THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR A.S.Nos.1304, 1305, 1306, 1568, 1764, 1908, 2288, 2289, 2643, and 2644 of 1999; 2090 of 1998; 2396 & 2747 of 2001 and 1706 of 2000 and LAASMPNos.1742 of 2006, 1006 & 1007 of 2009 in A.S.No.1304 of 1999 LAASMPNos.1751 of 2006, 1419, 1828 & 1829 of 2009 in A.S.No.1305 of 1999 LAASMPNos.2078 of 2006, 1004 & 1005 of 2009 in A.S.No.1306 of 1999 LAASMPNos.1741 of 2006, 1008 & 1009 of 2009 in A.S.No.2288 of 1999 LAASMPNos.1737 of 2006, 1011 & 1012 of 2009 in A.S.No.2289 of 1999 LAASMPNos.1573,1574 of 2006,1002,1003 & 1421 of 2009 in A.S.No.2090 of 1998 LAASMPNos.1962 of 2006, 1420,1034 & 1035 of 2009 in A.S.No.2396 of 2001 LAASMPNos.1928, 1572 of 2006, 1797, 1798 of 2009 in A.S.No.1706 of 2000 Date of Judgment: 15-07-2011 CT in A.S.No.1304 of 1999 Between: .Smt. T.Usharani and another …Appellants and 1. The LAO & RDO, Peddapalli, Karimnagar District and others …Respondents The Court made the following common Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR A.S.Nos.1304, 1305, 1306, 1568, 1764, 1908, 2288, 2289, 2643, and 2644 of 1999;2090 of 1998; 2396 & 2747 of 2001 and 1706 of 2000 and LAASMPNos.1742 of 2006, 1006 & 1007 of 2009 in A.S.No.1304 of 1999 LAASMPNos.1751 of 2006, 1419, 1828 & 1829 of 2009 in A.S.No.1305 of 1999 LAASMPNos.2078 of 2006, 1004 & 1005 of 2009 in A.S.No.1306 of 1999 LAASMPNos.1741 of 2006, 1008 & 1009 of 2009 in A.S.No.2288 of 1999 LAASMPNos.1737 of 2006, 1011 & 1012 of 2009 in A.S.No.2289 of 1999 LAASMPNos.1573,1574 of 2006,1002,1003 & 1421 of 2009 in A.S.No.2090 of 1998 LAASMPNos.1962 of 2006, 1420,1034 & 1035 of 2009 in A.S.No.2396 of 2001 LAASMPNos.1928, 1572 of 2006, 1797, 1798 of 2009 in A.S.No.1706 of 2000 Common Judgment: (Per Honourable Sri Justice A.Gopal Reddy) 1. All these batch of appeals raises similar question of law, viz., “whether award of compensation for land and separately for sub-soil mineral rights in principle is justified or not”. Hence, they are heard and disposed of together by this common judgment. 2. The facts in nutshell which give rise to filing and necessary for disposal of the appeals may, briefly, be stated as under: 3. An extent of Ac.22.05 gts. and Ac.70.26 gts. of land covered by O.P.Nos.241 and 242 of 1987 respectively of Jallaram village were acquired by issuing notification under Section 4(1) of the Land Acquisition Act, 1894 (for short “the Act”) in the A.P. Gazette dated 25- 01-1985. The Land Acquisition Officer (LAO) passed award dated 05- 07-1985 and 12-08-1985 respectively fixing the market value of the acquired land at Rs.9,000/- per acre along with additional benefits. Dissatisfied with the quantum of compensation the claimants sought for reference. On reference being made, the civil court fixed the market value of the acquired land in the above O.Ps. at Rs.27,000/- per acre (Rs.20,000 towards land value + Rs.7,000 towards sub-soil mineral rights) as against the claim of Rs.75,000/- per acre. Seeking further enhancement of compensation the claimants filed A.S.Nos.1304, 1305 of 1999; whereas questioning the enhancement of compensation the beneficiary Company filed A.S.Nos.1568 and 1764 of 1999 respectively. Pending appeal—A.S.No.1304 of 1999, LAASMP Nos.1742 of 2006 was filed seeking permission to enhance the value of the appeal from Rs.5,31,600/- to Rs.32,81,600/-; LAASMP No.1006 of 2009 was filed to further enhance the value of the appeal to Rs.8,83,33,975/- and LAASMP No.1007 of 2009 was filed to receive the additional evidence. Pending appeal—A.S.No.1305 of 1999, LAASMP No.1751 of 2006 was filed to enhance the value of the appeal from Rs.18,87,600/- to Rs.1,98,87,600/- and LAASMP No.1828 of 2006 was filed to further enhance the value of the appeal to Rs.29,20,72,175/- and LAASMP Nos.1419 & 1829 of 2009 are filed to receive additional evidence. 4. An extent of Ac.39.02 gts. covered by O.P.No.261 of 1987 of Jallaram village was acquired through G.O.Rt.No.209/EE S&T (Pr.I), dated 13-09-1983 by publishing notification under Section 4(1) of the Act in the A.P. Gazette dated 14-02-1984. The LAO fixed the market value of the acquired land at Rs.9,600/- per acre. On reference being made at the instance of the claimants, the civil court fixed the market value of the acquired land at Rs.35,800/- per acre (Rs.28,800/- towards land value and Rs.7,000/- towards sub-soil mineral rights). Seeking further enhancement of compensation at Rs.75,000/- per acre the claimants filed A.S.No.1306 of 1999. Pending appeal, the claimants filed LAASMP No.2078 of 2006 seeking permission to enhance the value of the appeal from Rs.15,30,076/- to Rs.1,89,30,076/-; LAASMP No.1004 of 2009 was filed to further enhance the value of the appeal to Rs.28,30,48,310/- and LAASMP No.1005 of 2009 was filed to receive additional evidence; whereas questioning the enhancement made in O.P.No.261 of 1987 the beneficiary Company filed A.S.No.1908 of 1999. 