* HON'BLE SRI JUSTICE GHULAM MOHAMMED And HON'BLE SRI JUSTICE G. BHAVANI PRASAD +L.A.A.S. No.856 of 2007 & Cross Objections (SR) No.16513 of 2007 & 456 of 2009 % 04/02/2010 L.A.A.S.No.856 of 2007 #Between: The Land Acquisition Officer, Jagtial, Karimnagar District .. Appellant AND $Ekkaladevi Narasamma and 172 others .. Respondents Cross-Objections (SR) No.16513 of 2007 Between: Ekkaladevi Narsamma and 133 others .. Cross Objectors AND The Land Acquisition Officer, Jagtial and 23 others .. Respondents Cross-Objections No.456 of 2009 Between: Badugu Narsaiah and 21 others .. Cross Objectors AND The Land Acquisition Officer, Jagtial and 152 others .. Respondents ! COUNSEL FOR THE APPELLANT: Sri Y. Chandrasekhar, Spl. G.P. ^ COUNSEL FOR THE RESPONDENTS: Sri Rajanna < Gist : Ø Head Note: ? CITATIONS: 1. (1998) 6 SCC 233 2. (2001) 7 SCC 650 3. (2003) 4 SCC 481 4. (2003) 12 SCC 334 5. 2009 (6) Scale 1 6. (2009) 6 Supreme 110 7. 2002(2) ALD 844 (DB) 8. (2002) 3 SCC 688 9. (2005) 4 SCC 789 10. (2009) 2 Supreme 248 11. (2009) 6 Supreme 648 12. (2004) 4 SCC 79 13. AIR 2001 SC 3516 14. AIR 2007 SC 1579 15. (2005) 12 SCC 443 16. 2009 ALL.L.R.347 17. (2002) 1 SCC 142 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE FOURTH DAY OF FEBURARY TWO THOUSAND AND TEN HON’BLE SRI JUSTICE GHULAM MOHAMMED AND HON’BLE SRI JUSTICE G. BHAVANI PRASAD L.A.A.S.No.856 of 2007 and Cross-Objections (SR) No.16513 of 2007 and 456 of 2009 L.A.A.S.No.856 of 2007 Between: The Land Acquisition Officer, Jagtial, Karimnagar District .. Appellant AND Ekkaladevi Narasamma and 172 others .. Respondents Cross-Objections (SR) No.16513 of 2007 Between: Ekkaladevi Narsamma and 133 others .. Cross Objectors AND The Land Acquisition Officer, Jagtial and 23 others .. Respondents Cross-Objections No.456 of 2009 Between: Badugu Narsaiah and 21 others .. Cross Objectors AND The Land Acquisition Officer, Jagtial and 152 others .. Respondents COMMON JUDGMENT: (Per Hon’ble Sri Justice Ghulam Mohammed) The Mandal Revenue Officer, who is Land Acquisition Officer, Jagtial, filed the present appeal under Section 54 of the Land Acquisition Act, 1894 (hereinafter referred to as “the Act”) assailing the award dated 01-05-2007 rendered by the II Additional District Judge, Karimnagar at Jagtial in O.P.No.198 of 2004, whereby and whereunder the reference Court fixed the market value of the lands acquired at Rs.1,02,000/- per acre uniformly for both wet and dry lands with 30% solatium and interest at 9% per annum for one year from the date of taking possession, i.e. 04-09- 1982 and thereafter at 15%p.a. both on the principal market value and the solatium till the entire amount is paid or deposited into Court excluding the interest for the period from 13-02-1996 to 29- 04-1999 and disallowing additional market value at 12% per annum in view of the bar under Ex.B.2 order of this Court dated 13-09- 2004 in W.P.No.9805 of 1999. The factual background for the appeal is that the lands of the claimants admeasuring Ac.68.16 guntas of wet and dry lands in different survey numbers situated at Jagtial village were acquired for the purpose of construction of summer storage tank to supply water to the public living in Jagtial by issuing a draft notification under Section 4 (1) of the Act, which was published in the official Gazette. The Land Acquisition Officer fixed the market value of the lands at Rs.12,200/- per acre for dry lands and Rs.13,000/- per acre for wet lands, apart from awarding a sum of Rs.32,060/- for 13 wells. As the acquired lands were taken over possession prior to 4(1) notification, the Land Acquisition Officer awarded interest and 30% solatium for the acquired lands by fixing the market value at Rs.6,000/- per acre for dry lands and at Rs.7,500/- per acre for wet lands only for the purpose of calculating interest. When the claimants submitted representations on 20-03- 1995 requesting to refer the matter to Civil Court, the Land Acquisition Officer rejected the same by a memo dated 13-02- 1996. Thereafter, the claimants approached the High Court by way of W.P.No.9805 of 1999 with a request to direct the Land Acquisition Officer to refer the matter to Civil Court under Section 18 of the Act, wherein the High Court by the order dated 13-09- 2004, directed the Land Acquisition Officer to refer the matter to Civil Court, while disentitling the claimants to interest for the period from 13-02-1996 to 29-04-1999 and also additional amount of compensation under Section 23 (1-A) of the Act. Pursuant thereto, the matter was referred to Civil Court under Section 18 of the Act. Before the reference Court, PWs.1 to 10 and RW.1 were examined and Exs.A.1 to A.18 and B.1 to B.3 were marked. The