HON’BLE SRI JUSTICE N.V. RAMANA AND HON’BLE SRI JUSTICE K.S. APPA RAO A.S.No.1028 of 2001 Date:30-09-2011 Between: Aduri Padmavathi and others ……. Appellants and The Land Acquisition Officer …….. Respondent HON’BLE SRI JUSTICE N.V. RAMANA AND HON’BLE SRI JUSTICE K.S. APPA RAO A.S.No.1028 of 2001 JUDGMENT: (Per Hon’ble Sri Justice N.V. Ramana) This appeal is filed against the order and decree dated 01-11-2000 passed in L.A.O.P.No.52 of 1982 on the file of the Principal Senior Civil Judge, Rajahmundry. The appellant No.1 herein is the claimant. For convenience sake, the parties hereinafter will be referred to as they are arrayed in the said L.A.O.P. 2. The brief facts of the case are as follows: The land of the claimant to an extent of Ac.4-15 cents having trees and structures situated in Survey No.68/2 of Bommuru village, Rajahmundry Taluk, East Godavari District, was acquired by the Government for the purpose of providing house sites to 41 harijan families through the draft notification dated 17-11-1975 under Section 4(1) of the Land Acquisition Act, 1894 (for short ‘the Act’). The Land Acquisition Officer, after due enquiry, while placing reliance on the document pertaining to sale of plot No.23 to an extent of Ac.1-50 cents in Survey No.98/3 sold for Rs.10,000/-, fixed the market value of the acquired land at Rs.6,600/- per acre. The Land Acquisition Officer also awarded compensation separately for trees and structures existing on the acquired land. The claimant, being not satisfied with the quantum of the market value fixed by the Land Acquisition Officer, received compensation under protest and sought reference of the matter to the Civil Court, and accordingly, the matter was referred to the Civil Court. 3. On such reference, the claimant filed claim statement alleging that the compensation awarded by the Land Acquisition Officer is too meagre and that at the time of taking over possession of the land by the Government on 19-07-1977, there was a plantain garden in the acquired land, and he incurred an amount of Rs.15,000/- for planting the garden and the yield therefrom fetched about Rs.18,000/-. There is also a well, artisan bore, current shed, 7.5 H.P. Electrical Micro Motor along with pump set, starter and equipment with 160 feet length to 4 inches pipe fixed in the said well at the time of taking possession of the land by the Government. There are four well-grown mango trees and three small mango trees of 10 to 15 years age in the said land at the time of taking possession by the Government. The acquired land is fertile land. It is also fit for house sites. There is a G.N.T. road on one side of the acquired land and on the other side, there is a road leading to Vamagiri bridge. The said features show that the acquired land is situated in an important locality and there was high demand for house sites even at the time of acquisition. The acquired land belonging to the claimant is worth Rs.30,000/- minimum per acre. Therefore, in the above circumstances, the Land Acquisition Officer ought to have fixed the market value of the acquired land at Rs.30,000/- per acre. The claimant also claimed an amount of Rs.12,500/- towards the value of 2500 plantain trees; Rs.18,000/- towards the value of the usufruct of the plantain trees; Rs.25,000/- for the well, artisan bore, current shed, motor with equipment, starter and pipe and for cement bodies; and Rs.6,000/- towards the value of the mango trees. 4. Basing on the pleadings, the following issues were framed for trial in the Reference Court: 1. Whether the market value fixed by the Land Acquisition Officer is just and proper? If not, whether the claimant is entitled to claim higher compensation? If so, at what rate? 2. Whether the claimant is entitled to claim compensation separately for plantain garden? 3. Whether the claimant is entitled to claim separate compensation for well and motor with equipment? 4. To what other relief? 5. In order to prove the claim, on behalf of the claimant, PWs.1 to 7 were examined and Exs.A-1 to A-26 were got marked. On behalf of the Referring Officer, RW-1 was examined and Ex.B-1, copy of the award, was got marked. 6. The Reference Court, after considering the oral and documentary evidence adduced by both parties, enhanced the market value of the acquired land from Rs.6,600/- to Rs.10,000/- per acre and also awarded a sum of Rs.3,558/- for the motor and its accessories. The claimant, being not satisfied with the quantum of market value enhanced by the Reference Court, preferred the present appeal seeking further enhancement. 7. During the pendency of appeal, the claimant/appellant No.1 died and his Legal Representatives were brought on record as appellant Nos.2 to 5. 