National Thermal Power Corporation vs State of Uttar Pradesh and Others

Sudhir Agarwal, J.—We have heard the learned counsel for the parties at length and perused the record of the cases carefully. All these appeals have come up under Section 54 of the Land Acquisition Act, 1894 (hereinafter referred as ''Act, 1894'') read with Section 96 of the Code of Civil Procedure arising from common award dated 31.5.2001 passed under Section 26 of the Act, 1894 by Sri Ahmad Shamim, Vinth Additional District Judge, Ghaziabad after hearing 79 land acquisition references, made under Section 18 of Act, 1894, determining compensation payable to the claimants whose land were acquired by State of U.P. for National Thermal Power Corporation (hereinafter referred as ''N.T.P.C.'').

The Court below has found that tenure holders whose land were acquired, are entitled to payment of compensation @ Rs. 43 per sq. yard. The claimants are entitled to interest @ 12% from the date of notification i.e. 18.8.1986 till the date of possession i.e. 28th February, 1987. They are also entitled to solatium @ 30%, for the period subsequent to 28th February, 1987; for interest @ 9% for one year w.e.f. 28.2.1987 and thereafter @ 15% per annum.

Both the sides have filed appeals. The beneficiaries i.e. appellant-NTPC for whose benefit land was acquired have come up objecting the award challenging rate of compensation. According to it, it is on much higher side. Some of the claimant-tenure holders have come up in appeals claiming that market value for determining compensation for the land acquired is on much lower side.

The facts, in brief, are as under:

A notification dated 5th August, 1986 was published under Section 4(1) of the Act, 1894 in U.P. Gazette on 18.8.1986 and also in two newspapers on 24th August, 1986 proposing to acquire 139.6483 Hectares of agricultural land i.e. 327.6413 acres (correct area in acres comes to 345.0784), of village Uncha Amipur, Pargana-Dasna, Tehsil-Hapur, District Ghaziabad. Notification under Section 6 was published on 11th October, 1986 in U.P. Gazette and in local newspapers on 14.11.1986. The aforesaid land was acquired for the purpose of establishing a power plant in National Capital Region by N.T.P.C. Collector took possession over acquired land on 28.2.1987.

Special Land Acquisition Officer (hereinafter referred as ''S.L.A.O.''), vide award dated 8.11.1988 determined compensation @ Rs. 54932.80 per hectare (approximately Rs. 33,500/- per acre/Rs. 15,000/- per bigha/Rs. 5 per sq. yard) being the highest and Rs. 31,616/- per acre being the lowest, in respect of different category of land. For the purpose of determining aforesaid rate of compensation, S.L.A.O. took into consideration a sale-deed dated 15.7.1985 (paper No. 39 Ga).

Aggrieved by the aforesaid award, claimants whose land was acquired requested the Collector for making Reference under Section 18 of the Act, 1894 pursuant whereto 79 References came to be considered by the Court below vide award impugned in these appeals but we are concerned only with 53 References which have come up in these appeals.

The evidence led on behalf of the appellant-NTPC are as under:

The evidence led by claimants consists of only an agreement for sale as detailed hereinbelow:

Besides above, the claimants relied on two judgments of Reference Courts as under:

(I) LAR No. 125/90 and 51 connected matters decided by IInd Additional District Judge, Ghaziabad in respect to agricultural land situate in village Salarpur Kalan, Tehsil Dadri, District Ghaziabad, whereof notification under Section 4 of the Act, 1894 for acquisition was issued on 28.10.1986. The Court determined market rate at Rs. 25/- per sq. yard vide award dated 15.2.1994.

(II) The judgment of Reference Court in LAR No. 34/1989 Mahavir Singh v. Smt. Pana Devi acquiring 0.3568 hectare land, plot No. 188, village-Uncha Amipur, Pargana-Dasna, District Ghaziabad, for the benefit of the N.T.P.C. whereby 12th Additional District Judge, Ghaziabad vide order dated 29.9.1994 held that Mahavir Singh was entitled to claim compensation for acquisition of the aforesaid land for the reason that agreement to sell already executed by Smt. Pana Devi in favour of Mahavir by registered agreement dated 20.2.1986 and Rs. 1,50,000/-, part of total consideration Rs. 2,40,000/- was already paid to Sri Mahavir Singh. The aforesaid order shows that agreement for sale could not result in execution of sale-deed for the reason of acquisition of the said land for NTPC. This land was acquired by the notification which is subject matter of the present appeals.

After spot inspection on 2.12.1986 of entire acquired land, S.L.A.O. has observed that entire land is situate at the western side of village. It is on the border of village Siripur Rasoolpur, Dasna and Patadi, in the form of north-south extended plot. The Abadi of village is at a short distance from eastern boundary of acquired land. The acquired land is mainly used for agriculture.

S.L.A.O. rejected various sale-deeds which he got summoned from the office of Sub-Registrar executed in preceding one year i.e. from 29.8.1986, on various grounds like the land in transaction is less than a Bigha or that the area in the transactions was not described clearly. He thereafter relied on circle rates, determined by Collector and prepared the following table:

Then he referred to the Government Order dated 7.3.1987 providing that market rate shall not be determined below circle rate, prescribed for the purpose of stamp duty and also a clarification received from the State Government vide letter dated 5.10.1987. Holding that the Government Order dated 7.3.1987 would be applicable in the present acquisition also, on the basis thereof, S.L.A.O. determined market rate as under:

S.L.A.O. made certain further additions in respect of trees, boring, permanent well etc. with respect whereto, no issue has been raised before us and, therefore, we are not looking into that aspect.

For the purpose of reading evidence collectively in all the references, an order of consolidation was passed by Reference Court on 22.5.2001 and though the evidence was led, documentary and oral, mainly in three L.A.R. Nos. 576 of 1990 (Gajraj v. State), 212/1990 (Bijendra v. State) and 226/1990 (Roopchand v. State) but has been read in all consolidated References for which parties also agreed.

On behalf of the claimants, two witnesses were examined in LAR No. 576/90 i.e. Sri Girendra Singh PW-1 and Smt. Pana Devi PW-2. On behalf of State of U.P., one Dharam Pal Singh deposed his oral statement as DW-1. In LAR No. 226/90, on behalf of the claimant, only one witness Roop Chandra Nagar was examined as PW-1 while on behalf of the State, Jaswant Singh deposed his statement as DW-1. N.T.P.C. filed only documentary evidence.

