HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE G.V.SEETHAPATHY A.S.No.1327 OF 1999 Dated: 13-04-2010 Between: Iragamreddy Subba Reddy (died) per L.Rs. & Others. Appellants AND The Special Deputy Collector (Land Acquisition), Somasila Project, Unit-IV, Rajampet, Kadapa District. Respondents. This Court made the following: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE G.V.SEETHAPATHY A.S.No.1327 OF 1999 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) This appeal under Section 54 of the Land Acquisition Act, 1894 (for short ‘Act’) seeking further enhancement of compensation, is filed by the claimants against the order and decree of the Senior Civil Judge, Rajampet, dated 23.10.1998 made in L.A.O.P.No.33 of 1995. An extent of Ac.26.34 cents of land belonged to the appellants-claimants was acquired by Government through draft notification under Section 4(1) of the Act, dated 24.7.1980 published in Gazette on 18.8.1980 due to submergence of the lands under Somasila Project by dispensing with enquiry under Section 5-A of the Act by invoking urgency clause under Section 17(4) of the Act. Notices under Section 9(1) and 10 were published on 12.7.1984 stating that Government intends to take possession of the lands.. The Land Acquisition Officer, after conducting due enquiry and after obtaining necessary sale statistics, by his award, dated 7.9.1986 categorised the land into seven categories viz., (1) Category-IA registered wet lands; (2) Category-IB registered irrigable dry lands; (3) Category-IIA dry lands irrigated by private wells; (4) Category-IIB dry lands irrigated by Doruvu wells, Vanka Poramboke wells etc.; (5) Category-III rainfed lands; (6) category-IV cultivable waste lands; and (7) category-V uncultivable waste lands, and fixed the market value at Rs.14,000/-; Rs.13,000/-; Rs.11,000/-; Rs.7,000/-; Rs.4,000/-; Rs.1,000/-; and Rs.500/- per acre respectively. Now, it is to be noted that the entire appeal is confined with regard to the compensation granted for Category-IA & IIA apart from structures viz., wells, field channels, stone revitment; flood protection walls; huts, 4 tamarind trees; 3 soap-nut trees; and one palmyra tree. The claimants having not satisfied with the fixation of the market value and not awarding any amount to the structures, filed W.P.No.11426 of 1987 and this Court disposed of the said writ petition directing the Land Acquisition Officer to refer the matter to the Civil Court for considering the claim of compensation for the structures. On reference being made to the civil Court, the claimant Nos.2 and 3, who are the legal heirs of claimant No.1 filed claim statement contending that the Land Acquisition Officer failed to award compensation for the wells, field channels, broken walls, trees, mannure pits etc., and that they were getting very good yield from their lands and they were getting net annual income of Rs.5,500/- to Rs.10,000/- per acre, and that the market value of the wet land, irrigable dry land and rainfed land was Rs.45,000/-, Rs.35,000/- and Rs.15,000/- per acre respectively. The value for the land in Sy.Nos.97/3, 97/5, 102, 235 and 251 is Rs.2000/- per cent i.e. Rs.2.00 lakh per acre. In order to prove the market value, the claimant No.1 himself examined as R.W.1 apart from examining five more witnesses as R.Ws.2 to 6 and marked Exs.B.1 to B.36. On behalf of referring officer, P.W.1 was examined and Exs.A.1 to A.6 were marked. The reference Court after analyzing the oral and documentary evidence, fixed the market value of the acquired land at Rs.21,000/-; Rs.20,000/-; Rs.18,000/-; Rs.11,000/-; Rs.5,500/- ; and Rs.1,500/- as against Rs.14,000/-; Rs.13,000/-; Rs.11,000/-; Rs.7,000/-; Rs.4,000/-; and Rs.1,000/- respectively. Considering the claim of the claimants seeking compensation for structures, the reference Court held that R.W.3 has not deposed in his evidence as to when the wells were dug and as to when the protection walls were constructed and when the field channels and huts were put up, and that he has also not deposed as to what amounts they spent when they dug the wells, constructed walls, huts etc. Considering the evidence of R.W.2-the private engineer who was examined on behalf of claimants to establish the claim in respect of wells, borewells, flood protection walls etc., that she visited Madhavaram Village in May, 1987, inspected the structures and prepared estimates, held that if really R.W.2 inspected the lands and prepared the report, nothing prevented the claimants to produce the said report along with the claim statement, and that a look at Exs.B.3 to B.33 itself is sufficient to hold that they were prepared recently, whereas, the claim statement was filed on 24.7.1998, and that Exs.B.3 to B.33 did not contain the dates on which they were prepared. The claimants failed to establish from the evidence of R.W.2 on which date, she inspected the village and they also failed to file any inspection notes prepared by R.W.2 and therefore, the reference Court was of the view that the evidence of R.W.2 does not inspire confidence and her evidence cannot be considered and accordingly disallowed the claim of