HONOURABLE SRI JUSTICE V.ESWARAIAH & HONOURABLE SRI JUSTICE NOUSHAD ALI APPEAL SUIT No.1119 of 1999 & CROSS OBJECTIONS (SR) No.35739 OF 2002 Dated 3-8-2010. APPEAL SUIT No.1119 of 1999: Between: Bayyapareddy Venkata Subba Reddy and another. ..Appellants. And: Mandal Revenue Officer (L.A.O.), Allur, Nellore District. …Respondent. CROSS OBJECTIONS (SR) No.35739 OF 2002: Between: Mandal Revenue Officer (L.A.O.), Allur, Nellore District. …Cross-objector. And: Bayyapareddy Venkata Subba Reddy and another. …Respondents. HONOURABLE SRI JUSTICE V.ESWARAIAH & HONOURABLE SRI JUSTICE NOUSHAD ALI APPEAL SUIT No.1119 of 1999 & CROSS OBJECTIONS (SR) No.35739 OF 2002 COMMON JUDGMENT: (Per the Honourable Sri Justice V.Eswaraiah) This appeal is filed by the claimants and the Cross- Objections are filed by the Land Acquisition Officer against the order dated 26-11-1998 in O.P.No.31 of 1994 on the file of the learned Senior Civil Judge, Kovur. The facts of the case are that the land acquisition proceedings have been initiated to acquire the land and the Draft notification and Daft declaration are approved by the Collector on 27-1-1986 and 19-2-1986 respectively and the Draft Notification under Section 17 (4) was published in the Nellore District Gazette only on 21-2-1986, in the newspapers on 3-3-19868 and 4-3-1986 and in the village on 4-3-1986. Admittedly, the acquired land of Ac.4.72 cents in S.No.1698/C is classified as wet land. The land Acquisition Officer while passing the award No.4/86 dated 21-3-1986 observed that though certain sale transactions have been taken into account to reflect the market value at the rate of Rs.9,400/- per acre, and in fact, the land in question itself was purchased by the claimants vide Ex.X.1 dated 20-1-1986 at the rate of Rs.17,500/- per acre, and has fixed the compensation for the entire extent of Ac.4.72 cents at Rs.60,185-95ps which is at the rate of Rs.9,400/- per acre and fixed the value at Rs.10/-each for 138 palmyrah trees which are aged about 10 years Lands of the claimants of an extent of Ac.4.72 cents in S.No.1698C situated at Chowtapalem, H/o. Allurpet village, Allur Mandal, Nellore District were acquired for the purpose of house sites pursuant to the issuance of notification under section 4 (1) of the Land Acquisition Act and the Land Acquisition Officer passed the award awarding compensation at the rate of Rs.9,400/- per acre and Rs.10/- each for 138 palmyrah trees. On an application made by the claimant, requesting to refer the matter under Section 18 of the Land Acquisition Act for enhancement of compensation, the matter was referred to the Reference Court and the Reference Court enhanced the market value of the land acquired from Rs.9,400/- to Rs.12,500/- and for the trees from Rs.10/- to Rs.50/- per tree. Heard the learned counsel. Learned Counsel appearing for the claimants submits that the Reference Court ought to have placed reliance on Ex.X.1 sale deed dated 20-1-1986 by which the claimants have purchased the acquired land at the rate of Rs.17,500/- per acre. But, it has erroneously rejected the said transaction on the ground that the claimants have purchased the same after the initiation of land acquisition proceedings. Learned Government Pleader appearing for the Land Acquisition Officer fairly submitted that there cannot be any grievance in awarding compensation at the rate of Rs.12,500/- based on Ex.X.2 sale deed dated 11-6-1985 and that, the enhancement of compensation from Rs.10/- to Rs.50/- per tree is without any evidence or without any material. It is the case of the claimants that they themselves purchased the land at the rate of Rs.17,500/- per acre. With regard to the number of trees, though the claimants have claimed that they are 142 trees but they have failed to establish the same and therefore, the Reference Court confined the compensation for 138 trees alone. The claimants have claimed the market value at the rate of Rs.50,000/- per acre in their claim petition. In support of the claim of the claimants, 2nd claimant was examined as P.W.1. He deposed that the Land Acquisition Officer awarded compensation at the rate of Rs.9,000/- per acre. The acquired land is adjoining Allur village on the Eastern side of Juvvaladinne road. The houses have been constructed in the said acquired land without levelling the land or even without carting any mud to up level the land. The land was fit for construction of houses without any reclamation. The value of the land was more than Rs.17,500/- per acre on the date of the sale deed dated 21-1-1986. The surrounding villagers are now migrating the Allur village. Presently, the market value of the house site at Allur is Rs.3000/- per ankanam. There is a tank on the Western side of Allur village. On the Eastern side, there is agriculture lands. The village is now growing towards East and North. The 2nd claimant who was examined as P.W.2 deposed that the land is on the Eastern side of Juvvaladinne road and it is adjoining the village on the Northern side. Houses were constructed without raising the level of the land. The value of one ankanams in Allur is about Rs.3,000/- in the outskirts. The value of the land was Rs.17,500/- when it was purchased by