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2017 DIGILAW 870 (CAL)

State of West Bengal v. Sanjoy Kumar Pal

2017-11-13

SABYASACHI BHATTACHARYYA, SANJIB BANERJEE

body2017
JUDGMENT Sabyasachi Bhattacharyya, J. 1. This appeal is at the instance of the State, against a judgment passed on a reference under Section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as "the said Act"). The reference was undertaken at the instance of one Benukar Pal (since deceased), who had prayed for getting compensation at a value higher than that awarded by the Collector, which was Rs. 19,247/-, with solatium, additional compensation, interest as per law since 1975-1976. In course of the proceedings, the said Benukar expired and the present respondent No. 1, being the son of the deceased, was substituted in place of the deceased. 2. The first ground urged by the State-appellant is that the Additional District Judge, while sitting in reference under Section 18 of the said Act, awarded compensation in favour of the petitioner, being the predecessor-in-interest of the present respondent No. 1, from the date of possession. For arriving at such decision, the Court below proceeded on the premise that the acquisition of the land in question was made under Act II initially in the year 1975-76, which was subsequently "regularized" by virtue of the Amendment Act of 1997 of the said Act, while, in the same breath, coming to the finding that a fresh notification under Section 9(3A) of the said Act had been issued on March 11, 2003. In support of the aforesaid decision, the Referee Judge took into consideration certain extraneous factors, being other judgments passed in different LA cases having no connection with the instant lis. According to counsel for the appellant, it is an admitted position that in the instant case a fresh notice had been issued on March 11, 2003, and the Court below found so. Counsel for the appellant cites Section 9(3A), as introduced by the West Bengal Amendment of 1997 of the said Act, in particular the first proviso thereto, to point out that the date of notice for taking possession as contemplated therein shall be the date of reference for the purpose of determining the value of such land under the Act. 3. Counsel for the appellant cites Section 9(3A), as introduced by the West Bengal Amendment of 1997 of the said Act, in particular the first proviso thereto, to point out that the date of notice for taking possession as contemplated therein shall be the date of reference for the purpose of determining the value of such land under the Act. 3. He next places Section 23(1A) of the said Act, which provides that, in addition to the market value of the land, the Court shall in every case award an amount calculated at the rate of 12 per centum per annum on such market value for the period commencing the date of publication of the notification under Section 4(1) of the said Act in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. He submits that in case of the continuation of old land acquisition proceedings by 'regularization', Section 23(1A) operates and the relevant starting point for calculation of compensation is the date of notice of possession. However, in the case of a fresh notification as in the present matter, Section 9(3A) holds the field and compensation is to be computed from the date of the notification and not from the notice of possession. Counsel for the appellant cites in support of this proposition the case of Siddappa Vasappa Kuri & Anr. vs. Special Land Acquisition Officer & Anr. reported at (2002) 1 SCC 142 . While discussing the provisions of the said Act, the Supreme Court has held in the said judgment that it is clear from Section 23(1A) that the starting point for the purpose of calculating the amount to be awarded thereunder at the rate of 12 per centum per annum on the market value is the date of publication of the notification under Section 4 of the Act. In that case, possession of the land had been taken prior to the publication of the Section 4 notification. 4. The next point urged by the appellant is that the Court below also granted compensation of Rs. 2 lakh for a purported two-storied pucca structure standing on the acquired land. However, he submits, the existence of such structure finds a reference only in the oral evidence adduced on behalf of the claimant/respondent No. 1. 4. The next point urged by the appellant is that the Court below also granted compensation of Rs. 2 lakh for a purported two-storied pucca structure standing on the acquired land. However, he submits, the existence of such structure finds a reference only in the oral evidence adduced on behalf of the claimant/respondent No. 1. There is not a scrap of paper in support of the allegation that there were structures on the property in dispute. 