Court has held that “this clearly goes to show there must be some other evidence apart from circle rate to determine the market value.” 22. In the instant case, the reference Court has rejected the exemplar relied upon by the SLAO. It is to be borne in mind that the land which has been acquired is 18 Biswa, 7 Bigha and 1 Dhur and thus is a large chunk of land. 23. In the case of Chimanlal Hargovinddas v. Special Land Acquisition Officer, Poona and another (Supra) the Apex Court has held that “a building plot of land say 500 to 1000 sq. yds cannot be compared with a large tract or block of land of say 10,000 sq. yds. or more. Firstly while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space. yds cannot be compared with a large tract or block of land of say 10,000 sq. yds. or more. Firstly while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space. Plotting out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of an entrepreneur. The factor can be discounted by making a deduction.” 24. In the case of Jawajee Nagnatham v. Revenue Divisional Officer, Adilabad, A.P. and others (Supra) it has been held that “ it is therefore clear that the basic valuation register prepared and maintained for the purpose of collecting stamp duty has no statutory basis or force. It cannot form a foundation to determine the market value mentioned thereunder in instrument brought for registration. Equally it would not be a basis to determine the market value under Section 23 of the Act, of the lands acquired in that area or town or the locality or the taluk etc.” 25. In the case of Sangunthala (Dead) Through LRS. v. Special Tahsildar (Land Acquisition) and others (Supra), it has been held that “the burden of establishing/proving the market value of the land is always on the claimants. Also burden of proving that the amount of compensation awarded by the Collector is inadequate lies upon the claimant and he is in the position of a plaintiff. The Court, therefore, has to treat the reference as an original proceeding before it for determination of the market value afresh on the basis of the material produced before it.” 26. The market value on the basis of which compensation is payable under Section 23 of the Act, means the price that a willing purchaser would pay to a willing seller for a proper having due regard to its existing condition with all its existing advantages and its potential possibilities when let out in its most advantageous manner, excluding any advantage due to the carrying out of the scheme for the purpose for which the property as compulsorily acquired. 27. In Atma Singh v. State of Haryana, (2008) 2 SCC 568 , it has been held in para 4 and 5 that; “4..... The expression ‘market value’ has been the subject-matter of consideration by this Court in several cases. 27. In Atma Singh v. State of Haryana, (2008) 2 SCC 568 , it has been held in para 4 and 5 that; “4..... The expression ‘market value’ has been the subject-matter of consideration by this Court in several cases. 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 let out in most advantageous manner, excluding any advantage due to the carrying out of the scheme for the purpose for which the property as compulsorily acquired. In considering market value disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy should be disregarded. The guiding principle would be the conduct of an hypothetical willing vendor who would offer the land and that of a purchaser who, in normal human conduct would be willing to buy as a prudent man in normal market conditions but not of an anxious purchaser dealing at arm’s length nor facade of sale nor a fictitious sale brought about in quick succession or otherwise to inflate the market value. The determination of market value is the prediction of an economic event viz. a price outcome of hypothetical sale expressed in terms of probabilities.” “market value of a property has to be determined having due regard to its existing condition with all its existing advantages and its potential possibility when let out in its most advantageous manner. 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 and whether it 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 or has prospect of development have to be taken into consideration.” 28. In the State of Uttar Pradesh etc. The existing amenities like water, electricity, possibility of their further extension, whether near about town is developing or has prospect of development have to be taken into consideration.” 28. In the State of Uttar Pradesh etc. v. Smt. Rama Kumari Devi etc., AIR 1996 SC 3370 , the Supreme Court while dealing with the matter regarding acquisition of land of 13.75 acres held that no feats of imagination would require to bog the mind that when 13.75 acre of land was offered for sale in an open market, no prudent man would have credibility to purchase that land on square foot basis. Therefore, High Court as well as the District Judge have committed a grave error in not applying the above acid test while considering the case. 29. In Pitambar Hemlal Badgujar (dead) by L.Rs. and others v. Sub-Divisional Officer, Dhule and another, AIR 1996 SC 3117 , also the Supreme Court held that it is settled by series of judgments of the Supreme Court that determination of compensation in respect of the lands acquired on the square foot basis is an obvious illegal principle being adopted by the Courts only to inflate the market value and no reasonable prudent purchaser would be willing to purchase the land on the square foot basis when large extent of land is offered for sale. 30. In the case of Gafar and others v. Moradabad Development Authority and another (supra), it has been held that “ we may incidentally notice that the lands were agricultural lands being used for cultivation and even the method of valuing it on the basis of price per square metre does not appear to be justified.” 