5. An extent of Ac.16.31 gts. and Ac.2.36 gts. (totaling Ac.19.27 gts.) covered by O.P.Nos.76 and 89 of 1996 in Sy.No.502 were acquired through notification under Section 4(1) of the Act dated 06- 07-1993 in which the LAO passed award dated 31-07-1995 fixing the market value of the acquired land at Rs.12,500/- per acre. On reference being made the civil court by common order fixed the market value of the acquired land at Rs.40,600/- per acre (Rs.33,600/- towards land value and Rs.7,000/- towards sub-soil mineral rights). Seeking further enhancement of compensation at Rs.1,40,000/- per acre and in addition Rs.60/- per metric tonne for sub-soil mineral of coal the claimants filed A.S.Nos.2288 and 2289 of 1999 respectively; whereas questioning the enhancement of compensation the beneficiary company filed A.S.No.2644 and 2643 of 1999. Pending appeal— AS.No.2288 of 1999, LAASMP Nos.1741 of 2006 was filed seeking permission to enhance the value of the appeal from Rs.16,77,500/- to 9,93,90,394/-; LAASMP No.1008 of 2009 was filed to further enhance the value of the appeal to Rs.13,13,66,025/- and LAASMP No. 1009 of 2009 was filed to receive additional evidence. Pending A.S.No.2289 of 1999, LAASMP No.1737 of 2006 was filed seeking permission to enhance the value of the appeal from 2,90,000/- to Rs.1,70,91,820/-; LAASMPNo.1011 of 2009 was filed to further enhance the value of the appeal to Rs.2,34,05,900/- and LAASMP No.1012 of 2009 was filed to receive additional evidence. 6. An extent of 43.15 gs. of dry land of Uppalakesaram village was acquired through notification dated 23-05-1986. The LAO in Award No.4/1988 dated 21-05-1988 fixed the market value of the acquired land at Rs.2,800/- per acre. On reference being made in O.P.No.99 of 1988, the civil court fixed the market value of the acquired land at Rs.24,000/- per acre and the compensation for sub- soil mineral rights at Rs.15,000/- per acre totaling 39,000/- per acre. Seeking further enhancement of compensation at Rs.75,000/- per acre claimants 5 and 6 filed A.S.No.2396 of 2001 in which they filed LAASMP No.1034 of 2009 seeking permission to enhance the value of the appeal from Rs.4,68,000/- to Rs.9,34,45,350/- and LAASMP No.1035 of 2009 to receive the additional evidence. Questioning the enhancement of compensation the beneficiary company filed A.S.No.2747 of 2001. 7. An extent of Ac.143.28 gts. of patta land was acquired through notification dated 17-02-1989. The LAO in Award No.2 of 1990 dated 16-08-1990 fixed the market value of the acquired land at Rs.9,000/- per acre. On reference being made, the civil court fixed the market value of the acquired land at Rs.19,000/- per acre apart from awarding 12% compensation under Section 23(1-A) of the Act and interest on the compensation fixed from the date of taking possession i.e. 01-07-1917. Seeking further enhancement of compensation at Rs.1,25,000/- per acre claimant No.1 filed A.S.No.1706 of 2000. Questioning the enhancement of compensation and awarding additional compensation and interest from the date of taking possession the beneficiary company filed A.S.No.111 of 2002. Pending appeal—A.S.No.1706 of 2000, LAASMP No.1572 of 2006 was filed to enhance the value of the appeal from Rs.10,12,500/- to Rs.1,50,12,500/-; LAASMP No.1797 of 2009 was filed to further enhance the value of the appeal to Rs.2,48,43,875/-; LAASMP Nos.1928 of 2006 and 1798 of 2009 are filed to receive the additional evidence. 8. An extent of Ac.15.20 gts. of land was acquired through notification under Section 4(1) of the Act published in A.P.Gazette dated 18-05-1986 in which an extent of Ac.2.00 in Sy.No.506 was taken advance possession on 05-01-1970. The LAO fixed the market value of the acquired land at Rs.5,000/- per acre. On reference being made in O.P.No.110 of 1988 the civil court fixed the market value of the acquired land at Rs.16,000/- per acre apart from all statutory benefits including additional market value and interest from the date of taking advance possession. Seeking further enhancement of compensation at Rs.34,000/- per acre the claimants filed A.S.No.2090 of 1998. Questioning the enhancement of compensation the beneficiary Company filed A.S.No.1484 of 1992, which was dismissed on 06-10-1998. Pending A.S.No.2090 of 1998, LAASMP No.1002 of 2009 was filed to enhance the value of the appeal from Rs.6,92,500/- to Rs.11,54,40,850/-; LAASMP No.1574 of 2006 was filed to receive additional grounds. LAASMP Nos.1573 of 2006, 1003 and 1421 of 2009 are filed to receive additional evidence. 