8. The learned counsel appearing for the appellants contends that the Reference Court ought to have seen that the amended provisions of the Act are applicable to the case on hand, and the appellants are entitled to 12% additional market value on the enhanced compensation under Section 23(1-A) and 30% solatium under Section 23(2) of the Act; that the Reference Court failed to take into consideration Ex.A-8, copy of the judgment rendered by this Court in A.S.No.386/79, dated 05-08-1986, wherein this Court amended the decree as per the orders, dated 23-04-1987 allowing 30% solatium on the entire compensation and also other benefits accrued on the basis of the amended provisions of Act 68 of 1984. He further contended that the Reference Court failed to see that banana crop will yield four pluckings, and even though the appellants adduced evidence to the effect that only one plucking was taken, the authorities did not allow them to take the other pluckings, and the beneficiaries have taken the banana crop after the land was handed over to them; that the Reference Court failed to see that the acquired land is situated by the side of G.N.T. road on one side and on the other side the road leading to Vemagiri bridge, and also failed to award compensation while taking into consideration the potentiality of the land and its location and the purpose for which it is acquired i.e., for distribution of house sites to the weaker sections of the society, and that the judgment rendered in A.S.No.920 of 1998 is applicable with regard to the land value and other benefits available to the appellants on the basis of the amended provisions of the Act. 9. The learned Government Pleader, while supporting the judgment of the Reference Court, sought for dismissal of the appeal. 10. Now the points arise for consideration are: 1. Whether the market value enhanced by the Reference Court in the impugned order is sustainable? 2. Whether the appellants are entitled to claim compensation separately for the plantain garden? 3. Whether the appellants are entitled to claim separate compensation for the well and motor with equipment? and 4. Whether the claimants are entitled to 30% solatium, 12% additional market value and enhanced rate of interest on the enhanced market value? POINT No.1: 11. As seen from the award, the Land Acquisition Officer, while placing reliance on the sale transaction at item No.23, dated 09- 03-1975, fixed the market value of the acquired lands at Rs.6,600/- per acre. As seen from Ex.B-1, copy of the award, the land covered by the said sale transaction, dated 19-03-1975 is situated in Sy.No.98/3. RW- 1 has not produced any plan showing that the land in Sy.No.98/3 is situated by the side of the acquired land, and also not produced the registration extract of the said sale deed on which the Land Acquisition Officer placed reliance. In the absence of production of the said sale deed and in the absence of examination of any person connected with the said sale transaction on which the Land Acquisition Officer placed reliance, the said sale transaction cannot be said to be the basis for fixing the market value of the acquired land at Rs.6,600/- per acre. 12. As seen from the impugned order, the Reference Court, while placing reliance on Ex.A-7, copy of the judgment of this Court in L.A.O.P.No.77 of 1973 and batch, and Ex.A-8, copy of the order in Appeal No.386 of 1979, dated 29-07-1986, fixed the market value of the land in question at Rs.10,000/- per acre. 13. A perusal of the evidence on record shows that the present land is acquired in the year 1975 as per the notification dated 17-11-1975. Ex.A-7 is the copy of the order in L.A.O.P.No.77 of 1973 and Ex.A-8 is the copy of another judgment of this Court in Appeal No.386 of 1979, dated 29-07-1986 preferred against the judgment in L.A.O.P.No.77 of 1973 fixing the market value of the acquired lands therein at Rs.10,000/- per acre. The acquisition in the aforesaid case took place in the year 1972, whereas the acquisition in the case on the hand is of the year 1975. Therefore, the Reference Court placing reliance on the earlier orders of this Court pertaining to the acquisition of the year 1972 and fixing the same market value to the land in question, which was acquired in the year 1975, in our view, is not just and proper in any view of the matter. 14. Admittedly even as per the award, the value of the acquired land was arrived at Rs.6,600/- per acre as per the transaction of the year 1975. Even as per Ex.A-8, the judgment in appeal, the market value of the lands acquired therein in 1972 is about 10,000/- per acre. If that be the case, the finding of the Reference Court fixing the market value of the present acquired lands at Rs.10,000/- is not sustainable and deserves to be set aside. 