Andhra HC (Pre-Telangana)
Special Deputy Collector (La) Hlc vs Kakarla Yerrappa @ Yerri Swamy on 30 April, 1997
Equivalent citations: 1997(4)ALT200
JUDGMENT D. Reddappa Reddi, J.
1. This appeal by the Special Deputy Collector (Land Acquisition) Under Section 54 of the Land Acquisition Act, 1894 (for short 'the Act') and the cross-objections therein by the claimant/landholder arise out of the judgment and decree dt. 17-1-1996 in OP.No. 67/93 on the file of the Principal Subordinate Judge, Anantapur. They relate to acquisition of land bearing S.Nos. 38/1A1 and 38/1A2 measuring 13.75.0 hectares (equivalent to Ac.34-00) together with trees and structures standing thereon, situated in Mylarampalli village, Uravakonda Mandal, Anantapur District, for fore-shore submersion of Penna Ahobilam Balancing Reservoir (PABR).
2. The acquisition proceedings commenced with the publication of Draft notification Under Section 4(1) of the Act, approved in G.O.Rt.No. 221, Irrigation & CAD (P.W.) Department, dt. 22-4-1991, in the A.P. Gazette dated 4-5-1991. The Land Acquisition Officer in the course of enquiry Under Section 11 of the Act placed the acquired land under 4 groups for arriving at the market value as detailed below:
Group-I S.Nos. 38/lAlB, Ac.3-18 cents Fit for raising dry
38/1A1C38/1A1D crops,
and 38/1A2B.
Group-II S.Nos. 38/1A1A, Ac.1-20 cents Covered by boulders
38/1A2C and 38/ and unfit for cultiva-
1A2D. tion.
Group-III S.Nos. 38/lAlF and Ac.29-56 cents Covered by Pome-
38/1A2A granate garden.
Group-IV S.No. 38/lAlE Ac.0-16 cents Covered by open
well, bore well, pump
house and switch
board room.
On consideration of the sales statistics and other material on record, he fixed the market value of the lands placed under Group-I at Rs. 10,000/- per acre or Rs. 21,700/- per hectare; Group-II at Rs. 1,500/- per acre or Rs. 3,700/- per hectare and Group-III at Rs. 21,0007- per acre or Rs. 51,870/- per hectare, in respect of open well in the land covered under Group-IV, he found that no compensation need be paid as it was found dried up. However, he awarded compensation of Rs. 34,776-30 for the bore well, pump house and switch board room in the land covered under this group. In addition to the land value, he awarded compensation of Rs. 10,83,237/- for the trees said to be standing on the lands placed under Group-III. He also awarded additional amount, solatium and interest as provided under the Land Acquisition (Amendment) Act, 1984 (for short 'the Amendment Act')-' In all, he awarded a sum of Rs. 27,08,073/-. Accordingly, he passed award No. 15 of 1993 dt.7-5-1993. Not satisfied with the award, the claimant sought for a reference Under Section 18 of the Act to a Civil Court. Thereupon, the matter was referred to the Court of Principal Subordinate Judge, Anantapur for adjudication.
