THE HONOURABLE SRI JUSTICE B.PRAKASH RAO AND THE HONOURABLE SRI JUSTICE VILAS V.AFZULPURKAR L.A.A.S.Nos.163, 1024, 170 and 173 of 2007 WEDNESDAY THE 12TH DAY OF AUGUST, 2009 Between: The Land Acquisition Officer and Revenue Divisional Officer, Madanapalle, Chittoor District .. Appellant and B.Dwarakanatha Reddy R/o Horsely Hills Schools, Horsely Hills 517 325, Chittoor District and others .. Respondents THE HONOURABLE SRI JUSTICE B.PRAKASH RAO AND THE HONOURABLE SRI JUSTICE VILAS V.AFZULPURKAR L.A.A.S.Nos.163, 1024, 170 and 173 of 2007 COMMON JUDGMENT: (Per the Hon’ble Sri Justice B.Prakash Rao) Since all these appeals arise out of the common judgment and decree of the Court below in respect of same subject matter, they are being taken up together for disposal. The appellants in these appeals include both the Land Acquisition Officer and as well the claimants. The appeal in AS.No.163 is by the Land Acquisition Officer whereas the other appeals AS.1024 of 2007, 170 of 2007 and 173 of 2007 are by the claimants. Both the Land Acquisition Officer and the claimants filed these appeals aggrieved against the judgment and decree in O.P.No.85/1995 dated 20-11-2006, on the file of the Senior Civil Judge, Madanapale, District Chittoor in a reference arising under Section 18 of the Land Acquisition Act. Thus, there is an attack from both sides one challenging the correctness of the market rate determined and the other seeking for further enhancement. Briefly, the facts which are not in dispute as per the present proceedings are concerned are that as per the notification issued under Section 4 (1) of the Land Acquisition Act in the Gazettee on 10-2-1994, the lands in question to an extent of Ac.82.53 cents comprising viz., an extent of Ac.80-97 cents in Sy.No.485/3, Ac.3-06 cents in Sy.No.486, Ac.1-06 cents in Sy.No.488/2/489, Ac.0-63 cents in Sy.No.502/2 and Ac.1-81 cents in Sy.No.503, which are situated within the limits of Valasapalle village of erstwhile Madanapalle Taluk in Chittoor district. The said acquisition is for the purpose of establishing Industrial Development Area at the instance of the Andhra Pradesh Industrial Infrastructure Corporation Limited, Hyderabad, which gave requisition. The follow up declaration as contemplated under Section 6 of the said Act was published in the Gazettee on 20-2-1994. Under the earlier notification issued under Section 4 (1) of the said Act, the enquiry under Section 5-A was dispensed with by invoking the urgency clause under Section 17 (2) of the said Act. The possession was taken on 7-9-1994. Subsequently, the enquiry was taken up by the Land Acquisition Officer and after participation by the claimants, who set forth their claims for the compensation and consequently for fixing the market rate therefor, an award was passed on 25-8-1994, where under the Land Acquisition Officer followed the belt system and made into 3 categories, each category consisting of the land fit for cultivation and unfit for cultivation. In the 1st for an extent of Ac.55-43 cents, which is fit for cultivation, he fixed the market at Rs.40,000/- whereas in the same category for an extent of Ac.5.15 gts, which is unfit for cultivation he fixed at Rs.20,000/- per acre. In the 2nd category an extent of Ac.24-93 cents, which is fit for cultivation Rs.35,000/- was fixed and for the land which is unfit for cultivation to an extent of Ac.7-11 cents, it was fixed at Rs.15,000/- per acre. Lastly, under the 3rd category for the land to an extent of Ac.18-17 cents, which is fit for cultivation Rs.30,000/- was fixed and where as for the other land to an extent of Ac.6-74 cents, which is unfit for cultivation, the market rate was fixed at Rs.15,000/- per acre. However, the claimants were not satisfied with the said market rate as fixed by the Land Acquisition Officer, and accordingly, at their instance the matter was referred to the District Court under Section 18 of the Land Acquisition Act for fixation of the market rate. After the reference, in the Court below, both the parties appeared and submitted their respective claims and objections. Thereafter, they went into trial. In the trial, on behalf of the Land Acquisition Officer, PWs.1 to 7 were examined and Exs.A.1 to A.22 were marked apart from Exs.C.1 to C.3 through the Commissioner and Exs.X.1 and X.2 through the technical experts were marked. On behalf of the claimants RWs.1 to 15 were examined and Exs.B.1 to B.91 were marked. On considering the entire evidence and material on record and taking into account the facts and circumstances of the case, the Court below accepting the claim for further enhancement, fixed the market rate at double than the rate as fixed by the Land Acquisition Officer along with other statutory benefits as per the amended Act 68 of 1984 and interest at 12% per annum for one year and