( 1 ) THIS is a first appeal filed by the Collector, Jabalpur, and the State of Madhya pradesh against the award, dated 17-8-1971, passed by the Third Additional district Judge, Jabalpur, in Land Acquisition Case No. 7 of 1970 on a reference under Section 18 of the Land Acquisition Act.

( 2 ) THE brief facts of the case are that the Military Estate Officer, Madhya Pradesh circle, Jabalpur, applied for acquisition of 6. 43 acres of private land located in village Richhai, settlement No. 402, tahsil and district Jabalpur, vide his letter dated 6-6-1967 for the purpose of construction of Railway Siding for the new vehicle Factory, Jabalpur, of the Defence Department of Union of India. It consisted of two parts: (i) 6. 36 acres of open area and (ii) 0. 07 acre of covered area containing certain structures. In the present case we are concerned with regard to the acquisition of 6. 36 acres of open land alone. The notification under section 4 read with Section 17 (1) of the Land Acquisition Act was published in madhya Pradesh Rajpatra (Part I), dated 29-9-1967. The notification under section 6 of the aforesaid Act was published in Madhya Pradesh Rajpatra (Part I), dated 6-10-1967, waiving the objection clause under Section 5-A of the Act and declaring that the land in question was urgently needed for the above-stated public purpose. The five land-holders concerned (the respondents) were also served with individual notices under Section 9 of the Act. All of them filed their separate claims demanding compensation at the rate of Rs. 2/- per sq. ft. on the basis of potential site value of the land. Advance possession of the lands was taken on 30-11-1967.

( 3 ) THE Land Acquisition Officer made his award on 13-12-1967. He awarded compensation for the lands at the rate of Rupees 1,700/-per acre. He further allowed Rupees 500/- per acre for the lands of Nemichand and Co. (respondent no. 2) and Jeewanlal Bhailalbhai Patel (respondent No. 5), who had deposited diversion charges for their lands before acquisition, as also compensation for mango and guava trees standing on their lands at the rate of Rs. 96/- per mango tree and Rs. 24/- per guava-tree. In his opinion all the lands were agricultural lands consisting of ordinary soils like 'sehra' and 'domatta' and ordinary crops were grown on them in the past. They were not developed lands. All the five respondents were also awarded 15% of the compensation on account of compulsory acquisition and also allowed interest at the rate of 6% per annum from 30-11-1967 to the date of payment of compensation.

( 4 ) ON reference under Section 18 of the Land Acquisition Act, the learned additional District Judge was of opinion that the lands acquired had potential value for building and non-agricultural purpose and that the Land Acquisition Officer having awarded compensation in an arbitrary manner, it must be raised. He awarded compensation at the flat rate of Rs. 0. 75 per sq. ft. and an separate compensation for diversion charges or levelling charges. The compensation worked out for respondents other than Nemichand and Co. (respondent No. 2) and jeewanlal Bhailalbhai Patel was reduced at the rate of Rs. 500/- per acre as they did not prove that their lands were got diverted, and they had paid the diversion charges. The compensation for trees standing on the lands as also addition of 15% for compulsory acquisition and interest on the amount of compensation at the rate of 6% from 30-11-1967 to the date of payment as awarded by the Land acquisition Officer were maintained.

( 5 ) BEING aggrieved by the said award, the appellants have filed the present appeal.

( 6 ) BEFORE we proceed to decide the points raised in this appeal, it may be mentioned here that during the pendency of land acquisition proceedings, fernandize, one of the land-holders, died and his legal representatives were brought on record in his place.

( 7 ) THE first contention of the learned counsel for the appellants is that Jeewanl