3. Before the reference Court, the claimant claimed compensation for the land covered under Group-I at Rs. 20,000/- per acre; Group-II at Rs. 10,000/- per acre and Group-III at Rs. 36,585/- per acre. In addition, he claimed Rs. 77,33,700/- for 8,953 pomegranate trees and Rs. 1,36,125/- for 121 Ber trees in the land covered under Group-III and Rs. 43,869-20 towards the value of the open well in the land covered under Group-IV and Rs. 24,000/- towards the cost of the pipe line said to have been laid underground in the entire extent of the acquired land. To substantiate his claim, the claimant examined P.Ws.1 to 6 and got marked Exs.A-1 to A-17. P.W.1 is the claimant himself. P.W.2 is the in-charge Assistant Director of Horticulture Department at Anantapur from September, 1988 to February, 1990. P.W.3 is the Special Deputy Collector (LA), HLC, Anantapur, who passed award No. 15/93 dt.7-5-1993. P.W.4 is another Assistant Director of Horticulture Department, Anantapur, who is stated to have inspected the acquired land as per the directions of P.W.3. P.Ws.5 and 6 are the owners of nearby lands. Ex.A-1 is the G.O.Ms.No. 601 Revenue (LA) Department dt.19-6-1992. Ex.A-2 is the certified copy of Memorandum No. 664/Ks/85 Revenue (K) Department dt.20-9-86 of the Government of Andhra Pradesh. Ex.A-3 is the copy of summons dt.6-3-1995 issued to P.W.2. Ex.A-4 is the registration copy of a sale deed dt.6-2-1988, under the original of which P.W.5 purchased Ac.1-23 cents for a consideration of Rs. 45,000/-. Ex.A-5 is the certified copy of award No. 4/91 dt.17-7-1991 of the Special Deputy Collector, LA, HLC, Anantapur, whereunder compensation was awarded for garden lands on capitalisation method. Ex.A-6 is the certified copy of the order dt.27-10-1992 of the High Court of Andhra Pradesh made in W.P.No. 13360/92. Ex.A-7 dt.31-5-1993 is the certified copy of the letter of the District Collector, Cuddapah, seeking clarification from the Government of Andhra Pradesh on Ex.A-6. Ex.A-8 dt.18-12-1993 is the certified copy of a Memo from the Government of Andhra Pradesh to the District Collector, Cuddapah in reply to Ex.A-7. Ex.A-9 is the certified copy of the adangal for Faslis 1397 to 1400 issued by the Mandal Revenue Officer, Uravakonda. Exs.A-10 and A-11 are the certified copies of the Adangals for Faslis 1401 and 1402 respectively issued by the Village Administrative Officer of Mylarampalli. Ex. A-12 is the photostat copy of the letter addressed by Mrs.G. Krishna Kumari and another to the Director of Horticulture, Hyderabad. Ex.A-13 is the photostat copy of letter dt.20-11-1989 addressed by the Director of Horticulture, Hyderabad to the Director of Research, Andhra Pradesh Agricultural University, Hyderabad. Ex.A-14 is the photostat copy of letter dt.20-11-1989 addressed by the Director of Research, A.P.A.U. to the Director of Horticulture, Hyderabad. Ex.A-15 is the photostat copy of letter dt.23-11-1989 addressed by the Director of Horticulture, Hyderabad to the Commissioner, Land Revenue, Hyderabad containing guidelines for valuation of pomegranate fruit bearing trees. Ex.A-16 is the book-let printed by Horticulture Department, Public Gardens, Hyderabad. Ex.A-17 is the hand-over summons issued by the Court for the appearance of P.W.3 as a witness. On behalf of the referring officer, R.Ws.1 and 2 were examined and Exs.B-1 to B-17 were marked. R.W.1 is the officer- in-charge in Meteorological Department, Anantapur. R.W.2 is the Secretary of Horticulture Association for Anantapur District. Ex.B-1 dt.29-6-1990 is the statement of Kakarla Rangamma, the mother of P.W.1, made before the Special Deputy Tahsildar, Anantapur. Ex.B-2 is the application filed by the claimant Under Section 18 of the Act before P.W.3. Ex.B-3 is the file relating to acquisition of the acquired land. Ex.B-4 is the Inspection Report dt.3-7-1990 of the Special Deputy Tahsildar (LA), Anantapur. Ex.B-5 is the Inspection Report dt.4-7-1990 of the Special Deputy Collector, LA., HLC, Anantapur. Ex.B-6 is the report of the Assistant Director of Horticulture, Anantapur with the remarks of Deputy Director of Horticulture, Cuddapah. Ex.B-7 dt.7-11-1992 is the Inspection Report of P.W.3 Ex.B-8 is the office copy of covering letter dt.9-11-1992 addressed by P.W.3 to the Collector, Anantapur. Ex.B-9 dt.20-1-1993 is the statement of P.W.1 made before P.W.3. Ex.B-10 dt.9-11-1992 is the approved Preliminary valuation statement. Ex.B-11 dt.23-1-1993 is the Inspection Report of the Joint Collector, Anantapur. Ex.B-12 is the joint sketch. Ex.B-13 is the copy of the award dt.7-5-1993 made by P.W.3. Ex.B-14 dt.9-5-1991 is the statement P.W.1 recorded by P.W.3. Ex.B-15 is the letter dt.7-6-1991 addressed by P.W.3 to the Assistant Director of Horticulture, Anantapur. Ex.B-16 is the letter dt.6-6-1991 addressed by the Assistant Director of Horticulture, Anantapur to the Director of Horticulture, Hyderabad. Ex.B-17 is the true copy of the letter dt.18-6-1991 addressed by Superintending Engineer, ID, TBP, HLC Circle, Anantapur to the Assistant Director of Horticulture, Anantapur. On consideration of the said oral and documentary evidence, the reference Court determined the market value of the lands covered under Group-I to Group-IV, trees and structures thereon as under:
