Andhra HC (Pre-Telangana)
Palivela Padma Raju (Died) Per L.Rs. vs Special Deputy Collector (Land ... on 8 July, 1996
Equivalent citations: 1997(3)ALT607
JUDGMENT S. Parvatha Rao, J.
1. A.S. No. 3156 of 1987 is preferred by the sole claimant Under Section 54 of the Land Acquisition Act, 1894 ('the Act' for short) against the judgment and decree dated 21-8-1987 of the learned Subordinate Judge at Peddapuram in O.P. No. 90 of 1984 claiming additional compensation for the trees in, the land acquired and A.S. No. 959 of 1988 is the appeal preferred by the Referring Officer (Special Deputy Collector, L.A., Y.R.P. Unit No. 3, Peddapuram) against the said judgment and decree questioning the enhancement of the compensation of Rs. 9,000/- per acre awarded by the Land Acquisition Officer to Rs. 25/- per Square Yard by the learned Subordinate Judge. A.S. No. 833 of 1988 is also similar appeal preferred by the same Referring Officer against the judgment and decree of the learned Subordinate Judge at Peddapuram in O.P. No. 89 of 1984. The sole claimant in O.P. No. 89 of 1984 has not preferred any appeal. O.P. Nos. 89 and 90 of 1984 arise out of Award No. 7 of 1984 dated 29-2-1984, and they were tried together, with evidence taken in O.P. No. 89 of 1984, and were disposed of by a common judgment dated 21-8-1987. Therefore, these three appeals have been taken up by us together and are being disposed of by this common judgment.
2. The lands covered by these two O.Ps. were notified for acquisition Under Section 4(1) of the Act published on 5-12-1983 for the purpose of excavation of Yeleru left main canal. The subject matter of O.P. No. 89 of 1984 is Acs. 5-72 Cents of dry land in S. Nos. 44/1A(Ac. 0-02 Cents), 53/1 (Acs. 4-81 Cents) and 53/2 (Ac. 0-89 Cents) of C. Rayavaram, Hamlet of Yeleswaram village in Prathipadu Taluq. Possession of these lands was taken on 1-10-1983 dispensing with 5A enquiry and invoking Section 17 of the Act. At the time when possession was taken, there was horse-gram crop in three acres of that land and compensation was paid for the same. The subject matter of O.P. No. 90 of 1984 is Acs. 2-30 Cents of dry land in S. No. 45/5A of C. Rayavaram. Possession of this land was taken on 1-9-1983 and there were no crops in this land. The Land Acquisition Officer fixed the market value of these lands at Rs. 9,000/- per acre and the learned Subordinate Judge enhanced the market value to Rs. 25/- per Square Yard holding that the lands have potential value as house-sites. This is questioned by the Referring Officer.
3. Two witnesses were examined for the Referring Officer and Exs.A-1 to A-6 were marked - of the documents marked, only one relates to a sale deed and that is Ex.A-6, which is a photostat copy of the registration extract of sale deed (Document No. 1754 of 1983) dated 18-8-1983 under which an extent of 50 Cents of land in S. No. 1/3 of C. Rayavaram village was sold for Rs. 4,500/-. Neither the vendor nor anyone concerned with the sale deed were examined. On behalf of the claimants, R.Ws.1 to 16 were examined and Exs.B-1 to B-10, C-1 and C-2, and X-1 and X-2 were marked. R.W. 1 and R.W. 2 are claimants in O.P. Nos. 89 and 90 of 1984 respectively. R.W. 3 was the Advocate Commissioner appointed in O.P. No. 90 of 1984 to note the physical features of the land under acquisition in that O.P. He visited that land on 21-9-1985 and submitted his report marked as Ex.C-1. Another Advocate was appointed as Commissioner for similar purpose in O.P. No. 89 of 1984 and he visited that land on 2-10-1985 and submitted his report marked as Ex.C-2. He was not examined because at the time of the trial he was hospitalised. R.W. 