5. Counsel for the appellant further points out that the claimant's witness No. 1 (PW. 1) tendered his examination-in-chief on affidavit on November 17, 2008, when he said his age was 37 years. Therefore, by necessary implication, the said witness was aged about 4-5 years in the year 1976 and, as such, his testimony as to the existence of any structure on the suit land at that juncture could not be credible. Pointing out the evidence of PW. 2, who corroborated the evidence of PW. 1 in support of the existence of some structure on the suit land, learned Counsel argues that necessary counter suggestions were made to the said witness to controvert his statement as to the existence of structure. As such, counsel for the appellant submits that the Court below erred in arriving at the perverse finding that there was some structure on the suit land, which is based on no credible evidence, to grant Rs. 2 lakh as compensation for such alleged structure. 6. Counsel for the appellant further submits that the assessment of compensation for the structure is based on no yardstick or scientific method but is entirely based on conjecture. 7. The claimant/respondent No. 1, who is the heir of the original claimant (since deceased), apart from controverting the arguments advanced by the appellant, also submits in support of his cross-objection that the Court below did not consider two contemporaneous deeds relating to Sali lands in the vicinity of the suit land, certified copies of which were tendered by the PW. 1 in the Court below but were, unfortunately, not marked as exhibits. 8. Counsel for the respondent No. 1 fairly admits that the present matter did not relate to the continuation or regularization of any old proceedings but arose from a fresh notice under Section 9(3A) of the said Act (as per West Bengal amendment). 1 in the Court below but were, unfortunately, not marked as exhibits. 8. Counsel for the respondent No. 1 fairly admits that the present matter did not relate to the continuation or regularization of any old proceedings but arose from a fresh notice under Section 9(3A) of the said Act (as per West Bengal amendment). He acknowledges the proposition of law that compensation is to be granted at the rate of 12% per annum from the date of notification and not from the date of the notice of possession. However, he submits that it is clear from the records that the relevant land acquisition case number initially referred to the year 1975-76, which is evident from relevant communication which are part of records, in particular, from the connected Form-16 as well as the reference itself. As such, counsel argues, it is evident that originally a notification in terms of Section 4 of the said Act had been published in respect of the suit land in 1975-1976. As such, possession was obviously taken during the said period. This, according to him, is also borne out by the relevant Form-13 and the claimant's application under Section 18 of the said Act itself. As such, damages ought to have been awarded in favour of the claimant since 1975-76, that is, the date of possession, at the rate of 15% as has been decided by the Supreme Court in certain cases. In this context, counsel for the respondent No. 1 cites the following judgments:- (I) Madishetti Bala Ramul (dead) By LRS vs. Land Acquisition Officer reported at (2007) 9 SCC 650 ; (II) Tahera Khotoon & Ors. vs. Revenue Divisional Officer/Land Acquisition Officer & Ors. reported at (2014) 13 SCC 613 ; (III) Balwan Singh & Ors. vs. Land Acquisition Collector & Anr. reported at AIR 2016 SC 1565 . 9. In Madishetti's case (supra), the Supreme Court, relying on R.L. Jain vs. DDA reported at (2004) 4 SCC 79 , held that the Land Acquisition Officer had taken possession of a land on the basis of a notification which did not survive. The respondents could not have continued to hold possession of the land despite abatement of the proceedings under the 1894 Act. The respondents could not have continued to hold possession of the land despite abatement of the proceedings under the 1894 Act. In the said context, the matter was remanded back to the Collector to determine the amount of compensation to which the appellants would be entitled for having remained out of possession since 1979. A direction was given that additional interest at the rate of 15% per annum on the amount awarded should be granted, which would meet the ends of justice. 10. In Tahera Khotoon, it was also held that the State Government was to pay rent/damages at the rate of 15% on the compensation awarded from the date the land-owners were dispossessed till the date of the issuance of the preliminary notification. 11. The same view was followed in Balwan Singh vs. Land Acquisition Collector & Anr. 12. Counsel for the respondent No. 1 further submits that after so many years, the valuation of the structure could not be assessed on any objective standard since all relevant trace thereof had been lost by the passage of time due to the laches of the Government in retaining possession for so long without initiating fresh acquisition proceedings till 2002-03. 13. As to the existence of the structure, the respondent No. 1 relies on his own oral evidence as well as the stand of the Government itself that at least an abandoned two-storied mud-built house, if not a pucca structure, existed on the suit land. Such stand of the Government is reflected from the photocopy of a report submitted by the concerned Sub-Assistant Engineer, Katwa Section-II, PWD dated February 21, 2002, which was produced by the Government pleader at the time of argument before the Court below. The said fact is mentioned in the impugned judgment itself. Hence, the respondent No. 1 submits that the existence of a two-storied structure on the suit land cannot now be denied by the State-appellant. 