Group-I Extent Ac.3-18 cents Rs. 53,424-00
(at Rs. 16,800/- per acre)
Group-II Extent Ac.1-20 cents Rs. 4,300-00
(at Rs. 3,360/- per acre)
Group-III Extent Ac.29-56 cents Rs. 58,00,275-00
(8,593 pomegranate fruit
bearing trees)
(121 Fruit bearing Ber trees) Rs. 1,17,975-00
Group-IV Extent Ac.0-16 cents (Well with Rs. 78,645-50
revitment and other super structures)
Pipe line Rs. 5,000-00
Total compensation Rs. 60,59,619-50
It has also awarded additional amount Under Section 23(1-A) of the Act at 12% per annum from the date of 4(1) notification i.e., 21-5-1991 to the date of award i.e., 7-5-1993,30% solatium on the enhanced amount of compensation; interest at 9% for one year from 7-5-1993 i.e., the date of award to 6-5-1994 and thereafter at 15% till the date of realisation. Accordingly, it passed the impugned judgment and decree. Hence, this appeal by the referring officer questioning the enhancement of compensation. On receipt of notice in the appeal by the respondent's Counsel on 24-4-1996, the respondent filed cross-objections on 3-6-1996, claiming a further compensation of Rs. 19,70,301 /- i.e., Rs. 10,176/- for the land covered under Group-I; Rs. 7,700/- for the land covered under Group-II; Rs. 19,33,425/- for fruit bearing pomegranate trees in the land covered under Group-III and Rs. 19,000/- towards the value of pipeline.
4. Elaborate arguments have been advanced by the learned Counsel on either side. We have been taken through the relevant portions of oral and documentary evidence and the judgment under appeal. On consideration of the same, we formulate the following points for consideration:
(1) Whether the respondent/cross-objector has made out a case for enhancement of compensation for the land covered under Groups-I and II.
(2) Whether the respondent/cross-objector has made out a case for enhancement of compensation for the land together with pomegranate trees and ber trees standing thereon covered under Group-III.
(3) Whether the reference court is justified in awarding compensation for the open well in the land covered under Group-IV and the pipeline said to have been laid underground in the entire acquired land.
(4) Whether awarding interest from the date of the award till the date of taking possession is sustainable in law.
5. Point No. 1: The extent of the land covered under Groups I and II is Ac.3-18 cents and Ac.1-20 cents respectively, the Land Acquisition Officer having found that the land covered under Group-I is fit for raising dry crops, fixed the market value for the same at Rs. 10,000/- per acre or Rs. 21,700/- per hectare. For the land covered under Group-II, he fixed the market value at Rs. 1,500/- per acre or Rs. 3,700/- per hectare, recording that it was covered by boulders and unfit for cultivation. Before the reference Court the claimant laid claim for the land covered under Groups I and II at Rs. 20,000/- per acre and Rs. 10,000/- per acre respectively. To sustain the said claim, himself deposing as P.W.1 stated that he was raising two crops of groundnut in a year by drawing water from the open well and the borewell situated in the land covered under Group-IV and getting a net income of Rs. 20,000/- per acre per year. It is elicited from P.W.3 in his chief examination that he has mentioned in his award that P.W.1 has spent huge amount for laying pipeline for the entire field making it fit for wet cultivation. P.W.6 deposed that the water from the well and the borewell was sufficient to cultivate the entire acquired land and P.W.1 was also raising groundnut crop, obviously referring to the land covered under these groups.
6. True, there is no effective cross-examination of P.Ws. 1,3 and 6 on this aspect. But, that is no ground to accept their version, for a duty is cast on the Court to scan the oral and documentary evidence so as to arrive at a just conclusion. In this context, it is apt to quote the following observations of Hegde, J. in Chaturbhuj Pande v. Collector, Raigarh, "It is true that the witnesses examined on behalf of the appellants have not been effectively cross-examined. It is also true that the Collector has not adduced any evidence in rebuttal; but that does not mean that the Court is bound to accept their evidence. The judges are not computers. In assessing the value to be attached to oral evidence, they are bound to call into aid their experience of life. As judge of fact it was open to the appellate Judges to test the evidence placed before them on the basis of probabilities."
