State of U. P. v. Hari Kumar Pandey — 1987 DIGILAW 1152 (ALL)

JUDGMENT S.S. Ahmad, J. - This First Appeal has been filed against the judgment and decree dated 31.5.74 passed by the District Judge, Barabanki, in a reference under Section 18 of the Land Acquisition Act. 2. Respondent's plots Nos. 196/1, 197/2, 201, 203, 205, 207, 210, 211, 213/2, 214/1, 215/2, 216/1 and 217/1 measuring 12 bighas and 10 biswas situate in village Obri, Pargana and Tehsil Nawabganj, District Barabanki, were notified for acquisition under the provisions of the Land Acquisition Act (hereinafter referred to as the Act) vide Notification No. 141971GAD, dated 24.2.1971, published in the Gazette on 6.3.1971. The public purpose for which the land was sought to be acquired was that it was needed by the Military Estate Officer, Lucknow, for additional storage shed Broad Gauge Railway siding 'B' Sub Depot, Barabanki. This was followed by the notification no. 141972GAD dated 6.1.72, issued under Section 6 of the Act which was published on 22.1.1972 after the objections filed by the respondent under Section 5A of the Act were not found tenable. 3. The respondent, therefore, filed his claim under section 9 of the Act claiming, inter alia, a sum of Rs. 3,53,333.20 as compensation for the land, Rs. 15,166.32 as compensation for the Tubewell and Rs. 25,286.87 as compensation for the building standing on the land. 4. The Land Acquisition Officer, Barabanki, by his award dated 30.3.73 awarded a sum of Rs.50,563.74 as compensation together with solatium@15% on the above amount. 5. The respondent challenged the award by filing a reference under section 18 of the Act. The reference was considered by the District Judge who awarded a sum of Rs. 1,36,000.00 as compensation to the respondent over which he allowed solatium @ 15%. Thus the total amount awarded to the respondent was Rs. 1,56,40000. 6. Feeling aggrieved, the State has filed this appeal in which it has challenged the finding recorded by the District Judge on the question of amount of compensation payable for the tubewell, the constructions standing on the land as also for the land itself. 7. The respondent filed cross objection in which the finding of the District Judge awarding a sum of Rs. 90,000,00 as compensation for the land in dispute was questioned and a further sum of Rs. 33,500.00 in that regard was claimed. 7. The respondent filed cross objection in which the finding of the District Judge awarding a sum of Rs. 90,000,00 as compensation for the land in dispute was questioned and a further sum of Rs. 33,500.00 in that regard was claimed. During the course of the dictation of judgment, an application was filed by the counsel for the respondent that the crossobjections may be dismissed as not pressed. This application has been allowed and the crossobjections have been dismissed. 8. We have heard the learned counsel for the parties. 9. The Standing counsel has challenged the findings recorded by the District Judge on the question of valuation of the tubewell, valuation of the construe ions standing on the land in dispute as also the valuation of the land itself. The value of the orchard, as found by the District Judge, has not been challenged before us at the time of the hearing of the appeal and, therefore, we need not scrutinise the said finding. 10. The respondent in his claim petition filed under section 9 of the Act had claimed a sum of Rs. 15,166.32 as compensation for the tubewell. The estimate prepared by Sri Har Bux Singh, Zila Parishad Engineer was annexed with the claim petition in which the value of the tubewell was indicated as Rs. 15,166.32. 11. The Land Acquisition Officer had, of his own, obtained the opinion of the Assistant Engineer of the Tubewell Division, Faizabad, who in his written opinion dated 5.6.1972, stated that the tubewell is 75 years old and that its costs was 50% of the original cost which was worked out by him to be Rs. 5.450 half of which was Rs. 2,725. The Land Acquisition Officer was not satisfied with this report and he called for another report which was submitted by the Executive Engineer in which it was stated that the tubewell was 25 years old and that its value was Rs. 9,050. The State had not examined the Assistant Engineer or the Executive Engineer before the Land Acquisition Officer nor had it examined them before the District Judge during reference proceedings. The District Judge did not, therefore, act either upon the report of the Assistant Engineer or the report of the Executive Engineer of the TubeWell Division. 12. 9,050. The State had not examined the Assistant Engineer or the Executive Engineer before the Land Acquisition Officer nor had it examined them before the District Judge during reference proceedings. The District Judge did not, therefore, act either upon the report of the Assistant Engineer or the report of the Executive Engineer of the TubeWell Division. 