4 was the Village Karnam of Yeleswaram upto 1983. R.Ws. 5 and 6 were examined as residents of C. Rayavaram and Yeleswaram respectively and nothing turns on their evidence. R.Ws. 7 and 8 claim to have purchased 5 Cents and 10 Cents of land in S. No. 53 under unregistered agreements of sale dated 23-11-1981 and 8-2-1980 marked as Exs.X-1 and X-2 for Rs. 4,000/- and Rs. 8,750/- respectively from R.W. 1. R.W. 9 was working as Executive Officer of Yeleswaram Panchayat during 1976-81 and since July, 1985. R.W.10 was the scribe of the originals of Exs.B-2, B-3 B-4 and B-6 to B-9 sale deeds, which are registration extracts of sale deeds of various vacant sites in the village Yeleswaram. R.W.11 was the purchaser under Ex.B-6 sale deed. R.W.12, a resident of Yeleswaram, was Vice-President of Yeleswaram Panchayat. R.W.13 was the vendor of a small plot of land in Yeleswaram under the original of Ex.B-2 sale deed. R.W.14, a resident of Yeleswaram village, was a clerk of the vendor under the original of Ex.B-3 sale deed, who died, and therefore could not be examined. R.Ws. 15 and 16 were the attestors of the original of Ex.B-5 sale deed.
4. The learned Subordinate Judge discarded Exs.X-1 and X-2 as they were unregistered agreements and was not inclined to attach much importance to them. He was not inclined to take into consideration the sale transaction covered by Ex.B-3 as it related to wet land of an extent of 29 Cents, which was sold at Rs. 12,000/-. He then observed and concluded as follows:
"Ex.B-2 sale transaction is in the year 1983 under which an extent of 284 Sq. Yards was sold for Rs. 7,200/- and each square yard costs about Rs. 25/-, Ex.B-2 (4?) sale transaction is in the year 1981 under which an extent of 149 Sq. Yards were sold for Rs. 4,000/- and each Square Yard costs about Rs. 27/-, Ex.B.5 sale transaction is in the year 1980 under which an extent of 42 Square Yards was sold for Rs. 2,000/- and each Square Yard costs about Rs. 47/-, Ex.B-6 sale transaction is in the year 1984 under which an extent of 204 Square Yards was sold for Rs. 25,000/- and each Square Yard costs about Rs. 122/-, Ex.B-7 sale transaction is in the year 1984 under which an extent of 124 Square Yards was sold for Rs. 5,000/- and each Square Yard costs about Rs. 40/-, Ex.B-8 sale transaction is in the year 1985 under which an extent of 103 Square Yards was sold for Rs. 7,000/-and each Square Yard costs about Rs. 67/- and Ex.B-9 sale transaction is in the year 1984 under which an extent of 100 Square Yards was sold for Rs. 5000/- and each Square Yard costs about Rs. 50/-. To prove the documents filed on behalf of the claimants they examined R.Ws. 10,11,13,15 and 16. So, keeping in view of the primity of the lands acquired to the residential, commercial, industrial areas and educational, cultural and medical institutions and potential value of the lands acquired as house-sites, and the evidence adduced on behalf of the claimants I am inclined to fix the market value of the lands acquired at the rate of Rs. 25/- per Square Yard in these O.Ps."
From this it is seen that the learned Subordinate Judge did not give any reason whatsoever for arriving at the rate of Rs. 25/- per Square Yard for the lands acquired - it could as well have been Rs. 20/- or Rs. 30/-: The rate per Square Yard varied from Rs. 25/- (Ex.B-2) to Rs. 67/- (Ex.B-8) and even Rs. 122/-(Ex.B-6). The learned Subordinate Judge observed that he fully agreed with the contention on behalf of the claimants that post-notification sales need not be ignored altogether. In the circumstances, one would have expected a discussion as to which of the sale deeds and the rates he found acceptable.