The farmers-claimants claimed compensation @ Rs. 50/- per sq. yard. The Reference Court by means of the impugned award however has allowed compensation @ Rs. 43 per sq. yard by relying on a registered agreement for sale executed by Smt. Pana Devi in favour of Mahavir Singh wherein consideration of subject-matter was Rs. 2,40,000/- (approximately Rs. 56.25 per sq. yard).

Learned Senior Counsel Sri H.R. Mishra appearing for the appellant-NTPC objected the award of Reference Court mainly on the following grounds:

(a) Burden to prove that rate of compensation determined by S.L.A.O. is inadequate, was upon claimants but they failed to discharge this burden. This aspect has completely been ignored by Reference Court.

(b) Enhancement of compensation approximately by 9 times is patently erroneous.

(c) Solitary agreement for sale could not have been made the basis for determining market value of the land.

(d) The exemplars relied by N.T.P.C. were discarded for inadequate and irrelevant reasons.

(e) When a large tract of agriculture land is acquired, the exemplar involving transfer of land by sale, of smaller area, cannot be relied upon. In such cases the compensation should also not be awarded on squire yard basis when the land acquired is in hundreds of acres.

(f) Deduction allowed by Reference Court is much less, which should have been at least 50% not 30%.

(g) Reliance placed upon the award of Reference Court dated 11.11.1999 in LAR No. 17/1996 which pertains to acquisition proceedings of 1992 is wholly illegal as that reference could not have been relied at all.

(h) The findings of Reference Court even otherwise with regard to development and other relevant factors is very vague.

(i) An agreement for sale could not have been relied upon as an exemplar since it has failed to convert in a transaction of sale by execution of sale-deed.

A number of authorities have also been relied in support of the aforesaid propositions which we propose to discuss later while discussing the issues.

Learned counsel appearing for claimants contended that exemplar relied upon them was with respect to an agricultural land, part of the same land which was acquired by State Government for the benefit of N.T.P.C., so there should not have been any deduction at all. Deduction ought to have been applied where exemplar provides rates founded on certain additional reasons like development of area etc. An agreement for sale could have been relied on as there is no inherent prohibition in considering the same as an exemplar for the purpose of determining compensation under Act, 1894. Even if claimants have asked for compensation at lessor rate, the Court, if found that market rate of acquired land is higher, can allow compensation on higher rate than claimed by land holders. It is, therefore, prayed that compensation should be enhanced to Rs. 57/- per sq. yard.

We have considered rival submissions and the authorities, cited at the Bar as also relevant statutory provisions applicable in this regard.

Before this Court, counsel for the parties did not dispute that the entire land, acquired by N.T.P.C. may be considered for determination of compensation at a common rate instead of making distinction on the basis of quality of land etc. The parties are in agreement with Reference Court to the extent that market rate should be determined with respect to land in question at a common rate, whatsoever it is.

In the present case, we find that S.L.A.O. in discharge of its duties for determining compensation payable to tenure holders has not determined market value by looking into relevant factors but simply has founded his award on the basis of circle rate. We are constrained to observe here that circle rates fixed by Collector for the purpose of stamp duty have been held as not to be made the basis for determining market value. We are fortified in observing so, in view of the law laid down in U.P. Jal Nigam, Lucknow through its Chairman and another Vs. M/s. Kalra Properties (P) Ltd. Lucknow and others, AIR 1996 SC 1170 : (1996) 2 CTC 60 : (1996) 1 JT 354 : (1996) 1 SCALE 389 : (1996) 3 SCC 124 : (1996) 1 SCR 683 : (1996) 1 UJ 549 and Lal Chand Vs. Union of India (UOI) and Another, AIR 2010 SC 170 : (2009) 11 JT 490 : (2009) 11 SCALE 627 : (2009) 15 SCC 769 : (2009) 13 SCR 622 . However, these judgments are posterior, when S.L.A.O. made award, therefore, he may not be held responsible in making this mistake.

Be that as it may, an award passed by Land Acquisition Officer is like an offer and not to be treated as a judgment of trial Court. It is well-settled, when the land holders are not agreeable to accept the offer made by Land Acquisition Officer, they have a right to approach Collector under Section 18 of the Act, 1894, by a written application, for referring the matter to Court, for determination of the amount of compensation or if there is any dispute regarding measurement of land for that also. In the present case the references in question were made at the instance of claimants for determining the amount of compensation.

In Chimanlal Hargovinddas Vs. Special Land Acquisition Officer, Poona and Another, AIR 1988 SC 1652 : (1988) 3 JT 106 : (1988) 2 SCALE 43 : (1988) 3 SCC 751 : (1988) 1 SCR 531 Supp : (1988) 2 UJ 318 , the Court has said that a Reference is like a suit which is to be treated as an original proceeding. The claimants are in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate. However, for the said purpose the Court would not consider the material, relied upon by Land Acquisition Officer in award, unless the same material is produced and proved before the Court. The Reference Court does not sit in appeal over the award of Land Acquisition Officer. The material used by Land Acquisition Officer is not open to be used by the Court suo motu unless such material is produced by the parties and proved independently before the Reference Court. Determination of market value has to be made as per market rate prevailing on the date of publication of notification under Section 4 of Act, 1894. The basic principle which has to be followed by Reference Court for determining market value of land, as if, the valuer i.e. the Court is a hypothetical purchaser, willing to purchase land from the open market and is prepared to pay a reasonable price, as on the crucial day, i.e., date of publication of notification under Section 4 of the Act, 1894. The willingness of vendor to sell land on reasonable price shall be presumed. The Court, therefore, would co-relate market value reflected in the most comparable instance which provides the index of market value. Only genuine instances would be taken into account. Sometimes even post-notification instances may be taken into account if they are very proximate, genuine and acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects. Proximity from time angle and from situation angle would be relevant considerations to find out most comparable instances out of the genuine instances. From identified instances which would provide index of market value, price reflected therein may be taken as norm and thereafter to arrive at the true market value of land under acquisition, suitable adjustment by plus and minus factors has to be made. In other words a balance sheet of plus and minus factors may be drawn and the relevant factors may be valuated in terms of price variation, as a prudent purchaser would do. The market value of land under acquisition has to be deduced by loading the price reflected in the instances taken for plus factors and unloading for minus factors.

