Surti Devi and Ors. Vs Deputy Commissioner and Anr.

--For the Appellants : Mr. K.K. Ambastha, Advocate : Mr. Anurag Chandra, Advocate For the Respondents : Mr. Amit Kumar Das, Advocate : Mr. Om Prakash Tiwari, Advocate : Ms. Swati Shalini, Advocate ---

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1. Heard the learned counsel appearing on behalf of the parties.

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2. This appeal has been filed against the judgment and award dated 26.02.2015 (Award singed on 11.03.2015) passed by learned Sr. Civil Judge II-Cum-Special Judge Land Acquisition, Hazaribagh in L.R. Case No. 81 of 2010 (arising out of L.A. Case No. 21/20042005/15/2005-2006) whereby the compensation has been fixed for land @Rs.937.90 per decimal for the acquired land. The appellants are

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aggrieved by the rate fixed by the learned trial court for grant of compensation with respect to the acquired land and are seeking enhancement of rate for computation of compensation.

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Arguments of the Appellants

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3. The learned counsel for the appellants has submitted that the appellants are only aggrieved by the quantum of compensation awarded by the learned trial court with regards to the rate of land at which compensation has been calculated and the appellants have no other grievances. He has submitted that the learned court after considering the evidence on record have come to a clear finding that the land so acquired was fertile in nature there was irrigation also. The claimants were growing three crops in a year over the land. It also appears that the land was of class-I type and the acquired land was situated in the industrial area. The learned counsel submits that after having recorded aforesaid findings the learned trial court considered the evidences which were produced on behalf of the claimants including five sale deeds and was of the view that all the transactions involved in the said sale deeds could not be considered as the sale deeds were relating to small areas and observed that it is well established that in determining compensation, the valuation fetched for smaller plot of land cannot be applied to land covering large area and therefore, it has been held that the sale deeds produced by the claimants could not be the basis for compensation.

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4. The learned counsel has submitted that if the rate is considered then the rate per decimal upon calculation from each sale deed would be at Rs.25,833/-, Rs.18,750/-, Rs.28,666/-, Rs.37,500/- and Rs.34,285/- per decimal with respect to Exhibit 1 to 1/d respectively. He has submitted that the sale deed produced from the side of the claimants were dated 06.09.2002, 22.01.2003, 06.06.2003, 28.10.2003 and 17.05.2004 respectively.

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5. The learned counsel has further submitted that the learned trial court has also recorded that there was no justification for categorization of land and that the land was falling within the colliery

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and industrial area and was of the view that average flat rate should be fixed for all types of land as they were of similar potential and valuation. However, while fixing the compensation the learned court has drifted from its own finding and had fixed the rate at Rs.93,790/per acre i.e. Rs.937.90/- per decimal by referring to the rate report - Exhibit A and as per exhibit-A Rs.93,790/- per acre was the rate for Tand -II land.

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6. The learned counsel has also submitted that the rate report Exhibit A referred to classification of land under Dhan-I, Dhan-II, Dhan-III, Tand-I, Tand-II, Tand-III and parti and the learned trial court has awarded compensation at the rate of Tand-II by referring to

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Exhibit A.

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7. The learned counsel has submitted that all the findings with regard to nature of land and potential of land was decided in favour of the appellants. The learned court has also observed that an average flat rate should be fixed for all types of land but has not taken any average of all the types of land which was mentioned in the rate chart and has picked up just one of them instead of taking average. The learned counsel has submitted that the judgment passed by the learned court is inconsistent and contrary to its own findings.

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8. The learned counsel has also submitted that the record of classification of land with respect to its nature was prepared 100 years back and the nature of acquired land fell under Tand-III and the rate has been taken as per Tand-II and compensation has been assessed and quantified in-spite of recording a specific finding that the claimants had converted the land into class I land.

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Arguments of the respondents .