12. The Standing Counsel pointed out to us that on the date of issues, the parties had agreed before the District Judge that oral and documentary evidence available before the Land Acquisition Officer would also be read in the case. The proceedings of 23rd March, 1974, when issues were framed by the District Judge, indicate that the parties had agreed that the evidence before the Land Acquisition Officer shall be read in this case. The relevant portion of the proceedings reads as under: Parties agree that the evidence before the Land Acquisition Officer, oral and documentary, may be read in this case without formal proof. 13. It is contended by the Standing Counsel that once the parties had agreed that the evidence before the Land Acquisition Officer was to be read in this case, the District Judge was in error in not acting upon the reports submitted by the Assistant Engineer or the Executive Engineer, TubeWell Division regarding the value of the tubewell. We are unable to accept his contention. 14. The reports which had been called by the Land Acquisition Officer of his own from the Assistant Engineer as also from the Executive Engineer about the estimated cost of the tubewell would not constitute evidence in this case as they were neither tendered in evidence by the State nor were they proved as the Assistant Engineer or the Executive Engineer had not been examined before the Land Acquisition Officer to support their reports. In spite of the agreement referred to above, the said reports cannot, therefore, be read in evidence in the case before the District Judge who was perfectly justified, in the particular circumstances of the case, not to rely upon the said reports, which are selfcontradictory inasmuch as in one report it was stated that the tubewell was 75 years old while in the other report it was indicated to be 25 years old only. Moreover, the amount of estimated cost has been differently indicated in the said reports. Moreover, the amount of estimated cost has been differently indicated in the said reports. While in the report submitted by the Assistant Engineer the value of the tubewell was found to be Rs. 2725, in the other report submitted by the Executive Engineer the value has been found to tie Rs. 9050. The District Judge, in our opinion, was, therefore, justified in ignoring both the reports. 15. The respondent had examined several witnesses before the Land Acquisition Officer in support of his claim. Sri Har Bux Singh, Zila Parishad Engineer who was one of the witnesses and who had prepared the estimate of the tubewell and had reported its value to be Rs. 15,166.32 proved his report. The respondent also examined Ram Naresh Singh, Block Development Officer who stated that the value of the tubewell at the time of its installation in 1966 was Rs. 9718 which did not include the cost incused by the respondent in constructing the well. It was also stated by Ram Naresh Singh that the Government had given a subsidy of Rs. 2329 to the respondent. The estimated cost incurred by the respondent in making and constructing the 'well was stated by him to be more than Rs. 2000. The total amount given out by him thus reaches quite near the figure mentioned by Sri Har Bux Singh. 16. In addition to the witnesses examined before the Land Acquisition Officer, the respondent examined Subedar Pandey once again before the District Judge. Sri Subedar Pandey is the uncle of the respondent and had been managing the property in question on behalf of the respondent. He once again proved the claim filed before the Land Acquisition Officer under Section 9 of the Act. 17. The District Judge has observed that the statements made by Har Bux Singh, Zila Parishad Engineer and Sri Ram Naresh Singh, Block Development Officer, had gone almost uncrossexamined before the Land Acquisition Officer. In this situation, therefore, the claim of the respondent that the value of the tubewell was Rs. 15,166.32 stood proved. The learned District Judge has, however, fixed the value of the Tubewell at Rs. 14,000 with the following remarks: Allowing for some overestimation which has actually not been proved, I think it would be safe to fix the valuation of the tubewell at Rs. 14,000. 18. The District Judge has spoken of overestimation. 15,166.32 stood proved. The learned District Judge has, however, fixed the value of the Tubewell at Rs. 14,000 with the following remarks: Allowing for some overestimation which has actually not been proved, I think it would be safe to fix the valuation of the tubewell at Rs. 14,000. 18. The District Judge has spoken of overestimation. If the overestimation, as observed by him, was not proved, there was no occasion to reduce the amount to Rs. 14,000. But we would not disturb the figure as the respondent had not filed any crossobjection in respect of the value of the tubewell nor has he assailed the findings of the District Judge before us on this ground. The respondent had filed crossobjections only in respect of the value of the land but the said crossobjections, as stated earlier, have been dismissed as not pressed. We, therefore, see no reasons to disturb the findings of the District Judge who has fixed the value of the tubewell at Rs. 14,000. 