14. Apart from oral evidence of PW. 1 being not controverted properly by putting relevant counter-suggestions in cross-examination, the respondent No. 1 submits that the Government itself had admitted the existence of a two-storied mud structure on the suit property. 14. Apart from oral evidence of PW. 1 being not controverted properly by putting relevant counter-suggestions in cross-examination, the respondent No. 1 submits that the Government itself had admitted the existence of a two-storied mud structure on the suit property. It is the further submission of the respondent No. 1 that after demolition of the structure by the Government long back and due to the lapse of time, there is no way of proving whether there was existence of any structure on the suit land at the relevant point of time. 15. As regards the Court below having discarded certified copies of contemporaneous sale deeds, the claimant/respondent No. 1 submits that under Section 51A of the said Act, the Court was mandated to look into the said deeds. In support of this proposition, counsel for the respondents cites a judgment of Cement Corporation of India Ltd. vs. Purya & Ors. reported at AIR 2004 SC 4830 . It was held in the said judgment, inter alia, that the object of Section 51A of the Act is not only to permit the production of certified copy of the sale transaction but also to enable the party producing the certified copy of a sale transaction to rely on the contents of the documents without having to examine the vendee or the vendor of that document. Counsel further submits that since two deeds, certified copies of which were produced in the Court below, relate to Sali lands, whereas the suit property is Bastu land, the latter had to have a higher valuation in view of the structures thereon. He also points out that despite the certified copies of the deeds in question having been tendered by the PW. 1, those were not marked as exhibits by mistake; as such, the appellant could not be said to have been taken by surprise by production of such documents. Counsel for the respondents submits further that the said deeds relate to the same mouza as the suit land and therefore have direct bearing on the assessment of valuation of the land. In this context, he cites the judgment of M/s. Mahamsa Gen Finance Co. Ltd. vs. State of UP & Ors. reported at AIR 2014 SC (Supp) 1992. Counsel for the respondents submits further that the said deeds relate to the same mouza as the suit land and therefore have direct bearing on the assessment of valuation of the land. In this context, he cites the judgment of M/s. Mahamsa Gen Finance Co. Ltd. vs. State of UP & Ors. reported at AIR 2014 SC (Supp) 1992. In the said judgment, it was held that transaction effected by sale deeds in respect of land in vicinity of the land acquired must receive due consideration in determination of compensation payable. Counsel further cites the case of Ali Mohammad Beigh & Ors. vs. State of J & K reported at AIR 2017 SC 1518 . The proposition laid down in the said judgment is that in determination of compensation under the Jammu & Kashmir Land Acquisition Act, valuation of land situated in nearby villages, identical and similar, can also be considered. 16. Counsel for the respondent No. 1 then submits that the burden of proof on the claimants was nominal and could be discharged by slight evidence where the Collector, in making the reference, did not state the basis of his valuation. In support of such proposition learned Counsel cites State of West Bengal vs. Secretary, Union Club, Purulia reported at AIR 1972 Cal 225 . 17. Counsel for the respondent No. 1 next relies on the provisions of Section 25 of the said Act and argues that although Sub-Section (2) thereof, which precluded Courts from granting more compensation than claimed, has been deleted by the 1984 Amendment of the said Act, Sub-Section (1), which provides that Courts can award more than Collector's assessment, has however, been retained. This, he submits, is an indicator of the scheme of the Act favouring wide powers of the Court in granting compensation. The respondent No. 1 also relies on the judgment of Ashok & Anr. Vs. State of Haryana reported at (2016) 4 SCC 544 for the above proposition. 18. It is next submitted by the respondent No. 1 that apparently the cut-off date of March 11, 2003 relied on by the Court below, for determination of the compensation, was taken on the basis of the notification under Section 4 of the said Act. 19. Vs. State of Haryana reported at (2016) 4 SCC 544 for the above proposition. 