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9. The learned counsel appearing on behalf of the respondents on the other hand has opposed the prayer and has relied upon the following judgments: -

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i. (1996) 11 SCC 542 paragraph 5

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ii. (2005) 4 SCC 789 paragraph 19 and 20

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iii. (2010) 5 SCC 708 paragraph 29 and 70

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iv. (2017) 8 SCC 558 paragraphs 27, 28, 30 and 31

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v. 2022 0 Supreme (SC) 351 paragraph 13.

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10. The learned counsel has submitted that the learned trial court has taken into consideration all the aspects of the matter and has enhanced the compensation amount. The respondents did not challenge the enhancement of compensation as it was only for one piece of land. He has further submitted that if the evidences and materials are taken into consideration then there was no need for any enhancement.

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11. The learned counsel has also submitted that one of the sale deeds which was considered in the rate chart i.e. Exhibit-A was sale deed No. 1788 dated 17.06.2003 which was 82 decimal and the rate was 33,000/- for 82 decimal and therefore rate would have come only to 402.43/- per decimal of land but the land acquisition officer had fixed the rate at Rs.46,895/- per acre i.e Rs.468.95/- per decimal by taking the nature of land as Tand-III and the learned trial court has taken the rate as Rs.93,790/- per acre that of Tand-II land by referring to Exhibit A.

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12. During the course of argument, it has been pointed out by the learned counsel appearing on behalf of the State that the proposal was prepared for acquisition of land on 13.07.2004 and the notification under section 4 was issued on 27.09.2005 which was followed by its publication in the newspaper on 29.09.2005. These submissions of the learned state counsel which is based on materials on record is not disputed by the parties.

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Findings of this Court.

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13. The land was acquired under the provisions of Land Acquisition Act, 1894 which was Raiyati lands measuring 1.00 acre. The land was acquired under the project by government for the purpose of allotting the same to Central Coalfields Limited. The land was situated in village Patratu, P.S. Patratu, Thana No. 22. The notification under section 4 of Land Acquisition Act, 1894 was issued on 27.09.2005 which was followed by its publication in the newspaper

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on 29.09.2005 and the declaration under Section 6 of the Land Acquisition Act, 1894 was published in the official gazette on 09.09.2006 under declaration No. 519/Ra dated 18.07.2006.

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14. The claimants received compensation in terms of the award prepared by the Collector which was prepared @Rs.46,895/- per acre i.e. Rs.468.95 per decimal with other statutory amounts payable under the aforesaid Act of 1894. The amount was received under protest and consequently a reference was made to the court under section 18 of the Land Acquisition Act by the Land Acquisition Officer, Ramgarh. As per the impugned judgment the grand-total calculated as compensation was Rs.1,47,893/- and the awardee was entitled to get future interest at the rate of 15% per annum till the date of realization of compensation money. The award was prepared on 26^th February, 2015 and was signed by the Land Acquisition Judge, Hazaribagh on 11.03.2015.

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15. The specific case of the claimants was that the norms were not followed in valuation of the land and the prevailing market rate was not less than Rs.36,000/- per decimal at the time of notification under section 4 of Land Acquisition Act. It was also argued that the classification of land made by the respondents for fixing the rate of compensation was bad and in all classes the land should have been fixed at flat rate and future potential ability, usefulness and prospect of the land was not taken into consideration. It was contended that the character of the land was Class-I and was fit for construction of shops, houses and the land was situated within the industrial area of Patratu and behind the railway market of Patratu, which was notified as urban area. It was also contended that several collieries were in the vicinity and several factories, industrial areas, power plants and residential colony and also Thermal Power Station, J.V.K. Industrial plant, Jindal Steel Plant, O.N.G.C. Plant and Burnpur Cement Factory was in the vicinity. It was also contended that there is market, Cinema Hall, Hospital, Railway Station, Police Station, D.A.V. School, Central School, College, Railway Hospital etc just beside the acquired land. It

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was asserted that the compensation was arbitrarily fixed and the same was required to be enhanced and prayer for granting benefit under Section 23 (1-A), 23(2) and 28 of the Land Acquisition Act was also made.