claimants seeking compensation for the structures. Aggrieved by the fixation of the market value and disallowing the claim for structures, the present appeal has been filed. Sri K.Somakonda Reddy, learned counsel appearing on behalf of appellants-claimants contended that the lands in Sy.No.6 admeasuring Ac.10.00; Sy.No.9/2 admeasuring Ac.1.53 cents; and Sy.No.118 admeasuring Ac.3.92 cents, which were categorized as irrigable dry lands by private wells, have to be categorized under Category-IIA as per the order passed by the reference Court in L.A.O.P.No.110 of 1987 and batch, dated 13.8.1990 marked as Ex.B.2. Similarly, for the lands in Sy.No.94/3 admeasuring Ac.0.30 cents; and Sy.No.218 admeasuring Ac.0.62 cents, which have been classified as Registered Wet Category-IA, the claimants are entitled to the market value at Rs.27,000/- per acre. However, he fairly conceded that for the rest of the lands i.e. the lands situated in Sy.Nos.69/2, 117, 113, 79 and 215 no adangals were filed nor any evidence has been adduced by the claimants to show that they are irrigated by private wells. Similarly, for the lands in Sy.Nos.351, 97/3 and 235 that have been categorized as uncultivable wet land, which can be sold as house sites, no evidence has been let in to claim compensation at Rs.2,000/- per cent. Therefore, the learned counsel confined his submission only with regard to category-IIA lands and claimed compensation at Rs.22,000/- per acre and for registered wet land categorized as Category-IA at Rs.27,000/- per acre basing upon award under Ex.B.2. He further contended that when the structures were recorded at the time of acquisition and as no compensation was awarded for such structures, a writ petition was filed before this Court to refer the matter to the civil Court and on reference being made, the claimants adduced evidence by examining R.W.2 who is a Municipal Licensed Consulting Engineer, who prepared the estimates of the structures under Exs.B.3 to B.13. Therefore, the reference Court ought to have taken into consideration the said evidence in the absence of any rebuttal evidence adduced by the Land Acquisition officer when admittedly structures were existed at the time of acquisition. He further contends that for the 4 tamarind trees, 3 soap nut trees, and one palmyra tree, which were aged about 20 years that were existed at the time of acquisition, the claimants are entitled to reasonable compensation. On the other hand, learned Government Pleader for Appeals contends that the notification under Section 4(1) of the Act covered by Ex.B.2 award was issued on 26.2.1981, and whereas the notification governing the subject-land was issued six months earlier to the said notification, and therefore, the value fixed under Ex.B.2 cannot be taken as a comparable market value. In view of the rival submissions as referred to above, the points that arise for consideration are: 1) What is the true market value for which the appellants-claimants are entitled for the lands of Category-IA classified as registered wet land; and Category-IIA dry lands irrigated by private wells? 2) Whether the claimants are entitled to any compensation for the structures including the trees as claimed by them? POINT No.1: R.W.1, the claimant No.2 in the O.P. deposed that the Land Acquisition Officer did not award compensation for the wells, structures, trees and channels; that in the land in Sy.No.6 to an extent of Ac.10.02 cents which was categorized as Category-IIA, there is a well and engine shed and there is also an irrigation channel, but the Land Acquisition Officer did not award compensation for the channel and well. Out of the lands in Sy.No.9/2 admeasuring Ac.1.62, there is a Uddin Channel in an extent of Ac.0.06 cents and a well in an extent of Ac.0.03 cents, but the Land Acquisition Officer did not award compensation for the well and Uddi Channel. The land Acquisition Officer did not award compensation for the well though prepared estimates, and also did not award compensation for the stone wall, revitment, huts and compound walls that were existed at the time of acquisition. According to him, they used raise turmeric, paddy, groundnut, flower, sojja, jonna crops in the acquired land, and that they used to raise two crops in a year in wet lands and 3 crops in a year in well irrigated lands, and that they used to get an income of Rs.10,000/- to Rs.12,000/- per acre per annum from the wet land and wet irrigated lands, and that they used to get a net income of Rs.20,000/- per acre from the turmeric crop. Ex.B2 is the certified copy of order in L.A.O.P.No.139 of 1986 and no appeal was preferred and the amount awarded therein was paid to the claimants therein in respect of the land at Chinnapureddipalli which was being irrigated under the well. The market value under Ex.B.2 was enhanced to Rs.22,000/- from Rs.11,000/- per acre. The lands covered by Ex.B.2 were acquired due to submergence of water under Somasila Project and the notification under Section 4(1) of the Act was issued on 26.2.1981 Merely because the notification covered by Ex.B.2 was issued earlier, the claimants herein cannot be deprived of