18. It is next submitted by the respondent No. 1 that apparently the cut-off date of March 11, 2003 relied on by the Court below, for determination of the compensation, was taken on the basis of the notification under Section 4 of the said Act. 19. Learned counsel for the respondent No. 1 next cites the judgment of Sunder vs. Union of India reported at (2001) 7 SCC 211 for the proposition that a person, who is entitled to compensation is also entitled to get interest on the aggregate amount including solatium. The said judgment was rendered inter alia on Section 34 of the said Act and it was held, relying on the proviso thereto, that it was inconceivable that the solatium amount would attract only the escalated rate of interest from the expiry of one year and that there would be no interest on solatium during the preceding period. 20. Learned Counsel also cites the judgment of Mehrawal Khewaji Trust (Registered) Faridkot & Ors. vs. State of Punjab & Ors. reported at (2012) 5 SCC 432 , which laid down, relying on Sunder's case, that the interest awardable under Section 28 of the said Act would include within its ambit both the market value and the statutory solatium. It was thus reiterated that the person entitled to the compensation awarded is also entitled to get interest on the aggregate amount including solatium. Relying on a subsequent Constitution Bench judgment in Gurprit Singh vs. Union of India reported at [ (2006) 8 SCC 457], it was further held that the claimants would be entitled to interest on solatium and additional market value if the award of the reference Court or that of the Appellate Court does not specifically refer to the question of interest on solatium and additional market value or where the claim had not been rejected either expressly or impliedly. In conclusion, learned counsel for the respondent No. 1 relies on the certified copies of the contemporaneous sale deeds to show that one of the deeds, of the year 2000, fixed the value of land in the same mouza as the suit land at Rs. 28,000/- per satak (decimal). The other deed, of the year 2002, fixed such value at Rs. 21,000/- per satak (decimal). 28,000/- per satak (decimal). The other deed, of the year 2002, fixed such value at Rs. 21,000/- per satak (decimal). As both the said deeds were executed in respect of Sali lands and the present suit property is a Bastu land, it is submitted by the respondent No. 1 that the valuation of the suit land would be much higher than the properties covered by the said two deeds. 21. In reply, learned counsel for the appellant submits that in spite of the respondent No. 1 being vociferous in claiming damages from a period prior to notification and for other statutory benefits, such claims do not find place in the pleadings of the claimant in the Court below. As a result, there is no reflection of such points and/or specific issues thereon in the decision of the Court below. Counsel further argues that the deeds, certified copies of which were produced in the Court below, are not comparable with the suit plot, since the latter is located adjacent to a kutcha village road while the subject matter of the said deeds are located in a much better neighbourhood, adjacent to a railway track and other amenities. The learned counsel seeks to draw an overall distinction with the judgment cited on the ground that pleadings of damages and/or additional benefits are absent in the present case. In this context, he relies on the judgment of Bachhaj Nahar vs. Nilima Mandal & Anr. reported at (2008) 17 SCC 491 , wherein it was held: "10. The High Court, in this case, in its obvious zeal to cut delay and hardship that may ensue by relegating the plaintiffs to one more round of litigation, has rendered a judgment which violates several fundamental rules of civil procedure. The rules breached are: (i) No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and which was not the subject-matter of an issue, cannot be decided by the court. (ii) A court cannot make out a case not pleaded. The court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint. (ii) A court cannot make out a case not pleaded. The court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint. (iii) A factual issue cannot be raised or considered for the first time in a second appeal." 22. Upon hearing the submissions of both sides and considering the pleadings and evidence on record, this Court has arrived at the following DECISION 23. Regarding the entitlement of the respondent No. 1 to get compensation since his predecessor's dispossession in 1975-76, it is virtually admitted by the respondent No. 1 that the land acquisition proceeding from which the instant appeal arises is a fresh proceeding, initiated only in 2002-2003. As such, the starting point of assessment of compensation cannot be the date of dispossession or the initial notice under Section 4 of the said Act, but has to be with reference to the date of the fresh notification. However, the respondent No. 1 has staked claim by way of damages, and not compensation, for the period between his predecessor's dispossession or Section 4 notice of 1975-1976 and the issuance of fresh notice, at the rate of 15 per cent per annum. 