JUDGMENT : I.P. Mukerji, J. 1. The above appeal was heard by a division bench comprising of the Hon’ble Mr. Justice Harish Tandon and the Hon’ble Mr. Justice A. Gangopadhyay. Their lordships delivered separate judgments on 19th August, 2020. They differed. Basically, the difference was on two points. Whether the respondent/cross objector was entitled to get compensation in the form of interest from 4th November, 1959 to the date of the notification under Section 4 of the Land Acquisition Act, 1994 i.e. 21st July, 2006? Secondly, whether for the purpose of valuation the subject land was to be valued at Rs.42,42,424/-per acre or Rs.35,79,973.66/-per acre? 2. Whereas Mr. Justice Tandon was of the view that compensation was payable for the aforesaid period, Mr. Justice Gangopadhyay opined that compensation was not payable. Mr. Justice Tandon valued the land at Rs.42,42,424/-per acre whereas according to Mr. Justice Gangopadhyay it was Rs.35,79,973.66/-per acre. 3. These points of difference having arisen, the said bench referred the matter to the Hon’ble the Chief Justice for an appropriate order. 4. By his order dated 10th March, 2021, the Hon’ble the Chief Justice referred the matter to me as the third judge. 5. Being the third judge, my jurisdiction as I perceive it, is either to agree with the view of Mr. Justice Tandon or with the view of Mr. Justice Gangopadhyay on each of the above two issues. By the nature of the reference, there is no scope of my partly agreeing with one view and partly not or expressing a third view in the matter. 6. The facts are important and need to be stated shortly but sufficiently. The state government had proposed to acquire the subject shali and danga land at Mouza Noapara, P.S. – Noapara under the West Bengal Land Development Planning Act, 1948. The purpose was to create a colony for squatters who were occupying the area as immigrants from erstwhile East Pakistan. The proposal was to name it Noapara Scheme-II Post Squatters Colony. 7. The material date is 4th November, 1959 when the government is said to have taken possession of the land. 8. It appears that proceedings under the said Act were not undertaken and the land was left like that with the Refugee Relief and Rehabilitation department of the government. 9. 7. The material date is 4th November, 1959 when the government is said to have taken possession of the land. 8. It appears that proceedings under the said Act were not undertaken and the land was left like that with the Refugee Relief and Rehabilitation department of the government. 9. After court proceedings were initiated by the respondent/cross objector, a fresh proceeding for acquisition under Section 4 of the Land Acquisition Act, 1894 was started. On 21st July, 2006 the notification under Section 4 of the said Act was published. On 20th August, 2008 the Collector published his award. 10. The respondent/cross objector did not accept the award and challenged the same by way of a reference case before the learned Land Acquisition Judge, 3rd Additional District Judge, Barasat. The learned court delivered its judgment on 14th November, 2014 enhancing the valuation of the acquired land. He also allowed interest @ 9% per annum on the total amount of compensation for 1 year from the date of taking possession and thereafter @ 15% per annum till payment. The court assessed the valuation at Rs.34,03,105/-per acre by the average method. 11. The State was not satisfied with this award and filed an application for review which was dismissed by the court on 12th March, 2015. Thereafter, the judgment and decree of the learned District Court dated 14th November, 2014 was appealed against before this court. 12. One issue can be resolved without much difficulty. 13. It relates to the period for which the respondent/cross objector would get interest on the compensation received by them. 14. At the outset, I may note that the date of taking possession of the subject land by the government was admittedly 4th November, 1959. Mr. Justice Tandon has noted that in his judgment. During the course of arguments before me, it was not the case of the appellant State that they had not taken possession of the property on the aforesaid date or had taken its possession at a later date or not taken possession at all. This recording of fact by the learned judge was not disputed by the State during the course of its arguments. 15. I do not know on what basis Mr. This recording of fact by the learned judge was not disputed by the State during the course of its arguments. 15. I do not know on what basis Mr. Justice Gangopadhyay has recorded in sub-paragraph ‘f’ of Paragraph 15 of his judgment and order that the respondent/cross objector could not prove that possession of his land was taken by the government on the aforesaid date. By citing proviso (a) of Section 8 of the 1948 Act, the court observed that only after taking possession of the land did it vest in the government. In sub-paragraph ‘h’ of the same paragraph, his lordship observed that “the possession of the government was only nominal and the respondent was dispossessed physically even before the acquisition proceeding was initiated under the 1948 Act.” It further noted that the declaration under the 1948 Act was made in 1958 before coming into effect of Section 11A of the Land Acquisition (Amendment) Act, 1984 from 24th September, 1984. According to Section 11A of Act 1, if the declaration has been made before commencement of the amendment, the award would have to be made within a period of 2 years from such date. Since no award was made within this period, the proceeding lapsed on expiry of 23rd September, 1986. 