15. According to PW-1, the power of attorney holder and the elder brother of the claimant, there are some colonies adjacent to the acquired land in the name of Siva Nagar, Radhakrishna Nagar and Sir Arthor Cotton Nagar. There are colleges like Mahila Polytechnic College, I.T.I. College, A.M.C. High School, AMG Eye Hospital. The acquired land is nearby National Highway-5. The area is a developed and commercial area. 16. From a perusal of the evidence, it is seen that the evidence of PW-1 is not rebutted. Therefore, in the absence of any rebuttal evidence, the evidence of PW-1 stood unimpeached. As per the evidence of PW-1 there are colleges and housing colonies around the acquired land. Moreover, the evidence of PW-1 indicates that by the date of acquisition, the land was put for agricultural operations. In the present case on hand, the land of Ac.4-15 cents was acquired for the purpose of house sites. Unless there is housing activity nearby the land in question, the Government ought not to have acquired the land for providing house sites. Hence, in any view of the matter, the land in question has the potentiality and it is meant for house sites as well as commercial purpose. When the land in question is situated nearby the national highway, its value cannot be estimated in terms of the value of the agriculture land. As the land in question is meant for house sites and is situated in a developed commercial area having colleges and residential colonies, the potentiality of the land would be normally at high stake. Therefore, the finding of the Reference Court that the claimant failed to prove that the acquired land in question is for the purpose of house sites, cannot be sustained by any stretch of imagination. 17. As stated above, the Land Acquisition Officer fixed the market value of the acquired land at Rs.6,600/- per acre. But, in Ex.A- 7, copy of the judgment in O.P.No.77 of 1973 and batch, the Land Acquisition Officer fixed the market value of the lands acquired therein in Sy.No.68/1 at Rs.6,234/- per acre through the Award No.13 of 1972, dated 18-03-1972 and on reference, the Reference Court enhanced the same to Rs.10,000/- per acre and in appeal, this Court in Ex.A-8, copy of the order in Appeal No.386 of 1979, confirmed the said market value enhanced by the Reference court. When the value of the land was fixed at Rs.10,000/- in the acquisition proceedings of the year 1972, and when the present lands are acquired in 1975, certainly the value of the land would increase. Therefore, the market value of Rs.10,000/- per acre fixed by the Reference Court for the lands acquired in the present case, in any view of the matter, is too meagre and it is not in accordance with the sound principles of law. 18. Exs.A-11 and A-12 are the valuation certificates issued by the Sub-Registrar. These documents were filed by the claimant in support of her contention that the lands in the vicinity of the acquired land are fetching more than Rs.17,000/- per acre. According to the claimant, she claimed Rs.30,000/- per acre. PWs.6 and 7 were examined to speak about Exs.A-11 and A-12 issued by the Sub- Registrar. Ex.A-12 shows that the market value fixed by the Government for the lands situated in Sy.No.68/2 of Bommuru village for the year 1975-77 was Rs.16,483/- per acre. 19. Further the evidence of PW-6 shows that the basic value register is maintained for the purpose of collecting stamp duty only and it has nothing to do with the sale consideration agreed between the parties. It is an admitted fact that the value of the lands situated in Sy.No.68/2 of Bommuru village was fixed at Rs.16,483/- per acre. The basic value register maintained by the Sub-Registrar was for collecting stamp duty. Even though the parties agreed to purchase the lands even for the lesser price of Rs.16,483/-, they should pay the stamp duty basing on the basic value fixed by the Government in the basic value register. Therefore, for all practical purposes, the value as per the basic value register would be taken into consideration. 