Venkatasubbareddy. Now they are claiming compensation at the rate of Rs.50,000/- per acre for the acquired land. There are about 150 toddy trees in the acquired land. The value of each tree was Rs.100/- at the time of acquisition and it is now Rs.300/- per tree. P.W.3 who is the resident of Allur deposed that he was figured as one of the attestors of Ex.X.1 sale deed dated 20-1- 86 and the land was sold for Rs.17,500/- per acre. The actual sale consideration paid by the deceased claimant was Rs.20,000/- P.W.4 who is the resident of Alluru village deposed that he purchased Ac.0-10 cents of land for a sum of Rs.2,000/- per cent i.e., at the rate of Rs.20,000/- per acre. The acquired land is separated by Ac.1.30 cents of land belonging to Radhamma from his land of Ac.0.20 cents. On behalf of the Land Acquisition Officer, M.R.O. examined himself as R.W.1 and he stated that the Government acquired Ac.4.72 cents in S.No.1698/C of Allurpet village. Draft notification was published in Gazette dated 21-2-1986. The land Acquisition Officer granted compensation at the rate of Rs.9,400/- per acre. The acquired land was adjacent to Juvvaladinne road. The southern side of the acquired land, there is another patta land and south of that there is settlement. The village is upto S.Nos.882, beyond that there are two channels. The level of acquired land and adjacent land is one and the same. He does not known whether the value of palmyrah trees is Rs.70/- per tree and he does not know whether the value of each toddy tree was at least Rs.300/- at the time of acquisition. wrappers of Palmyrah trees are used for the purpose of constructing poultry farms and he does not know whether the acquired land would yield three putties per crop per acre. The income of the acquired land was Rs.5,000/- as suggested, value of paddy was Rs.1,000/- per putty at that time including agricultural expenses. Admittedly, the said acquired land was purchased by the claimant under Ex.X.1 sale deed dated 20-1-1986 and by that time, the land acquisition proceedings were not at all initiated. In fact, the Draft notification and Daft declaration are approved by the Collector on 27-1-1986 and 19-2-1986 respectively and the Draft Notification under Section 17 (4) was published in the Nellore District Gazette only on 21-2-1986, in the newspapers on 3-3-19868 and 4-3-1986 and in the village on 4-3-1986. Therefore, it cannot be said that the claimants are aware of the land acquisition proceedings till the draft notification was published. Unless the draft notification was published, the Land acquisition officer is not entitled to enter into the proposed acquired land except for conducting pre-survey. Merely because pre-survey was conducted, it cannot be said that they are going to acquire the said land for the purpose of the house sites. No doubt, the authorities will have to conduct pre- survey but until the draft notification is made, it can not be anticipated as to which land is going to be acquired. There is no evidence on record to the effect that there is any relationship between the vendors and the vendee so as to infer that Ex.X1 was manipulated for the purpose claiming more compensation in the acquisition proceedings. In view of the aforesaid facts, we are of the opinion that there cannot be any justification in rejecting Ex.X.1 document while fixing the compensation. Even otherwise, the market value of the land covered by Ex.X.2 sale deed is at the rate of Rs.20,000/- per acre. From the material available on record, it can be said that the lands under Ex.1 sale deed were acquired and they are agricultural lands and the said lands are acquired for the purpose of house sites and by leveling the same, houses have been constructed. Considering the fertility of the land, the value of the land acquired and the value of the neighbouring land under Ex.X2 and also considering the fact that the land acquired is used for construction of the houses, we are of the opinion that it is just and proper to fix the compensation at the rate of Rs.17,500/- per acre. In so far as the value of the trees are concerned, the palmyrah trees are capable of yielding the usufruct and under the Excise Act, owner of the tree is only entitled to get the usufruct only and therefore, fixation of the value of each palmyrah tree at Rs.50/- is not excessive. In this view of the matter, we feel that the reference Court has rightly fixed the value of the palmyrah trees at Rs.50/- per tree. Accordingly, the compensation awarded by the reference Court is enhanced from Rs.12,500/- to Rs.17,500/- per acre. However, in so far as the other findings of the reference Court need no interference. Subject to the above modification of the order of the reference Court, this appeal is allowed. Consequently, the Cross objections filed by the Land Acquisition Officer are dismissed. There will be no order as to the costs. ________________________ JUSTICE V.ESWARAIAH ________________________ JUSTICE NOUSHAD ALI Dated 3-8-2010. Dvs HONOURABLE SRI JUSTICE V.ESWARAIAH & HONOURABLE SRI JUSTICE NOUSHAD ALI APPEAL SUIT No.1119 of 1999 & CROSS OBJECTIONS (SR) No.35739 OF 2002 (Judgment delivered by the Honourable Sri Justice V.Eswaraiah) Dated 3-8-2010.