reference Court, after considering the oral and documentary evidence on record and relying on the sale transactions, fixed the market value of the lands at Rs.1,02,000/- per acre uniformly for wet and dry lands with 30% solatium and interest at 9% p.a. for one year from the date of taking possession i.e. 04-09-1982 and thereafter at 15% p.a. both on the principal market value and the solatium till the entire amount is paid or deposited in the Court excluding the period from 13-02-1996 to 29- 04-1999, while not granting additional market value at 12%p.a. for the said period in view of the bar created by Ex.B.2, Order of this Court dated 13-09-2004 in W.P.No.9805 of 1999. Challenging the said award, the present appeal has been filed by the Land Acquisition Officer. The claimants also filed cross-objections on various grounds against the award insofar as it relates to them. Learned Government Pleader for Appeals and the learned counsel for the respondents are heard in extenso. Sri Y. Chandrasekhar, learned Special Government Pleader, vehemently argued on the following points: 1) The enhancement made by the reference Court is improper and unsustainable; 2) The escalation granted at 20% by the reference Court is not justified in law and is impermissible under the Act. 3) Awarding of interest can only be made from the date of 4 (1) notification, but not from the date of advance possession i.e. 04-09-1982 in view of Section 34 of the Act. In order to substantiate the above contentions, the learned Special Government Pleader relied on various precedents. On the other hand, Sri Rajanna, learned counsel for the respondents, strenuously contended that the claimants are deprived of their lands from making use of it due to the acquisition made prior to 4(1) notification, for which they can be compensated in terms of damages and that the deduction at 50% made towards development charges like in the cases where the land acquired for the purpose of house sites is not just and proper as the present lands are acquired only for construction of summer storage tank. He also argued that the escalation at 20% awarded is in tune with the provisions of the Act and needs no interference. He further contended that the claimants are also entitled to additional market value under Section 23 (1-A) of the Act. In order to substantiate his contentions, he relied on various precedents. With the above background the following points that arise for consideration in this appeal are: 1) Whether the enhancement made by the reference Court is just and proper? 2) Whether the escalation awarded by the reference Court needs any interference? 3) Whether the deduction at 50% made towards development charges is justified? 4) Whether the claimants are entitled to interest from the date of 4(1) notification? The acquisition of lands for construction of summer storage tank under the Act is an undisputed fact. It is also not disputed about taking over the possession of the lands prior to 4(1) notification. Insofar as the first point about the enhancement of market value by the reference Court is concerned, both the counsel relied on various decisions commented with State of Jammu & Kashmir v. Mohammad Mateen Wani and others[1] for the proposition that sale instances of small area cannot be said to be comparable sale instances, while enhancing the market value. Likewise, in Shaji Kuriakose and another v. Indian Oil Corporation and others[2], the Apex Court observed that the courts adopt comparable sale method of valuation of land while fixing the market value of the acquired land. It also held that while fixing the market value, comparable sale method of valuation is preferred to other methods of valuation of land such as capitalization of net income method or expert opinion method. Comparable sale method of valuation is preferred because it furnishes the evidence for determination of the market value of the acquired land at which a willing purchaser would pay for the acquired land if it had been sold in the open market at the time of issue of notification under Section 4 of the Act. Similarly, in Ravinder Narain and another v. Union of India[3], the Apex Court, while laying down certain principles for fixation of market value with reference to comparable sales to be followed to minimize speculation, observed that it cannot be laid down as an absolute proposition that the rates fixed for the small plots cannot be the basis for fixation of the market rate. It also held that when there is no other material, it may in appropriate cases be open to the adjudicating court to make comparison of the prices paid for small plots of land subject to necessary statutory