9. Sri K.V.Satyanarayana, learned counsel for the appellants/claimants in A.S.Nos.1304, 1305, 2288, 2289 of 1999 and A.S.No.2601 of 2001 contended that the Land Acquisition (Mines) Act, 1885 (for brevity “Mines Act”) is made applicable to Telangana Area by the Land Acquisition (Mines) A.P. Extention Amendment Act, 1965 (for short Act 5 of 1965). Section 2 of the Mines Act is a saving clause and the right to mines and mineral shall not be affected except provided under Mines Act. Section 3 provides for declaration. The mines of coal, ironstone; slate or other minerals lying under the land or any particular portion of the land are not needed. Under sub-section (3) of Section 3 unless such declaration as contemplated under Section 3(1) is made, the mine shall not vest in the Government though the land is vested with the Government on acquisition. Since Mines Act and Land Acquisition Act are prior Acts, the cannon of construction of Statutes reiterated with some modifications in Section 8 of General Clauses Act cannot be made applicable. In support of the same, reliance is placed on the following judgments. 1. NATIONAL SEWING THREAD CO. LTD. CHIDAMABARAM v. JAMES CHADWICK AND BROS LTD.[1] 2. PRAVESH CHANDRA v. NARINDR SINGH[2] In the absence of a notification issued as contemplated under Section 3 of Mines Act, though declaration is made under Section 6 of the Act, the mineral shall not vest with the Government on acquiring the land. Section 63 of the Andhra Pradesh (Telangana Area) Land Revenue Act 1317 Fasli (for short “Revenue Act”) does not divest the ownership of mines once Central Act i.e., Mines Act is extended to the entire State of Andhra Pradesh by Act 5/1965 except the procedure as per the Mines Act. In reinforcement of submissions reliance is placed on the following judgments. 1. GREAT WESTERN RAILWAY COMPANY v. CARPALLA UNITED CHINA CLAY COMPANY LIMITED[3] 2. EDEN v. NORTH-EASTERN RAILWAY COMPANY[4] 3. SECY. OF STATE v. LODNA COLLIERY CO.LTD.[5] He fairly conceded that this court in SINGARENI COLLIERIES COMPANY LTD. v. NOOKALA LINGAIAH[6] and Supreme Court in UNION OF INDIA v PRAMOD GUPTA[7] though held land owner is not entitled to compensation for mineral but the effect of Mines Act and its applicability has not been considered. The evidence of R.Ws.2 and 3 does not reflect how much coal preserved in the land acquired as per Ex.A21, which is an estimation of coal reserve. Once the reference court found that the claimants are entitled to compensation for sub-soil mineral on principle, the finding of the reference court about entitlement of compensation for sub-soil mineral is correct which needs no interference. Even under Section 63 of the Revenue Act extraction of mines without permission is only prohibited. Therefore, with permission only one can extract the mines. When the land is of peculiar in character compensation has to be assessed basing on mineral deposits. The evidence of P.W.2, which has not been contradicted, shows deposit of coal and Ex.A21 should be taken as basis for fixation of compensation. Exs.A1 and A2 have to be taken as comparable sales for fixation of market value. In view of the same, claimants are entitled to seek permission for enhancement of value of appeal, as they are not aware of the value of mineral deposit in the land. Therefore, they are justified in seeking enhancement by enhancing value of the appeal by placing reliance on the following judgments. 1. CHANDRASEKHAR v. ADDITIONAL SPECIAL LAND ACQUISITION OFFICER[8] and 2. UNION OF INDIA v PRAMOD GUPTA (7 supra) 10. Sri J.Prabhakar, learned counsel for the appellants in A.S.No.1706 of 2000 contends that claimants 1 to 3 claim compensation at Rs.50,000/- per acre whereas claimants 9 and 10 claimed Rs.2,500/- per gunta which works out to Rs.1 lakh per acre when the purpose of acquisition is defilling. 11. Sri D.Prakash Reddy, learned senior counsel appearing for the appellants in A.S.No.1306 of 1999 contends that under Ex.A4— sale deed Ac.3.3/4 gts. of land was sold at Rs.10,000/- which works out Rs.1,06,000/- per acre. To prove the said document P.W.7, vendor has been examined whereas LAO himself calculated at Rs.12,000/- per acre and discarded the same. The claimants are owning Ac.0.05 gts. Ac.0.06 gts. maximum one acre, which is evident from award at page 39, and the same was also taken into consideration by the reference court in fixing the market value. Under Ex.A1 Ac.0.04 gts. of land was sold at Rs.80,000/- per acre. Vendee was examined as P.W.2; whereas vendor under Ex.A2 was examined as P.W.2 where Ac.0.05 gts. of land