19. The finding recorded by the District Judge on the value of the permanent constructions standing over the disputed land can also not be disturbed. 20. The respondent had claimed a sum of Rs. 25,286.87 as value of the construction which was proved by him by filing a report of the Zila Parishad Engineer who had prepared the estimated cost of the said constructions. The Zila Parishad Engineer, namely, Sri Har Bux Singh has been examined as a witness in the case who has proved his report. On the record of the Land Acquisition Officer there is a report of the Assistant Engineer (Temporary Division) P.W.D., Barabanki (countersigned by the Executive Engineer) indicating that the value of the construction was Rs. 18000 . The Assistant Engineer or the Executive Engineer were not examined before the Land Acquisition Officer nor were they examined before the District Judge. Their reports were rightly ignored by the District Judge who has, however, not decreed the claim for the whole of the amount claimed by the respondent but has reduced it to Rs. 24,000 as he was of the opinion that there was some boha fide mistake or overestimation. What was the mistake and in what manner had the Zila Parishad Engineer overestimated the value of the constructions, has not been indicated but the findings cannot be disturbed and the amount cannot be enhanced to Rs. 24,000 as he was of the opinion that there was some boha fide mistake or overestimation. What was the mistake and in what manner had the Zila Parishad Engineer overestimated the value of the constructions, has not been indicated but the findings cannot be disturbed and the amount cannot be enhanced to Rs. 25,286,87 as the respondent has not claimed in the appeal by filing crossobjections, in respect of this item that the value of he construction is Rs. 25,286.87. The respondent has also not assailed the findings of the District Judge before us on any ground whatsoever and, therefore, we confirm the findings on the question relating to the value of constructions. 21. The finding of the District Judge with regard to the value of the land in dispute has been seriously assailed before us. 22. From a perusal of the award made by the Land Acquisition Officer, it appears that there were four sale deeds which had been filed before him as exemplars. The first sale deed is dated 16,6.1969. It relates to plot no. 289 (area 7 biswa 4 biswansi) which was sold for Rs. 2500.00. The second sale deed related to plot no. I73(area 9 biswa 10 biswansi) which was sold for a sum of Rs. 2000 on 31.1.1970. The third sale deed, which was executed on 15 p. 1970, related to plot no. 282 and 283/1 (area 12 biswa 13 biswansi) for Rs;. 900 while the fourth sale deed related to plot no. 171 and 265/2 (area 1 bigha 6 biswa) which was sold for a sum of Rs. 2500 on 18.11.1971. 23. The first and the second sale deeds were ignored by the Land Acquisition Officer on the ground that they were remote as they were executed on 16.6.69 and 31.7.70 while the land was notified for acquisition on 6.13.1971. The sale deed said to be dated 31.1.1970 (although its date of execution is 27.1.1970) has been ignored on the additional ground that in the same year and in respect of the land situated in the same village another saledeed dated 15.6.70 (which, according to the District Judge, is dated 10.6.70) was executed for a lesser price. It is this sale deed which has been relied upon by the Land Acquisition Officer. 24. It is this sale deed which has been relied upon by the Land Acquisition Officer. 24. The fourth sale deed dated 18.11.1971 was ignored on the ground that it was executed after the date of notification under section 4. 25. The District Judge, in his judgment, his referred to three sale deeds namely, the sale deed dated 16.6.69 and 10.6.70 (mentioned as 15.6.70 by the Lund Acquisition Officer) referred to above and the sale deed dated 2.4.68 executed in respect of plot no. 201 (area 3 biswa) for Rs. 1000 in favour of one Sri Aditya Prasad Srivastava. The sale deed executed after the date of notification issued under section 4 of the Act was not considered, and in our opinion, rightly by the District Judge. 