31. A perusal of the record shows that the entire acquired land 18 bigha, 7 Biswa, 1 dhur i.e. 11.47 acre was a single unit and was acquired for industrial area. It is to be noted that in view of the Apex Court’s decision in State of Uttar Pradesh etc. v. Smt. Rama Kumari Devi etc. (supra) and Pitambar Hemlal Badgujar (dead) by L.Rs. and others v. Sub-Divisional Officer, Dhule and another (Supra), a large piece of land if offered for sale in open market will fetch the market price not as per sq. ft. or sq.mt. but will fetch in market price as per bigha. v. Smt. Rama Kumari Devi etc. (supra) and Pitambar Hemlal Badgujar (dead) by L.Rs. and others v. Sub-Divisional Officer, Dhule and another (Supra), a large piece of land if offered for sale in open market will fetch the market price not as per sq. ft. or sq.mt. but will fetch in market price as per bigha. The circle rate of residential area will not be applicable in such land as has been held by the Apex Court in the case of Chimanlal Hargovinddas v. Special Land Acquisition Officer, Poona and another (Supra). 32. A perusal of the statement of Nand Kishor Agarwal reveals that he has mentioned in his statement that the land which was not covered with trees was used for agriculture, while the written statement of the District Magistrate shows that according to them the land was being used for agricultural purpose. In view of the above, we find it that the reference Court has committed wrong in granting compensation on the basis of sq. ft. while it should have been @ per bigha. Point No. 2 : 33. Now we have to consider as to what should be the market rate of the acquired land. As it has been held by the Apex Court in the case of Sangunthala (Dead) Through LRS. v. Special Tahsildar (Land Acquisition) and others (Supra) that the burden of establishing/proving the market value of the land is always on the claimant-respondent. The claimant has filed two sale-deeds. One was not considered by the SLAO on the ground that it is not in proximity of time of notification under Section 4 (1) of Land Acquisition Act. The details of second sale-deed is given below: The reference Court has relied upon the second exemplar filed by the claimant and held that though the land belongs to village Dumdumapur but Dumdumapur is adjacent to the village Usmanpur. The boundaries given in that sale-deed is as follows: East- House-Ramdhauri, West-Jhopri, Gauri Shanker, North- Pakki Road, South- Field of Balak and Shiv Balak. D.W. 2 Vindhwasini Prasad has also admitted in his cross-examination that village Dumdumapur is adjacent to village Usmanpur. 34. The exemplar relied upon by the SLAO does not mention any road in its boundary, so we are of the view that the exemplar relied upon by the SLAO is not a fit exemplar. D.W. 2 Vindhwasini Prasad has also admitted in his cross-examination that village Dumdumapur is adjacent to village Usmanpur. 34. The exemplar relied upon by the SLAO does not mention any road in its boundary, so we are of the view that the exemplar relied upon by the SLAO is not a fit exemplar. The Apex Court in the case of Gafar and others v. Moradabad Development Authority and another (Supra) has held that “ in this case, transactions involving sales of land in acres or of larger extents were simply ignored by the awarding officer without giving adequate reasons for such exclusion except vaguely stating that they were distantly located. Even those sale instances would have provided a basis for assessing the compensation due in respect of the acquired lands subject to adjustments for the distance or other disadvantages or advantages compared to the acquired lands.” 35. The area of land of village Dumdumapur which was sold by Akshayawar to Harishanker Pandey is measuring 1 biswa and the sale price is Rs. 7,000/- 36. There is no other evidence on record by the either parties except the sale-deeds mentioned above. In view of this and in view of the settled principle that exemplar showing highest market value be accepted then we are inclined to accept the exemplar of village Dumdumapur to be the most suitable one. In view of this, the rate per bigha comes to Rs. 1 lakh, 40 thousand. 