Some of the illustrative examples of plus and minus factors given by the Court in Chimanlal Hargovinddas (supra) are as under:

The size of the land, therefore, would constitute an important factor to determine market value. It cannot be doubted that small size plot may attract a large number of persons being within their reach which will not be possible in respect of large block of land wherein incumbent will have to incur extra liability in preparing a lay out and carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers etc. The Court said that in such matters, the factors can be discounted by making deduction by way of an allowance at an appropriate rate ranging between 20% to 50%, to account for land, required to be set apart for carving out road etc. and for plotting out small plots.

The concept of smaller and larger plots should be looked into not only from the angle as to what area has been acquired, but also the number of land holders and size of their plots. When we talk of concept of a prudent seller and prudent buyer, we cannot ignore the fact that in the category of prudent seller the individual land holder will come. It is the area of his holding which will be relevant for him and not that of actual total and collective large area which is sought to be acquired.

In V.M. Salgoacar and Brother Ltd. Vs. Union of India (UOI), (1995) 1 SCALE 220 : (1995) 2 SCC 302 : (1995) 1 SCR 188 , the land acquired by notification dated 6.7.1970 in village Chicalim near Goa Airport belonged to a single owner. The Court observed, when land is sold out in smaller plots, there may be a rising trend in the market, of fetching higher price in comparison to the plot which are much higher in size. Having said so the Court further said "though the small plots ipso facto may not form the basis per se to determine the compensation, they would provide foundation for determining the market value. On its basis, giving proper deduction, the market value ought to be determined".

Again in Shakuntalabai (Smt) and Others Vs. State of Maharashtra, (1995) 8 JT 501 : (1995) 6 SCALE 693 : (1996) 2 SCC 152 : (1995) 5 SCR 618 Supp acres of land in Akola town was sought to be acquired by notification published on 11.8.1965 under Section 4(1) of Act, 1894 which was also owned by a single person. It is in this context the Court said "the reference Court committed manifest error in determining compensation on the basis of sq. ft. when land of an extent of 20 acres is offered for sale in an open market, no willing and prudent purchaser would come forward to purchase that vast extent of land on sq. ft. basis. Therefore, the Reference Court has to consider valuation sitting on the armchair of a willing prudent hypothetical vendee and to put a question to itself whether in given circumstances, he would agree to purchase the land on sq. ft. basis. No feat of imagination is necessary to reach the conclusion. The answer is obviously no".

We need not go into a catena of other decisions rendered in the last several decades since we are benefited of a recent Division Bench decision of this Court in First Appeal No. 454/2003 and other connected matters, Meerut Development Authority through Its Secretary v. Basheshwar Dayal (since deceased) Through His L.Rs and another decided on 1.8.2013 wherein the legal principles settled by Apex Court in various judgments, relevant for determination of market value have been crystallized as under:

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

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

(a) opinion of experts,

(b) the price paid within a reasonable time in bona fide transactions of purchase of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages,

(c) a number of years purchase of the actual or immediately prospective profits of the land acquired.

(Ref. Jawajee Nagnatham Vs. Revenue Divisional Officer, Adilabad, A.P. and Others, (1994) 2 JT 604 : (1994) 2 SCALE 298 : (1994) 4 SCC 595 : (1994) 1 SCR 368 : (1994) 2 UJ 17

(iii) While fixing the market value of the acquired land, comparable sales method of valuation is preferred than other methods of valuation of land such as capitalization of net income method or expert opinion method. Comparable sales method of valuation is preferred because it furnishes the evidence for determination of the market value of the acquired land at which a willing purchaser would pay for the acquired land if it had been sold in the open market at the time of issue of notification under Section 4 of the Act. However, comparable sales method of valuation of land for fixing the market value of the acquired land is not always conclusive but subject to the following factors:

(a) sale must be a genuine transaction,

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

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

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

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

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

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

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

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

(vii) In fixing market value of the acquired land, which is undeveloped or under-developed, the Courts have generally approved deduction of 1/3rd of the market value towards development cost except when no development is required to be made for implementation of the public purpose for which land is acquired. (Ref. Valliyammal and Another Vs. Special Tahsildar (Land Acquisition) and Another etc. etc., AIR 2011 SC 2937 : (2011) 8 JT 442 : (2011) 3 RCR(Civil) 904 : (2011) 8 SCALE 139 : (2011) 8 SCC 91 : (2011) 10 SCR 293 : (2011) AIRSCW 4591 .

(viii) When there are several exemplars with reference to similar lands, it is the general rule that the highest of the exemplars, if it is satisfied, that it is a bona fide transaction has to be considered and accepted. When the land is being compulsorily taken away from a person, he is entitled to the highest value which similar land in the locality shown to have fetched in a bona fide transaction entered into between a willing purchaser and a willing seller near about the time of the acquisition. (Ref. Mehrawal Khewaji Trust (Regd.), Faridkot and Others Vs. State of Punjab and Others, AIR 2012 SC 2721 : (2012) 114 CLT 696 : (2012) 3 CTC 396 : (2012) 4 SCALE 628 : (2012) 5 SCC 432 : (2012) AIRSCW 2822 : (2012) 4 Supreme 66 .

(ix) In view of Section 51A of the Act certified copy of sale-deed is admissible in evidence, even the vendor or vendee thereof is not required to examine themselves for proving the contents thereof. This, however, would not mean that contents of the transaction as evidenced by the registered sale-deed would automatically be accepted. The legislature advisedly has used the word ''may''. A discretion, therefore, has been conferred upon a Court to be exercised judicially, i.e., upon taking into consideration the relevant factors. Only because a document is admissible in evidence, the same by itself would not mean that the contents thereof stand proved. Having regard to the other materials brought on record, the Court may not accept the evidence contained in a deed of sale. (Ref. Cement Corporation of India Ltd. Vs. Purya and Others, (2004) 8 JT 327 : (2004) 8 SCALE 558 : (2004) 8 SCC 270 : (2004) AIRSCW 5534 : (2004) 7 Supreme 711 ).

(x) While fixing the market value of the acquired land, the Land Acquisition Collector is required to keep in mind the following factors:

(a) Existing geographical situation of the land.

(b) Existing use of the land.