In Periyar and Pareekanni Rubbers Ltd. v. State of Kerala, , Justice K. Ramaswamy, speaking for the Court emphasised the duty of the Court in the following terms:
"It is the paramount duty of the Courts of fact to subject the evidence to close scrutiny, objectively assess the evidence tendered by the parties on proper consideration thereof in correct perspective to arrive at reasonable market value."
The effect of ineffective cross-examination fell for consideration before the Supreme Court in P. Ram Reddy v. Land Acquisition Officer, (D.N.). Therein, speaking for the Court, Venkarachala, J. observed:
"We are unable to think that whenever the statements made by claimants' witnesses in Courts are not got over on behalf of the Collector or the Land Acquisition Officer by subjecting the witnesses to effective cross-examination or by not adducing evidence in rebuttal, the Courts are obligated to accept such statements of witnesses as true, if tested on the basis of probabilities, become unreliable. If the Courts were to accept such statements of witnesses as true merely because they are not subjected to cross-examination or effective cross-examination or because evidence in rebuttal thereof has not been adduced, it would amount to doling out public money to the claimants far in excess of their legitimate entitlement for just compensation payable for their lands. If such situation is prevented by Courts dealing with claims for compensation by testing the statements of witnesses for claimants on the basis of probabilities, the Courts will have performed the duty justly expected of them. Hence, no Court which tests the oral evidence of the claimants on the touchstone of probabilities calling into aid, its experience of life, men and matters and find such evidence to be untrusthworthy. The same cannot be found the fault with."
7. In the light of the above observations, let us scrutinise the evidence of P.Ws.1, 3 and 6. P.W.1 did not even state in his evidence that there were no bid boulders in the land covered under Group-II as recorded by P.W. 3 in his award dt.7-5-1993. Therefore his assertion that he was raising two crops of groundnut on this category of land also is palpably false. It is the evidence P.W. 3 that he inspected the acquired land on 17-10-1992 and again 7-11-1992. Yet, it is not elicited from him that the pipeline was laid upto the land covered under Groups I and II so as to make it irrigable. It is also not elicited from him that P.W.1 was raising groundnut crop thereon by drawing water from the open well and the borewell. Instead it is merely elicited from him that the water in the borewell is sufficient to cultivate the entire garden land which is covered under Group-III. It is not the evidence of P.W. 6 that P.W. 1 was raising two crops of groundnut in a year on these categories of land. In this view of the matter, we are not prepared to believe that two crops of groundnut were raised every year on this groups of land.
8. The evidence of P.W. 1 that he was getting a net income of Rs. 20,000/- per acre per year from the land covered under these groups is nothing but an exaggeration. The fact that he claimed compensation only at the rate of Rs. 20,000/- per acre and Rs. 10,000/- per acre for the land covered under these groups belies his version on this aspect.
9. It is not even the case of the claimant that the value reflected under Ex.A-4 is applicable to the land covered under these two groups. Ex.A-4 is a registered sale deed, dt.6-2-1988, under the original of which P.W. 5 purchased Ac. 1-23 cents for a consideration of Rs. 45,000/- which works out to Rs. 36,585/per acre. It has come in the evidence of P.W.5 that the land covered under Ex.A-4 is at a distance of about 3/4 Km. from the acquired land and there is a borewell therein. It is thus, evident that the value reflected under Ex.A-4 represents the value of the land as well as the borewell. In this view of the matter, compensation for these groups of land cannot be determined on the basis of the value reflected under Ex.A-4. The reference Court was also of the same view. However, it determined market value of these lands on the basis of the value reflected in some of the sale deeds referred to in the award passed by P.W.3. There can be no doubt that this is not permissible in view of the settled proposition of law that the sales statistics referred to by the Land Acquisition Officer cannot be relied upon by the Court unless they are produced and proved before it in accordance with law as enunciated by the Supreme Court as well as this Court in a catena of decisions.
