THE HON'BLE SRI JUSTICE N.V. RAMANA & THE HON'BLE SRI JUSTICE K.S. APPA RAO L.A.A.S. Nos.222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 261, 262 and 264 of 2009 COMMON JUDGMENT: (Per the Hon’ble Sri Justice N.V. Ramana) Since all these appeals arise out of a common order, dated 10.12.2008, passed by the learned Senior Civil Judge, Nandikotkur, in O.P.Nos.20, 21, 22, 23, 24, 26, 27, 28, 29, 30, 31, 32 and 33 of 2006, these appeals are being disposed of by this common judgment. The Government of A.P. acquired land admeasuring Ac.43.45 of Brahmanakotkur village of Nandikotkur Mandal, belonging to the claimants, under Phase-I for the purpose of excavation of HNSS Main canal from 8.389 kms., to 13.002 kms., by giving Gazette Notification dated 28.10.2005 under Section 4 (1) of the Land Acquisition Act. The possession of the lands was taken on 28.2.2006. An award was passed on 28.2.2006 fixing the compensation of market value of dry lands at Rs.50,000/- per acre. The claimants having accepted the compensation on protest, sought for reference to a Civil Court. On reference made under Section 18 of the Act, the claimants appeared before the Court below and filed claim statements claiming compensation at the rate of Rs.2,00,000/- per acre for the acquired lands, in addition to the other benefits, on the ground that they are raising tobacco crop in the acquired lands and are getting good yield for a sum of Rs.20,000/- per acre per year and apart from that, on the ground that on the earlier occasion in connection with the acquisition of the land of their village in the year 1997, the market value of the land at the rate of Rs.1,35,000/- per acre was awarded. Before the Court below, P.W.1 was examined and Exs.A1 and A2 were marked on behalf of the Referring Officer. On behalf of the claimants, R.Ws.1 to 4 were examined and Exs.B1 to B5 were marked. The Court below while placing reliance on Ex.A2-consent award, had arrived at a conclusion that the claimants are entitled for compensation for the acquired land at the rate of Rs.72,000/- per acre, and passed the award as follows: 1) The market value of the lands acquired is fixed at Rs.72,000/- per acre as on the date of Section 4(1) notification with the following statutory benefits; 2) The claimants are entitled to Solatium at 30% on the market value fixed by this Court; 3) In addition to market value fixed above, the amount calculated at the rate of 12% per annum on such market value for the period commencing from the date of the publication of the notification under Section 4(1) notification to the date of award shall be paid to the respective claimants under Section 23(1-A) of the Land Acquisition Act; 4) The claimants shall also be paid interest on the enhanced compensation at the rate of 9% p.a., from the date of taking possession of the land for a period of one year and thereafter, at the rate of 15% per annum till the date of deposit under Section 28 of the Land Acquisition Act; 5) The claimants are also entitled to interest on additional market value and solatium too; 6) The amount already paid by the Land Acquisition Officer shall be deducted from the enhanced compensation fixed by this Court; 7) The parties do bear their own costs; Challenging the same, the Claimants preferred the present appeals. Heard the learned Counsel at length. Perused the material available on record. Learned Counsel for the appellants-claimants mainly contended that the trial Court has not considered the evidence of R.W.1 and R.W.4 and Ex.B4-award, which makes it clear that the market value of the land in Brahmanakotkur village is at Rs.85,000/- per acre. It is also contended that even P.W.1-Land Acquisition Officer stated that the acquired lands are black cotton soil lands and rich in its fertility and they are suitable to raise commercial crops like tobacco and she also admitted that due to submersion of Srisailam Project, several villages were rehabilitated in Brahmanakotkur village and there is a great demand to agricultural land in Brahmanakotkur village and that the acquired lands are adjoining to Brahmanakotkur and Pudur road and the acquired lands are just adjacent to High School at Brahmanakotkur and thus, the evidence of P.W.1 coupled with the evidence of R.Ws.1 and 4 clearly establishes that the acquired land is having potentiality and it is equivalent to that of the land which was acquired in the year 1997 under Ex.B4 and therefore, the trial Court ought to have taken Ex.B4-award into consideration for fixation of the market value of the lands in question as comparable sale. It is further contended that as per the settled proposition of law, the claimants are entitled to 10% escalation per acre for each year. In support of his contentions, he relied upon judgment of the Supreme Court in Om Prakash (dead) by L.Rs and others Vs. Union of India and another[1]. On the other hand, the learned Government Pleader contended that Ex.B4 is a consent award and the land covered under Ex.B4 award was acquired for the purpose of laying road and the present lands were acquired for the purpose of excavation of canal and therefore, Ex.B4 award cannot be taken as a comparable sale and the trial Court has rightly fixed the compensation and there is no reason to interfere with the same. Heard the learned Counsel and perused the material available on record. On a perusal of the material on record, it is clear that Ex.A2 award is a consent award passed by the reference Court on 18.3.2006 in respect of the lands acquired in Brahmanakotkur village, whereas Ex.B4 award, which is also a consent award pertains to the acquisition of the lands situated in the same village in the year 1997, whereunder the market value of the land was fixed at Rs.1,35,000/- per acre. The lands in question are fertile. They are situated by the side of the road and High School. The lands are also fit for raising commercial crops and the commercial crops like tobacco are being raised which are fetching annual income of Rs.20,000/-. P.W.1-Land Acquisition Officer also admitted that the acquired lands are black cotton soil and rich