S.B Sinha, J.:— This appeal arises out of a judgment and award passed under section 18 of the Land Acquisition Act (hereinafter to be referred to as the Act.)

2. The facts of the case are not in dispute. A notification under section 4 of the Act was issued on 29.7.1964 and a declaration under section 6 of the Act was published in the Bihar Gazette on 8.9.1965, the petitioner who was owner of 64.39 acres of land, by reason of this notification 64.39 acres of land were acquired out of which the petitioner was owner of 3.30 acres of land. The petitioner was granted a compensation by the Land Acquisition officer at Rs. 15125/- per acre for Bahal Land, Rs. 9455 per acre for Kanali Land and Rs. 1210/- per acre for Parti Land. Being aggrieved by and dissatisfied with the aforementioned compensation award by the Land Acquisition Officer, the appellant got the aforementioned reference under section 18 of the Act made by the said application. The petitioner claimed compensation at the rate of Rs. 3,000/- per decimal.

3. Before the learned court below verious documents were exhibited on behalf of the appellant. The details of the said documents reads as follows:—

1. Ext. I:—Original regd. sale deed bearing no. 8191 dated 25.5.1961 executed by Udit Ram Barai in favour of Gobind Munshi.

Vendor:—Udit Ram Barai S/o late Umrao Ram Barai of Dhanbad Pergana Jharia.

2. Vendee:—Gobind Munshi S/o Kishori Munshi of village Daludhi Pargana and thana Katras, district Dhanbad.

3. Consideration:—Rs. 957-8 annas.

4. Schedule of land:—Within district Dhanbad pergana Jharia P.S Dhanbad mouza-Hirapur Kaimi Raiyati land within Khata no. 41 thana no. 7 plot No. 406 area 2¼ Kathas of land out of which 1¼ katha in the northern side.

Ext. 1.a:—Regd. deed no. 8754 dated 7.6.1961

Vendor:—Udit Ram Barai s/o late Umrao Ram Barai of Dhanbad Pergana Jharia.

2. Vendee:—Ashutosh Tewari s/o Sashi Bhusan Tewari of Dharkind P.S Katras, District Dhanbad.

3. Consideration:—Rs. 1,000/- only

4. Schedule of land:—Within district Dhanbad Pergana Jharia P.S Dhanbad mouza-Hirapur No. 7 within Khata no. 41 plot no. 406 butted and bounded as follows:—

East:—Niz

West:—Rabindranath Sarkar s/o Sanatan Mandal

North:—Niz

South:—Income Tax Quarter

Annual rent:—4 annas.

Ext. 1/2:—Regd. sale deed no. 8398 dated 4.6.64

Vendor:—Mritunjoy Singh s/o Deo Chand Singh of Dhowatand Dhanbad.

2. Vendee:—Raj Kishore Singh s/o Fateh Bahadur Singh of Dhowatand Dhanbad P.S and district Dhanbad.

3. Consideration:—Rs. 2,000/-

Rent:—2 annas.

4. Schedule of property:—Within district Dhanbad in mouza-Dhiya mouza no. 6 Khata no. 62 plot no. 3802 area-21 dees out of which 2 Kathas in the eastern side, butted and bounded as follows:—

East:—Ram Chandra Mochi

South:—Mouza-Hirapur

West:—Portion of this plot.

Ext. 2.a:—Regd. Sale deed no. 11005 dated 28.7.1962

Vendor:—Smt. Kamla Bala Debi w/o Sri Manoram Chattarjee, resident of Hira-pur Dhanbad, P.S and district Dhanbad.

2. Vendee:—Mira Sarkar w/o Sri Bhujanga Bhosan Sarkar of Hirapur Dhanbad.

3. Consideration:—Rs. 10,000/-

Annual rent:—7 annas

4. Schedule of property:— within district Dhandad in mouza-Hirapur no. 7 Khata no. 82, plot no. 87 out of which 7.09 Katha bounded as follows:—

North:—Road

South:—Drain & owners home

East:—8 feet wide road and owner's house.