deductions. Similarly, in Land Acquisition Officer, Kammarapally village, Nizamabad District v. Nookala Rajamallu and others[4] the Apex Court reiterating the same principle as laid down in the earlier decision Ravinder Narain and another v. Union of India (3 supra) determined the market value. Likewise, in Karnataka Urban Water Supply and Drainage Board v. K.S. Gangadharappa and another etc.,[5] the Apex Court observed that it is a trite proposition that prices fetched for small plots cannot form the sale as basis for valuation of large tracts of land as the two are not comparable properties. The principle that evidence of market value of sales of small-developed plots is not a safe guide in valuing large extents of land, has to be understood in its proper perspective. It also held that the principle requires that prices fetched for small-developed plots cannot directly be adopted in valuing large extents. Similarly, Satish and others v. State of U.P. and others[6] is for the proposition that Section 51 A of the Act seeks to make an exception to the proof of document through primary and secondary evidence stating that in the acquisition proceedings, sale deeds are required to be brought on record for the purpose of determining market value payable to the owner of the land when it is sought to be acquired. Likewise, in Singareni Collieries Co. Ltd., Godavarikhani v. Kandula Ramaiah and others[7], this Court observed that when large extent of land was sold, it cannot fetch the same value as that of small pieces. It also held that the comparable sales have to be taken into consideration while fixing market value of the acquired lands. With reference to the above precedents, now it has to be seen that whether the reference Court erred in enhancing the market value of the acquired lands? A perusal of the impugned award makes it clear that the reference Court, after thorough analysis of the sale deeds produced by the claimants and relying on Ex.A.7 sale transaction relating to prior to the date of taking possession under which large extent of the land was sold at Rs.60,000/- per acre and rejecting the sale transactions covered by Exs.A.1 to A.6, which are subsequent to the date of taking possession, on the ground that the rates could have been boosted up for the purpose of claiming compensation, in the light of oral evidence of the Sub-Registrar as PW.9, who confirmed the authenticity of Ex.A.7 sale deed as true and correct, adopted the sale transaction covered by Ex.A.7 in fixing the market value of the acquired land, which cannot, in our opinion, be considered to be perverse or unreasonable under the circumstances so as to call for interference by this Court. Coming to the next point about granting escalation at 20% by the reference Court, a strong reliance was placed in Special Land Acquisition Officer, BTDA, Bagalkot v. Mohd. Hanif Sahib Bawa Sabhi[8] wherein the Apex Court held that appreciation at rate of 10% for every subsequent year after the base year was neither excessive nor unreasonable for a land in an area, which was within the municipal limits. But, while enhancing the compensation, the reference Court appeared to have grossly erred in granting escalation at 20% for every year contrary to the rules. As a general rule in almost all the cases, the escalation has to be granted only at 10% for every year, but not at 20% in tune with the provisions of the Land Acquisition Act. In the present case, the reference Court added a sum of Rs.12,000/- being the escalation at 20% for every completed year to the amount of Rs.60,000/-, which came to be arrived at Rs.2,04,000/-. Nonetheless, having regard to the facts and circumstances of the case and in the light of above precedent, we are of the considered opinion that 10% would be the appropriate escalation and hence, if such 10% escalation is given, it comes to Rs.6,000/- for every completed year and if the same is multiplied by 12, as there was time gap of 12 years between the comparable sale and the draft notification, the escalation charges come to Rs.72,000/- and when adding it to the sum of Rs.60,000/-, the total would come to Rs.1,32,000/- per acre. Coming to the third point about the deduction of 50% made towards development charges, a strong reliance was placed on this aspect in Viluben Jhalejar Contractor v. State of Gujarat[9], wherein the Apex Court held that a comparable instance has to be identified having regard to the proximity from time angle as well as proximity from situation angle. It also held that for determining the market value of the land under acquisition, suitable adjustment has to be made having regard to various positive and negative factors vis-à-vis the