5. Mr. C.V. Rajiv Reddy, representing the learned Advocate General for Referring Officer, submits that the learned Subordinate Judge erred in enhancing the market value of the lands under acquisition to Rs. 25/- per Square Yard and that there is no material on record justifying such enhancement. He submits that Exs.B-2 to B-10 sale deeds are brought up documents and even otherwise the sales under them are of small extents of land of Yeleswaram village not comparable to the lands under acquisition. He points out that everyone knew about Yeleru Reservoir Project and the acquisitions that would be made for Yeleru Left Main Canal and that Exs. B-2 to B-10 sale deeds were brought up for boosting the market value of the lands that would be acquired for that Canal. He submits that Ex.B-3 sale was rejected by the learned Subordinate Judge himself as it related to 29 Cents of agricultural land, and that the remaining sales evidenced by Ex.B-2 and Exs.B-4 to B-9 were in respect of small plots and that too in Yeleswaram village and that they were about 4 K.Ms. away from the lands under acquisition. On that basis, he contends that they are not comparable sales for fixing the market value for the lands under acquisition. He also points out that the learned Subordinate Judge, while relying on sale deeds relating to small extents of land, did not deduct anything towards developmental charges, even assuming that lands under acquisition had the potential for building purposes, realised or otherwise.
6. Mr. C. Poornaiah, appearing for the claimants, supports the enhancement made by the learned Subordinate Judge. He contends that the acquired lands were at the relevant time, situated in the Gram Panchayat and near the main village of Yeleswaram and that they were located in an area developed even by the date of the notification. He relies on the reports of the Cemmissioners, Exs.C-1 and C-2, for that purpose. However, he is unable to defend the enhancement made by the learned Subordinate Judge relying on sale deeds relating to small extents of land without deducting anything for development. He submits that the amount to be deducted for development in the case of village lands is much less than in the case of Urban lands. He strenuously contends that the lands covered by Exs.B-2 and B-4 to B-10 were comparable to the lands under acquisition and that such sales can be relied upon for fixing the market value of the lands under acquisition after making adjustment for development etc. He also submits that the claimant in O.P. No. 90 of 1984 ought to have been awarded higher compensation for the trees and that the Appeal, A.S. No. 3156 of 1987, preferred by him should be allowed.
7. We may straightaway observe that we are not impressedby the judgment of the learned Subordinate Judge. He did not discuss about the comparability of, and the distance between, the lands covered by Exs.B-2 to B-9 and the acquired lands, and about the adjustments to be made in that regard, and the amounts to be deducted for development etc., especially when he was taking into consideration sales of small extents of land. Had he applied himself to these aspects of the matter, he would have seen that Exs.B-2 and B-4 to B-9 sales were not comparable sales for fixing the market value of the lands under acquisition. It is not in dispute that the lands covered by those sale deeds were in Yeleswaram. The learned Subordinate Judge failed to see this fact. The documents themselves state that the plots were of Yeleswaram village. R.W.10, the scribe of the original sale deeds evidenced by Exs.B-2 to B-4 and B-6 to B-9, categorically states that the sites sold under those sale deeds were vacant sites in the village of Yeleswaram. No doubt evidence has been . led to establish that Yeleswaram was the biggest village in Prathipadu Taluq and a business centre. But C. Rayavaram was a much smaller village and only a Hamlet of Yeleswaram, though included in its Panchayat area. In cross-examination it was suggested to some of the witnesses for the claimants that the distance between Yeleswaram and C. Rayavaram was about 4 K.Ms.; though they denied that suggestion, they admitted that they were separated atleast by 2 K.Ms. R.W.9, who worked as Executive Officer of Yeleswaram Panchayat, states that the distance between C. Rayavaram and Yeleswaram was 1 K.M. and on further probing, he stated that if it was taken from centre point of Yeleswaram, the distance was 2 K.Ms. As regards the lands under acquisition, R.W.4, who worked as Village Karnam of Yeleswaram upto 1983, states that they were at a distance of one Mile or 1 1/2 miles from Yeleswaram. R.W.13, a resident of Yeleswaram and vendor of Ex.B-2 sale, states that the distance between the land sold under the original of Ex.B-2 would be 2 K.Ms. from the acquired lands. R.W.3, the Advocate Commissioner, states that the land acquired was at a distance of about 2 or 3 K.Ms. from Yeleswaram. No evidence whatsoever was adduced to establish that Yeleswaram village was developing towards C. Rayavaram. What is more important is that no evidence whatsoever was adduced to establish that the lands under acquisition were located in between Yelesv:aram and C. Rayavaram. On the other hand, the evidence adduced clearly establishes that the lands acquired were away even from C. Rayavaram village by about one furlong. Both R.Ws. 1 and 2, the claimants, state in their examination-in-chief that the land under acquisition was adjoining the village. R.W.I in his cross-examination states that the land was away by one furlong. R.W.2 in his cross-examination states that the distance between the land under acquisition and the lands under Exs. B-7 to B-9 was below one furlong but not 2 or 3 K.Ms, as suggested. This cannot be true because the lands covered by those sale deeds were in Yeleswaram village and in view of the evidence of Village Karnam (R.W. 4), the Advocate Commissioner (R.W. 3) and the vendor of the land covered by Ex.B-2 (R.W. 13) referred to above.