West:—Road

Ext. 2.B:—Regd. sale deed no. 7985 dated 28.5.1962

Vendor:—Prithivi Nath Singh s/o Late Madho Singh of Hirapur, Dhanbad.

2. Vendee:—Sudhir Kumar Gobardhan s/o Surendranath Mukhopadhya of Raniganj, district Burdwan.

3. Consideration:—Rs. 2,500/- only.

Annual rent:—4 annas.

4. Schedule of property:—Mouza-Hirapur No. 7 Khata no. 136 plot no. 87 area 1 Katha of land as per plan.

Ext. 2/2:—Registered sale deed No. 14134 dated 11.11.60

Vendor:—Sawar Ram Genriwal s/o Mangal Chand Genriwal of Rangatand Dhanbad P.S and district Dhanbad.

2. Vendee:—Shyam Sunder Agarwalla s/o Kali Prasad Agarwalla of Jharia P.S Jharia district Dhanbad.

3. Consideration:—Rs. 5,000/-

Annual rent:—4 annas

4. Schedule of properties Within district Dhanbad in mouza-Hirapur mouza no. 7 within Khata no. 17, plot no. 31 area-5 Bihas 3 Kathas 4 Chhatak out of which western side 5 Kathas bounded as follows:—

North:—Road

South:—Niz

East:—Matadin Agarwalla

West:—Own

Ext 4:—Certified copy of the judgment of the District Judge Dhanbad in L.A Case No. 105, 106, 107 and 198 of 1963 in respect of Acquisition of Land for construction of Forest quarter @ Rs. 60,500/- per acre.

Ext. 5:—Decree of L.A Case No. 105 of 1963 of the court of the District Judge Dhanbad in Ref. Case No. 105/63.

Ext. 6:—Certified copy of the rent report of the L.A.O Dhanbad in respect of Acquisition of land for Dhanbad Hospital thereof 63,750/- per acre.

4. On behalf of the State no document as such was exhibited for the purpose of proving the valuation of the land but some witnesses were examined.

5. Learned court below by the impugned judgment did not rely upon the exhibit 1 and 1/2 on the ground that the said documents were executed at the instance of the appellant himself. He further purported to hold that so far the 1 Katha of land sold by reason of the aforementioned sale deed is concerned, a high price therefor was purposely mentioned and further held although the purpose for purchasing the said land was for construction of the house, but in fact no house has been constructed till the date when the said document was proved in the court. Learned court below, therefore, came to the conclusion that the said transaction was a sham one. With regard to the other documents exhibited, learned court below came to the conclusion that the lands in question are faraway from the lands which are sought to be acquired. So far as the rate report, as contained in Ext. 6, is concerned he did not place reliance on that document also. With regard to the Ext. 4 and 5 which was judgment passed in a case arising out of section 18 of the Act, no reliance was placed on these documents also by the learned court below.

6. Learned court below, however, awarded compensation at the rate of 25,000/- per acre on the ground that the land under acquisition are agricultural in nature and the same is low land. However, with regard to the classification of the land no change in the aforementioned rate was made.

7. Mr. Debi Prasad, learned counsel appearing for the appellant, has placed strong reliance upon the exhibit, referred to hereinbefore. He submitted that although all the exhibits may not reflect the true rate of the land on the basis whereof compensation should be awarded but those exhibits gave a fair idea as to the importance of the land for assessing the value of the lands as the same were nearby and other factors which are relevant for the purpose of considering the value thereof can also be judged therefrom Mr. Debi Prasad further drew my attention to the rate report submitted by the officers of the Land Acquisition Department as contained in Ext. 6 wherefrom it appears that in respect of item no. 7 the value put was Rs. 67,222/- and in respect of item nos. 51 and 52 the rate was put to Rs. 60,500/- per acre. Mr. Debi Prasad further drew my attention to the evidence of the witness as examined on behalf of the State and submitted that he admitted that near about the land in question there exists income tax office, officers, quarters, compound of office building residence of the District Judge and the then Government Pleader. The said witness further admitted that just on the western side of the land in question there existed various shops and on the northern side thereof there exists the office of the Bihar State Road Transport Corporation. He has further submitted that on the western side of the road there is a colony. On the eastern side of the land in question there are agricultural lands. Mr. Debi Prasad further drew my attention to the evidence of that witness wherein he admitted that in the year 1961-1962 some lands were acquired on polytechnic road for the purpose of constructing the residential houses of the employees of the forest departments and therein an award was made at the rate of Rs. 60,500/- per acre.