24. In R.L. Jain, on which Madishetti relies, the provisions of Section 48 of the said Act were considered. Madishetti affirmed the reference court's adjudication of additional interest at the rate of 15 % per annum, although no clear rationale was given to justify that particular rate. Tahera Khatoon followed suit and granted rents/damages at the rate of 15 % from the date of dispossession. This view was in turn followed in Balwan Singh where damages were awarded at the same rate, that is, 15 % per annum. 25. In the cited judgments, the Supreme Court has unequivocally laid down the law that the claimant is entitled to rent and/or damages from the date of dispossession till the notification. However, the cited judgments cannot be considered as precedent in respect of rate of interest. Although in almost all the said judgments damages have been granted at the rate of 15 %, the rate of interest was not a contentious issue in the said cases, nor was any ratio given for arriving at that particular rate and no other. However, the cited judgments cannot be considered as precedent in respect of rate of interest. Although in almost all the said judgments damages have been granted at the rate of 15 %, the rate of interest was not a contentious issue in the said cases, nor was any ratio given for arriving at that particular rate and no other. Therefore, this Court ought first to address the issue as to what rate is to be applied for the damages under consideration. 26. What was, however, considered in R.L. Jain was Section 48 of the said Act. 27. Section 48 of the Land Acquisition Act, 1894 reads thus: "48. Completion of acquisition not compulsory, but compensation to be awarded when not completed. - (1) Except in the case provided for in section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken. (2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonable incurred by him in the prosecution of the proceedings under the Act relating to the said land. (3) The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section." 28. Applying the principle embodied in this section to cases where the government fails to follow up its initial notification under Section 4 of the said Act and subsequently, after keeping the owner/occupier dispossessed for some time, initiates fresh proceedings for acquisition, we can resort to Part III of the Act to search out a yardstick for determining the rate of damages. 29. This enquiry takes us to Sections 23 and 28 of the said Act which is are as follows: "23. Matters to be considered in determining compensation. 29. This enquiry takes us to Sections 23 and 28 of the said Act which is are as follows: "23. Matters to be considered in determining compensation. - (1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration- First, the market value of the land at the date of the publication of the notification under section 4, sub-section (1); Secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof; thirdly, the damage (if any), sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land; fourthly, the damage (if any), sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings; fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land. (1A) In addition to the market value of the land, as above provided, the Court shall in every case award an amount calculated at the rate of twelve per centum per annum on such market value for the period commencing on and from the date of the publication of the notification under section 4, sub-section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. Explanation. - In computing the period referred to in this sub-section, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded. Explanation. - In computing the period referred to in this sub-section, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded. (2) In addition to the market-value of the land as above provided, the Court shall in every case award a sum of thirty per centum on such market-value, in consideration of the compulsory nature of the acquisition." "28. Collector may be directed to pay interest on excess compensation. - If the sum which, in the opinion of the Court, the Collector ought to have awarded as compensation is in excess of the sum which the Collector did award as compensation, the award of the Court may direct that the Collector shall pay interest on such excess at the rate of nine per centum per annum from the date on which he took possession of the land to the date of payment of such excess into Court: Provided that the award of the Court may also direct that where such excess or any part thereof is paid into Court after the date of expiry of a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date of expiry of the said period of one year on the amount of such excess or part thereof which has not been paid into Court before the date of such expiry." 30. An examination of the provisions embodied in Sections 23 and 28 of the said Act reveals that the former is more suited than the latter to furnish the modality of assessment of damages for the present scenario, that is, from the period of dispossession till the fresh notification. As such, 12 per centum per annum on the compensation granted is a reasonable and workable rate for calculating the damages for the aforementioned period. 