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

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

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

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

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

(Ref. Sabhia Mohammed Yusuf Abdul Hamid Mulla (D) by L.Rs. and Others Vs. Special Land Acquisition Officer and Others, AIR 2012 SC 2709 : (2012) 6 JT 185 : (2012) 6 SCALE 34 : (2012) 7 SCC 595 : (2012) AIRSCW 3986 : (2012) 4 Supreme 323 ,).

In the light of above general guidelines and also considering the fact that claimants have to be considered as plaintiffs before Reference Court, therefore, onus initially lay upon them to prove what is the appropriate market rate, we proceed to consider first whether in the present case such onus has been discharged by plaintiffs or not.

The only exemplar cited by claimants is an agreement for sale dated 20/21.2.1986. The aforesaid agreement shows that for transfer by sale, of a land measuring 0.3568 hectares, i.e. 4267.29 sq. yards at Khasra No. 181, the parties agreed for a total sale consideration of Rs. 2,40,000/- (Rs. 56.24 per sq. yard) out of which Rs. 1,50,000/- was paid by vendee to the vendor and Rs. 90,000/- was payable at the time of execution of sale-deed. This document was registered before the Sub Registrar concerned on 20.2.1986/21.2.1986. It is not disputed by the parties that the aforesaid land which was subject-matter of transaction under agreement of sale dated 20/21.2.1986, is part of the acquired land by the notification with which we are concerned.

The counsel for N.T.P.C. has contended that an agreement for sale is not a valid instance to be considered for determining market value. Therefore, it is necessary to look into at this stage, whether an agreement for sale would be admissible as an evidence/instance, relevant for determination of market value.

The counsel for NTPC relied on a decision in U.P. Avas Evam Vikas Parishad Vs. Jainul Islam and Another, AIR 1998 SC 1028 : (1998) 1 JT 231 : (1998) 1 SCALE 185 : (1998) 2 SCC 467(2) : (1998) 2 SCC 467 : (1998) 1 SCR 254 : (1998) 1 UJ 292 : (1998) AIRSCW 801 : (1998) 1 Supreme 340 , rendered by three Hon''ble judges, where in para 35 of the report, the Court said:

"[35] We do not find any substance in the submissions urged on behalf of the Parishad regarding rejection of the application for adducing additional evidence by the High Court. The High Court, in our opinion, has rightly held that in the absence of any material that the agreements for sale relied upon had matured into sale transactions not much assistance could be derived from them in the matter of determination of the market value of the acquired land,".

(emphasis added)

The above observations have to be read in the background of facts, detailed in para 33 of the judgment. These agreements for sale were not part of evidence before Reference Court, when the appeal was pending in the High Court, an application was filed on behalf of land acquiring body i.e. U.P. Awas Avam Vikas Parishad, admit additional evidence, which consisted of certain agreements of sale with Awas Vikas Parishad. This application was rejected by the High Court, observing that there was no material that agreements have matured into sale transaction even after eight years of their execution and that is how, they were of no assistance for determination of market value. The agreement for sale, therefore, sought to be relied as an additional evidence before the High Court, did not show that there was any bona fide transaction, which could not culminate in a sale-deed for the reasons beyond the control of the parties or for any bona fide reason but even after eight years of the agreement, sale-deed was not executed without there being any justifiable reason. The application, therefore, was rejected by the High Court and this was upheld by the Apex Court.

We do not find that the aforesaid decision, therefore, can be read to lay down as a proposition of law that for determination of market value under Section 23 of Act, 1894, an otherwise bona fide, genuine and valid agreement to sell, cannot be looked into at all as an exemplar. The reliance placed by NTPC, therefore, for the aforesaid proposition, is not worthy of acceptance at all. We find that there are some authorities otherwise taking a different view.

In an earlier decision in The Special Land Acquisition Officer and another etc. etc. Vs. Sri Siddappa Omanna Tumari and others etc., AIR 1995 SC 840 : (1994) 7 JT 257 : (1994) 4 SCALE 782 : (1995) 2 SCC 168 Supp : (1994) 5 SCR 207 Supp , which is also a judgment of three Hon''ble Judges, the Apex Court has observed in para 11 of the judgment as under:

"What could be regarded as the near estimate of the acquired land has to be ascertained, be it the Collector or be it the Court on the basis of authenticated transactions of sales or agreements to sell relating to the same land or a portion of it wherever possible because such transactions of sale or agreements to sell are always regarded as the best evidence available for the purpose."

(emphasis added)

Again, in para 13, the Court expressing its view of permissibility to look into an agreement for sale, observed as under:

"However, if sale-deed or agreement to sell relating to the small extent of land on the basis of which the market value of the large extent of the agricultural land has to be determined is a portion of the acquired agricultural land itself or other land in its close proximity, it may be made the basis for determining the market value of the acquired large extent of agricultural land but has to be done when there is satisfactory evidence of the absence of sales or agreements to sell off bigger extents of land pertaining to the acquired land or other lands in the vicinity of the acquired land."

(emphasis added)

The Court in Special Land Acquisition Officer and another v. Sidappa Omanna Tumari and others (supra) again in para 14 of the judgment said as under:

"14. Therefore, where a sale-deed or an agreement to sell relating to a small extent of land is produced by the claimant, in the enquiry held for determination of compensation payable for his large extent of land, the Court is not always bound to determine the market price of such large extent of acquired land on the basis of the price fetched or to be fetched by small extent of land covered by such sale-deed or agreement to sell."

(emphasis added)

To the same effect there are few more judgments. In Fort Press Co., Limited vs. Municipal Corporation of theAIR 1922 365 (Privy Council) , it was held that an agreement between the parties as to the price does not interfere with the jurisdiction of the Collector under Act, 1894. Referring to the aforesaid decision in Assam Railways and Trading Co. Ltd. Vs. The Collector of Lakhimpur and Another, AIR 1976 SC 1182 : (1976) 3 SCC 24 : (1976) 8 UJ 481 , the Court held "there was an agreement between the parties about the price that is not disputed; whether this amounted to a concluded contract it does not seem to us a question that is required to be decided in this appeal. Assumption to this was an agreement which bound the parties, the Collector had still the jurisdiction to determine the market value of the land." In the aforesaid decisions agreement was not discarded merely for the reason of its being agreement but what the Court said that it is only a material to be considered by the statutory authorities but jurisdiction to determine market value lies upon the Collector under Section 11 of the Act, 1894. The document of agreement would not be a conclusive material.