10. The claimant has not produced any other document relating to the sale and purchase of dry land in the vicinity. In the absence of any such documentary evidence, we are of the firm view that the reference Court is not justified in enhancing the compensation for the land covered under Groups I and II. We hold accordingly.
11. Point No. 2: An extent of Ac.29-56 cents of land is covered under this group. It is not in dispute that as on the date of publication of draft notification Under Section 4(1) of the Act, there were 8593 pomegranate trees and 121 ber trees thereon. The Land Acquisition Officer by his award dt.7-5-1993 awarded compensation for the land at the rate of Rs. 21,000/- per acre or Rs. 51,875/- per hectare and Rs. 10,83,237/- for the trees i.e., a total sum of Rs. 17,03,997/-, which works out to Rs. 57,645-36 paise per acre. Rightly, the reference Court has not awarded separate compensation for the land. But, it awarded a compensation of Rs. 58,00,275/- for 8593 pomegranate trees and Rs. 1,17,975/- for 121 ber trees i.e., a total sum of Rs. 59,18,250/-. Thus, it enhanced the compensation for the land and the trees standing thereon covered under this group by Rs. 42,14,253/-.
12. The Land Acquisition Officer determined the compensation for the trees on the basis of Ex.A-1, G.O.Ms.No. 601, Revenue (LA) Department, dt. 19-6-1992, whereunder the Government of Andhra Pradesh issued guidelines for observance by the concerned officers with regard to computation and payment of compensation for Orchards. Since it is not the function of the Court to sit in appeal against the award made by the Land Acquisition Officer and it has no power to reduce the compensation awarded by the Land Acquisition Officer in view of the provisions of Section 25 of the Act, we consider it unnecessary to go into the question whether the determination of compensation by him on the basis of Ex.A-1 is correct or not. For the very same reason, it is equally unnecessary to refer to the guidelines issued thereunder.
13. The main thrust of the claimant before the reference Court was that the Land Acquisition Officer committed an illegality in determining compensation for the trees on the basis of guidelines issued under Ex.A-1, which is subsequent to the date of publication of the draft notification and he should have determined the compensation by applying capitalisation method as provided under Ex.A-15, letter No. F(3) 2164/89 dt.23-11-1989 addressed by the Director of Horticulture, Andhra Pradesh, Hyderabad to the Commissioner of Land Revenue, Government of Andhra Pradesh, Hyderabad. This was found favour with the reference Court. Therefore, it would be profitable to extract Ex.A-15, which reads as under:
GOVERNMENT OF ANDHRA PRADESH DEPARTMENT OF HORTICULTURE From To Sri Ajaya Kallam, I.A.S., The Commissioner, Director of Horticulture, Land Revenue, Andhra Pradesh, Government of A.P., Hyderabad. Hyderabad.
Lr.No. F(3) 2164/89 dt.23-11-89 Sir, Sub: Land Acquisition-Capitalisation of the value of Garden lands under acquisition-Certain guidelines framed-Proposals for including pomegranate-Sent revised proposals furnished -Request-Regarding.
Ref: 1. This office Lr. No. F(3) 2164/89 dt.11-11-1989.
2. Lr.No. Nill dt. 15-11-1989 of farmers of Nellore District.
3. ROC.No. B/384/89 dt.16-11-1989 of ADH, Nellore.
4. This office Lr.No. F(3) 2164/89 dt.20-11-1989 addressed to Director of Research, A.P.A.U.
5. Lr.No. 69561/Res-IV(l)/89 dt.20-11-1989 of Director of Research, A.P.A.U.
14. In continuation of this office letter 1st cited, I am furnish herewith revised valuation proposals of Ganesh variety of pomegranate as suggested by A.P.A.U. (copy enclosed) with a request to arrange to include the valuation of the pomegranate in the list of fruit crops mentioned in the statement in the Govt. Memo No. 664/K2/85 Revenue 'K' Department dt.20-9-1986 along with U.O. Note No. ESP1/989/86 dt.26-9-1986.
The details are as follows:
S.No. Item
1. Name of the fruit crop - Pomegranate
2. Name of the variety - Ganesh
3. Economic fruit bearing period - 12 years
4. Gestation-period - 2 years
5. Cost of cultivation per tree - Rs. 25/-
6. Yield per tree - 50 fruits on an average.
7. Value of the tree at bearing stage - 100/- (around Rs. 2/- per fruit)
8. Net value of the fruit - Rs. 75/-.
Therefore, I request to arrange to communicate necessary orders in this matter.