subsequently at 15% per annum and solatium at 30%. Hence, these appeals. Sri K.V.Simhadri, the learned counsel appearing on behalf of the appellant-Land Acquisition Officer contended primarily that even though there is no acceptable evidence and material on record to warrant further enhancement, the Court below simply doubled it and no reasons much less valid are given in support of such enhancement, therefore, the market rate as determined by the Court below is totally exhorbitant and unsustainable and accordingly liable to be set aside. On behalf of the respondents apart from the counsels who appeared, one of the claimants Mr.P.Narasimhulu appeared as a party-in-person and made detailed submissions in regard to the checkered history, antecedents and as to how the land was intended to be used and seeking for further enhancement of market rate by fixing at Rs.2,50,000/- per acre. In support he relied on the various documents filed in the court below and certain other additional documents produced as additional evidence in the application filed separately in LAAS.MP.No.502/2009 in LAAS.170 of 2009. Having considered the submissions and having regard to the nature of question involved, especially, for fixing the market rate in respect of the land, which has been acquired by the State and having an effect on the substantive rights of the parties and necessarily warranting fixation of the proper market rate, we allow the application filed for additional evidence. On consideration of the detailed submissions made from both sides and on the perusal of the material on record, the question which boils down for consideration is as to whether on the facts and circumstances, the market rate as fixed by the Court below is excessive and whether the claimants are entitled for enhancement in this regard? At the outset, the well laid principles under Section 23 of the Land Acquisition Act as reiterated by various decisions of this Court and as well as by the apex Court primarily takes in that necessarily the market rate has to be determined basing upon the market value as existing as on the date of notification issued under Section 4 (1) of the Land Acquisition Act. Therefore, the enquiry should be to find out the prevailing market value on the basis of the evidence available from both sides. In this regard, normally a peep into the sale transactions as on the said relevant date would have ample bearing on the question in issue. There is no dispute to the fact that in this case lands were acquired on 10-2-1994 and the extent covered is Ac.87-53 cents. Therefore, the market rate has to be fixed as existing as on that date. Though, the Land Acquisition officer followed the belt system and made into three categories, however, the one factor, which goes to the very root of the matter is that the entire acquisition for such a larger extent is for an Industrial Development Area. Apparently, it is a more commercial activity by the state in encouraging the private entrepreneurs. It also follows that the land is apparently suitable for such construction and industrial activity. It transpires from the record that even prior to the issuance of notification, the concerned authorities viz., the Land Acquisition Officer along with the revenue officials visited the site on 27-11-1992 and 7-5-1994 and have found fit for the said purpose. Therefore, straightaway, the land itself cannot be taken as one exclusively used or could have been used for the agricultural purpose and the loss thereby. It has to necessarily have an element of commercial activity with all the construction facilities and suitability. On behalf of the Land Acquisition Officer apart from the oral evidence produced through PWs.1 to 7, which include several officials, the documents in Exs.A.1 to A.22 were pressed into service. In those documents, the sale transactions are only Exs.A.5 dated 10-3-1993, A.6 is dated 11-10-1991 and A.7 is dated 11-1-1994 and A.8 is dated 26-2-1993. The award in the present case was marked as Ex.A.9. Ex.A.18 is an adangal, which is a revenue record for the Faslis 1309-1310 equivalent to 1999-2000. Having regard to the nature of question involved, especially, in regard to the fixation of market rate and where the claimants have found fault with the market rate fixed by the Land Acquisition Officer, it automatically follow that primary burden to establish the market rate is on the claimants. Therefore, the evidence produced on behalf of the claimants prima facie has to be dwelled into for the purpose of ascertaining the market rate. RW.1, who is one of the claimants and husband and father of the claimants No.2 and 3, respectively, apart from being relative to other claimants reiterates his claim for enhancement. He narrates as to the individual title of the respective claimants. Further, he states