in fertility and suitable to raise commercial crops like tobacco. Despite this evidence, as regards the potentiality of the land, it is not known why the Court below has taken Ex.A2 alone into consideration while rejecting Ex.B4 for determining the compensation. Apart from that, the Court below has not dealt with Ex.A2 fullfledgedly. It is the contention of the learned Counsel for the appellants that the trial Court has ignored Ex.B4 on the ground that the land acquired under Ex.B4 and the present lands are not similarly placed. This contention cannot be accepted. There is evidence to show that the categorization of the land acquired under Ex.B4 is classified as a Government black soil land. This itself is sufficient to consider Ex.B4 as a comparable sale for the purpose for the purpose of determining the compensation for the acquired land. We have gone through the evidence of P.W.1, Rws.1 and 4 and award copies of Ex.B4 and A2. On a careful scrutiny of the evidence on record, it is obvious that the acquired lands under Ex.B4-award are classified as Government dry mixed black soils and the lands are situated on the western side of the village leading from K.G. Road to the weaker Section Colony and the value of the said land proposed by the LAO is Rs.85,000/- per acre in the first instance and later, on negotiations, the market value was fixed at the rate of Rs.1,35,000/- per acre including all benefits as per L.A. Amendment Act. Ex.B4 award was passed on 3.10.1997 and the present award is dated 28.2.2006. Ex.B4 was discarded by the Court below on the ground that it is not clear whether the transaction under Ex.B4 is for dry lands or wet lands or rain fed dry lands. P.W.1, the Land Acquisition Officer herself admitted that the lands under acquisition are black cotton soil and rich in fertility and they are suitable to raise commercial crops like tobacco and that the acquired lands are just adjacent to the High School at Brahmanakotkur. The evidence of P.W.1 Land Acquisition Officer clearly establishes that the acquired land is having potentiality and it is equivalent to that of the land, which was acquired in the year 1997 under Ex.B4. R.W.4 stated that the acquired lands are situated adjoining to Brahmanakotkur-Pudur Road and adjacent to Z.P. High School, Brahmanakotkur village and the said lands are very near to Kurnool- Guntur High way road and the acquired lands are abutting to the village and there is a great demand for the acquired lands, for being used as house-sites. He further stated that the acquired lands are of fertile black cotton soil and the claimants used to raise commercial crops like cotton, tobacco, Bengal Gram etc and the value of the acquired land was Rs.2,00,000/- per acre by the time of notification. He further stated that his land is situated in Sy.No.363/2 and 367/2 of Brahmanakotkur village, admeasuring Ac.7.00 and out of it Ac.0.53 cents was acquired in the year 1997 for the purpose of laying road to weaker sections colony, located on Bayyanna Thippa. He further deposed that his land is an agricultural land and the acquired lands in the batch of these O.Ps are situated very near to their land and both the lands are similar in respect of fertility, yield, potentiality, location and the market value. The said fact was not rebutted by any contra evidence. Further, the genuineness of the transaction under Ex.B4 award is not disputed. When there is no dispute as regards genuineness of Ex.B4 award and the fertility of the lands in question, there is no justification for the Court below in entertaining a doubt as to the nature of the lands acquired in the year 1997 under Ex.B4. The apex Court in OM PRAKASH (DEAD) BY L.RS AND OTHERS VS. UNION OF INDIA AND ANOTHER held that the topography, potentiality and advantages attached to and available to the lands, can be taken as a basis for granting escalation year to year. The factum as to fertility of the lands in question as borne out from the evidence of the Land Acquisition Officer, we are of the view that the award passed by the Court below, is not just and proper. In that view of the matter, it is just and reasonable to take into consideration Ex.B4-transaction as a comparable sale. But, however, in view of the fact that Ex.B4 is a consent award, the proposed market value of the lands in the year 1997 as arrived at by the then Land Acquisition Officer, under Ex.B4 viz., Rs.85,000/- per acre can be taken as a basis to fix the compensation in the instant case. In the facts and circumstances of the case coupled with the fertility of the land which is fit for commercial crops and in view of the judgment of the Apex Court (1) supra and in view of the proposed value of the land at the rate of Rs.85,000/- per acre as arrived at by the then Land Acquisition Officer in the year 1997, we feel it just and proper to fix the market value of the land in question at the rate of Rs.85,000/- per acre as on the date of transaction under Ex.B4, by allowing escalation at the rate of 10% per year on Rs.85,000/- per acre therefrom till the date of 4(1) notification in question to meet the ends of justice. Adopting the above method of calculation (Rs.85,000 X 10% escalation x 8 years = Rs.68,000/- escalation value + Rs.85,000/- market value of the land=Rs.1,53,000/- per acre), the market value of the lands under acquisition is fixed at Rs.1,53,000/-per acre and thus, the appellants-claimants are entitled to compensation at the rate of Rs.1,53,000/-per acre. However, it is made clear that in so far as the other findings of the Court below with regard to the solatium, interest and other benefits are concerned, they need no interference by this Court. Subject to the above modification, the appeals are partly allowed. No order as to costs. _______________ N.V.RAMANA, J _______________ K.S. APPA RAO, J Dated: 18.07.2011 Nn THE HON'BLE SRI JUSTICE N.V. RAMANA & THE HON'BLE SRI JUSTICE K.S. APPA RAO L.A.A.S. Nos.222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 261, 262 and 264 of 2009 (Judgment delivered by the Hon’ble Sri Justice N.V. Ramana) 18.7.2011 [1] (2004) 10 SCC 627