8. Thus, from the evidence on record, we find that C. Rayavaram village was at least about 2 K.Ms. away from Yeleswaram and that the lands acquired were also about the same distance, if not more, from Yeleswaram; and about a furlong away from C. Rayavaram village. The evidence of R.Ws. 14 and 15 shows that Yeleswaram had M.R.O. Office, Forest Ranger Office, Girijan Corporation Office, Primary Health Centre, Electricity Sub-Station, a Junior College and an Outpost Police Station. Oral evidence in the O.Ps. was taken about 2 1/2 to three years after Section 4(1) Notification was published. Assuming that all these offices, etc., were in existence at the time of publishing Section 4 (1) Notification, they only establish the potential of the land in Yeleswaram village and that Exs.B-2 to B-9 sales relating to plots of land in Yeleswaram cannot be relied upon for fixing the market value of land in C. Rayavaram village. We do not find any evidence on record to show that there was any developmental activity in C. Rayavaram village at the relevant time. The establishment of Primary School in C. Rayavaram village was due to the land given by R.W.2. In his evidence he stated that he gifted 40 Cents of land in S. No. 45/5A to the Panchayat for that purpose. R.W.3's report, Ex.C-1 dated 23-9-1985, indicates that the Primary School was opened in 1962, and only four or five houses were found near the school, one of which belonged to the claimant in O.P. No. 89 of 1984. The report states that on the southern side of the School there was the Yeleru channel which ran from West to East. It also mentions that there were 35 to 40 thatched houses belonging to Yadavas. But all these thatched houses must have come up after the Yeleru channel was dug i.e. after the lands were acquired, because there was no mention of any thatched huts in the claim statements of the claimants. Thus, even though a Primary School was established in 1962 itself, there was no development at all in the acquired lands, obviously because they were about a furlong away from C. Rayavaram village.
9. From the above, it is seen that there was no building activity in or in the vicinity of the lands acquired at the relevant time to establish that the lands acquired had realised or realisable building potentiality. What is building potentiality has been clarified in P. Ram Reddy v. Land Acquisition Officer, (D.N.) as follows:
"Such market value of the acquired land cannot only be its value with reference to the actual use to which it was put on the relevant date envisaged Under Section 4(1) of the L.A. Act, but ought to be its value with reference to the better use to which it is reasonably capable of being put in the immediate or near future. Possibility of the acquired land put to certain use on the date envisaged Under Section 4(1) of the L.A. Act, of becoming available for better use in the immediate or near future, is regarded as its potentiality. It is for this reason that the market value of the acquired land when has to be determined with reference to the date envisaged Under Section 4 (1) of the L.A. Act, the same has to be done not merely with reference to the use to which it was put on such date, but also on the possibility of it becoming available in the immediate or near future for better use, i.e., on its potentiality. When the acquired land has the potentiality of being used for building purposes in the immediate or near future it is such potentiality which is regarded as building potentiality of the acquired land. Therefore, if the acquired land has the building potentiality, its value, like the value of any other potentiality of the land should necessarily be taken into account for determining the market value of such land.........