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16. So far as the respondents are concerned, it was the specific case that the rate was fixed and the valuation was done on physical verification of land and the Land Acquisition Officer had fixed the compensation after taking into account that relevant registered documents of sale for assessment of the rate of the acquired land at the time of acquisition and no exaggerated amount can be demanded without any basis of supporting documents. The contention of the claimants about the developed stage of the area since long was denied by submitting that the acquired land was never as such developed and only after acquisition all the developments of the area had taken place and prayer was made to reject the claim.

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17. The sole question for consideration and determination before the learned court was as to whether the claimants could have been able to make a case for enhancement of awarded amount as prepared by the Collector?

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18. The learned trial court enhanced the compensation from Rs.46,895/- per acre i.e. Rs.468.95 per decimal to Rs.93,790/- per acre i.e. Rs.937.90 per decimal after holding that there was no justification for categorization of land, the area was undergoing rapid industrialisation and had great potentialities and held that average flat rate should be fixed for all types of land as they were of similar potentialities and valuation.

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19. Considering the arguments advanced on behalf of the learned counsel for the parties, this Court is of the view that the sole point for determination in this first appeal would be as to whether the claimants are entitled for further enhancement of compensation.

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20. Before considering the facts of this case, the judgements cited by the learned counsel for the respondents which are to be kept in mind are considered as under: -

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A. In Basant Kumar v. Union of India (1996) 11 SCC 542 it has been held that t he principle that the entire lands in the village shall be treated as one unit and the compensation shall uniformly be determined on that basis is wholly unsustainable in law and cannot be a valid ground for determination of compensation; it is a settled legal position that the lands possessed of only similar potentiality or the value with similar advantages offer comparable parity of the value and burden is always on the claimant to prove the market value and the court should adopt realistic standards and pragmatic approach in evaluation of the evidence.

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B. In Viluben Jhalejar Contractor v. State of Gujarat (2005) 4 SCC 789 it has been held that a smaller plot may be within the reach of many, a large block of land will have to be developed preparing a layout plan, carving out roads, leaving open spaces, plotting out smaller plots, waiting for purchasers and the hazards of an entrepreneur. Such development charges may range between 20% and 50% of the total price. It has also been held that market value is ordinarily the price the property may fetch in the open market if sold by a willing seller unaffected by the special needs of a particular purchase and where definite material is not forthcoming either in the shape of sales of similar lands in the neighbourhood at or about the date of notification under Section 4(1) or otherwise, other sale instances as well as other evidences have to be considered. It has been held that the amount of compensation cannot be ascertained with mathematical accuracy. A comparable instance has to be identified having regard to the proximity from time angle as well as proximity from situation angle. For determining the market value of the land under acquisition, suitable adjustment has to be made having regard to various positive and negative factors vis-à-vis the land under acquisition by placing the two in juxtaposition. The positive and negative factors are as under:

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*Positive factors*		*Negative factors*
(i) smallness of size	(i)	largeness of area
(ii) proximity to a road	(ii)	situation in the interior at a distance from the road
(iii) frontage on a road	(iii)	narrow strip of land with very small frontage compared to depth
(iv) nearness to developed area	(iv)	lower level requiring the depressed portion to be filled up
(v) regular shape	(v)	remoteness from developed locality
(vi) level vis-à-vis land under acquisition	(vi)	some special disadvantageous factors which would deter a purchaser
(vii) special value for an owner of an adjoining property to whom it may have

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some very special advantage

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C. Similarly in Land Acquisition Officer v. Karigowda, (2010) 5 SCC 708 it has been observed that it is a settled principle of law that the onus to prove entitlement to receive higher compensation is upon the claimants and every case has to be examined on its own facts and the courts are expected to scrutinise the evidence led by the parties in such proceedings. In the said case 15% additional amount was granted considering the fact that the sale instances relied upon were nearly around 1 to 2½ years prior to the date of notification vide paragraph 85 of the report which is quoted as under: -