Yours faithfully, Sd. C. Sathyanarayana, for Director of Horticulture.
Copy submitted to Principal Secretary to Government, F & A Department, A.P. Hyderabad.
Copy Submitted to Government, Revenue 'K" Department, Govt. of A.P. Copy to Asst. Director of Horticulture, Nellore.
Copy to Special Collector, Telugu Ganga Project, Nellore.
Copy to Horticultural Officer (F)/S.F./Spare-4."
15. The reference Court proceeded as if it is bound to determine the compensation on the basis of the guidelines contained in Ex.A-15. This is reflected in Para 18 of the judgment under appeal, which reads as under:
"As far as this Court is concerned, it is beyond its scope to reconsider the finding given by the Government officials arid the power of this Court is for limited purpose to determine whether the valuation furnished by the L.A.O. is correct or not."
16. This reasoning, in our considered opinion, is fallacious. The reasons are more than one. First, the guidelines or instructions issued under Ex.A-15 are only with regard to valuation of pomegranate gardens in Nellore District. This is evident from last Paragraph of Ex.A-13, the letter No. F(3) 2164/89 dt.20-11-1989 addressed by the Director of Horticulture, Public Gardens, Andhra Pradesh, Hyderabad to the Director of Research, Andhra Pradesh Agricultural University, Rajendranagar, Hyderabad. It reads:
"In the circumstances reported above, I request to arrange to furnish the detailed valuation of Ganesh Pomegranate, exact economic life, fruit bearing period, gestation period, cost of cultivation per tree(Rs.), yield per tree (No. of fruits), value of the tree at bearing stage, net value per tree after deduction of expenditure for adopting valuation under Land Acquisition programme in Nellore District."
The fact that the copies of Ex.A-15 were marked to the Assistant Director of Horticulture, Nellore and the Special Collector, Telugu Ganga Project, Nellore also lend assurance that the guidelines issued thereunder are only with regard to pomegranate gardens in Nellore District. Another significant factor to be noted in this regard is that a copy of the same was not marked to all the District Collectors in the State. Second, there is no material to suggest or indicate that these guidelines have been made applicable to the pomegranate gardens in the entire State of Andhra Pradesh. True, copies of Ex.A-15 were marked to the Principal Secretary to Government, F & A Department, A.P., Hyderabad and to Government, Revenue 'K' Department, Government of A.P. But no evidence was let in to establish that the Government in turn issued guidelines or instructions by way of G.O. or Memorandum extending the guidelines issued under the said document to the entire State of A.P. Third, the very approach adopted by it is in utter violation of the principles enunciated by the Supreme Court in Chimanlal v. Special Land Acquisition Officer, Poona, . Therein, Thakkar, J speaking for the Court emphasised that the Court dealing with a reference Under Section 18 of the Act, shall keep the following factors in mind:
"(1) A reference Under Section 18 of the Land Acquisition Act is not an appeal against the award and the Court cannot take into account the material relied upon by the Land Acquisition Officer in his Award unless the same material is produced and proved before the Court.
(2) So also the Award of the Land Acquisition Officer is not to be treated as a judgment of the trial Court open or exposed to challenge before the Court hearing the Reference. It is merely an offer made by the Land Acquisition Officer and the material utilised by him for making his valuation cannot be utilised by the Court unless produced and proved before it. It is not the function of the Court to sit in appeal against the Award, approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition Officer, as if it were an appellate Court.
(3) The Court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it.
(4) The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. Of course the materials placed and proved by the other side can also be taken into account for this purpose."