was sold at Rs.10,000/- on 25-02-1982 which works out to Rs.80,000/- per acre. Therefore, deduction does not arise, as all the claimants are owning Ac.0.05 gts. Ac.0.06 gts. upto one acre. Therefore, the claimants are entitled to atleast Rs.80,000/- per acre but they are claiming Rs.75,000/- per acre in the appeal. The same can be fixed taking the potentiality of the land. 12. Sri C.V.Mohan Reddy, learned senior counsel appearing for the beneficiary company, on the other hand, contends that under Section 24 of the Revenue Act all lands together with all rights pertaining thereto are the properties of the Government except those belonging to the persons or class legally capable of holding property and to the extent so far as their rights are established. As per Section 63 of the Revenue Act, right to all mines vests in the Government and no person shall excavate anything from any mine without permission. If any subsisting rights are established, claimants are not entitled to claim rights over the minerals. When the acquisition is not under the Mines Act, declaration as contemplated under the said Act does not arise. No attempt was made by the claimants compelling the Collector to make declaration under Section 3 of Mines Act, so it is not open for them to contend unless the declaration is made by the Government they are entitled to compensation. Even somebody has a right, it is not possible for small landholder to extract mineral in profitable manner as held by this court in SPECIAL TAHSILDAR, LAND ACQUISITION, YERRAGUNTLA v. K.REDDY[9]. No statutory provisions were brought to the notice of the court in the above case. Therefore, reference court is not justified in awarding separate compensation for sub-soil rights. In support of the same he relied upon the following judgments. 1. SINGARENI COLLIERIES COMPANY LTD. v. NOOKALA LINGAIAH (6 supra) 2. STATE OF ORISSA v. UNION OF INDIA[10] 3. UNION OF INDIA v PRAMOD GUPTA (7 supra) The reference court is also not justified in awarding additional market value under Section 23(1-A) of the Act and also interest on the compensation from the date of taking possession in view of law declared by the Supreme Court in R.L.JAIN v. DDA[11]. Once Ex.A1 cannot form basis reasonable deduction has to be made when small extents of land is taken as comparable sale. When lands in O.P.Nos.241, 242 and 261 of 1987 of Jallaram village are acquired, the LAO relied upon Ex.A3—sale deed of Maredupaka village, which cannot form basis for fixation of market value by the civil court. Therefore, fixation of the market value separately for land and mineral rights is unjustified and not in accordance with law and the same is liable to be set aside. 13. In the light of the rival submissions, the points that emerge for consideration in this batch of appeals are: 1. When the lands are acquired under the provisions of Land Acquisition Act, by non-issuance of declaration as contemplated under Section 3 of the Mines Act the mineral in the land will not vest either to the Government or to the Company for whose benefits lands are acquired, and the land owner is entitled to separate compensation for the mineral or not. 2. What is the true market value of the compensation for which the claimants are entitled to? 3. Whether the claimants are entitled to amend the value of the appeal and can seek higher compensation in the appeals? 4. Whether the reference court is justified in awarding additional market value and also interest on the compensation from the date of taking possession? 14. Before we consider the rival submissions, a short resume of statutory provisions relied on and governs the acquisition/fixation of market value etc., have to be taken note of. They are: 15. The word ‘Land’ has been defined under Section 2(1-b) of the Revenue Act, which reads as under: ‘land’ includes all kinds of benefits pertaining to land or things attached to the earth, or permanently fastened to things attached to the earth and also includes shares in, or charges on, the revenue or rent which are or may be levied on villages, or other defined areas. 16. Section 24 of the Revenue Act specifies that all lands are the property of the Government, which reads thus: “All public roads, lanes, paths, bridges, ditches, dikes, rivers, streams, tanks, ponds, canals, lakes, and flowing water and all lands, wherever situated, together with all rights appertaining thereto are the property of the Government excepting: (a) those belonging to persons or class legally capable of holding property and to the extent so far as their such rights are established; (b) those in respect of which any other order under any law may have been given. It shall be lawful for the Collector or other officer appointed by the Government for this purpose subject to rules sanctioned by the Government and contained in notification and the order of the Board of Revenue, to dispose of them in his discretion; but the right of way or other right legally vesting in any person or the public shall subsist.” 