37. In the case of Administrator General of West Bengal v. Collector, Varanasi, AIR 1988 SC 943 , the Apex Court has held that “the principle requires that prices fetched for small developed plots cannot directly be adopted in valuing large extents. However, if it is shown that the large extent to be valued does admit of and is ripe for use for building purposes, that building lots that could be laid out on the land would be good selling propositions and that valuation on the basis of the method of a hypothetical lay-out could with justification be adopted, then in valuing such small laid-out sites the valuation indicated by sale of comparable small sites in the area at or about the time of the notification would be relevant. In such a case, necessary deductions for the extent of land required for the formation of roads and other civic amenities; expenses of development of the sites by laying out roads, drains, sewers, water and electricity lines, and the interest on the outlays for the period of deferment of the realization of the price; the profits on the venture etc. are to be made. Deductions for land required for roads and other developmental expenses can together, come upto as much as 53 %. Accordingly, the prices fetched for small plots cannot directly be applied in the case of large areas, for the reason that the former reflects the ‘retail’ price of land and the latter the ‘wholesale’ price.” 38. In the case of Chimanlal Hargovinddas v. Special Land Acquisition Officer, Poona and another (supra), it has been held that “ When a large block of land is required to be valued, appropriate deduction has to be made for setting aside land for carving out roads, leaving open spaces and plotting out smaller plots suitable for construction of buildings. The extent of the area required to be set apart in this connection has to be assessed by the Court having regard to the shape, size and situation of the concerned block of land etc. There cannot be any hard and fast rule as to how much deduction should be made to account for this factor. It is essentially a question of fact depending on the facts and circumstances of each case. It does not involve drawing upon any principle of law. It cannot be said that the High Court has committed any error in forming the opinion that having regard to the facts and circumstances of the case 25 % deduction was required to be made in this connection.” 39. In the case of Trishala Jain and another v. State of Uttaranchal and another (supra), it has been held that value of sale of small pieces of land can be taken into consideration for determining even the value of a large tract of land but with a rider that the Court while taking such instances into consideration has to make some deduction keeping in view other attendant circumstances and facts of that particular case. It has further been held that deduction on account of expenses of development of the sites could vary from 10% to 86.33% depending on the nature of the land, its situation, the purpose and stage of the development. 40. Since the land in this exemplar is too small and the land acquired is a large piece of land, so proper deduction is to be made for largeness of the acquired land 41. In our opinion, considering the situation of the acquired land, 50% deduction on that count shall be appropriate. In view of this, the market price comes to be Rs. 70,000/- per bigha. 42. A perusal of the record reveals that the Nand Kishor Agarwal has admitted that when his land was acquired, there was no electricity on the land. There was no pipe line of drinking water in the land. Water for irrigation and for drinking was taken from the well. It has also come in evidence that the land was surrounded by pillars and barbed wires. It has not been the case of the claimant-respondent that there was road and other amenities in the land. In view of this for developing the area for industrial plots, roads, drainage systems etc. would have to be carved out. Thus we are of the view that a deduction of 30 % also will be appropriate. Thus the market value per bigha after deducting 30% comes to Rs. 49,000/- per bigha. As the land is 18 bigha, 7 biswa, 1 dhur, then the total market value for the entire land comes to Rs. 8,99,272.50 i.e. Rs. 8,99,273/-. Solatium @ 30% comes to Rs. 2,69,782/-. Additional compensation also comes to Rs. 1,07,913.00/-. Thus, the total amount for compensation for the entire acquired land comes to Rs. 12,76,968/-. 43. The appellant has not argued about the adequacy and inadequacy of the compensation granted for house, trees, pillars etc., so no interference is warranted in that amount. The reference Court has awarded compensation for trees to be Rs. 48,990.50, for pillars Rs. 3,666/- for houses Rs. 2,22,415.70 and for wells Rs. 39,899.60. So the total compensation including market value and solatium and additional compensation comes to Rs. 15,52,039.20 ie. Rs. 15,52,039.00/-. The reference Court has awarded compensation for trees to be Rs. 48,990.50, for pillars Rs. 3,666/- for houses Rs. 2,22,415.70 and for wells Rs. 39,899.60. So the total compensation including market value and solatium and additional compensation comes to Rs. 15,52,039.20 ie. Rs. 15,52,039.00/-. The claimants-respondents are also entitled to get 9% per annum interest from the date of possession till the date of payment for the first year and afterwards he is entitled to get interest @ 15 % per annum. 44. In view of the above, the appeal is liable to be partially allowed and the reference order needs modification as indicated above. 45. The appeal is partially allowed. Reference Court’s order is modified to the extent that claimant is entitled to get Rs. 15,52,039/- as compensation alongwith all other statutory benefits mentioned above. No order as to costs. ——————