There can be little doubt that what the reference Court has done in the present case is quite the opposite. However, Sri N. Subba Reddy, Senior Advocate appearing for the respondent/cross-objector tried to justify the view taken by the reference Court. It is his submission that once it is shown that the ground on which the compensation was awarded by the Land Acquisition Officer is illegal and untenable, the burden shifts to the referring officer to establish that the award is correct. His further submission is that the reference Court cannot traverse beyond the objection raised by the claimant. To butress this submission of his, he placed reliance on the following observations of the Supreme Court made in Special Land Acquisition Officer v. S.O. Tumar,:
"When the Collector makes the reference to the Court, he is enjoined by Section 19 to State the grounds on which he has determined the amount of compensation if the objection raised as to the acceptance of award of the Collector Under Section 11 by the claimant was as regards the amount of compensation awarded for the land thereunder. The Collector has to state the grounds on which he had determined the amount of compensation where the objection raised by the claimant in his application for reference Under Section 18 was as to inadequacy of compensation allowed by the award Under Section 11, as required by Sub-section (2) of Section 18 itself. Therefore, the Legislative scheme contained in Sections 12, 18 and 19 while on the one hand entitles the claimant not to accept the award made Under Section 11 as to the amount of compensation determined as payable for his acquired land and seek a reference to the Court for determination of the amount of compensation payable for his land, on the other hand requires him to make good before the Court the objection raised by him as regards the inadequacy of the amount of compensation allowed for his land under the award made Under Section 11, with a view to enable the Court to determine the amount of compensation exceeding the amount of compensation allowed by the award Under Section 11, be it by reference to the improbabilities inherent in the award itself or on the evidence aliunde adduced by him to that effect. That is why, the position of a claimant in a reference before the Court, is considered to be that of the plaintiff in a suit requiring him to discharge the initial burden of proving that the amount of compensation determined in the award Under Section 11 was inadequate, the same having not been determined on the basis of relevant material and by application of correct principles of valuation, either with reference to the contents of the award itself or with reference to other evidence aliunde adduced before the Court. Therefore, if the initial burden of proving the amount of compensation allowed in the award of the Collector was inadequate, is not discharged, the award of the Collector which is made final and conclusive evidence Under Section 12, as regards matters contained therein will stand unaffected. But if the claimant succeeds in proving that the amount determined under the award of the Collector was inadequate, the burden of proving the correctness of the award shifts on to the Collector who has to adduce sufficient evidence in that behalf to sustain such award. Hence, the Court which is required to decide the reference made to it Under Section 18 of the Act, cannot determine the amount of compensation payable to the claimant for his land exceeding the amount determined in the award of the Collector made Under Section 11 for the same land, unless it gets over the finality and conclusive evidentiary value a aributed to it Under Section 12, by recording a finding on consideration of relevant material therein that the amount of compensation determined under the award was inadequate for the reasons that weighed with it."
We notice that the above observations have been made while answering the following question formulated by itself for consideration.
"(i) Where a Court is required to determine compensation for a land on a reference made to it Under Section 18 of the LA Act at the instance of a claimant who has not accepted the award made under Section 11 of the LA Act, can it determine the amount of compensation payable for the land exceeding the amount of compensation determined as payable for the same land in the award Under Section 11 of the LA Act, without recording its finding on the inadequacy of the amount of compensation determined in such award on consideration of relevant material therein?"
We are unable to appreciate how the above observations are helpful to the respondent/cross-objector, for the prime question for consideration in the present case is whether the claimant has made out a case for enhancement of compensation over and above what was awarded by the Land Acquisition Officer. To our mind, the above decision does not lay down a proposition that once the claimant establishes that the compensation awarded by the Collector is inadequate the burden shifts on to the Collector to establish that the claimant is not entitled to compensation more than what was awarded by him. What is laid down therein is that the reference Court cannot determine the amount of compensation payable to the claimant over and above what was awarded by the Collector in the enquiry held Under Section 11 without recording a finding that the amount of compensation determined under the award was inadequate. It is axiomatic that in a reference arising Under Section 18 of the Act the claimant has to establish two things. One, the compensation awarded by the Collector is inadequate. Two, he is entitled to compensation more than what was awarded by the Collector. This should be by way of adducing requisite evidence before the reference Court. Section 25 of the Act places an embargo on the reference Court not to award compensation less than what was awarded by the Collector. In view of this express statutory provision, there is no need for the Collector to adduce any evidence to sustain the award passed by him. Therefore, the observation of the Supreme Court that" if the claimant succeeds in proving that the amount determined under the award of the Collector is inadequate the burden of proving the correctness of the award shifts on to the Collector who has to adduce sufficient evidence in this behalf to sustain such an award", on which the learned Counsel for the respondent/cross-objector laid much emphasis, is obviously due to inadvertence. Equally, we do not find any substance in the other submission of the learned Counsel for the respondent/ cross-objector that the reference Court cannot traverse beyond the objection raised by the claimant, for two reasons. First the claimant will not get higher compensation by merely showing that the method adopted by the Collector in arriving at the market value for land is not correct. Second, it is incumbent on the claimant to establish his case for compensation more than what was fixed under the award by adducing fresh evidence since the Court has to treat the reference as a fresh proceeding and determine the market value of the land afresh on the basis of the material produced before it. Fourth, any guidelines or instructions issued by the Government or its Heads of Department, though relevant, cannot be mechanically applied for the purpose of determination of compensation without independently considering the relevant factors such as availability of sufficient water, age of the trees and the income therefrom. No doubt, in the present case, evidence was adduced on this aspect. Thus, we proceed to consider the same.