8. The learned Government Pleader No. 1 who appears in support of the judgment submitted that the learned court below rightly did not take into consideration the various sale deeds exhibited on the behalf of the appellant. He further submitted that the transaction entered into by the appellant as contained in Annexure 1 appears to be a sham transaction. He further submitted that the appellant himself sold one Katha of land presumably having come to learn that the lands in question were going to be acquired. The learned Government Pleader further drew my attention to the rate report and submitted that in view of the fact that the land in question mentioned in the said report were not Bastu land, therefore, the said rate report should not be taken into consideration inasmuch as so far as the lands in question are concerned the same are, as stated hereinbefore, either Bahal land or Kanali land which are the agricultural lands or Parti Land.

9. It is difficult to come to the definite finding as to the rate on the basis whereof the compensation should be paid but it is well settled that the same is to be done taking into consideration various factors including the location of the land, importance thereof, prospect of the land being developed and the purpose for which the land was being used and the same is sought to be acquired.

10. From the evidence of O.P.W 1 himself it appears that he admitted that although the land in question were agricultural in nature but the same are situated by the side of an important road. From the statement made by the said witness also it appears that in the vicinity of the land there exist very important offices belonging to the State Government and the Central Government. It further appears that the lands in question are situated in a place where there are residential houses and important offices. The facility available is respect of the land in question also can be judged from the fact that there were small shops nearby, even the residential houses of the Government Pleaders are also near the land in question.

11. Although the lands are agricultural in nature but there can not be any doubt that the lands were fit for construction of residential houses. As a matter of fact, the purpose for which the lands were acquired were for construction of the houses by the Housing Board. It may further be mentioned that although item no. 7 of the rate report is in respect of the homestead land but item nos. 51 and 52 thereof were in respect of Gora II lands which is inferior in nature than Bahal Land which is class one paddy land. In my opinion, the rate report prepared by Land Acquisition Department itself gives a fair idea with regard to the value of the land.

12. In my opinion, therefore, taking into consideration the aforesaid documents as also the rate report and the statements made by the O.P.W 1 the valuation of the land should be assessed at the rate of Rs. 70,000/- per acre. In terms of the amended provision of sections 23 and 28 of the Land Acquisition Act, the appellant should be entitled to solatium at the rate of 30 per cent and interest at the rate of 15 per cent per annum from the date of expiry of period of one year or part thereof which has not expired at the rate of 9 per cent per annum on which compensation of land was determined to the date of payment of such cases into court. The Hon'ble Supreme Court of India in Bhag Singh v. Union Territory of Chandigarh ((1985) 3 SCC 737 : A.I.R 1985 S.C 1576) held that the aforementioned amendment applies also in respect of the cases which were pending at the time when the amendment came into force. However, recently the Supreme Court of India in Mahabir Prasad Santuka v. Collector Cuttack ((1987) 1 SCC 587) observed that the aforementioned decision is under consideration before a Constitution Bench. The Supreme Court of India in the aforementioned judgment, therefore, did not express any opinion on the said question. In the aforementioned judgment it is further directed that when judgment of the Constitution Bench of the Supreme Court is delivered in the aforementioned matter, as noticed hereinbefore, the appellant would be entitled to in accordance thereof, solatium and interest in terms thereof.

13. With the aforementioned observations this appeal is allowed in part. The appellant shall be entitled to costs of this appeal. Hearing fee is assessed Rs. 1,000/- only.