The Court in M. Samiullah vs. Collector of AligarhAIR 1946 75 (Privy Council) , holding "in assessing compensation he is bound to exercise his own judgment as to the correct basis of valuation and his judgment could not be controlled by an agreement between the parties interested. On a Reference under Section 18 the District Judge must also exercise its own judgment and consider among other things whether the award of the Land Acquisition Officer was based on a correct principle".

The authorities under Act, 1894, therefore, while determining rate of compensation payable to land holders may consider the material placed before it by the parties. An agreement for sale, relied by any of parties, is not to be discarded merely for the reason that it is an agreement for sale unless there are other reasons justifying its rejection.

In Mehta Ravindrarai Ajitrai (Deceased) by Lrs and Others Vs. State of Gujarat, AIR 1989 SC 2051 : (1989) 3 JT 321 : (1989) 2 SCALE 296 : (1989) 4 SCC 250 : (1989) 3 SCR 743 : (1989) 2 UJ 547 , the claimants relied on instances by way of agreement of sale dated 21.1.1957 and the sale-deed dated 2nd April, 1957. The notification under Section 4(1) of the Act, 1894 was published on 6th August, 1956 and agreement for sale was executed about five months thereafter. The Court held that such an agreement of sale, per se, could not be rejected for the reason that it was executed posterior to the date of acquisition notification under Section 4(1) and said:

"....the agreement for sale in connection with that land, pertains to a sale after the acquisition, it can be fairly regarded as reasonably proximate to the acquisition and, in the absence of any evidence to show that there was any speculative or sharp rise in the prices after the acquisition, the agreement to sell dated January 21, 1957 must be regarded as furnishing some light on the market value of the land on the date of publication of Section 4 notification."

(emphasis added)

Similar to the case in hand, we find that an issue came before a Division Bench of Karnataka High Court in Purushotham Pandit Kher Vs. Special Deputy Commissioner (Spl. L.A.O.), (1989) ILR (Kar) 2042 . Therein also, an agreement for sale was registered on 22.8.1972. Before it could fructify in to sale, one of the land, referred to in the agreement for sale, was sought to be acquired vide notification dated 21.2.1974, issued under Section 4(1) of the Act, 1894. The agreement of sale was relied by the body for whose benefit land was acquired and opposed by purchaser claimant before the High Court. The claimant contended that Reference Court should not have relied upon the value of acquired land as reflected in the registered agreement for sale. The question formulated by the Court therein reads as under:

"......whether the Reference Court would be justified in placing reliance on an agreement to sell relating to an acquired land to which the claimant was a party, as reflecting its market value, instead of relying upon the value of sites or lands in the neighborhood of the acquired land as reflecting the value of each of them for determining the market value of the acquired land on a comparable basis."

The Court answered the question as under:

"......we are not left in doubt that a Reference Court would be fully justified in relying upon a bona fide, genuine and authentic transaction of an agreement to sell entered into by the claimant for purchase of the very acquired property, as reflecting its market value, instead of relying upon the transactions of sites or lands in the neighborhood of the acquired land as furnishing proper criteria for determining its (acquired land''s) market value on a comparable basis".

(emphasis added)

No authority otherwise has been brought to the notice of this Court wherein it has been held that agreement of sale even if reflecting bona fide transactions and having not resulted in sale-deed for reasons beyond the control of the parties, cannot be taken into account in any circumstance whatsoever even if it belongs to same land or constitutes part of the same land which has been acquired and determination of market value whereof is under consideration.

In view of the above discussions, we are of the view that there is no inherent anathema to consider a registered agreement of sale, if genuinity of a valid and honest transaction is not disputed but the Court tried otherwise. In the present case, it is admitted position that land which was subject-matter of registered agreement of sale was included in the acquisition notification and, therefore, parties could not conclude their transaction into sale. Thus the reason for non-execution of sale-deed was something beyond their control.

It is an admitted position that parties could not execute sale-deed for the reason that notification under Section 4 of the Act, 1894 was issued for the benefit of the appellant-NTPC on 18.8.1986 and the land which was subject-matter of agreement for sale dated 20/21.2.1986 was also notified for acquisition therein. The situation therefore was beyond the control of vendor and vendee on account whereof transaction could not result in execution of sale-deed. The Reference Court has recorded a finding of fact that the aforesaid transaction is a bona fide and honest transaction. The appellant-NTPC could not adduce any evidence whatsoever otherwise. In fact, before this Court also Sri H.R. Mishra, learned Senior Counsel did not address so as to thwart bona fides of the aforesaid transaction on this ground but his only argument was regarding admissibility of the aforesaid document as an exemplar. According to him, it is only a sale-deed which could have been considered and not an agreement for sale.

Bona fide of transaction is further testified from the fact that for the purpose of payment of compensation, vendee got a reference made to Court in which it was held that vendor having entered into an agreement of sale with the proposed vendee and having received amount of consideration, the compensation shall be paid to the proposed vendee i.e. Mahavir Singh. We are, therefore, of the view that for the purpose of determining market value of the land under acquisition the agreement to sell dated 20/21.2.1986 could have been taken into consideration as an exemplar.

Now, the second aspect which has to be seen that the agreement for sale in question is said to cover a smaller piece of land while acquisition in question involves about 139 hectares of land.

In the present case the agreement for sale though in respect of a smaller area of plot, qua total land acquired, but area included in the deed is not negligible but amply comparable with the area of land of different statistics. The holdings of claimants which have been acquired under notification in question vary, in area, from 1400 sq. yards to 81000 sq. yards. In the present appeals, determination of compensation of 53 plots is involved. Therein 13 plots are in the range of 1400 sq. yards to 4000 and odd, 13 have the area between 6000 to 10000 sq. yards and only four have area between 30000 to 81000, rest are between 1000 to 30,000 sq. yard.

In many of the cases, the exemplars which were considered suitable for determination of market value, included land measuring a few hundreds yards but here the agreement of sale contains a transaction of more than 4,000 sq. yards of land. Therefore, to suggest that it is a very small land is not true.