26. Evidence with regard to the quality of land was also available, on the record before the Land Acquisition Officer as also before the District Judge, both of whom have taken the said evidence into consideration. The Land Acquisition Officer, as stated above, had relied upon the sale deed dated 10.6.70 (She date has been mentioned by him as 15.6.70) by which an area of 12 biswa 13 biswansi were transferred for a sum of Rs. 900 only. The price indicated in this said sale deed was, however, explained by C.W. 1 Mathura Prasad who stated that the sale deed was hastily executed by his younger brother's widow to raise funds for the marriage of her daughter. In view of the fact that the price indicated in the sale deed dated 10.6.70 was proved to be inadequate, the District Judge did not act upon the said sale deed. He, however, relied upon the sale deed dated 2.4.68 executed in favour of Sri Aditya Prasad Srivastava by the respondent himself as also the sale deed dated 16.6.69. According to the findings recorded by the District Judge, the value of the land, on the basis of the sale deed dated 16.6.69, would come to about Rs. 340 per biswa while the value, calculated on the basis of the price indicated in the sale deed dated 2.4.68, would, come to about Rs. 333 per biswa. According to the findings recorded by the District Judge, the value of the land, on the basis of the sale deed dated 16.6.69, would come to about Rs. 340 per biswa while the value, calculated on the basis of the price indicated in the sale deed dated 2.4.68, would, come to about Rs. 333 per biswa. The District Judge separately calculated the value of the land on the basis of the price indicated in the two sale deeds and found that the value of the land calculated on the basis of the sale deed dated 16.6,69 would come to Rs. 83.980 while the value calculated on the basis of the sale deed dated 2.4.68 would come to Rs. 82,251.00. He then proceeded to fix the value of the land at Rs. 90,000. 27. The Standing Counsel stated that since the sale deed dated 2.4.68 had been executed by the respondent himself for a sum of Rs. 1000 in respect of 3 biswas of land, he cannot be awarded anything more than what he himself had obtained in respect of 3 biswas of land by executing the sale deed in favour of Sri Aditya Prasad Srivastava on 2.4.68. This cannot be accepted as the land, which had been transferred in favour of Sri Aditya Prasad Srivastava, was also the subject matter of Acquisition under the same notification under which respondent's land was acquired but the District Judge who decided Sri Srivastava's case on the same date on which respondent's case was decided, had awarded compensation at the rate of Rs. 500 per biswa to Sri Srivastava but at a lesser rate to respondent although the respondent ought also to have been awarded compensation at that rate particularly as Sri Srivastava's land which had been acquired under a common notification was contiguous to the respondent's land. 28. In order to substantiate his contention, counsel for the respondent had filed Civil Miscellaneous Case No. 157 (F)/87 through which he wanted to bring on record the judgment dated 31.5.74 passed by the District Judge in the case of Sri Aditya Prasad Srivastava in Misc. (nonconnected) Case No. 6 of 1974 as also the judgment dated 13.8.74 passed in Misc. (nonconnected) Case No. 4 of 1974 (Kallu Ram & others v. State of U.P. and others). In both the cases compensation has been awarded by the District Judge at the rate of Rs. (nonconnected) Case No. 6 of 1974 as also the judgment dated 13.8.74 passed in Misc. (nonconnected) Case No. 4 of 1974 (Kallu Ram & others v. State of U.P. and others). In both the cases compensation has been awarded by the District Judge at the rate of Rs. 500 per biswa. On this application the Court had passed the following order : An application has been filed today by the appellant under Order VII Rule 18 (1) for taking on record award passed in Misc. Case No. 4 of 1974 and Misc. Case No. 6 of 1974 passed by the District Judge, Barabanki. Learned Standing Counsel prays for and is allowed two weeks time to file an objection any document in rebuttal or counteraffidavit. The application shall come up for disposal along with first appeal after two weeks. 29. When the case was taken up today it was submitted by the counsel for the respondent that the application may be treated as an application filed under Order 41 Rule 27 CPC. 30. The Standing Counsel, inspite of notice and inspite of order of the Court passed on 24.4.1987, has not filed other objections or counteraffidavit to this application. In any case since the land of Aditya Prasad Srivastava, which previously belonged to the respondent and which, admittedly, is contiguous to the land in dispute, had been acquired under the same notifications under which respondent's land has been acquired, the document, namely, the judgment dated 21.5.74 passed by the District Judge in respect of the said land, would be an extremely relevant and material document for purposes of deciding the question of compensation payable in respect of the land in dispute and we would have allowed the said document to be brought on the record but for the fact that the crossobjections have already been dismissed by us on the application of the respondent himself. All that comes out from the above discussion is that the findings recorded by the District Judge on the question of valuation of the land in question does not require any interference even on the arguments raised by the Standing Counsel. We accordingly confirm the findings. 