THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.NO.43 OF 1999 Dated. 22-11-2010 Between: S.PEDDA Reddeppa and another …Appellants Vs. The Land Acquisition Officer-cum-Sub Collector, Madanapelle ..Respondents THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.NO.43 OF 1999 JUDGMENT(Per NRLN,J) The claimants in O.P.No.40 of 1988 on the file of the Senior Civil Judge’s Court, Madanapalle, Chittor district are the appellants herein aggrieved by the refusal of the lower court in enhancing the compensation claimed by them. As the claimants 1 and 2 died, the legal representatives were brought on record. An extent of Acs.6.70 cents of land comprising several survey numbers was proposed to be acquired for Agricultural Market Committee at B.Kothakota. A draft notification was given and published and after an award enquiry, the Land Acquisition Officer passed an award bearing No.2/87, dated 10-08-1987 fixing the market value @ Rs.16,000/- per acre. The claimants were not satisfied with the same and on their request, a reference was made to the court. The claimants filed a claim statement contending that the Land Acquisition Officer has failed to take into consideration the sale deed dated 01-09-1980, which pertains to a land at a four furlongs from the acquired land and the lands in the same survey number sold at the rate of Rs.10,000/- per kunta as house sites; the Land Acquisition Officer has failed to see that there were 80 trees fetching an income of Rs.4 lakhs to the claimants; the market value of the land is not less than Rs.8000/- per acre by the date of acquisition; there was a well dug at a cost of Rs.1 lakh and ignoring all these things, the Land Acquisition Officer passed the award and the claimants claimed a sum of Rs.3 lakhs as compensation. On behalf of the claimants PWs.1 to 5 were examined and marked Exs.B-1, X-1 and X-2. On behalf of the Land Acquisition Officer, RW.1 is examined. After considering the evidence on record, the learned Senior Civil Judge did not accept the contentions of the appellants and dismissed the claim. The points that arise for consideration are:- 1. Whether refusal in enhancing the market value of the acquired land and refusal to grant compensation for trees and wells is legal? 2. Whether the order of the learned Senior Civil Judge, is sustainable; and 3. To what relief POINTS 1 TO 3: Before considering the facts, it is useful to refer to decisions relied upon by appellants reported in M/s The All India Tea & Trading Co. Ltd., Vs. The Collector of Darrang and another ([1]), wherein the Supreme Court held that the evidence relating to gradual rise in the value of the properties should be considered in awarding the compensation. Reliance is also placed on another decision reported in Ramachandraiah Vs. Land Acquisition Officer, Sagar([2]) relating to the capitalisation method for ascertaining the income. Evidently, in a reference under Section 18 of the Act, the claimant is in the possession of the plaintiff and burden is on the claimants to prove the potentialities and the market value of the acquired land. It is also for the claimants to show that there exists some structures and trees by the date of acquisition and the value thereof for which they are entitled. The claim of the claimants is that the acquired land is in developed area. According to the evidence of PW.1, there is appreciation of the value of the lands and there exist a well and trees. He relied upon a Ex.X-1 sale deed dated 01-09-1980 where under one Rafiq khan and another sold site at the rate of Rs.6,600/- per kunta which is six furlong away from the acquired land. Therefore, the market value is more. In cross examination, he admitted that there is no scope for extension of village on western side and the village is not improved on eastern side. PW.2 claimed that he owns land near the acquired land and he purchased from PW.1 at the rate of Rs.5,500/- per kunta and though the price was Rs.8000/- to 9000/- per kunta, the purchase was about six years prior to his giving evidence. He did not file any documents to prove the same or the valuation. PW.3 spoke about the purchase of the land under Ex.X-1 from RAfiq Khan and others. In his cross examination, he stated that he does not know the rates of land situate at B.Kothakota. On the other hand, as can be seen from the award and the evidence of RW.1, he has visited the lands on 11-11-1980 and prepared the inspection report (Ex.B-1). According to him, there were no trees or permanent structures or well by the date of notification or his visit. He claims to have considered the sale for negotiations when previously the land was acquired for neighbouring Market Yard and accordingly fixed the market value at the rate of Rs.16,000/- per acre and a consent award is said to have been passed. Evidently, it is under private negotiations. It is common knowledge that when consent awards are passed by negotiation with the parties, it will be keeping in mind the market value of the land and potentialities. It is also to be noted that in all consent awards, more benefit is being extended to the land owners and that is the reason as to why they agree for consent award. In such circumstances, it is the best evidence and relevant for determination of market value and court has to take it as a real value with potentiality. The learned Senior Civil Judge, found that the evidence on record shows that Ex.X-1 sale deed was subsequent to the earlier notification and it pertains to a small extent of land. Evidently, while considering the market value of large extent of land, reliance cannot be placed on the sales for lesser extents when particularly so when they are in proximity to the date of notification and proposed acquisition. Therefore, the Land Acquisition Officer has rightly considered the private negotiation sale and consent award for the same purpose near the acquired land and tall claim of the appellants about the potentiality or the value are not established and the lower court has rightly rejected the claim for enhancement. So far as the claim for well and trees are concerned, the award and the evidence of RW.1 clearly goes by the date of notification and enquiry that there are no trees or well. The appellants wanted to rely upon a Commissioner’s report which was discarded by the lower court. Evidently, the purpose of appointment of a Commissioner is to see a fact which is relevant for the purpose as on the date of the dispute. The Commissioner cannot be appointed for a purpose or ascertainment of a fact which is not proximate to the facts in dispute. In this case report of Commissioner made in I.A.No.718 of 1996, was filed to establish the fact of existence of a well or the trees. Earlier, an application in I.A.No.1165 of 1990 was filed and it was not prosecuted and therefore the said I.A was dismissed. Subsequently, after long years I.A.No.718 of 1996 was filed and the learned Assistant Government Pleader had made an endorsement of “No Objection” and consequently the Commissioner was appointed who incidentally found the trees. This visit of the Commissioner is more than sixteen (16) years after the reference. Such type of evidence gathered through the Commissioner has to be rejected by the courts and rightly rejected. The court should consider while appointing the Commissioner as to whether such appointment is necessary to know a fact at the time of dispute or not and merely because the learned Assistant Government Pleader has made an endorsement of “No Objection”, the report as such cannot be accepted. Therefore, there is no error committed by the learned Senior Civil Judge in accepting the evidence of RW.1 and Ex.B-1 and there are no grounds to interfere with the award of the lower Court and this Appeal Suit is liable to be dismissed. Accordingly, the Appeal Suit is dismissed. In the circumstances, there shall be no order as to costs. ___________________ GODA RAGHURAM,J _______________________ N.R.L.NAGESWARA RAO,J 22-11-2010 TSNR [1] AIR 1971 SC 1253 [2] AIR 1973 SC 701