.......Therefore, wherever, there is a possibility of the acquired land not used for building purposes on the relevant date envisaged Under Section 4(1) of the L.A. Act, of being used for putting up buildings either immediately or in the near future but not in the distant future, then such acquired land would be regarded as that which has a building potentiality. Even so, when can it be said that there is the possibility of the acquired land being used in the immediate or near future for putting up buildings, would be the real question. Such possibility of user of the acquired land for building purposes can never be wholly a matter of conjecture or surmise or guess. On the other hand, it should be a matter of inference to be drawn based on appreciation of material placed on record to establish such possibility. Material so placed on record or made available must necessarily relate to the matters such as:
(i) the situation of the acquired land vis-a-vis the city or the town or village which had been growing in size because of its commercial, industrial, educational, religious or any other kind of importance or because of its explosive population;
(ii) the suitability of the acquired land for putting up the buildings, be they residental, commercial or industrial, as the case may be;
(iii) possibility of obtaining water and electric supply for occupants of buildings to be put on that land;
(iv) absence of statutory impediments or the like for using the acquired land for building purposes;
(v) existence of highways, public roads, layouts of building plots or developed residential extensions in the vicinity or close proximity of the acquired land;
(vi) benefits or ad vantages of educational institutions, health care centres, or the like in the surrounding areas of the acquired land which may become available to the occupiers of buildings, if built on the acquired land; and
(vii) lands around the acquired land or the acquired land itself being in demand for building purposes, to specify a few.
The material to be so placed on record or made available in respect of the said matters and the like, cannot have the needed evidentiary value for concluding that the acquired land being used for building purposes in the immediate or near future unless the same is supported by reliable documentary evidence, as far as the circumstances permit."
We do not find that in the present case any such building potentiality is made out in respect of the lands acquired. As already stated above, no evidence was adduced to show that there was building activity in the vicinity of the lands acquired at the relevant time. The mere fact that there was Primary School since 1962, and that there were some houses of the owners of agricultural lands, does not establish such a potentiality. In the villages it is usual that land-holders construct houses in their agricultural lands, even though away from the village. There is no evidence to show that C. Rayavaram was a growing village at the relevant time or that it was having any importance like Yeleswaram or that there was any development towards the lands acquired at the time of the present acquisition. Any building activity at or near about Yeleswaram village or building potentiality of land in Yeleswaram cannot be relied upon in fixing the market value of the acquired lands near C. Rayavaram village. 10. The features to be looked at for ascertaining whether the sales relied upon by the claimants are comparable sales have been mentioned by the Supreme Court in Periyar and Pareekanni Rubbers Limited v. State of Kerala, . The Supreme Court enumerated the following:
"Therefore, the transaction relating to the acquired land of recent dates or in the neighbourhood lands that possessed of similar potentiality or fertility or other advantageous features are relevant pieces of evidence........ . The underlying principle to fix a fair market value with reference to comparable sale is to reduce the element of speculation. In a comparable sale the features are: (1) it must be within a reasonable time of the date of the notification; (2) it should be a bona fide transaction; (3) it should be a sale of the land acquired or land adjacent to the land acquired and (4) it should possess similar advantages. These should be established by adduction of material evidence by examining as stated above the parties to the sale or persons having personal knowledge of the sale transactions. The proof also would focus on the fact whether the transactions are genuine and bona fide transactions. As held by this Court (Supreme Court) in Collector, Raigarh v. Dr. Harishingh Thakur , that fictitious and unreal transactions of speculative nature brought into existence in quick succession should be rejected................The prices fetched for similar land with similar advantages and potentialities and the bona fide transactions of the sale at time of preliminary notification are the usual, and indeed the best, evidence of the market value. Other methods of valuation are resorted to if the evidence of sale of similar land is not available. The prices fetched for similar (sicm smaller) plots cannot form basis for valuation of large tracts of land as the two are not comparable properties. Smaller plots always would have special features like the urgent need of the buyer, the advantageous situation, the like of the buyer etc."