just compensation as the purpose for acquisition covered by Ex.B.2 and the subject-land is one and the same and both the lands are contiguous to each other. Only on submergence of the lands, the above notifications were issued with a time gap of six months. Under Ex.B.2, the Land Acquisition Officer fixed the market value for Category-IIA at Rs.11,000/-, whereas in the present award also, he fixed the market value at Rs.11,000/- per acre unilaterally. Therefore, no difference can be made for fixation of the market value in enhancement of compensation as contended by the learned counsel for the appellants. Since it is not disputed that the market value enhanced from Rs.11,000/- to Rs.22,000/- under Ex.B.2 order has been accepted by the Government and no appeal has been filed and compensation has already been paid, the claimants herein are also entitled to compensation at Rs.22,000/- per acre for the lands covered by Sy.No.6, 9/2 & 118 admeasuring Ac.10.00; Ac.1.53 cents; and Ac.3.92 cents. We accordingly, fix the market value for the said land at Rs.22,000/- per acre. Coming to the lands covered by Sy.No.94/3 and 218 categorised as Category-IA, which were classified as irrigable registered wet land, the Land Acquisition Officer himself fixed the market value at Rs.14,000/- per acre, which was enhanced by reference Court to Rs.21,000/- per acre. The claimants are entitled to compensation in proportion to the enhancement made for category-IIA lands as referred to above, and therefore, the claim made by the claimants at Rs.27,000/- per acre for Category- IA lands is justified and we accordingly, fix the market value for the said lands at Rs.27,000/- per acre. Point No.1 is answered accordingly. POINT No.2: According to the claimants, the lands were irrigated through field channels by drawing water from the bore-wells and agricultural wells. Under Ex.B.2 order, the reference Court categorically observed that because of the availability of irrigation facility, higher value was awarded to the lands, and therefore, the claimants are not entitled to any separate compensation for the structures, which includes cost of the share in the well. The very same reasoning applies to the present case. In view of the same, the claimants-appellants herein are not entitled to any separate compensation for the wells, field channels etc., through which, the lands were being irrigated which fact was already taken note while awarding higher compensation categorizing the lands as category-IIA. Further, the evidence of R.W.2 is unreliable for fixation of the market value by this Court. No notice as such was issued either by R.W.2 who allegedly inspected the acquired land, or by the claimants calling upon the Land Acquisition Officer to participate in the alleged inspection of measurements of field channels etc. It is to be noticed that only after submergence of the lands, notification under Section 4(1) of the Act was published and therefore, it is difficult to measure the field channels and revert embankment constructed by claimants. The said aspect has already been taken care of for enhancement of the market value, otherwise, the land was to be classified as rainfed land as Category-III where the compensation was fixed at Rs.5,500/- per acre by the reference Court. Because of the said structures/facilities, the land was classified as Category-IIA land and higher compensation was fixed by this Court at Rs.22,000/- per acre, and therefore, no separate compensation need to be paid to the claimants for the structures as sought for. We accordingly reject said claim for structures. Coming to the claim of compensation for the trees, the claimants claimed compensation for the trees of 4 tamarind, 3 soap-nut trees and one palmyra tree. Admittedly, the existence of said trees was also taken note of in the inspection report. Therefore, the claimants are entitled to the compensation for the said trees. Considering the age and usufruct, we award compensation at Rs.5,000/- for each tamarind tree; Rs.1,500/- for each soap-nut tree; and Rs.500/- for palmyra tree as claimed by the claimants. Point No.2 is answered accordingly. In the result, the appeal is allowed enhancing the compensation from Rs.18,000/- to Rs.22,000/- per acre for the lands categorized as Category-IIA bearing Sy.Nos.6, 9/2, 118; and from Rs.21,000/- to Rs.27,000/- per acre for the lands categorized as Category-IA bearing Sy.Nos.94/3 and 218 apart from awarding compensation for the trees as indicated above. The claimants are also entitled to all statutory benefits including solatium, additional market value on the enhanced compensation at 12% per annum from the date of notification i.e. 18.8.1980 to 7.9.1986. As the date of taking possession of the land is not clear from the award, claimants are entitled to interest at 9% per annum from 7.9.1986 deemed date of taking possession for a period of one year and thereafter at 15% per annum till realization, as per the law declared by the Apex Court in Sunder v. Union of India[1]. No costs. ________________ A. GOPAL REDDY, J. __________________ APRIL 13, 2010 G.V. SEETHAPATHY, J. Tsr. [1] AIR 2001 SC 3516