Be that as it may, in a case where no other better instance is available, the Courts can apply principle of deduction, while considering such an instance for determining market value. When price fetched or to be fetched by such smaller extent of land has to be made the basis for determining the market value of larger extent of acquired agricultural lands, all material factors which would have the capacity to bring down value of larger extent of acquired land, as on the date it was notified for acquisition would necessarily be taken into account. In order to avoid situation of considering large number of probable/improbable transactions depending on the areas of plots under consideration, the Courts have applied principle of deduction while following an exemplar of small size of the land by providing that appropriate deduction may be made. The quantum of deduction or the extent of deduction, which is to be applied, cannot be applied as a ''Rule of Thumb'' but it would depend on a variety of factors. We propose to consider this aspect of the matter, in further detail, at a later stage.

The next contention of learned counsel for appellant-NTPC is that by placing a single exemplar and that too an agreement for sale, it cannot be said that claimants had discharged their burden to justify fixation of higher rate of compensation then what was determined by Collector. Sri H.R. Mishra relied on three authorities i.e. Gafar and Others Vs. Moradabad Development Authority and Another, (2007) 4 CTC 601 : (2007) 10 JT 196 : (2007) 10 SCALE 89 : (2007) 7 SCC 614 : (2007) 9 SCR 32 , Chiman Lal Har Govinddas v. S.L.A.O. (supra) and Ramanlal Deochand Shah Vs. The State of Maharashtra and Another, (2013) 5 ABR 772 : AIR 2013 SC 3452 : (2013) 11 JT 76 : (2013) 4 RCR(Civil) 635 : (2013) 8 SCALE 398 : (2013) 14 SCC 50 : (2013) AIRSCW 4591 . We find it difficult to accept the above proposition. It is not the number of exemplars which are important and would determine the question whether burden has been discharged by the claimants or not.

It is the genuinity, authenticity and creditworthiness of the instance, particularly if the document is found most suitable and appropriate for determining the question of rate of compensation in respect of land under acquisition, which is relevant and in such a case by relying on single instance/exemplar the claimant may succeed in discharge of his burden to show that determination of compensation by Collector is not correct.

So far as the decision in Chiman Lal Har Govinddas (supra) is concerned we have already considered the same and do not find anything which may help the learned Senior Counsel to support the above submission. In Gafar v. Moradabad Development Authority (supra) the Court admittedly has observed that burden is on the claimants to establish that amount awarded to them by Land Acquisition Officer is inadequate. That burden has to be discharged by claimants and only if initial burden in that behalf is discharged, the burden would shift to the State to justify award of SLAO. However, it is not stated anywhere that a single exemplar relied by claimants may/would not constitute sufficient discharge of'' initial burden by claimants and, therefore, this decision also lends no support to appellant-NTPC. In the third decision of Raman Lal Deo Chand Shah v. State of Maharashtra and another (supra) also, we find that no such proposition has been laid down, therefore, this authority is also of no help to the appellant-NTPC for the aforesaid proposition.

Now we come to the next submission that appreciation of compensation by almost nine times is patently erroneous. In this regard we have already discussed the exemplar relied by claimants. Now it would be appropriate to look into the exemplar relied by NTPC which have been discarded by Reference Court. There are five sale-deeds dated 15.7.1985, 22.6.1985, 25.4.1986, 15.5.1986 and 20.8.1986. Certified copies of sale-deeds were filed by NTPC. The sale-deeds dated 15.7.1985 and 22.6.1985 being more than a year old have been discarded for this very reason as it is evident from the following findings of the reference Court:

"As far as the sale-deed dated 15.7.1985 made by Ranveer Singh in favour of Roop Chand, and the sale-deed dated 22.6.1985 made by Braham Singh in favour of Roop Chand and others are concerned, they are old deeds."

(English translation by Court)

The sale-deed dated 25.4.1986 (paper No. 40 Ga) executed by one Pyare Lal s/o. Lal Man in favour of Sri Kedar Nath, Monu Datt and Chandra Bhan s/o. Sagar Mal relates to Gata No. 133, Khasra No. 735 area 1 Bigha, 3 Biswa and 15 Biswansi. No evidence has been placed on record to show the location of the plot and other relevant conditions, its distance from acquired land etc. Similarly in the said sale-deed dated 15.5.1986 (paper book No. 46) executed by Chandravir Singh relates to Gata No. 96, Khasra No. 967 area 0.795 hectare i.e. 3 Bigha 2 Biswa and 17 Biswansi, here also its location, from the acquired land and other relevant factors have not been shown by adducing any evidence and from two sale-deeds noted above, except the fact that in the former case the soil quality was Sevta Avval Abi and in the latter it is Avta Avval Khaki, no other information is discernible. The third sale-deed dated 20.8.1986 paper No. 42-C executed by Sri Ramesh holder of general power of attorney dated 3.10.1986 of Smt. Jawala Devi widow of Pattan, relates to Gata No. 349, Khasra No. 276 area 7713 sq. meter, 281 Ga area 379 sq. meter, 287 Kha area 252 sq. meter, 356 area 2782 sq. meter, 357 Ka area 2531 sq. meter, 360 area 759 sq. meter, 366 Kha area 1466 sq. meter, 367 area 205 sq. meter i.e. in all area 10 Bigha and 10 Biswa, out of which half was already sold and rest was transferred by the said sale-deed. The quality of soil as mentioned is Khota Soam Khaki and Sevta Hoga Khaki. The circumstance in which sale was executed by holder of power of attorney is not clear as no evidence in this regard has come on record. Ever other details are not on record.

Even otherwise when there are different exemplars, the one which provides higher rate can be followed and that is how the Reference Court has relied on the exemplar relied by claimants. In observing the aforesaid, we are fortified by various authorities and recent one in Satish and Others Vs. State of U.P. and Others, (2009) 9 JT 479 : (2009) 14 SCC 758 : (2009) 12 SCR 65 , where the Court, relying on an earlier decision in Viluben Jhalejar Contractor (D) by LRs. Vs. State of Gujarat, AIR 2005 SC 2214 : (2005) 4 CTC 71 : (2005) 4 JT 282 : (2005) 4 SCC 789 : (2005) 1 SCR 542 : (2005) 1 UJ 716 , observed as under:

"...when comparable exemplars are brought on record, the one carrying the highest market value amongst them may be followed."