Then, after discussing various decisions, the Supreme Court exhorted as follows:
"Therefore, it is the paramount duty of the Courts of facts to subject the evidence to close scrutiny, objectively assess the evidence tendered by the parties on proper considerations thereof in correct perspective to arrive at reasonable market value. The attending facts and circumstances in each case would furnish guidance to arrive at the market value of the acquired lands. The neighbourhood lands possessed of similar potentialities or same advantageous features or any advantageous special circumstances available in each case also are to be taken into account. Thus, the object of the assessment of the evidence is to arrive at a fair and reasonable market value of the lands and in that process sometimes trench on the border of the guess work but mechanical assessment has to be eschewed. The judges are to draw from their experience and the normal human conduct of parties in bona fide and genuine sale transactions is the guiding star in evaluating evidence. Misplaced sympathies or undue emphasis solely on the claimants' right to compensation would place heavy burden on the public exchequer to which everyone contributes by direct or indirect taxes."
Keeping these aspects in view and in the light of the above discussion, we are satisfied that Exs.B-2 to B-9 sales relating to small plots of land in Yeleswaram village are not comparable sales for the purpose of arriving at the market value of the acquired lands.
11. If we are right in excluding Exs.B-2 to B-9 from consideration, there is no other reliable documentary evidence adduced by the claimants for determining the market value of the acquired lands. In the claim statements by the claimants, it is seen that they originally wanted compensation at Rs. 30/- per Square Yard; but 'Rs. 30/-' was rounded off and Rs. 130/- was added in manuscript at all places where Rs. 30/- occurred. Thus, in Paragraph 2 of the claim statement in O.P. No. 90 of 1984, it is stated in type:
"The land acquired by the respondent is selling at Rs. 30/- per Square Yard at the time of acquiring the land. Therefore the land should be valued at Rs. 30/- per Square Yard and the compensation has to be awarded according to that value......."
Rs. 30/- was rounded off and Rs. 130/- was written in ink. But in Paragraph 3 of the latter claim statement (O.P. No. 89 of 1984) it is stated in type as follows:
".............So at the time of acquisition of the land the price is at Rs. 30/- per Square Yard. But at present the price is increased to Rs. 50/- per Square Yard."
Rs. 30/- was rounded off and Rs. 130/- was written in ink; but in the sentence following, Rs. 50/- was not corrected. From this, it is obvious that the rate claimed by the claimants at Rs. 130/- per Square Yard is fanciful and highly inflated. They were perhaps inspired to do that because under Ex.B-6 sale of 12-1-1984, an extent of 204 1/4 Square Yards was sold for Rs. 25,000/- i.e. at about Rs. 122/- per Square Yard, as noted by the learned Subordinate Judge himself. An examination of Ex.B-6 reveals that the plot of land was sold with certain foundations apart from the fact that the plot was in the fully developed area of Yeleswaram.
12. The claimants filed Exs.X-1 and X-2 agreements of sale under which R.Ws. 7 and 8 agreed to purchase 5 Cents and 10 Cents of land in S. No. 44/5A of C. Rayavaram village for Rs. 4,000/- and for Rs. 8,750/-respectively. Those agreements were executed by the claimant in O.P. No. 89 of 1984 (R.W. 1). The learned Subordinate Judge did not attach any importance to them in view of evidence of R.Ws. 7 and 8 and discarded them for fixing the market value of the lands acquired, and rightly so. However, it is significant that the rates under Exs.X-1 and X-2 work-out to Rs. 16.50 and Rs. 18/- per Square Yard respectively; which means that R.W.I could not imagine and go beyond those rates for the acquired lands at the relevant time.
13. It is well established that the burden is on the claimants to prove the prevailing market value as on the date of the notification Under Section 4(1), and to establish that they are entitled to higher compensation than that fixed by the Land Acquisition Officer. In Topandas Kundanmal v. State, (D.N.), the Supreme Court held as follows:
"It is settled law that the claimants like plaintiffs are entitled to succeed for higher compensation only on proof of value prevailing as on the date of notification, what is the prevailing market value as on the date of notification is a question of fact to be proved by adducing evidence. Burden is always on him to prove the same."