that there are fruit yielding trees and other timber trees like Kanuga, Margosa etc. According to him the acquired lands are 7 Kms from Madanapalle and are adjacent to Madras-Bombay Trunk Road of which almost for a distance of 6 furlongs the lands which is acquired in sy.no.485/3 is covered. There is a cold storage factory, Vani Residential Junior College opposite to the land bearing S.No.485/3 and a Sericulture Training Centre to the Southern side and on northern side there is a Clean foods Limited apart from there exists residential schools viz., Navodaya and Madanapalle Residential School. Thus, according to him there are several buildings, schools and industries etc., as noted by the Advocate Commissioner. He produced Ex.B.1, a registered sale deed dated 29-1-1994 executed by 10th claimant in his favour. Ex.B.2 is the another registered sale deed in favour of 2nd claimant and the value of the land in both Exs.B.1 and B.2 comes to Rs.1,25,000/- per acre. Admittedly, these two sale transactions are prior to the date of notification in this case, and nothing as such can be attributed against their genuineness. He reiterates that the land is useful for house-sites and establishment of industries. Further, he reiterates that there should have been uniform rate for the entire acquired lands having regard to its uniformity all along. In the cross-examination nothing much has been extracted on behalf of the Land Acquisition Officer to discredit his version as spoken above. RW.2 is the 7th claimant, who almost reiterates the very same version and he filed Ex.B.8, a valuation certificate. It is to be seen that having regard to the fact that such certificate cannot be straightaway accepted, necessarily, an attempt has to be made to see the sale transactions, which are relevant. He marked Ex.B.9, a gift deed dated 31-10-1998 made by one K.Venkatramana in favour of Mandal Revenue Officer, Madanapalle for 0- 125 cents showing the consideration at Rs.14,000/-. Ex.B.10 is a registered sale deed dated 22-8-1992 by the owners in favour M/s.Heritage Foods India Limited for a consideration of Rs.1,97,800/- for an extent of Ac.0-92 cents, which comes to at the rate of Rs.2,15,000/- per acre and the said land is situated in Sy.No.733 of Basinikonda Revenue Village. Ex.B.11 is the registered sale deed dated 26-11-1992 executed by the owners in favour of M/s.Heritage Foods India Limited for a consideration of Rs.1,97,800/- for an extent of Ac.0-92 cents which comes to Rs.2,15,000/- per acre. Ex.B.12 is the registered sale deed dated 27-8-1992 in favour of the same company of which market rate comes to Rs.2,15,000/- per acre. Ex.B.18 is the registration copy of the agreement of sale dated 30-10-1992 in Sy.No.497/131 for an extent of Ac.6-00 at the rate of Rs.1,00,000/- per acre. Ex.B.14 is the registered sale deed dated 25- 10-1995 in pursuance of the said agreement. Ex.B.15 and B.16 are other registered sale deeds of the same period. He has also referred to certain sales in Ex.B.19 of the plots for a considerable value. Therefore, he sought for fixing the market rate at Rs.1,50,000/- per acre. Even this witness is not shattered in any way and there is nothing to discredit his version. RW.3 is a 10th claimant he refers to sale dated 29-1-1994, which is for Rs.1,25,000/-. RW.4 is 8th claimant and related to 9th and 10th claimant. He refers to sale transactions dated 29-10-1994 for Rs.1,25,000/- per acre. RW.5 is a 3rd party, who negotiated the sale for an extent of Ac.6-00 in Sy.No.497/B1 for a consideration of Rs.1,00,000/- per acre and resulting into an agreement of sale dated 30-10-1992. RWs.6 and 7, who are the claimants reiterated the similar version. RW.8 is a practicing advocate, who was appointed as a Commissioner to inspect the land and he stats that after giving notice, he inspected the same on 1-12-2000 and submitted the report in Ex.C.1, and C.2 is the sketch prepared by the Mandal Surveyor, Madanapalle as per his instructions. Ex.C.3 is a tabular statements showing the distance between the lands acquired and other properties visited by him as mentioned in Ex.C.2. The said commissioner reiterates the fact that the land is covered by school, college buildings, heritage company, cold storage, juice factory, saw mill, Sericulture Training Center etc. RW.9 is an employee of the electricity department and he speaks about service connections and particulars of numbers given to Madanapalle Residential School building, Mubarak saw mill, Madanapalle cold storage, Vani Residential school, Sericulture Complex, sub-station, Assistant Zonal Manager APIIC, Chittoor and Heritage Foods Pvt Limited. According to him, the dates of these connections date back to 1986, 1990, 1992, 1996 and 1999. Thus, it transpires that of these connections as spoken to by him the connections of the