On the contrary, the land subject-matter of agreement for sale dated 20/21.2.1986 is one of the land acquired by notification in question. The potentiality and other positive factors of land acquired has been noticed by Reference Court, observing:

"...the acquired land is situated in national capital region which is in fact 20 kilometres away from India''s capital territory. To the north of the acquired land, there is Dholana town wherein are situated the degree college, the inter college, the police station and the hospital; and to its east, there is Jarcha town wherein are situated the police station, the inter college, etc.; and to its west, there is NTPC township which is not very far from Ghaziabad; and to its south, there is Dadri city wherein are situated the railway station, the degree college, the factory etc. Pilkhua town, famous for Khadi industries all over India, is situated at a distance of about 6-7 kilometres from the acquired land."

"...Through the middle of the village goes the Dholana-Dadri road, and the land adjacent to it is highly valued."

"...From the perusal of the file, it is clear that the location and status of the acquired land is very good.

(English translation by Court)

Thus looking to the potentiality of land acquired, in absence of relevant evidence to throw light on the transaction under the instances relied by NTPC, so as to render them a better piece of evidence, the Reference Court in its wisdom has relied on the instance relied by claimants and considering the entirety of fact and circumstances, it cannot be said that view taken by Reference Court is so palpably erroneous, arbitrary or perverse as that would justify a judgment of reversal by this Court in appeal. On the contrary, we find that Reference Court has looked into all the relevant aspects of the matter and rightly applied principles laid down in various binding authorities, so as to determine market value of the land under acquisition.

Now we proceed to next submission of counsel for NTPC. It is contended that sale-deed relied on by NTPC has been ignored which amounts to rejection of documents in violation of Section 51-A of the Act, 1894. Reliance is placed on two decisions in Vinod Bansal v. State of Harayana and others, 2013 (5) SCC 622 and Ranvir Singh and Another Vs. Union of India (UOI), AIR 2005 SC 3467 : (2005) 4 CTC 645 : (2005) 8 JT 253 : (2005) 12 SCC 59 : (2005) 3 SCR 31 Supp . Neither the aforesaid submission has any substance nor the aforesaid authorities have any relevance to the case in hand. Section 51-A only talks of admissibility of certified copy as evidence, it reads as under:

"51A. 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."

In the present case, documents relied by NTPC have been noted and considered by Court below. Therefore, it cannot be said that evidence relied by NTPC has not been considered.

The last submission is that deduction of 35% applied by Court below is very low and it ought to be 50%. In support thereof the learned Senior Counsel Sri H.R. Mishra placed reliance on three authorities Goa Housing Board Vs. Shri Pandurang V. Sawant, Anandibai V. Sawant, Shri Krishna V. Sawant and Anil V. Sawant , Sabhia Mohammed Yusuf Abdul Hamid Mulla (D) by L.Rs. and Others Vs. Special Land Acquisition Officer and Others, AIR 2012 SC 2709 : (2012) 6 JT 185 : (2012) 6 SCALE 34 : (2012) 7 SCC 595 : (2012) AIRSCW 3986 : (2012) 4 Supreme 323 and Radha Mudaliyar Vs. Spl. Tahsildar (Land ACQ.), T.N.H. Board, AIR 2011 SC 54 : (2010) 12 JT 185 : (2010) 11 SCALE 195 : (2010) 13 SCC 384 : (2010) AIRSCW 6774 .

In Sabhia Mohammed Yusuf Abdul Hamid Mulla (d) by LRS and others v. Special Land Acquisition Officer and others (supra) the Reference Court while determining market value observed that though the land was agricultural but had non-agricultural potential and determined market value. The High Court made a deduction of 15% towards development charges.

Referring to an earlier decision in Viluben Jhalejar Contractor (D) by LRs. Vs. State of Gujarat, AIR 2005 SC 2214 : (2005) 4 CTC 71 : (2005) 4 JT 282 : (2005) 4 SCC 789 : (2005) 1 SCR 542 : (2005) 1 UJ 716 , the Court in Sabhia Mohammed Yusuf Abdul Hamid Mulla (supra) said that development charges may range between 20% to 50% of the total price. The Court further observed as under:

"in fixing market value of the acquired land which is undeveloped and under-developed the Courts have generally approved deduction of 1/3rd of the market value towards development cost except when no development is required to be made for implementation of the public purpose for which land is acquired."

(emphasis added)

In making this observation the Court relied on its earlier decisions in Kasturi and Others Vs. State of Haryana, AIR 2003 SC 202 : (2002) 9 JT 299 : (2003) 1 SCC 354 : (2003) 1 UJ 197 , Tejumal Bhojwani (Dead) through Lrs. and Others Vs. State of U.P., AIR 2003 SC 3791 : (2003) 2 JT 194 Supp : (2003) 7 SCALE 38 : (2003) 10 SCC 525 : (2003) 2 SCR 1044 Supp : (2003) AIRSCW 4335 : (2003) 6 Supreme 538 , V. Hanumantha Reddy (Dead) by Lrs. Vs. The Land Acquisition Officer and Mandal R. Officer, (2003) 10 SCALE 874 : (2003) 12 SCC 642 : (2004) AIRSCW 75 : (2003) 8 Supreme 734 , H.P. Housing Board Vs. Bharat S. Negi and Others, AIR 2004 SC 1800 : (2004) 2 SCALE 99 : (2004) 2 SCC 184 : (2004) AIRSCW 797 : (2004) 1 Supreme 770 and Kiran Tandon Vs. Allahabad Development Authority and Another, AIR 2004 SC 2006 : (2004) 3 JT 579 : (2004) 3 SCALE 691 : (2004) 10 SCC 745 : (2004) 3 SCR 467 , Lal Chand Vs. Union of India (UOI) and Another, AIR 2010 SC 170 : (2009) 11 JT 490 : (2009) 11 SCALE 627 : (2009) 15 SCC 769 : (2009) 13 SCR 622 , A.P. Housing Board Vs. K. Manohar Reddy and Others, (2011) 111 CLT 145 : (2010) 11 JT 165 : (2011) 1 RCR(Civil) 835 : (2010) 10 SCALE 363 : (2010) 12 SCC 707 : (2010) AIRSCW 6231 and Subh Ram and Others Vs. Haryana State and Another, (2009) 14 JT 115 : (2009) 13 SCALE 528 : (2010) 1 SCC 444 : (2009) 16 SCR 287 .

