R.K. MAHAJAN, J.

(1) THE judgment in this appeal will also dispose of, State of U. P. through Collector, Agra v. Smt. Sushila devi

(2) THIS appeal has arisen from the following facts. The land measuring 3 Bighas 13 biswas consisting of plot Nos. 500, 501,. 504, 506, 509 situated in village Basai, Mustqil tahsil and District Agra was acquired for shipla Gram Scheme at the instance of Managing Director, U. P. State Industrial Development Corporation, Kanpur. Notification under Sections 4 and 6 of the Land Acquisition act (here in after referred to as the Act) was issued on 14. 2. 1997 and 15. 2. 1977. The award was passed by Special Land Acquisition officer on 15. 12. 1982 @ Rs. 6,000/- per bigha. The Special Judge (Economic Offences), agra Shri Vishnu Dutt Dubey passed the award on 20. 1. 1987 awarding compensation @ Rs. 15/- per square yard = Rs. 41,340/-per Bigha which comes to Rs. 1,50,891/- for the area acquired. The Special Judge also awarded solatium @ 30% and interest @ 12% per annum w. e. f. 14. 2. 1977 to 28. 3. 1977. . and interest @ 9% per annum from the date of possession i. e. 28. 3. 1977 till the date of payment and further interest @ 9% per annum from the date of possession i. e. 28. 3. 1997 till the date of final payment.

(3) ANOTHER appeal also relates to the same District Agra and the Land Acquisition 1. First Appeal No. 372 of 1987. Officer in L. A. No. 106 of 1983 with respect to plot Nos. 505, 510, 511; 512, 513 measuring 4 Bigha situated in the same village as referred to above passed the award. The date of notifications under Sections 4 and 6 of the act are same. The Special Judge (Economic offences), Agra allowed the compensation @ rs. 15/- per square yard = Rs. 41,340/- per bigha which comes to Rs. 1,65,360/- for the area acquired and regarding the interest and solatium he has passed the same order as passed in the earlier part of this judgment.

(4) THE State of U. P. feeling aggrieved has filed appeals in both cases. The grounds of objection in both the cases are almost same. It is submitted by the learned Standing counsel that the Special Judge has committed an error in giving a finding that the land has a potentiality of building and as such the price is fixed Rs. 15/- per square yard. The finding of the lower court has also been attacked on the ground that the Taj Mahal and other hotels and hospitals are not in close proximity and this factor has influenced the mind of the court wrongly in assessing the market value. It is also submitted that the fin'ding of the special Judge in enhancing the compensations is illegal and based on surmises and conjectures and the compensation awarded by the Collector i. e. Rs. 5,000/- per Bigha was in accordance with the facts. It is also submitted that the land in dispute is agricultural land and could not have been compared with the Abadi potentiality i. e. (land having building potentiality). The cross objections have been filed by the claimants-respondents and has attacked the finding of the Special judge who awarded compensation @ Rs. 15/ per square yard. The main ground of attack is that land is admittedly situated, near Taj mahal and other hotels. It is also submitted that on inspection by the Special Judge the land is situated at a place where all the amenities like water, Post Office, Bus Station, Main market of Taj Ganj are situated within walking distance and as such the. prices should have been granted at higher rate and the price of the wall should have been granted @ Rs. 20,000/- in other words the compensation has been described as inadequate and the learned counsel for the respondent further. submits that claimants are entitled to get all the benefits of newly amended Act i. e. Act no. 68 of 1984.

(5) LEARNED counsel for the respondent also moved an application for placing on record judgment of Shri S. A. Siddiqui, H. J. S. , xth Additional District Judge, Agra in case nos. 62 and 63 of 1981 delivered on 14. 3. 1989. 1 allow these awards to be placed on record for the purpose of arriving at the just decision for determination of the market value after hearing the arguments in this case. They are marked 'x' and 'y'. Both these awards/judgments the rate of per square yard was- fixed at Rs. 40/ -. Notification under section 4 of the Act was issued on 1. 6. 1977. Notification are approximate to the land acquired in the appeal.

(6) THE learned counsel for the respondent only raised two submissions in the appeal. He has relied upon these awards and has cited judgment reported in, Union. pf India v. Nand Kishore supporting his submission that if judgments of the court fixing value of land in same village is the best piece of evidence. It was further laid down in the judgment that sale of land of the very village in question fifteen days prior to Section 4 notification also afford best guide to the value of land. In other words his submissions are that since the land covered in the award is in the proximity of the land under reference in appeal the judgments are the best guide to determine the market value. It is admitted fact. It need not be repeated that the District Judge found after inspection that the land has a building potentiality and it is situated at a distance of one kilometre from Taj Mahal and other famous places i. e. Central Jalma Institute for Leprosy, inauguration of which was done by Dr. Zakir hussain, President of India on 30. 1. 1967. There is also facility of civic amenities. The government also acquired land considering it for Shilpa Gram and the said purpose shows that it has a potentiality of commercial value and is fit for building and residential purposes. The District Judge after elaborate discussion and relying on earlier judgments of District judge which relate to Paper No. 16-C which fixed the price at Rs. 10/- per square yard. Notification was dated 6. 6,1977 and award was passed. on 20. 5. 1981. He also discussed paper No. 17-C. The market price of the land of the same vicinity was Rs. 7. 50 per square yard on 22. 5. 1963. After discussion he came to the conclusion that there is rising trend in the prices and the prices cannot be less than rs. 15/- 'per square yard equivalent to Rs. 41,340/- per Bigha. He also took into consideration the potentially of land.