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“85. Besides this increasing trend and the fact that all these villages are adjacent villages to each other, the highest price fetched was for the sale instance executed on 26-6-2001 where 17½ guntas of garden land was sold in Village Vaddara Halli (Kasaba Hobli) for a sum of Rs 37,000. The notification under Section 4 was issued on 4-4-2002, that means that all the sale instances of the adjacent comparable lands are in proximity of time to the date of notification under Section 4 of the Act. The average of sale statistical instances referred above comes out to be Rs 1,57,500 for sale of 1 acre 29½ guntas i.e. Rs 90,647.48 per acre. Since the sale instances relied upon are nearly around 1 to 2½ years prior to the date of notification, they are relevant considerations and, therefore, the claimants are entitled to an increase at the rate of 15% per annum compounded.”

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D. The aforesaid principles of law as held in the aforesaid judgements passed by the Hon’ble Supreme Court are not in dispute.

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E. In Vithal Rao v. Land Acquisition Officer (2017) 8 SCC 558 the Hon’ble Supreme Court again summarized the broad principles for fixing compensation for the acquired land and what broad principle of law relating to acquisition of land under the Act should be kept in consideration to determine the proper market value of the acquired land. It has been held that considering the purpose of acquisition etc where the acquired land was not fully developed and it was required for construction of rehabilitation centre, it was held to be just, fair and proper to deduct 40% of the amount towards development charges out of the average price worked out and it has been held that such deduction is permissible in law [Land Acquisition Officer v. L. Kamalamma (1998) 2 SCC 385]. However, in the present case, admittedly the land was acquired for mining and therefore there is no question of incurring development charges for the acquired land and hence the judgement does not apply to the facts of this case.

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F. In the judgment of Mehrawal Khewaji Trust v. State of Punjab (2012) 5 SCC 432(supra) it has been held as follows:-

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“ 15. It is clear that when there are several exemplars with reference to similar lands, it is the general rule that the highest of the exemplars, if it is satisfied that it is a bona fide transaction, has to be considered and accepted. When the land is being compulsorily taken away from a person, he is entitled to the highest value which similar land in the locality is shown to have fetched in a bona fide transaction entered into between a willing purchaser and a willing seller near about the time of the acquisition. In our view, it seems to be only fair that where sale deeds pertaining to different transactions are relied on behalf of the Government, the transaction representing the highest value should be preferred to the rest unless there are strong circumstances justifying a different course. It is not desirable to take an average of various sale deeds placed before the authority/court for fixing fair compensation.”

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The said judgement does not apply to the present case as the learned trial court and rejected the classification of the land and also rejected the various sale deeds cited by the appellants by citing reasons and has recorded that considering the nature of land and other factors, the average flat rate should be taken into consideration for all types of land as they were all of similar valuation and potentiality and fixed the compensation at Rs. 93,790/- per acre at flat rate which was also the amount found admitted by the respondents from their rate report (exhibit-A). Neither the exhibit A nor the impugned judgement is under challenge in this appeal from the side of the the respondents.

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G. In the judgement passed in the case of (Shankarrao Bhagwantrao Patil v. State of Maharashtra) (2022) 15 SCC 657 (supra) the question for consideration was the question of deductions on account of an exemplar of a smaller plot as compared to a larger area under acquisition and also deduction for development is to be made to arrive at the market value of large tracts of undeveloped agricultural land (with potential for development) and such deduction varies from 20% to 75% of the price of such developed plots. It was also held that so far as the compensation determined differently for different lands acquired with respect to the same Village is concerned, different market value/compensation can be determined for different lands located differently in the same village or locality. No such points are involved in this case as the land acquired is only 1 acre for mining purposes by Central Coal Fields Limited and there is no such comparable developed plot for consideration. Accordingly, the said judgement does not apply to the facts and circumstances of this case. Similar is the position with regards to the judgement of Lal Chand v. Union of India ( 2009) 15 SCC 769 (supra).

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21. It is not in dispute that the Land Acquisition Officer had awarded the compensation by taking rate of land as per classification of the land treating the land under category Tand-III which was

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@Rs.468.95 per decimal and the learned Land Acquisition Judge had enhanced the rate to Rs.937.90 per decimal and when seen from the chart -exhibit-A Rs.937.90 per decimal was the rate for Tand -II land although held that average flat rate should be fixed for all types of land.