17. As per Section 63, right to all mines vests in the Government. It reads as under: “Right to all mines vests in Government: Right to all mineral products vests in the Government and no person shall excavate anything from any mine without permission. But this section shall have no effect on subsisting rights.” 18. The expression “land” has been defined in Section 3-A of the Act. It reads as under: "Land" includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth”. 19. Section 4 of the Act reads as under: Publication of preliminary notification and powers of officers thereupon: (1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose 3 (2) 2. Inserted, by the Land Acquisition (Amendment) Act, 1984.[or for a company], a notification to that effect shall be published in the Official Gazette 3 (2) 2. Inserted, by the Land Acquisition (Amendment) Act, 1984.[and in two daily newspapers circulating in that locality of which at least one shall be in the regional language] and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality 3 (2) 2. Inserted, by the Land Acquisition (Amendment) Act, 1984.(the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification)]. (2) Thereupon it shall be lawful for any officer, either generally or specially authorized by such Government in this behalf, and for his servants and workmen,- to enter upon and survey and take levels of any land in such locality; to dig or bore into the sub-soil; to do all other acts necessary to ascertain whether the land is adapted for such purpose…………” 20. Section 6 of the Act deals with declaration when the land is required for a public purpose: (1) Subject to the provisions of Part. VII of this Act, when the appropriate Government is satisfied, after considering the report, if any, made under section 5A , sub-section (2), that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorized to certify its orders, and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under section 4, sub-section ( 1 ), irrespective of whether one report or different reports has or have been made (wherever required) under section 5A , sub-section (2). X x x x x. Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a Company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority. Explanation 1: x x x x Explanation 2: Where the compensation to be awarded for such property is to be paid out of the funds of a corporation owned or controlled by the State, such compensation shall be deemed to be compensation paid out of the public revenues. ……………’ 21. The object of enacting the Mines Act as per the Statement of objects and reasons is to provide for cases in which mines or minerals are situate under land which it is desired to acquire under the Land Acquisition Act, 1870 (Now Land Acquisition Act, 1894). Act XXII of 1863, which has been replaced by the Land Acquisition Act, 1870 contained specific provisions i.e., Sections 51 and 52 for cases in which mines and minerals lay under land taken up under that Act. Since the said provisions i.e., Sections 51 and 52 have not been re- enacted in the Land Acquisition Act, 1870, it necessitated to enact Land Acquisition (Mines) Act, 1885. It has been extended to State of Andhra Pradesh by Act 5 of 1965. 22. Section 2 of the Mines Act is a saving clause, which reads as under: 2. Saving for mineral rights of the Government:- Except as expressly provided by this Act, nothing in this Act shall affect the right of the Government to any mines or minerals. 23. The object of amendment of Section 3 of the Mines Act as per the Bill introduced required the Government to determine before it issued its declaration under Section 6 of the Act, whether the land should be acquired simply under the Act, that is to say, including the minerals or whether the special provisions i.e., Section 3 of the Mines Act should be put in force with a view to excluding the minerals from the acquisition. Therefore, it is the discretion of the Government to exclude the minerals from the acquisition at any time upto the stage if it turns out that their acquisition is not essential to the undertaking and that either the owners are unwilling to part with them or the Government or the local authority or the company is unwilling to pay their full value. 24. Section 3 of the Mines Act deals with declaration. It reads as