There is no reliable evidence in the present case to establish that the claimants are entitled to higher market value than that awarded by the Land Acquisition Officer for the lands acquired. They did not produce any sale deeds relating to the lands acquired or in the vicinity of the lands acquired and comparable to those. In the circumstances, we are unable to uphold the enhancement of the market value of the lands acquired by the learned Subordinate Judge.
14. The Land Acquisition Officer produced a copy of Ex.A-6 sale deed i.e., document No. 1754 of 1983 dated 18-8-1983. Under that sale deed, an extent of 50 Cents in S. No. 1/3 of C. Rayavaram village was sold for Rs. 4,500/-i.e., at the rate of Rs. 9,000/- per Acre. That was sale transaction No. 41 relied upon by the Land Acquisition Officer in the award as stated by him as P.W.I. No doubt, no one concerned with that sale was examined by the Land Acquisition Officer. In the award, the Land Acquisition Officer stated as follows:
"There remains only one sale covered by serial No. 41. The sale is for an extent of Ac. 0.50 for the total consideration of Rs. 4500/-. It fetched Rs. 9,000/- per acre. It bears the same settlement classification 7.3.13 of acquisition lands. Though the purchaser and seller belonging to "Palivala" family the lands of these 2 persons are not fallen in the acquisition. I am taking this sale as representative sale. I adopt the rate of Rs. 9,000/- per acre to dry lands fallen in the acquisition. I am taking this sale as representative sale. I fixed the rate of Rs. 9000/- per acre for the dry lands fallen in the acquisition."
15. In P. Ram Reddy's case (supra), the Supreme Court explained the legal position relating to the document produced by the Land Acquisition Officer in support of his award as follows:
"...........But when the LAO or the Collector has made his award based on the contents of documents, as found in the registers kept under the Registration Act and produces registration copies of such documents in support of his award in Court, they could be regarded acceptable as evidence by Court given in support of the award unless it is shown by contra-evidence on behalf of the claimants that such documents could not have been relied upon by the Collector or LAO in making the award. It would be so for the reason that when the LAO produces in Court registration (certified) copies of those documents which he had made the basis for determining the market value, that would be only to support his award and not to establish something independent of the award. If that be so, when such documents are produced on behalf of the LAO in Court, they cannot be rejected on the ground that the witnesses associated with those documents cannot be examined by the LAO, inasmuch as even without producing such documents he can rely upon the award made by him to show that he had looked into those documents and he had determined the market value on their basis. Hence, the mere fact that witnesses associated with such certified copies of documents produced as evidence in Court were not examined on behalf of the LAO will not in any way affect the award of the LAO if he has determined the market value of the acquired land having perused those documents as found in the registers kept under the Registration Act or their certified copies before determining the market value of those lands on the basis of such documents."
In view of this pronouncement of the Supreme Court, Ex.A-6 sale cannot be rejected from consideration on the ground that no one concerned with the sale was examined. It was only produced in support of the market value fixed in the award for the lands acquired. The claimants have not produced any evidence to show how the sale covered by Ex.A-6 was not comparable for fixing the market value for the lands acquired, and that it should not have been relied upon. In the absence of any material produced by the claimants to the contra, we have to uphold the market value fixed by the Land Acquisition Officer in the award.
16. However, taking into consideration the prospects existing in respect of the lands acquired on the date of Section 4 (1) notification for building use, in view of their proximity to Primary School and the fact that there were already a few houses existing in the vicinity, we are inclined to increase the market value at Rs. 9,000/- per acre as fixed by the Land Acquisition Officer by about 20 per cent keeping in view the following guidelines given by the Supreme Court in P. Ram Reddy's case (supra):
"..........Further, where no evidence of price fetched by the sale of the plots in layouts of building plots in the neighbourhood of the acquired lands becomes available, then what could be done is to find out the market value of the acquired land with reference to the relevant date of publication Under Section 4(1) of the L.A. Act, according to the actual use to which it was put and increase its value by a small percentage having regard to the degree of its building potentiality ascertained on the basis of evidence to be made available in that regard. A small percentage increase to be given shall not exceed one-fifth of the market value of the land found out according to its actual user since resort to the method of giving increased value for such building potentiality arises only when there is no evidence of sales of building plots in the neighbourhood of the acquired land indicating that there was no immediate demand, as such, for building plots even if formed in the acquired land."