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22. Both the parties had adduced oral and documentary evidences. The claimants had produced five sale deed whose details are as under:-

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Exhibits	Sale Deed No.	Date	Area	Rate of land	Rate of land per decimal
Exhibit-	2730	06.09.2002	06	Rs.1,55,000/-	Rs.25,833/-
1			decimals
Exhibit-	163	22.01.2003	04	Rs.75,000/-	Rs.18,750/-
1/a			decimals
Exhibit-	1654	06.06.2003	03	Rs.86,000/-	Rs.28,666/-
1/b			decimals
Exhibit-	2912	28.10.2003	04	Rs.1,50,000/-	Rs.37,500/-
1/c			decimals
Exhibit-	1352	17.05.2004	3½	Rs.1,20,000/-	Rs.34,285/-
1/d			decimals

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23. It is not in dispute that the notification under Section 4 of Land Acquisition Act was issued on 27.09.2005 and the area involved in this case was 1 acre. It is further not in dispute that the land, as per the revenue records, was classified as Tand-III though the classification of the land was made long back i.e. about 100 years back. The compensation was assessed by the Land Acquisition Officer by taking the classification as Tand-III and it was assessed @Rs.468.95 per decimal. The compensation was accepted under protest and the matter was referred under Section 18 of the Land Acquisition Act to the court for enhancement of compensation at the instance of the claimants.

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24. The assessment as made by the Land Acquisition Officer has been extensively placed by learned counsel of both the parties and it reveals that altogether 29 sale deeds were considered [for the year 2001 three sale deed, for the year 2002 eight sale deeds, for the year 2003 twelve sale deeds and for the year 2004 six sale deeds]. Some of the sale deeds were not considered for the purpose of assessment by citing reasons. However, the Land Acquisition Officer ultimately took the average with respect to the valuation of the sale deeds and decided that the rate per acres with respect to various categories Dhan-I, DhanII, Dhan-III, Tand-I, Tand-II, Tand-III and Parti would be different and the chart with respect to the rates which was arrived at by the land acquisition officer which is as under:-

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Types of land	Rate per acre	Average
Dhan-I	4,38,350.00	16 Anna
Dhan-II	2,73,969.00	10 Anna
Dhan-III	2,19,175.00	8 Anna
Tand-I	3,75,161.00	16 Anna
Tand-II	93,790.00	4 Anna
Tand-III	46,895.00	2 Anna
Parti	23,448.00	1 Anna

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25. Before the learned court as many as five sale deeds relating to the period 2002, 2003 and 2004 were brought on record by the claimants. However, the learned court upon perusal of the sale deeds produced by the claimants found that they were of very small area and could not be the basis for assessment of market rate of the acquired land to the extent of one acre. Admittedly, no sale deed was produced in connection with the year 2005 though, the date of notification under Section 4 of the present case is 27.09.2005. Neither any sale deed of 2005 was subject matter of consideration before the Land Acquisition Officer while taking the average rate for each category at the time of preparation of the rage chart at exhibit-A nor was any sale deed of the year 2005 was placed before the learned court for consideration.

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26. This Court also finds that the learned trial court has also considered the oral evidences placed on record by both the parties.

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27. On behalf of the claimants, there were three witnesses and on behalf of the respondents, two witnesses were examined. It was the specific case of the claimants before the learned court through the oral and documentary evidences that the classification was made 100 years back and there has been substantial change with respect to the nature of land and its utility and the acquired land was in the village Patratu situated near Patratu Thermal Power Station (PTPS) having all sorts of development and it was situated within industrial area as well as colliery area. There were several projects of CCL was going on and all the acquired land had similar potentialities. The evidences of the claimant were to the effect that they were growing three crops in a year and the land was Class-I adjacent to railway Diesel Colony and in the vicinity there was CCL project, High School, P.T.P.S. College, P.T.P.S. Hospital, railway hospital etc.