31. All that comes out from the above discussion is that the findings recorded by the District Judge on the question of valuation of the land in question does not require any interference even on the arguments raised by the Standing Counsel. We accordingly confirm the findings. 31. The next question relates to the award of Statutory Solatium and Interest at the enhanced rates on the ground that the relevant provision of the Act have undergone an amendment and the amended provisions would apply to the instant case also. 32. The Standing Counsel relying upon O.41 R. 2 CPC objected to the question being raised by the respondent on the ground that the respondent ought to have filed crossobjections for the enhancement of the amount of Solatium. Order 41 Rule 2 CPC provides as under : 2. Grounds which may be taken in appeal The appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal, but the appellate court, in deciding the appeal, shall not be confined to the grounds of objection set forth in the memorandum of appeal or taken by leave of the Court under this rule: Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground. 33. A perusal of the provisions quoted above would indicate that the appellant is to be confined to the grounds of appeal set forth in the memorandum of appeal & that he is prohibited under this Rule from being heard on a question not raised in the grounds of appeal. The Court can, however, in appropriate cases allow the appellant to raise or urge a ground not raised in the memorandum of appeal. Under Order 41 Rule 22 CPC the position of the respondent in the matter of crossobjection can be equated with that of the appellant and it can be urged that the respondent cannot be allowed to urge a ground not raised by him in the crossobjections except with the leave of the Court. (See AIR 1972 Cal 343 ; AIR 1977 Pat. 255 and AIR 1965 Pat. 29 ). 34. (See AIR 1972 Cal 343 ; AIR 1977 Pat. 255 and AIR 1965 Pat. 29 ). 34. The prohibition that the party cannot be permitted to urge a ground not raised in the memorandum of appeal or crossobjections does not apply to the Court as it is specifically provided by Rule 2 of Order 41 that the appellate court, in deciding the appeal, shall not be confined to the grounds of objection set forth in the memorandum of appeal or taken by leave of the Court under this Rule. The appellate court cannot, therefore, be confined to the points raised or taken in the memo of appeal or the crossobjections, it can legally base its decision on grounds other than those set forth in the memo of appeal or raised, with the leave of the Court, at the time of the hearing of the appeal. Rule 22 of Order 41 CPC does not destroy, rather it preserves, the power of the Court to raise a point suomotu. What is necessary in such cases is that the point raised by the Court suo motu must be purely one of law or a point which can be decided entirely on the basis of the evidence already on the record. 35. Apart from the above, where a substantive law is amended, it becomes the duty of the Court to implement, apply and enforce the law, as it exists, on the date of hearing unless a contrary intention is expressed by the Legislature. 36. The appeal is pending in this Court since 1974. The crossobjections were filed by the respondent on 2.12.1974. The amendments in question were introduced in the Act by Act No. 68 of 1984. There was, therefore, no occasion to raise this question in the crossobjections which, as pointed out earlier have already been dismissed on the application of the respondent himself as he gave up his claim for additional compensation over and above the amount determined by the District Judge for the land acquired by the State. 37. The question relating to the award of Solatium at the rate of 30% and interest @ 9% is a pure question of law which does not require any additional evidence to be taken or recorded for its determination. 37. The question relating to the award of Solatium at the rate of 30% and interest @ 9% is a pure question of law which does not require any additional evidence to be taken or recorded for its determination. If the provision relating to the award of Statutory Solatium under section 23 of the Act is held in its amended form to apply to the instant case, the petitioner will have to be awarded the Solatium at the enhanced rate notwithstanding that he had not claimed the Solatium at that rate in his claim filed under Section 9 of the Act. 38. Having regard to the above principles, we have allowed the counsel for the respondent to urge the question relating to the grant of Solatium and the interest at the enhanced rate particularly as the point also appears to be fully covered by a few decisions of the Supreme Court. 