land under acquisition by placing the two in juxtaposition. The Apex Court also observed that where a smaller plot may be within the reach of many, a large block of land will have to be developed, which may range between 20% and 50% of the total price. Similarly, C.R. Nagaraja Shetty v. Special Land Acquisition Officer and Estate Officer and another[10] is for the proposition that while the land is acquired for public purpose like setting up of industries or setting up of housing colonies or other such allied purposes, the acquiring body would be entitled to deduct some amount from the payable compensation on account of development charges. It was also held that it has to be established by positive evidence that such development charges are justified. In Charan Dass v. Himachal Pradesh Housing and Urban Development Authority and others[11], the Apex Court settled a principle that it is not in every case that deduction towards development charges has to be made when a big chunk of land is acquired for housing colonies etc., and where the acquired land falls in the midst of an already developed land with amenities of roads, electricity etc., deduction on this account may not be warranted. The perusal of the award under challenge made it clear that the reference Court went wrong in deducting 50% towards development charges. In general, the development charges can be deducted only in the cases where acquisition of land is for providing house sites for which development activity is necessary. But, in the instant case, the acquisition of lands is for construction of summer storage tank, for which no development activity is required unlike the land for providing house sites. Therefore, in view of the nature of acquisition of the lands and following the law laid down by the Apex Court, in our considered opinion, 25% would be the appropriate deduction instead of 50% as was done by the reference Court. If escalation of 10% is given for 12 years, the value comes to Rs.1,32,000/- per acre and added to this, if deduction at 25% amounting to Rs.33,000/- towards development charges is made, the true market value at that point of time, would come to Rs.99,000/-. Coming to the fourth point about granting interest from the date of taking possession and not from the date of notification under Section 4(1) of the Act, both counsel placed strong reliance on this aspect in R.L. Jain v. DDA and others[12] wherein the Apex Court held that the expression “the Collector shall pay the amount awarded with interest thereon at the rate of nine per centum per annum from the time of so taking possession until it shall have been so paid or deposited” should not be read in isolation divorced from its context. The words “such compensation” and “so taking possession” are important and have to be given meaning in the light of other provisions of the Act. “Such compensation” would mean the compensation determined in accordance with other provisions of the Act, namely, Sections 11 and 15 of the Act which by virtue of Section 23 (1) mean market value of the land on the date of notification under Section 4 (1) and other amounts like statutory sum under sub section 1-A and solatium under sub section (2) of Section 23. It also held that while the words “so taking possession” mean taking possession in accordance with Section 16 or Section 17 of the Act, the stage for taking possession under the aforesaid provisions would be reached only after publication of the notification under Sections 4(1) and 9(1) of the Act. The words “so taking possession” can under no circumstances mean such dispossession of the owner of the land which has been done prior to publication of notification under Section 4 (1) of the Act, which is de hors, the provisions of the Act. The Apex Court further laid down that if on account of acquisition of land, a person is deprived of possession of his property, he should be paid compensation immediately and if the same is not paid to him forthwith, he would be entitled to interest thereon from the date of dispossession till the date of payment thereof. It was also held that in a case where the landowner is dispossessed prior to the issuance of preliminary notification under Section 4 (1) of the Act, the Government merely takes possession of the land but the title thereof continues to vest with the land owner and it is fully open for the landowner to recover the possession of his land by taking appropriate legal proceedings and he is therefore entitled to get rent or damages for use and occupation for the period the Government retains possession of the property. The Apex Court also observed that where possession is taken prior to issuance of the