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28. So far as the evidence of respondents are concerned, the learned court also recorded the evidences and by referring to the evidence of none less than opposite party No. 2, who was the employee of CCL for whom the land was acquired, who deposed that the acquired land was situated within the industrial area.

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29. This Court has also gone through the evidence of opposite party No. 2 who has deposed that the land was acquired for the purposes of mining and during cross examination he has stated that Patratu thermal factory is in Patratu, Jindal factory is in the Balkudra village which falls within the police station Patratu, the diesel shed of railway is also in Patratu.

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30. So far as the witness No. 1 on behalf of the respondents is concerned, he has stated during cross examination that he was posted in the land acquisition office, Ramgarh from February, 2014 and he has further stated in his cross examination that he has no idea about the records of the land acquired and involved in the present case.

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However, he has exhibited Exhibit-A which was the assessment made by the then land acquisition officer for grant of compensation.

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31. However, the learned counsel for the respondents has relied upon the note which was put up by District Land Acquisition Officer before the District Commissioner wherein he has stated that the land was found rocky and it fell under Tand-III; it was not being irrigated; it was adjoining to the forest land. In contrast to this, the evidence of opposite party No. 2 who was an employee CCL, in his chief itself has stated that the land was not much fertile and the agriculture activity was based on irrigation through rain fall. It is also important to note that the witness A.W. 3 during his cross examination has stated that Damodar River was in the vicinity and the irrigation used to take place on the basis of rain fall as well as through other modes of irrigation. It is also important to note that on behalf of the State not even a single witness has been produced including the one who had inspected the place at the time of acquisition of land.

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32. This Court also gone through the oral evidence placed on record and finds that the learned trial court has considered all the evidences both oral and documentary including the cross examination of the witnesses and has recorded a clear finding that the land so acquired was fertile in nature, there was irrigation facilities and the claimants were growing three crops over the land in the year and it also appeared that the land was Class-I type and the acquired land was situated in the industrial area. This finding was recorded by referring to the evidence of the witnesses produced on behalf of the claimants and the learned court also recorded that there was nothing on behalf of the opposite party to contradict and rebut the aforesaid evidences. The learned court further recorded that admittedly the record of the land was prepared 100 years back but there was sufficient evidence that the claimants had converted the land into Class-I type of land. The learned court was of the view that the acquired land was of higher quality and in that view the categorization of land was not acceptable. The learned court also recorded that the acquired land was within industrial area

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where several CCL project was going on and PPTS was also situated and the acquired land had similar potentialities and therefore the valuation of all type of land should be fixed at the same rate. The learned court was of definite view that there was no justification for categorization of land and also took into consideration that compensation is to be granted to all types of the land at a flat rate. The findings recorded by the learned court is as under:-

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“10………………………………………………………...……………

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……………………….From the perusal of the evidence of the witnesses adduced on behalf of the petitioners, it reveals that the land so acquired was fertile in nature, there was irrigational facilities and petitioners were growing three crops over the land in a year. It also appears that the land was of Class-I type and the acquired land is also situated in industrial area. There is nothing on behalf of the O.Ps. which can contradict or rebut the aforesaid evidence. Admittedly the record of rights were prepared long time ago about 100 years back but there is sufficient evidence that the petitioners have converted the land under this reference case into Class-I type of land. It can be safely held that the acquired land is of higher quality and in this view of the matter the categorization of the land become irrelevant.

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11. The entire land has been acquired for the purpose of mining and for CCL Project, hence, the classification of land become immaterial. Several registered deed of sale have been filed on behalf of the petitioners in order to substantiate their claim that a sum of Rs. 36,000/- per decimal be awarded for the lands so acquired. But on perusal of Ext. 1 to 1/d, it appears that Ext. 1 shows that 6 decimal of land have been sold for Rs.1,55,000/-, Ext. 1/a shows that 4 decimal of land have been sold at a consideration of Rs. 75,000/-, Ext.1/b shows that 3 decimals of land have been sold on a consideration of Rs.86,000/-, Ext.1/c shows that 4 decimal of land have been sold on a consideration of Rs.1,50,000/- and Ext. 1/d shows that 3 ½ decimals of land have been sold on a consideration of Rs.1,20,000/-. In other words according to these sale deed rate of land in Patratu village were Rs.28,585/- per decimal but these all transactions are for very small area and they cannot be form the basis of the assessment of the market rate prevalent in that village in the relevant period. In this context it can be mentioned here that it is well established that the determining compensation the valuation fetched for smaller plot of land cannot be applied to land covering a large area. The large area of the land cannot possibly