39. Subsection (2) of Section 23 of the Act contains the provisions for payment of Solatium on the market value of the property acquired for public purpose. The original subsection (2) of Section 23 provided that in addition to the market value of the land, the Court shall, in every case, award a sum of 15 per centum on such market value in consideration of the compulsory nature of acquisition. This provision was amended by Section 15 of Act No. 68 of 1984 and the words 30 per centum were substituted in place of 15 per centum. 40. By Section 18 of the Amending Act, namely, Act No. 68 of 1984, the provisions of Section 28 of the Act were also amended and for the words 6 per centum occurring therein the words 9 per centum were substituted. It may be stated that under Section 28 of the Principal Act it is open to the court to award interest if the sum which, in the opinion of the Court, the Collector ought to have awarded as compensation, was in excess of the sum which the Collector did actually award as compensation. The interest at the rate of 9 per centum is to be awarded on the excess amount from the date on which the Collector took possession to the date of the payment of the excess amount in Court. 41. The interest at the rate of 9 per centum is to be awarded on the excess amount from the date on which the Collector took possession to the date of the payment of the excess amount in Court. 41. The Standing Counsel has contended that since in the instant case, the award had been made prior to the coming into force of the Amending Act, the respondent is not entitled to be paid Solatium at the enhanced rate of 30 per centum nor is he enti'led to be paid interest at the rate of 9 per centum. We are not prepared to accept this contention. 42. Section 30 of Act No. 68 of 1984 provides as under : 30. Transitional Provisions (1) The provisions of subsection (1A) of section 23 of the principal Act, as inserted by clause (a) of section 15 of this Act, shall apply, and shall be deemed to have applied, also to, and in relation to, (a) every proceeding for the acquisition of any land under the principal Act pending on the 30th day of April, 1982 (the date of introduction of the Land Acquisition (Amendment) Bill, 1982, in the House of the People)in which no award has been made by the Collector before that date; (b) every proceeding for the acquisition of any land under the principal Act commenced after that date, whether or not an award has been made by the Collector before the date of Commencement of this Act. (2) The provisions of subsection (2) of Section 23 and Section 28 of the principal Act, as amended by clause (b) of Section 15 and Section 18 of this Act respectively, shall apply, and shall be deemed to have applied, also to and in relation to any award made by the Collector or Court or to any order passed by the High Court or Supreme Court in appeal against such award under the provisions of the principal Act after the 30 day of April. 1982(the date of introduction of the Land Acquisition (Amendment) Bill, 1982, in the House of the People) and before the commencement of this Act. 1982(the date of introduction of the Land Acquisition (Amendment) Bill, 1982, in the House of the People) and before the commencement of this Act. (3) The provisions of Section 34 of the principal Act, as amended by Section 20 of this Act, shall apply, and shall be deemed to have applied, also to, and in relation to (a) every case in which possession of any land acquired under the principal Act had been taken before the 30th day of April, 1982 (the date of introduction of the Land Acquisition (Amendment) Bill, 1982 in the House of People) and the amount of compensation for such acquisition had rut been paid or deposited under Section 31 of the Principal Act until such date, with effect on and from that date; and (b) every case in which such possession has been taken on or after that date but before the commencement of this Act without the amount of compensation having been paid or deposited under the said Section 31, with effect on and from the date of taking such possession. 43. The question as to what is the extent of the retrospectively given by the provisions contained in Section 30 (2) and the further question whether the amended provision contained in Section 23 (2) and Section 28 apply only to cases where an award has been made by the Collector or the Court on 30th April, 1982 or do they apply also to cases where an Award may have been made by the Collector or the Court prior to 30th April, 1982 but the proceedings by way of appeal were pending in the High Court or the Supreme Court on 30th April, 1982, have already been considered by the Supreme Court on three occasions and the answers given by the Supreme Court are that the amended provisions would apply to even those awards which were made prior to the coming into force of the Amending Act provided the proceedings relating to the said award were pending in the Court. 