preliminary notification, it will be just and equitable that the Collector may also determine the rent or damages for use of the property to which the landowner is entitled, while determining the compensation amount payable to the landowner for the acquisition of the property and the provisions of Section 48 of the Act lend support to such a course of action. For delayed payment of such amount, appropriate interest of prevailing bank rate may be awarded. Similarly, Sunder v. Union of India[13] is for the proposition that the person entitled to the compensation awarded is also entitled to get interest on the aggregate amount including solatium. And also in Special Deputy Collector (Land Acquisition), General, Hyderabad v. B. Chandra Reddy and others[14], it was held that when the owner of immovable property loses possession of property, he can claim interest in lieu of right to retain possession. Likewise in Land Acquisition Officer & Assistant Commissioner and another v. Hemanagouda and others[15], the Apex Court held that where possession of the land was taken prior to publication of notification under Section 4 (1), no interest on the amount awarded as compensation would be payable, but, rent or damages for any use of the property, as claimed, prior to the date of acquisition would be permissible. In this regard, the learned counsel for the respondents stated that the Government illegally took possession prior to the issuance of 4(1) notification, and therefore, the claimants should be compensated in terms of damages. In this context, it is relevant to refer Section 34 of the Act, which reads as follows: “When the amount of such compensation is not paid or deposited in or before taking possession of the land, the Collector shall pay the amount awarded with interest thereon at the rate of nine per centum per annum from the time of so taking possession until it shall have been so paid or deposited: Provided that if such compensation or any part thereof is not paid or deposited within a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date of expiry of the said period of one year on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry.” A perusal of the language enumerated in Section 34 makes it clear that the expression “possession” has to be construed as “legal possession but not illegal possession”. So, taking of possession arises only after issuance of 4(1) notification under the Official Gazette. In the present case, the notification was published on 21-03-1993, while the possession was taken on 04-09-1982 prior to issuance of the notification. Learned counsel for the respondents, while contending that the landowners should be compensated by way of damages from the date of taking possession of the lands as the lands were taken over possession prior to issuance of 4(1) notification, relied on State of U.P. v. Bechu Ram[16], wherein it was held that a person, who is being dispossessed prior to the date of publication of notification under Section 4(1), is also entitled for damages for use and occupation of the land for the period for which he was legally dispossessed. He further contended that since the possession was taken prior to the issuance of 4(1) notification, the claimants are being deprived of their lands from making use of it. In this context, keeping in view the law laid down by the Apex Court in R.L. Jain v DDA and others (12 supra), it is made clear that even though the possession was taken prior to issuance of the 4 (1) notification, the stage of taking possession would be reached only after publication of the notification and under no circumstances, interest from the date of prior to notification till the date of 4 (1) notification cannot be awarded, and hence, the claimants cannot be entitled to claim any interest prior to the date of 4(1) notification. However, in the instant case, the Land Acquisition Officer fixed the market value notionally at Rs.6,000/- per acre for dry lands and at Rs.7,500/- per acre for wet lands for the purpose of calculating interest component and awarded interest at 9% per centum per annum for one year and at 15% per centum per annum for the remaining period from 04-09-1982 to 20-03-1993 with 30% solatium including the cost of the wells existed in the lands at Rs.32,060/-, which came to be arrived at Rs.9,16,552/-. However, it is relevant to refer Section 25 of the Act reads as follows: “The amount of compensation awarded by the court shall not be less than the amount awarded by the Collector under Section 11.” Having regard to the facts and circumstances of the case and keeping in view of the decision of Apex Court in R.L. Jain v. DDA and others (12 supra), as the compensation