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fetch the price at the same rate at which smaller plots are sold. Hence, in my opinion the sale instances which have been relied upon by the petitioners cannot form the basis of assessing the market rate of the acquired land.

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12. The plea of petitioners that they are entitled for compensation at the rate of Rs.36,000/- per decimal for their acquired land is without any basis and as such it is not acceptable. Admittedly, in the instant case a large area i.e. 1 acre of land has been acquired by the CCL for the mining purposes, I find force in the submission of the learned counsel for the petitioners that the acquired land is within industrial area where several CCL projects are going on and P.T.P.S. is also situated there, and therefore, the acquired land has similar potentialities, and therefore, the valuation of all type of lands should have been fixed at the same rate. It is also a considerable fact that prices of land within CCL area are increasing substantially due to development of industries and constructions of quarters and other building of CCL. In this sequence it may be mentioned her that now a days it is almost well settled that courts of law generally be disinclined to categorize the land and would be inclined to evaluate the all types of land at a flat rate. Whenever, it has got the potentialities for being used for residential, commercial and industrial purposes. The factum of land being situated in a compact block is another consideration, which must weigh with the court to do away the belting system. The location of the land is colliery area as well as in industrial area is another factor leaning towards the grant of flat rate. 13. While applying the aforesaid principal it can be safely held that there is no justification for categorizing the land. From the evidence as mentioned above it is crystal clear that acquired land is surrounded by several collieries viz. CCL Urimari Project, CCL Sayal Project, CCL Central Soynda Project etc. Coal mines is going on and the area is converting rapidly into an industrial area. Admittedly Sayal colliery etc. is running since a very long time and the P.T.P.S. is also situated near Patratu village and as such there cannot be any dispute to the fact that the price of lands of that locality has substantially increased. Hence, in view of the evidence available on record, it can be safely held that the entire lands was within the colliery and industrial area at the time of notification u/s 4 of L.A. Act was issued. Several collieries are existing in around the acquired land and hence, the land has great potentialities for being put to industrial and commercial purposes is good enough for this court to grant compensation at once and the same rate. It is well settled that the act is a welfare legislation and on compulsory acquisition, the owner loose the land permanently. It would be,

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therefore, be just and proper to rely upon a interpretation which is more favourable to be land owner especially when the Act provide for due and fair compensation to the owner. It is also considerable that the price of lands within CCL area were increasing substantially due to development of industries and constructions of quarter and other building of CCL and P.P.T.S. After considering all the relevant aspects of the matter, it is found that an average flat rate should have been fixed for all types of land as they were of similar potentiality and valuation. In all fairness, I am of the view that modest and average valuation of the acquired land should not be less then Rs.93970/per acre i.e. Rs. 937.90/- per decimal at a flat rate. This amount is also found admitted by the O.Ps which is evident from their rate report (Ext.A). For the reasons recorded above it is held that petitioners/objectors are entitled to the grant of compensation at the rate of Rs.937.90/- per decimal at flat rate. Besides this the petitioners are also entitled to get solatium, interest and other monetary benefits as provided under L.A. Act. 14. As such this reference case is hereby allowed but in the facts and circumstances of the case there will be no order as to cost.”

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33. This Court finds that the respondents had not challenged the finding which has been recorded by the learned court that the classification of the land was not acceptable and that average flat rate was to be taken for grant of compensation and that the acquired land had high potentialities in terms of money. The respondents have also filed a counter affidavit but there is no challenge to the aforesaid finding recorded by the learned court.