20. In this type of matters filed before the Court, normally the Court will insist for the basic value register, which is an yardstick for fixing the market value of the lands acquired. Therefore, in any view of the matter, irrespective of the agreement between the parties about the sale consideration, they should pay the stamp duty as per the value in the basic value register maintained for such purpose. Hence, the finding of the Reference Court that Exs.A-11 and A-12 are not helpful to the claimant and the claim is without any basis, is contrary to the basic principles of law. Therefore, while taking into consideration the crucial documents in Exs.A-11 and A-12 and the evidence of PWs.6 and 7, the officials of the Sub-Registrar’s office, we can safely fix the market value of the acquired lands at Rs.16,483/- per acre, which is rounded off to Rs.16,500/- per acre. Accordingly, the market value of Rs.10,000/- per acre fixed by the Reference Court for the acquired land is enhanced to Rs.16,500/- per acre. POINT No.2: 21. The Reference Court did not grant any compensation separately for the plantain garden. However, as seen from Ex.B-1, award, at page-4, the Land Acquisition Officer observed that there is plantain crop in the land at the time of acquisition. The land owner has stated that it will be ripe for harvest in February, 1976. The Land Acquisition Officer, therefore, has not provided any value for the said crop separately. The existence of plantain crop by the date of issuance of Section 4(1) notification for the acquired lands thus is not in dispute. 22. The claimant in her claim statement submitted that she incurred an amount of Rs.15,000/- for planting the garden and the yield therefrom would be about Rs.18,000/- at the time of taking possession of the land by the Government. She further stated that there were 2500 plantain trees in the acquired land and that she is claiming compensation of Rs.12,500/- besides Rs.18,000/- towards the value of the usufruct of the plantain trees. In order to establish the same, apart from the evidence of PW-1, the claimant placed reliance on the oral evidence of PWs.2, 3 and 5 and the documentary evidence of Exs.A- 15, A-16, A-21, A-24 and A-25. 23. According to PW-1, by the date of acquisition there is a plantain garden. They used to raise the plantain garden personally and sell its produce, and were getting the income of Rs.18,000/- per year. It is his further evidence that the claimant entered into an agreement with one Padmanabha Rao under Ex.A-15 for the sale of the plantain bunches at the rate of Rs.600/- per hundred plantain bunches, but the claimant could not deliver the plantain bunches since the Land Acquisition Officer has taken possession of the land. It is also his evidence that the purchaser Padmanabha Rao gave a report to the Tahsilder and the police stating that the beneficiaries, in whose names pattas were granted, cut and removed the plantain garden. In proof of the same, he filed Ex.A-16, copy of the representation submitted by Padmanabha Rao. Exs.A-17 to A-20 are the postal acknowledgements of the Inspector of Police, Collector, R.D.O. and Tahsildar. It is also his evidence that Padmanabha Rao again sent a representation to the concerned authorities stating that no action was taken on his earlier representation. Ex.A-21 is the copy of the said letter. Padmanabha Rao also sent the said representation to the Minister, Co-operation Department, and to the Tahsildar and Ex.A-22 is the acknowledgement. 24. PW-2 is one Shaik Abdul Khadar. He deposed that he purchased the plantain garden from the claimant at the rate of Rs.8/- per plantain bunch. He agreed to purchase 2200 plantain bunches about 24 years back. The plantain garden was raised in Ac.4-00 of land. He executed an agreement in favour of the claimant which is Ex.A-25. Later he cut and took away about 2000 plantain bunches. The payments are endorsed on the reverse of the first page of Ex.A- 25. The plantain garden gives yield every year and it survives for four years. 25. PW-3 is one Kotipalli Adinarayana. According to him, he arranged the transaction between the claimant and PW-1 for the purchase of plantain bunches, as PW-2 was carrying on fruit business, and an agreement was executed in that connection, and he signed on the same as an attester. 26. PW-5 is one Smt. Nagampudi Maniyamma. According to her, her grandfather Chandraiah was the farm servant of the claimant. She used to stay with her grandfather. There was plantain garden in the land by the date of acquisition. The purchaser did not cut and remove the plantain bunches. It is the beneficiaries who cut and removed the plantain garden at the instance of the officers including the Karanam and Munsif. 