16. A new acquisition proceeding was started in 2006 which was not a continuation of the old proceeding. In a new proceeding compensation for taking over possession by the government for an old proceeding could not be claimed by anybody. Hence, according to the learned judge, the respondent/ cross objector was not entitled to any interest. 17. When an issue is raised the party alleging a fact is cast with the burden of proving it. This burden continues as long as the assertion of fact is denied by the opposite party. If it is no longer denied no issue survives. On the basis of the admission made by the opposite party that it was not disputing an assertion of fact, the court can safely proceed as if the fact asserted was proved. In this case at no stage the government denied that they had taken possession of the subject land on 4th November, 1959. Hence, there was no obligation on the part of the respondent/cross objector to prove that the government had taken possession of it on that date. In this case at no stage the government denied that they had taken possession of the subject land on 4th November, 1959. Hence, there was no obligation on the part of the respondent/cross objector to prove that the government had taken possession of it on that date. The records evidencing taking of possession by the government are always in its possession and within their special knowledge under Section 106 of the Evidence Act. If it had to prove that it had not taken possession of the land on that date, the onus was on it and not on the respondent/cross objector to prove it. The government has failed to discharge that onus. 18. The broader basic principle for grant of compensation and interest on compensation was declared by the Supreme Court in R.L. Jain (D) By LRS vs. DDA and Ors. reported in (2004) 4 SCC 79 in the following terms:- “17. Shri Dave, learned counsel for the appellant has also placed strong reliance on Satinder Singh v. Umrao Singh wherein the question of payment of interest in the matter of award of compensation was considered by this Court. In this case the initial notification was issued under Section 4(1) of the Land Acquisition Act, 1894 but the proceedings for acquisition were completed under East Punjab Act 48 of 1948. The High Court negatived the claim for interest on the ground that the 1948 Act made no provision for award of interest. After quoting with approval the following observations of the Privy Council in Inglewood Pulp and Paper Co. Ltd. v. New Brunswick Electric Power Commission “upon the expropriation of land under statutory power, whether for the purpose of private gain or of good to the public at large, the owner is entitled to interest upon the principal sum awarded from the date when possession was taken, unless the statute clearly shows a contrary intention” the Bench held as under: “... when a claim for payment of interest is made by a person whose immovable property has been acquired compulsorily he is not making claim for damages properly or technically so-called; he is basing his claim on the general rule that if he is deprived of his land he should be put in possession of compensation immediately; if not, in lieu of possession taken by compulsory acquisition interest should be paid to him on the said amount of compensation”. 17.1. 17.1. The normal rule, therefore, is that if on account of acquisition of land a person is deprived of possession of his property he should be paid compensation immediately and if the same is not paid to him forthwith he would be entitled to interest thereon from the date of dispossession till the date of payment thereof. But here the land has been acquired only after the preliminary notification was issued on 9-9-1992 as earlier acquisition proceedings were declared to be null and void in the suit instituted by the landowner himself and consequently, he was not entitled to compensation or interest thereon for the anterior period. 18. In a case where the landowner is dispossessed prior to the issuance of preliminary notification under Section 4(1) of the Act the Government merely takes possession of the land but the title thereof continues to vest with the landowner. It is fully open for the landowner to recover the possession of his land by taking appropriate legal proceedings. He is therefore only entitled to get rent or damages for use and occupation for the period the Government retains possession of the property. Where possession is taken prior to the issuance of the preliminary notification, in our opinion, it will be just and equitable that the Collector may also determine the rent or damages for use of the property to which the landowner is entitled while determining the compensation amount payable to the landowner for the acquisition of the property. The provisions of Section 48 of the Act lend support to such a course of action. For delayed payment of such amount appropriate interest at prevailing bank rate may be awarded.” 