31. This apart, the power of granting damages even outside the modality of the Land Acquisition Act, 1894 is inherent in civil courts. As such, 12 per centum per annum on the compensation granted is a reasonable and workable rate for calculating the damages for the aforementioned period. 31. This apart, the power of granting damages even outside the modality of the Land Acquisition Act, 1894 is inherent in civil courts. The reference under Section 18 of the said Act is to the 'Court' which has been defined in Section 3(d) of the Act as a principal Civil Court of original jurisdiction or, on appointment by the appropriate government, a special judicial officer to perform functions of the Court under this Act. Again, Section 53 of the said Act applies the Code of Civil Procedure to proceedings before the Court, unless inconsistent with the provisions of the Act. This apart, Section 26(2) elevates an award under Part III of the Act to the pedestal of a deemed decree and the statement of the grounds of an award to a judgment within the meaning of Section 2, clauses (2) and (9) respectively of the Code of Civil Procedure. This empowers the reference Court under Section 18 to grant damages befitting a civil court, unless such grant is de hors the Act itself. 32. In fact the referee court below awarded 12 per centum per annum from the date of dispossession, although on the misconception that compensation is awardable from such date. Since, taking a cue from Section 23(1A) read with Section 48 of the said Act, we opine that damages are awardable at the same rate from the date of dispossession, there is no need for interference with the referee Court's award on that score and the same is affirmed, though on a different ground than that given by the Court below. 33. It is to be noted that this Court is conscious of the fact that damages from dispossession till fresh notification is beyond the cross objection filed by the claimants and not pleaded in great detail by the claimants in the reference sought at their instance. 33. It is to be noted that this Court is conscious of the fact that damages from dispossession till fresh notification is beyond the cross objection filed by the claimants and not pleaded in great detail by the claimants in the reference sought at their instance. However, in view of the provisions of Order 41 Rule 33 of the Code of Civil Procedure, which is applicable by dint of Section 53 of the Land Acquisition Act, 1894, coupled with the deletion of sub-section (2) of Section 25 of the Land Acquisition Act, 1894 by the 1984 amendment, we are of the opinion that both the reference Court and this Court, sitting in appeal, have ample power to consider such question. 34. Next considering the claim of the claimant/respondent No. 1 for compensation in respect of structure, apart from oral evidence of the two claimant's witnesses there is no evidence at all that there was a permanent structure, as contemplated in the said Act, on the suit land. A mud building, as alleged in a report apparently produced in the Court below, cannot be an indicator of the existence of a permanent structure without any further proof as to the details and contours of such purported structure. This apart, the evidence of P.W. 1 cannot be lent much credence to in view of the age of the said witness being about 4-5 years at the relevant juncture as per his own statements. The standalone oral evidence of P.W. 2, an alleged neighbour, is not so credible to establish the existence of any structure, let alone the exact nature of such structure, without any further evidence to enable the Court to grant a quantified compensation on that. Hence the grievance of the Appellant is justified and the judgment and decree impugned herein, insofar as those relate to compensation for structure, cannot but be set aside. 35. As to the valuation of the suit property at the relevant period, certified copies of two deeds of the years 2000 and 2002 respectively are relied on by the claimants, which are more or less contemporaneous with the notification giving rise to the present proceeding. 35. As to the valuation of the suit property at the relevant period, certified copies of two deeds of the years 2000 and 2002 respectively are relied on by the claimants, which are more or less contemporaneous with the notification giving rise to the present proceeding. Although such copies were technically not exhibited, those were tendered to a witness and also carry a high evidentiary value in view of the provisions of Section 51A of said Act; more so as the onus of the claimants is nominal since the Government has not established that it had evaluated the property on the basis of contemporaneous deeds, as held in the Division Bench judgment of this Court in State of West Bengal vs. Secretary, Union Club, Purulia. 36. Such view is also bolstered by the ratio laid down by the Supreme Court in Cement Corporation case supra. 