Residential school building, saw mill, college, cold storage and Vani Residential school were already in existence much prior to the issuance of the notification in the present case. RW.10 is a Senior Assistant in the Sub-Registrar’s office, Madanapalle who has been produced for the purpose of marking and to state about the basic value register pertaining to the vllage. Though, he states about the various figures as contained there from, however, having regard to the principles laid down by this Court, such basic value register cannot be relied on and necessarily fall back has to be on the sale transactions. Hence, it is not necessary to consider his evidence. The other witnesses include Horticulture officials and experts who spoke about the existence of fruit growing trees. Thus, on an overall consideration of the evidence produced on behalf of the claimants, it would amply through light on the various physical features of the land, which is acquired and also in and around, necessarily, it shows that there is substantial activity in the land and it cannot be said that it remained only as an agricultural land alone. Of these documents produced on behalf of the claimants, the Exs.B.1 to B.16, B.18 and B.19 consisted of various sale transactions. However, by taking note of the dates as mentioned therein it is seen that Exs.B.1, B.2, B.9, B.10, B.11, B.12, B.13 and B.14 are prior to the date of notification. There is no reason attributed as to why these transactions cannot be taken into consideration. However, Exs.B.3, B.4, B.5, B.6, B.7, B.15 and B.16 are post-sale notification dates and hence need not be considered. From this evidence, it shows that even prior to the date of notification the market rate of the lands in and around is swelling up to Rs.1,50,000/- per acre. Coming to the evidence in rebuttal on behalf of the Land Acquisition Officer, it is seen, as already observed apart from the oral version given from PWs.1 to 7 it is only the 4 sale transactions which has been pressed into service in Exs.A.5, A.6, A.7 and A.8. These documents are for the year 1991-1993 and 1994. PW.1 is the Assistant Zonal Manager (Development) in A.P. Industrial Infrastructure Corporation Limited. He refers to the requisition made by the Corporation on 27-2-1992 and the subsequent events. He also refers to the letter dated 27-4-1989 given by P.Narasimhulu, the party-in-person who appeared here requesting Government of India for development of Industrial Growth Center at Madanapalle for rehabilitation of Ex-servicemen where he was advised to approach Government of Andhra Pradesh. He only reiterates that the market rate as fixed by the Land Acquisition Officer is quite liberal and the claimants are not entitled to any further amount. However, he did not give reference to any sale transaction. Though he has been subjected to cross-examination at length on the various other surrounding factors, especially, where the grievance sought to be made about the allotment for the Ex-servicemen. Since nothing as such can be deduced in regard to particular sale transaction, it is not necessary to dwell there into. PW.2 is the Joint Collector who again reiterates to the requisition and the later acquisition. He states that the lands are dry and had no irrigation facilities and situated at a distance of about 6 kms from Madanapalle- Chittoor main road. Of the acquired lands an extent of Acs.19-00 is covered by rocks, hillocks and boulders and was unfit for cultivation. Therefore, he states that the lands can be classified into 3 categories viz., 1st reach, 2nd reach and 3rd reach. In the cross-examination he is unable to point out by any material about the knowledge of the acquisition by the owners. He admits about the existence of residential schools, sericulture center and Madras-Bombay Trunk Road. He is the Land Acquisition Officer who says that he referred to about 23 sale transactions, however, none of them are produced nor any copies thereof. Therefore, in the absence of any sale transaction coming forth, nothing as such can be made out from his evidence. PW.3 is a licensed document writer who speaks about certain documents written by him on 11-5-1989 and 20-11-1993 where Ac.0-87 cents were sold for Rs.8,700/- which market value comes to R.10,000/- per acre. The other transactions of earlier year sale consideration for one acre was Rs.30,000/- and market rate of which comes to Rs.30,000/- per acre. PW.6 is the Assistant Zonal Manager, APIIC who reiterates about the requisition and other follow up action taken. PW.7 is the Manager (Quality Control) in the Corporation. Except reiterating once again the same checkered events nothing much has been spoken about the sale. He only marks Ex.A.18 adangal, which is for the year 1999-2000 and other documents in Exs.A.20, A.21 and A.22 regarding