27. Therefore, the evidence on record shows that the said Padmanabha Rao is not able to cut and remove the plantain bunches after the possession was delivered to the beneficiaries. Though PW-1 did not file any documentary evidence to prove the value of the usufruct in the Ac.4-00 of the acquired land, the fact remains that there is standing plantain garden in Ac.4-00 of the land on the date of acquisition as stated by the Land Acquisition Officer in the award. It is an admitted fact hat the plantain garden will give yield every year for a period of four years. It is also the evidence of PW-1 that there is raised plantain garden in Ac.4-00 of land and the Government took possession of the same, and the beneficiaries cut and removed the crop, thereby they are deprived of the income realised on the said crop for the four consecutive years. Therefore, in such circumstances and in particular the correspondence made by Padmanabha Rao, who is the purchaser of the plantain garden from the claimant, the claim made by the claimant for Rs.15,000/- towards existing plantain garden and Rs.18,000/- towards its yield, needs consideration, and an amount of Rs.25,000/- can be granted towards the same. Accordingly, a sum of Rs.25,000/- is hereby granted to the appellants towards the plantain garden and its yield. POINT No.3: 28. As seen from Ex.B-1, award, by the date of Section 4(1) notification, there is a motor with accessories worth Rs.3,558/- in the acquired land apart from the structures. Though the Land Acquisition Officer, during the enquiry, found that there are structures and the motor, he awarded compensation only for structures, but not awarded any compensation for the motor. As seen from the award, the claimant was directed to remove the said installed motor with all accessories to other place. It is an admitted fact that possession was given to the government beneficiaries even prior to Section 4(1) notification. If that be the case, according to PW-1, by the date of acquisition, there was 50 feet deep well in the acquired land and artisan bore with motor. There was also a shed of 15 feet x 35 feet measurement and three portioned mangalore tiled roofing house besides cement channels and water tanks numbering 9 in the land. With the help of the said bore well, he used to get the lands irrigated. There was a 7.5 HP motor attached to the said bore well. In proof of the same, he filed Ex.A-1, blue print plan, prepared by one Anandarao, Building Supervisor and Municipal Licensed Surveyor, which shows the existence of the shed together with its measurements. The building surveyor also gave estimation for the value of the shed under Ex.A-2 at Rs.12,000/-. Ex.A-3 is the blue print of the well and he estimated the value of the said well at Rs.28,000/-. He also prepared Ex.A-5 plan showing the existence of channels in the acquired land with tank. In L.A.O.P.No.77 of 1973, a Commissioner was also appointed to inspect the land covered by Sy.No.68/1 and he inspected the land and noted down the structures existing thereunder and Ex.A-9 is the report and Ex.A-10 is the plan prepared by him. The Assistant Engineer of Panchayat Raj also inspected the land and valued the structures at Rs.17,880/- under Ex.A-14. Ex.A-14 is the report of the Assistant Engineer, Panchayat Raj, addressed to the Social Welfare Officer submitting the details of the valuation of structures in Survey No.68/2 of Bommuru village (acquired land). As seen from Ex.A-14, the Assistant Engineer, Panchayat Raj, Rajahmundry, estimated the value of the bore well at Rs.18,800/- and after deducting depreciation of 10%, he proposed the value at Rs.17,880/-. He proposed the value of water tubes and supply channel at Rs.1,064/- situated in Sy.No.68/2 and also estimated the value of electrical motor at Rs.3,414/-. 29. Therefore, in view of the voluminous documentary evidence, we are of the view that the appellants are entitled to the compensation of Rs.17,880/- towards bore well, Rs.1,064/- towards water tubes and supply channel, and Rs.3,414/- towards the electrical motor. POINT No.4: 30. The learned counsel for the appellants placed reliance on the decision reported in SPECIAL DEPUTY COLLECTOR v. VENKATA SESHAMMA [1] and submitted that the appellants are entitled to receive solatium at 30% on the enhanced market value and 12% additional market value on the enhanced compensation. 31. The learned Government Pleader, on the other hand, submitted that the appellants are not entitled to claim solatium at 30% and 12% additional market value, and placed reliance on the decisions reported in KOYAPPATHODI M.AYISHA UMMA v. STATE OF KERALA [2] and MIR FAZEELATH HUSSAIN v. SPECIAL DEPUTY COLLECTOR, LAND ACQUISITION, HYDERABAD [3]. 32. In the present case, Section 4(1) notification is dated 17- 11-1975 and the award was passed on 31-12-1976. The date of notification and the date of passing of the award are thus much prior to the introduction of the provisions of the Amendment Act 68 of 1984. The Reference was also received by the Reference Court prior to the date of passing of the Amendment Act by the Parliament. Section 30 of Act 68 of 1984 deals with transitional provisions which reads as follows: “The provisions of sub-Sec. (1-A) of Section 23 of the principal Act, as inserted by clause (a) of Sec.15 of this Act, shall apply and shall be