(7) LEARNED Standing Counsel submitted that the judgments are not best guide and award given by the Collector is reasonable. He further submitted that the judgments relied upon by the District Judge relate to the land situated 3 to 4 kms. away from the plots in question. He has also submitted that the judgments cited by way of additional evidence are also not best guide.

(8) I am unable to agree, with the submissions of the learned Standing Counsel, as his arguments are fallacious. The District Judge has only relied upon the judgments showing the trend of rising prices in the vicinity of three to four kilometres and he certainly can take into consideration the prevailing price of neighboring land to form his objective opinion. The latest award of Shri Siddiqui also give sufficient indication that the' prices are rising and he fixed price @ Rs. 40/- per square yard. ' Taking into consideration the situation of the land and the latest award and exemplar relied upon by the District Judge, I am of the view that the price by all means cannot be less than rs. 25/- per square yard. Even if it is considered a little away from the cantonment area. While assuming the market value the Judge can indulge into reasonable speculation adjudging the compensation of the land and taking all the circumstances into consideration I, fix price of Rs. 25/- per square yard and modify the award of the District Judge of this extent. I see no force in the submission of the learned Standing Counsel for the appellant and reject the same and' accept the submission of' the learned counsel for the claimant/respondent partly and increase the compensation @ Rs. 25/- per square yard.

(9) THE submission regarding rate of interest @ 12% from the date of issuing notice or taking possession whichever is earlier advanced by the learned Standing Counsel is rejected. I am afraid to agree with his submission, Section 23 (1-A) of the Act has been introduced which reads as under :

"23. (1-A) 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 cent per annum on such market: value for the period commencing on and from the date of the publication of the notification under Section 4, subsection (1), in respect of such land of the date of the award of the Collector or the date of taking possession of the land, whichever is earlier."

(10) IN this case the possession was taken in the year 1965 i. e. before the insertion of section 23 (1-A) of the Act and notification under Section 4 of the Act was issued on" 6. 3. 1980 and the award was passed on 13. 9. 1987 and in the facts and circumstances the Hon'ble Supreme Court in, Special tehsildar (LA), Special Tahsildar (La), P.W.D Schemes, Vijayawada v. M.A Jabbar. has granted 12% interest i. e. from the date of publication of notification under Section 4 of the Act till the date of possession. Possession has already been taken before the Amending Act has come into force.

(11) IT may be mentioned that interest is given generally after the possession is taken and before payment of compensation is made as it is done to make good the loss suffered by a -person. As long as the possession is with the claimants ordinarily interest is not given. In Jain College Trust and Managing Society v. State of Haryana and Ors. 4, it was observed at page 76

"we-are of the view that the claimant is not entitled to the benefit of Section 23- (1-A) of the Act. Award of an amount calculated at the rate of 12% per annum on the market value from the date of publication of the notification under Section 4 of the Act till the date of taking possession of the land. Subject to this modification, the decisions of the courts below are affirmed."

This view has also been followed by the decision of court in Union of India v. B. V. Saroja and Ors. . The submission of the learned Counsel for the appellant is not justified. Ruling cited by him is not applicable to the facts of the present case. I am not inclined to interfere regarding the compensation regarding wall. I, therefore, for the reasons recorded modify the award of the District judge to the extent that instead of Rs. 15/-per square yard the price is now fixed at Rs. 25/- per square yard taking into consideration the circumstances mentioned earlier. Since the award has been passed after the enforcement of Land Acquisition (Amendment) Act, 1984 and the amount has been enhanced by the District Judge after the enforcement of the Act so the respondent would be entitled to get the benefit of the provisions of this Act, Regarding payment of interest under section 28 of the. act, respondent would be entitled to get 9% interest on the excess amount from the date of possession till the date of payment and if the payment is not made within one year and then 15% afterwards. The lower court finding regarding payment of interest is modified in the light of grant of excess compensation.

(12) THE appeal of the State is allowed to the extent that rate of 12% interest from the date of notification is not payable as the Land acquisition (Amendment) Act, 68 of 1984 is not retrospective as the notification was issued much before the enforcement of the Act, as discussed above. However, the award was made on 15. 12. 1982 and this date is protected by the Legislature regarding award made between 30. 4. 1982 till the enforcement of the Act which came into force from 24. 9. 1984 under the Land Acquisition (Amendment) Act, 1984. The District Judge has made award a'fter this and the provisions of the Land Acquisition (Amendment) Act, 1984 will apply regarding interest etc. The appeal of the respondent of the cross-objection is allowed. : appeal partly. allowed. Cross objection allowed.