Keeping all these aspects in view, we fix the market value of the lands acquired at Rs. 10,500/- per acre. The judgment and decrees of the learned Subordinate Judge in O.P. Nos. 89 of 1984 and 90 of 1984 are to that extent set aside and A.S. Nos. 833 and 959 of 1988 are allowed in part to the extent of enhancing the market value fixed by the appellant/Referring Officer from Rs. 9,000/-to Rs. 10,500/- per acre of the lands acquired, with proportionate costs.
17. In A.S. No. 3156 of 1987, the claimant in O.P. No. 90 of 1984 seeks enhancement of the compensation awarded for the trees in the lands acquired. The Land Acquisition Officer awarded Rs. 600/- for four mango trees at the rate of Rs. 150/- per tree, Rs. 300/- for one tamarind tree, Rs. 1350/- for nine coconut trees at the rate of Rs. 150/- per tree, and Rs. 1000/- for five soapnut trees at the rate of Rs. 200/- per tree. The learned Subordinate Judge has not interfered with the compensation fixed by the Land Acquisition Officer for the trees. The learned Subordinate Judge observed that only oral evidence, and no reliable evidence, was adduced to assess the value of the trees, and in that view rejected the claimant's plea for enhancement of the compensation for the trees. The learned Subordinate Judge determined the market value of the acquired lands on the basis that they had building potentiality. The learned Subordinate Judge failed to see that in sucha case there was no question of adding the market value for the trees in the lands acquired arrived at on the basis of their yield. In Administrator General of West Bengal v. Collector, Varanasi, , the Supreme Court has held that "where land is valued with reference to its potentiality for building purposes and on the basis of prices fetched by small sites in a hypothetical lay-out, the tree-growth on the land cannot be valued independently on the basis of its horticultural value or with reference to the value of the yield", and that compensation for trees can be awarded for the timber value or the salvage value of the tree-growth after providing for the cost of cutting and removing. This principle was reiterated by the Supreme Court in Koyappathodi M. Ayisha Umma v. State of Kerala, . In State of Haryana v. Gurcharan Singh, 1995 Supp. (2) SCC 637 = 1995 (1) ALT 23 (D.N.), the Supreme Court once again held as follows:
"..............It is settled law that the Collector or the Court who determines the compensation for the land as well as fruit-bearing trees cannot determine them separately. The compensation is to the value of the acquired land. The market value is determined on the basis of the yield. Then necessarily applying suitable multiplier, the compensation needs to be awarded. Under no circumstances the Court should allow the compensation on the basis of the nature of the land as well as fruit-bearing trees. In other words, market value of the land is determined twice over; once on the basis of the value of the land and again on the basis of the yield got from the fruit-bearing trees. The definition of land includes the benefits which accrue from the land as defined in Section 3 (a) of the Act. After compensation is determined on the basis of the value of the land as distinct from the income applying suitable multiplier, then the trees would be valued only as firewood and necessary compensation would be given."
18. However, in the appeals preferred by the Referring Officer, the award of the compensation for trees on the basis of their yield was not questioned, and therefore, that cannot be interfered with by us now. At any rate, therefore, the compensation for trees cannot be enhanced by us. In the circumstances, A.S. No. 3156 of 1987 is dismissed. No costs.
19. We make it clear that on market value for the lands acquired arrived at as per the rate fixed by us i.e. at Rs. 10,500/- per acre, the claimants would be entitled to solatium at 30 per cent and interest at 9 per cent per annum for the first year from the dates of taking possession and, thereafter, at 15 per cent annum till the date of payment on the enhanced amount.'