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34. This Court further finds that the learned trial court took a definite view that rate should not be fixed on the basis of classification and should be fixed at average flat rate for all types of land as entire land was of similar valuation and potentiality but while fixing rate of compensation, the learned trial court enhanced it to Rs.93,790/- per acre and when compared from the rate chart at exhibit-A as quoted above, it was the rate for Tand-II land as per the rate chart, as per the classification of land (exhibit-A) and was not the average of rate for all types of land. Consequently, the rate fixed for Tand-II land and was granted to the claimants as per the classification of land projected by the land acquisition officer in the rate chart (exhibit-A). This

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happened in-spite of the findings recorded by the learned trial court that there was sufficient evidence that the claimants had converted the land into class-I type of land and categorical finding that it could be safely said the acquired land was of higher quality and in this view of the matter the categorization of the land becomes irrelevant. This was over and above the findings that the land was said to have great potentialities as several CCL projects were going on and Patratu Thermal Power Station (PTPS) was also situated there.

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35. Thus, in spite of recording all the findings in favour of the claimants with respect to the nature and valuation of the acquired land and after having rejected the classification of land as was done by the Land Acquisition Officer while fixing the compensation and in-spite of holding that average flat rate should be fixed for all types of land and also holding that the acquired land had high potentialities in terms of money, the learned trial court was not at all justified in picking up the rate for tand-II land and fixed the compensation as per tand-II land as per the report of District Land Acquisition Officer (ExhibitA). Further , it is important to note that even the rate chart (exhibit-A) had taken into consideration sale deeds relating to the period from 2001 to 2004 although the notification under section 4 was published in the year 2005 and thus the sale instances while calculating the average with respect to each category of land as per classification were also nearly around 1 to 4 and ½ years prior to the date of notification and therefore taking into consideration paragraph 85 of the judgement passed by the Hon’ble Supreme Court in (2010) 5 SCC 708 (supra) as quoted above, the claimants are entitled to further 15% increase over and above average flat rate for all types of land.

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36. This Court is of the view that such a mode picking up the rate from one of the categories amongst 7 from rate chart (exhibit-A) as prepared by the Land acquisition officer can neither be said to be average flat rate for all types of land nor does it take care of the finding that the land was improved to class-I nor does is account for the high potentiality of the land as held by the learned trial court nor

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does it account for the fact that even the rate chart (exhibit-A) had taken into consideration sale deeds relating to the period from 2001 to 2004 although the notification under section 4 was published in the year 2005.

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37. Accordingly, the compensation has to be fixed by taking average flat rate of all types of land right from Dhan-I to Parti, which the learned trial court has failed to do while awarding compensation and additionally 15% is to be added considering the high potentialities of the acquired land and the fact that the rate chart (exhibit-A) had taken into consideration sale deeds relating to the period from 2001 to 2004 while calculating the average with respect to each category of land which were nearly around 1 to 4½ years prior to the date of notification.

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38. If the average is taken for all types of land for the purposes of computation of compensation as per rate calculated in rate chart(exhibit-A) , then the average rate, right from Dahn-I type to Parti type as per exhibit-A, the average rate would come to Rs.2,10,112/- per acre of land [4,38,350.00 + 2,73,969.00 + 2,19,175.00 + 3,75,161.00 + 93,790.00 + 46,895.00 + 23,448.00 = 14,70,788 divided by 7]. 15% of aforesaid rate is required to be added for arriving at fair market value of land. Thus, the compensation per acre of land is fixed at Rs. 2,41,628.80 per acre [Rs. 2,10,112/- + 15% of Rs. 2,10,112/-] at flat rate with all admissible amount under different heads as granted by the learned court.

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39. This appeal is disposed of with aforesaid enhancement in rate of compensation for the land.

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40. Office is directed to prepare decree accordingly.

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41. Pending I.A, if any, is closed.

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42. Let a copy of this order be communicated to the concerned court through “e-mail/FAX”.

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(Anubha Rawat Choudhary, J.)

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Rakesh/-