- (1.) V. C. Misra, J. All the aforesaid connected first appeals arising out of one and common judgment and award dated 28. 8. 2000 passed by the Xth Additional District Judge, Ghaziabad determining compensation payable to the claimants in reference suit filed under Section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act"), have been heard together and are being decided by this common judgment and order having binding effect upon all the aforesaid first appeals.
(2.) BY the present appeals the appellants have prayed that the aforesaid award dated 28. 8. 2000 be modified enhancing the compensation from Rs. 148. 75 per square yard to Rs. 297. 50 per square yard and have challenged the deduction of 50% of the sale amount by the Reference Court and claimed solatium and additional compensation as well as interest having accrued thereupon. The facts of the case, in brief, are that preliminary notification under Section 4 (1) of the Act was issued on 30. 10. 1987 for acquiring the total area of land admeasuring 494-9-19 bighas (309. 060 Acre) in village Chalera Banger, NOIDA district Ghaziabad now in district Gautam Budh Nagar. The said notification was published in the official Gazette dated 27. 2. 1988 as well as in the daily newspaper on 11. 6. 1989 and subsequently a corrigendum was issued on 18. 6. 1989 and 24. 6. 1989 correcting and modifying the notification published in the Gazette dated 27. 2. 1988. The reference Court held the relevant date of notification to be the last date of publication i. e. 24. 6. 1989. Following the same a notification under Section 6 of the Act read with Section 17 (4) of the Act was issued on 15. 12. 1989 and possession over the land in question was taken on 31. 3. 1990, 6. 10. 1990 and 30. 9. 1991. The Collector passed an award on 4. 2. 1992 on the basis of 62 sale deeds executed in respect of different plots of the village, in question, i. e. Chalera Banger of the last three years and determined the compensation at the rate of Rs. 43. 64 per square yard on the basis of sale deed dated 29. 8. 1987 while in the said sale deed the land was sold at the rate of Rs. 54. 54 per square yard, after allowing 20 per cent deduction in the said rate. Being aggrieved the appellant/claimants preferred reference, under protest, which was referred for adjudication to the Civil Court under Section 18 of the Act. The reference Court relying upon an agreement to sell dated 19. 4. 1989 as exemplar taking into consideration the potentiality of about six bigha adjoining land of the same village identically situated as the land, in question, held the market value of the land at the rate of Rs. 297. 50 per square yard and after deducting 50 per cent of the said sale amount, awarded compensation at the rate of Rs. 148. 75 per square yard which is under challenge. Being aggrieved, the appellant/claimants preferred the present appeals challenging the validity of said deduction of 50 per cent from the market rate made by the reference Court on the ground that it was unsustainable in the eye of law and that the appellant/claimants were entitled to solatium and additional compensation as well as interest accrued upon it as the same was payable under the Act and its denial was illegal as awarding of interest on solatium and additional compensation is no longer res- integra and more so, as the land of the individual tenure holder was of similar size as that of the exemplar and no deduction, whatsoever, was called for under the facts and circumstances of the instant case in spite of the fact that the market value of the land was much more than Rs. 1, 000 per square yard.
(3.) LEARNED Counsel for the appellant/claimants has submitted that the sale exemplar was rightly relied upon by the reference Court which was of an area of 5-18-10 bigha land and the agreement to sell was duly executed in April, 1988, which was followed by different sale deeds executed at the same rate of land, as mentioned in the agreement to sell, bonafides of which were never seriously questioned and was accepted to be a bonafide transaction by the reference Court. The largeness of the land has to be seen in the context of the size of the exemplar with that of the acquired land of individual tenure holder. Clubbing the holding of different tenure holders, in order to make deduction, of the entire acquisition, is legally impermissible in view of the following proposition of law laid down by the Hon'ble apex Court in Thakar sibhai Dev jibhai v. Executive Engineer, Gujratand others, JT 2001 (3) SC 90 in para 12 which are reproduced as under: "12. . . . . . . . . . . . . . . . With reference to the question of acquisition being of a larger area, the error is, when we scan, we find for the acquisition of each land owner, it could not be said that the acquisition is of a large area. Largeness is merely when each landholder's land is clubbed together, then the area becomes large. Each landowner's holdings are of small area. . . . . . . . . " Learned Counsel for the appellants relying upon the said decision submits that the same situation exists in the present case. It has been further submitted that the nature of acquisition in the present case is of public purpose for development of Regional Park, as is clear from the object of acquisition and the present acquisition is not an acquisition for establishment of residential or commercial colony which requires leaving of lands for road, park, development, sewerage, drainage and many other purposes for which the so called developmental deductions are actually made. It has been stated that the land in question, admittedly by NOIDA, falls fully within the developed area and moreover for the purpose of acquisition being development of Regional Park, not an inch of land is going to be wasted or left out and the entire land would be utilized for the said purpose and hence, the fact that large area is to be left out for various purposes, as in the case of residential and commercial acquisition, is totally absent in the present case. Reliance has been placed on the oral testimony of Jai Kisan dated 28. 3. 1995 D. W. 1 and Lala Ram Lekhpal D. W. 2 dated 25. 4. 1995. Learned Counsel for the appellant/claimants has also relied upon the judgment of Division Bench of this Court rendered in National Thermal Power Corporation v. State of U. P. and others, 2007 (7) ADJ 955, wherein it has been held that no deduction on account of largeness in area is justified and since the area of each tenure holders individually was very small and as the land was not very large the appellant/claimants were entitled to compensation at the market value for the acquisition of his area without any deduction.;