19. This judgment was referred to and relied upon by the Supreme Court in Madishetti Bala Ramul (Dead) by LRS vs. Land Acquisition Officer reported in (2007) 9 SCC 650 , Revenue Divisional Officer, Kurnool District vs. M. Ramakrishna Reddy (Dead) by LRS reported in (2011) 11 SCC 648 , Tahera Khotoon and Ors. vs. Revenue Divisional Officer/Land Acquisition Officer and Ors. reported in (2014) 13 SCC 613 , Balwan Singh and Ors. vs. Land Acquisition Collector and Anr. reported in (2016) 13 SCC 412 . vs. Revenue Divisional Officer/Land Acquisition Officer and Ors. reported in (2014) 13 SCC 613 , Balwan Singh and Ors. vs. Land Acquisition Collector and Anr. reported in (2016) 13 SCC 412 . In these cases, the Supreme Court has very emphatically said that where possession was taken before notification, the owner of the land would be entitled to compensation by way of interest from the date of dispossession till the date of the notification. 20. On this issue, I concur with brother Tandon. 21. As far as valuation of the land is concerned, I have gone through the judgment and order of the learned District Judge dated 14th November, 2014. For assertion of the market value of the land in question, sale deeds executed between 2003 and 2006, produced by the parties were considered. There were four sale deeds which according to the learned District Judge showed abnormally high and low consideration. They were not considered. The learned judge very fairly recorded in his order that the exact location of the lands in respect of which the transactions were being considered and their proximity to the land in question were not before him. He went by the average method to determine the valuation. 22. Mr. Justice Gangopadhyay remarked that the principle of valuation adopted by the learned District Court was correct. Nevertheless, the learned court below had taken into consideration sale deeds which were neither produced nor marked as exhibits before it. On the basis of three deeds being Exhibits 5, 6 and 8 and ignoring the other seven deeds including the said abnormally high and low sale transactions which were not proved and marked as exhibits before the LA Collector or the court, Mr. Justice Gangopadhyay came to the conclusion that the valuation ought to be Rs.35,79,973.66/-per acre. 23. Mr. Justice Tandon has remarked “I do not find any reason for not accepting the price shown in Exhibit 5 to be the fair market value of the property” without taking into account the factual finding of the learned district court that the location of the land, its proximity to the land in question, its nature and quality were not established before the court. 24. So, in my opinion it was much safer to take the average method as adopted by Mr. Justice Gangopadhyay in coming to determine the valuation of the subject land in question. 24. So, in my opinion it was much safer to take the average method as adopted by Mr. Justice Gangopadhyay in coming to determine the valuation of the subject land in question. I need not discuss the pronouncements of the Supreme Court with regard to valuation. The guidance given by the court in Chimanlal Hargovinddas vs. Special Land Acquisition Officer, Poona and Anr. reported in AIR 1988 SC 1652 , Bhagwathula Samanna and Ors. vs. Special Tahsildar and Land Acquisition Officer, Visakhapatnam Municipality, Visakhapatnam reported in AIR 1992 SC 2298 , Karntaka Urban Water Supply and Drainage Board and Ors. vs. K.S. Gangadharappa and Anr. reported in (2009) 11 SCC 164 , Mehrawal Khewaji Trust (Registered), Faridkot and Ors. vs. State of Punjab and Ors. reported in (2012) 5 SCC 432 , Ramanlal Deochand Shah vs. State of Maharashtra and Anr. reported in AIR 2013 SC 3452 , Major General Kapil Mehra and Ors. vs. Union of India and Anr. reported in (2015) 2 SCC 262 was very correctly followed and applied by both the learned judges. 25. In the facts and circumstances of the case, I would support the average method adopted by Mr. Justice Gangopadhyay. 26. In those circumstances, I answer the questions referred to me in the following manner:- (1) On the issue of grant of interest, I agree with the view of Mr. Justice Tandon. (2) On the question of valuation, I concur with the view of Mr. Justice Gangopadhyay. 27. The majority view 2:1:-(i) on the question of grant of interest, the respondent/ cross objector would be entitled to 15% interest from the date of dispossession i.e. 4th November, 1959 till 21st July, 2006, being the date of notification under Section 4 of the said Act; (ii) The entitlement of the respondent/cross objector to compensation would be Rs.35,79,973.66/-per acre for the subject land. 28. The appeal is disposed of. Any connected application is also disposed of. 29. Urgent certified photo copy of this judgment and order, if applied for, be furnished to the appearing parties on priority basis upon compliance of necessary formalities.