37. Undoubtedly the location of the suit plot on the one hand and the property covered by the said contemporaneous deeds on the other are within the same mouza; but the similarity owing to such physical proximity is somewhat offset by the situational advantage otherwise available to the latter. The subject-matters of the said two deeds are situated near railway tracks and are butted by metalled roads, whereas the suit property is in a more interior neighbourhood, adjacent to a village road. However, the two contemporaneous deeds relate to Sali lands but the suit property is a Bastu land, which is perceived to be more valuable. As such the antithesis of the three factors, on the one hand proximal location within the same Mouza coupled with Bastu nature of the suit land, and on the other the disparate amenities in the respective neighborhoods, can be deemed to cancel out each other. Hence the average valuation of Rs. 24,000/- per decimal (satak), arrived at by taking the approximate mean of the value of the properties transferred by the said two contemporaneous deeds, would be a fair measure in evaluating the suit property at the time of notification. 38. As such we hold that the valuation of the suit property, albeit without taking into consideration any structure, is to be assessed at the rate of Rs. 24,000/- per satak (decimal), which comes to Rs. 96,000/- for the suit property, which measures about 4 sataks (decimals), that is, 0.04 acres. 39. 38. As such we hold that the valuation of the suit property, albeit without taking into consideration any structure, is to be assessed at the rate of Rs. 24,000/- per satak (decimal), which comes to Rs. 96,000/- for the suit property, which measures about 4 sataks (decimals), that is, 0.04 acres. 39. The rest of the impugned judgment and decree, however, call for no interference insofar as the grant of solatium at the rate of 30% on the amount in excess of the amount awarded by the Land Acquisition Collector, the grant of 12% per annum on the value of the land for the period commencing on and from the date of taking possession of the land to the date immediate before the date of issue of notice under Section 9(3A) of the Act (as per West Bengal amendment), and the grant of interest at the rate of 12% per annum on the market value of the land, as assessed herein, from the date of issue of notice under Section 9(3A) of the said Act (as per West Bengal amendment) to the date of the award and at the rate of 15% per annum from the date of award till payment in the reference court, are concerned. 40. Hence it is hereby ORDERED 41. That the present appeal, bearing F.A. No. 4 of 2013 is partially allowed and the cross objection arising therefrom, bearing C.O.T. No. 27 of 2014, is allowed, thereby modifying the judgment and decree passed by the Additional District Judge, Second Court at Burdwan, District: Burdwan in L.A. Case Nos. 29/36 of 2007/2005 as follows: 42. The market price of the suit land measuring about 0.04 acres, which has been acquired by the State-Appellant, is fixed at Rs. 96,000/- (Rupees Ninety-Six Thousand Only) [at the rate of Rs. 24,000/- per decimal]. 43. The impugned judgment and decree, so far as those relate to compensation on alleged structure, is hereby set aside. As a consequence, the Claimants/Respondents/Cross-Objectors will get no compensation on structure. 44. The Claimants/Respondents/Cross-Objectors are also entitled to get solatium at the rate of 30% on the amount in excess of the amount awarded by the L.A. Collector. 45. 43. The impugned judgment and decree, so far as those relate to compensation on alleged structure, is hereby set aside. As a consequence, the Claimants/Respondents/Cross-Objectors will get no compensation on structure. 44. The Claimants/Respondents/Cross-Objectors are also entitled to get solatium at the rate of 30% on the amount in excess of the amount awarded by the L.A. Collector. 45. The Claimants/Respondents/Cross-Objectors are further entitled to get damages at the rate of 12% per annum on the value of the land, as fixed above, from the date of taking possession of the suit land to the date immediate before the date of issuance of notice in respect of such land under Section 9(3A) of the Land Acquisition Act, 1894 (as amended in West Bengal). 46. The Claimants/Respondents/Cross-Objectors are also entitled to get interest at the rate of 12% per annum on the market value of the land, as fixed above, from the date of issuance of notice under Section 9(3A) of the Land Acquisition Act, 1894 (as amended in West Bengal) to the date of award of the L.A. Collector and at the rate of 15 % per annum from the date of award till payment in the court. 47. The L.A. Collector, Burdwan is hereby directed to make over payment of the excess amount of damages, compensation, interest and all statutory benefits awarded herein, within 60 days from the instant (appellate) judgment and decree. 48. However, it is made clear that the aforementioned payments will be adjusted with any amount that the Claimants/Respondents/Cross-Objectors have already withdrawn pursuant to any order/orders passed in the present first appeal, such withdrawn amounts being deducted from the payables. 49. Since the appeal (partially) and the cross-objection succeed to varying extents, there will be no decree as to costs. 50. Let the lower Court records be sent down. Sanjib Banerjee, J. I agree.