44. In K. Kamalajammanmavaru v. The Special Acquisition Officer (AIR. 1985 SC 576) the view taken by the Supreme Court was that the amended provisions of the Act would not apply to an award made prior to 30th April, 1982. 44. In K. Kamalajammanmavaru v. The Special Acquisition Officer (AIR. 1985 SC 576) the view taken by the Supreme Court was that the amended provisions of the Act would not apply to an award made prior to 30th April, 1982. This view was, however, not accepted in a later decision in State of Punjab v. Mohinder Singh and another (Civil Appeal No. 3267 of 1979) decided on 1.5.1985 which has since been reported in AIR 1987 SC 758 . Both these decisions were considered by the Supreme Court in Bhag Singh and others v. Union Territory of Chandigarh ( AIR 1985 SC 1576 ) and the view expressed in the second case, namely, in the case of State of Punjab v. Mohinder Singh (supra) was followed. 45. In view of the above decisions, the amended provisions of the Act have to be applied to the instant case as, on the date of commencement of the Amending Act, the present appeal was pending in this Court which is bound to give effect to the amended provisions of Section 23 (2) and Section 28. 46. The petitioner has, therefore, to be awarded solatium at the rate of 30 per centum on the amount in excess of the amount awarded by the land Acquisition Officer. He is also to be awarded interest at the rate of 9 per centum from the date the possession was taken over by the Collector till the date of actual payment of the excess amount. 47. The respondent has filed Civil Miscellaneous Application No. 343 (F) of 1987 in this Court in which he has indicated the details of the amount payable to him under the amended provisions of the Act. Copy of this application was given to the Standing Counsel on 27.8.87 but till this date no counter affidavit or objection has been filed on behalf of the State which is the appellant before us. 48. Since the crossobjections filed by the respondent have been dismissed as not pressed by a separate order passed on the respondent's own application, the question of payment of solatium at the rate of 30 per centum has to be considered only in respect of the amount awarded by the District Judge. 49. Since the District Judge has awarded a sum of Rs. 49. Since the District Judge has awarded a sum of Rs. 1,36,000 to the respondent, he is entitled to a solatium at the rate of 30 per centum on this amount as consideration for compulsory nature of acquisition as provided by Section 23 (2) of the Act. The amount of solatium is worked out to be Rs. 40.800. The total amount to which the respondent is entitled would thus be Rs. 1,76,800. 50. Let us now consider the question of payment of interest at the rate of 9 per centum as contemplated by Section 28 of the Act as amended by Act No. 68 of 1984, 51. Under Section 28 of the Act the interest is to be awarded on the amount in excess of the amount determined by the Land Acquisition Officer. 52. While determining and awarding interest, the following factors have to be borne in mind (a) The Land Acquisition Officer had determined an amount of Rs. 70,775.15 as compensation payable to the respondent which, however, was enhanced to Rs. 1,56,400 (including solatium at the rate of 15%) by the District Judge. (b) In view of the amended provisions of Section 23 (2) of the Act, the amount of solatium has been increased and consequently the amount of compensation payable to the petitioner has also increased inasmuch as the respondent has now been found entitled to a sum of Rs. 1,76,800 as compensation for the land in question. (c) The possession over the property in question was taken over by the Collector on 16.5.73. (d) An amount of Rs. 1,72,946.02 was paid in this Court on 3.1.76 in pursuance of the Court's order dated 2.1.75 out of which a sum of Rs. 1,00,063.74 has already been paid to the respondent on 20.7.76. 53. In view of the amended provisions of the Act, the Collector has to pay interest to the respondent at the rate of 9 per centum. The Collector shall calculate, determine and pay the amount of interest to the respondent in the light of the factors enumerated above. The balance amount lying in deposit in this Court shall be withdrawn by the respondent and shall be adjusted towards the amount of compensation payable to him. 54. Subject to the above the appeal is dismissed. The bank guarantee furnished by the respondent at the time of withdrawal of Rs. The balance amount lying in deposit in this Court shall be withdrawn by the respondent and shall be adjusted towards the amount of compensation payable to him. 54. Subject to the above the appeal is dismissed. The bank guarantee furnished by the respondent at the time of withdrawal of Rs. 1,00,563.74 shall not be enforced against him, if it is alive. There will be no order as to costs. (Appeal dismissed)