In Radha Mudaliyar v. Special Tehsildar, Tamil Nadu Housing Board (supra) the Court in para 20 of the judgment observed that deduction on account of expenses of development of sites could vary from 20% to 70% depending on the nature of land, its situation, purpose and stage of development.

Per contra, the claimants have sought enhancement and contended that Reference Court found market value of the acquired land as Rs. 67/- per sq. yard on the basis of registered agreement for sale and that being so, there was no occasion to apply for 35% deduction. There should not be any deduction whatsoever or at the best ought not have exceeded 10%. They further contended that mere fact that claimants have requested for compensation @ Rs. 50/- per sq. yard would not disentitle them from higher rate of compensation, if market value of land acquired is found higher. Reliance is placed on behalf of the claimants on Chandrashekhar and Others Vs. Additional Special Land Acquisition Officer, AIR 2009 SC 3012 : (2009) 9 JT 1 : (2009) 9 SCALE 434 : (2009) 14 SCC 441 : (2009) 10 SCR 505 : (2009) 8 UJ 3617 : (2009) AIRSCW 4844 : (2009) 5 Supreme 463 , Maharunnisa and Another Vs. Assistant Commissioner and L.A.O., Bijapur, (2009) 9 SCC 750 and Satish and Others Vs. State of U.P. and Others, (2009) 9 JT 479 : (2009) 14 SCC 758 : (2009) 12 SCR 65 .

Sri C.K. Parekh appearing in one of the matters for claimants, relied on the decision of Chakas Vs. State of Punjab and Others, (2011) 10 JT 447 : (2011) 9 SCALE 362 and contended that there should not be deduction of more than 10 percent. In para 24 of the said judgment the Court has observed as under:

"Therefore, it is neither desirable nor proper to deduct more than 10% of the amount in the base price fixed by us at Rs. 4,08,000/-. We accordingly do so."

Sri Madan Mohan, learned counsel for the claimants placed reliance on a Division Bench decision in Bhagwat Swaroop and others v. State of U.P. and others (First Appeal No. 463 of 2003) and other connected matters decided on 12.8.2008, contending that deduction is an exception and not the rule. This Court referred to the Apex Court''s decision in Land Acquisition Officer Vs. Nookala Rajamallu and Others and said as under:

"It has been held that the deduction can be made where the land is acquired for residential and commercial purpose with regard to roads and 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. So far as this Court is concerned, it has discarded the deduction policy on various grounds. One of the grounds is that if the State or its authority acquires the land for the purpose of selling it to the ultimate purchasers upon making available facilities, they normally recover the price inclusive of common facilities, therefore, a Government or its authority cannot be doubly benefited either by deductions from the payment of compensation in one hand and by collections of price of such development from the ultimate purchasers on the other hand. It also to be seen that no law prescribes deduction in paying compensation. It is to be remembered that deduction is an exception not the rule."

This Court also relied on the other decisions of this Court in National Thermal Power Corporation, Vidyut Nagar, Ghaziabad v. State of U.P. and another, 2007 (7) ADJ 595 (DB), Jagdish Chandra and others v. New Okhla Industrial Development Authority, Noida and another, 2008 (1) ADJ 253 and Ghaziabad Development Authority v. Chandrabhan and others, 2008 (6) ADJ 42 (DB).

We find that the aforesaid observations have no application to the case in hand. There the question was, whether deductions towards expenses to be borne by the State for development of acquired land should be allowed or not. Here, we are concerned with respect to deduction so as to cover up disparity in the matter of rates arising from instances involving smaller area of land vis-a-vis larger area of land acquired. The purpose and concept of deduction in both the circumstances are different. In the case regarding development and expenses, situation may be different and would have no application where such a deduction is being made so as to bring in conformity the probable difference in the instances of sale of larger area of land and smaller area of land. Therefore, the aforesaid decision does not lend any help to the appellant-claimants.

However, having gone through all the aforesaid decisions, we find that no absolute principle or Rule of Thumb has been laid down in any of the authorities as to how much deduction should be made. The substance of all the decisions is that deduction should be applied where undeveloped and under-developed land is acquired and it can vary from 10% to 70%, depending upon various factors of each case.

The Reference Court in the present case has applied 35% deduction. Taking market value at Rs. 67/- per sq. yard it has determined payable compensation @ Rs. 43/- per sq. yard. There we find some apparent calculation error on the part of Reference Court. The land agreed to be transferred under agreement dated 20/21.2.1986, being 0.3568 hectares on a consideration of Rs. 2,40,000/- (0.3568 hectares equal to 4267.29 sq. yard). The rate per sq. yards comes to Rs. 56.24 (round off). It appears that Rs. 56.24 per sq. yard rate ought to have been taken as Rs. 57/- but there appears to be some apparent ministerial error due to which in para 25 it has been typed as Rs. 67/- per sq. yard and ultimate direction in the award is computed on that basis. The Reference Court in para 25 of the judgment has committed manifest clerical/arithmetical error in calculating the rate per sq. yard of the acquired land on the basis of registered agreement to sell. Para 25 reads as under:

"25. On the basis of the above discussion, the Court concludes that basing upon the registered agreement to Smt. Pana Devi, the market value of the acquired land shall be deemed to have been 67 rupees per square yard."

(English translation by Court)

The actual amount awarded, therefore, is apparently on higher side due to the aforesaid mistake which has to be corrected.

We are also of the view that considering the location and other potentiality of land acquired, as mentioned by S.L.A.O. and also noticed, by Reference Court, the deduction of 35% is slightly on higher side and it should be 30% which would meet the ends of justice.

The correct and actual market rate as per award in question, therefore, would come to Rs. 40/- (round off) per sq. yard. The rest of the award with, regard too amount of solatium, interest etc. is hereby confirmed.

In the result, the appeals preferred by claimant-tenure holders are partly allowed to the extent that deduction of 35% made by Reference Court is reduced to 30%. Similarly, the appeals preferred by N.T.P.C. are partly allowed to the extent that actual rate of compensation awarded by Reference Court stands reduced from Rs. 43/- per sq. yard to Rs. 40/- per sq. yard. The direction of Reference Court with respect to payment of solatium @ 30% and interest at different rates for different periods mentioned therein shall remain intact and is hereby confirmed. All the appeals stand partly allowed in the manner as aforesaid. However, there shall be no order as to costs.