the water supply and drains. Therefore, from what all has been produced on behalf of the Land Acquisition Officer except the 4 sale transactions in Exs.A.5 to A.8, no other material has normally required for the purpose of determining the market rate, especially, pointing any sale transactions. Hence, in fact on behalf of the Land Acquisition Officer no serious attempt has been made in this regard to show what exactly could have been the market rate as on the date of the notification. Falling back on the principles laid down under Section 23 of the Land Acquisition Act as reiterated in catena of decisions, the main criteria is to find out the market rate as on the date of notification based upon the prevailing market value. Therefore, necessarily an attempt is made from both sides to come forth with the sale transactions in and around and substantiate the same. Normally, as and when the proceedings are initiated for the acquisition, substantial exercise is being made by the authorities concerned, especially, the revenue and the requisition authorities to make inspection survey etc. An attempt is also being made to fish out the surrounding sale transactions and obtain the particulars thereof. Such particulars do form part of the award proceedings though many times copies are not being filed nor any body concerned therewith are examined. Since, it has been held by the apex Court that if a certified copy of such transaction is filed, there is no necessity to examine any one concerned for the purpose of proof, and the certified copy can be looked into, even though such particulars are available at the time of awarding enquiry no attempt has been made by and on behalf of the Land Acquisition Officer to obtain certified copies thereof and file before the reference Court. Nowhere an explanation forth comes as to why such exercise is not done. Having regard to the time taken all along both pre-acquisition and post acquisition, it would not have been difficulty for the authorities to obtain the same and make part of the record. In the absence of any such attempt, in spite of the fact that they are fully aware of the sale particulars as can be evident from the awards themselves, it is not open for on behalf of the Land acquisition Officer to simply refer to such particulars or to say that no particulars are available. It would also not open for the authorities to simply try to put blame on the claimants or say that the claimants did not discharge their burden. Therefore, in the absence of any such valid evidence forthcoming on behalf of the Land Acquisition Officer, it cannot be said that rate as fixed can be said to be exorbitant. In fact there is nothing on record on behalf of the Land Acquisition Officer to show that such rate is quite exorbitant. In this case, no doubt on behalf of the claimants sale transactions have been filed some of which are pre-notification and some are post- notification. We have perused those sale transactions, which are pre- notification and found that the land value therein itself shown almost at Rs.1,50,000/- per acre. It is not a case where there is no material available on record at all nor any sale transaction is filed by the claimants. These documents, which are in record are suffice enough to make a proper assessment in regard to the market rate and fixation thereof. We are also conscious of the fact that even though such material was available, the Court below did not look into the same or consider from a proper perspective and especially the utter failure on the part of the Land Acquisition Officer to rebut or even to establish in regard to the market rate. However, the Court below was not right in making an approach since there is no material from both sides, therefore, it thought fit to enhance market rate by doubling the rate fixed by the Land Acquisition Officer. Such an approach is not correct, having regard to the scope and para-meters laid down under Section 23 of the Land Acquisition Officer, which contemplate the fixation of market rate which should be just and reasonable. The guarantees as provided for under the Constitution would not in any way take away onus or the propriety rights to claim such a just and reasonable compensation, which, without any demur, should be on the basis of prevailing rates as on the date of the notification. Having thus given a due consideration to the available material on record, we are of the view that the market rate as fixed by the Court below is quite on a lower side and necessarily it requires further enhancement. As rightly observed in the Court below the party-in-person who has appeared on behalf of the respondents herein, who is an ex-army officer made substantial effort by taking us through the entire historical account and surrounding circumstances. According to him, he took up the