17. Availability of sufficiency of water:
On this aspect, there is the evidence of P.Ws. 1 and 3 to 6, R.Ws.1 and 2 Exs.B-4, B-5, B-7 and B-11. There is no dispute about the existence of a open well and borewell in the land covered under Group-FV. We are concerned only with regard to the sufficiency of water therefrom to irrigate the entire extent of Ac.29-56 cents of garden covered under Group-III. P.W.1 is the claimant himself. It is not even his case that he was using the well water to irrigate the garden land. It is the evidence of all witnesses that the only source of water was the borewell. The evidence of P.W.1 about the said borewell is as follows: It was of 4 1/2 inches width. Its depth was 110'. A pit was dug upto a depth of 18 feet by its side where 10. H.P. Monoblock pump-set was installed. The suction of the pump was four inches and delivery was three inches. Due to shortage of electricity, he used to pump out the water from the borewell into the open well during nights and then draw water from the said open well to the garden land by operating an oil engine fixed to the open well. P.W.3 is the Special Deputy Collector, who passed the award dated 7-5-1993. P.W.4 is the then Assistant Director of Horticulture, Anantapur. Their evidence in chief is silent about the sufficiency of water to irrigate the entire extent of garden land. P.Ws.5 and 6, the owners of nearby land, deposed that P.W.1 was irrigating his land with the water drawn from the open well as well as the borewell. Ex.B-4 is the Inspection Report of the Special Deputy Thasildar, Ananthapur, dated 3-7-1990. Ex.B-5 is the Notes of Inspection dated 4-7-1990 of P.W.3; predecessor-in-office. Ex.B-7is the Notes of Inspection dated 7-11-1992 of P.W.3. Ex.B-11 is the Inspection Report of the Joint Collector, Anantapur, who has not been examined as a witness. R.W.1 is the Officer-in-charge in Meterological Department, Anantapur. R.W.2 is the Secretary of the Horticultural Association for Anantapur. They have been examined to prove that the water from the borewell would not be sufficient to irrigate the entire extent of garden land measuring Ac.29-56 cents.
18. In the course of cross-examination, P.W.1 at one stage stated that he did not remember the year in which he got the borewell dug. Again at another stage, he stated that he got it dug in the year 1986. It is his version that there was water at the depth of 40 feet and more water at the depth of 80- feet. However, on the advise of some persons, he got the borewell drilled to a depth of 110 feet. The foot valve for the borewell was placed at a depth of 40 feet from the point where 10 H.P. motor was fixed. That is to say it was fixed at a depth of 58 feet from the surface. This goes to show that the foot wall was not even fixed at a depth of 80 feet at which point there was more water. Normally in a borewell the foot valve will be placed at the bottom so that more water could be lifted. No explanation, is forthcoming from P.W.1 to have the foot valve only at a depth of 58 feet from the surface.
19. No doubt in Ex.B-4, the Inspection Report of the Special Tahsildar dated 3-7-1990, it is stated that the open well was not under use because the water available in the bore point was more than sufficient to feed the entire land. However as the author of the said report was not examined, the same cannot be taken to have been duly proved. Likewise, it has also been mentioned in Ex.B-5, the Notes of Inspection dt.4-7-1990 of P.W.3's predecessor-in-office that the water in the existing borewell was sufficient to feed the entire extent. But the author of this document was also not examined before the Court. P.W.3 in his Notes of Inspection dt.7-11-1992 (Ex.B-7) has simply copied what was recorded in Ex.B-5 with regard to the borewell. Thus, it is apparent that his notes of inspection are not based on physical verification. This has been admitted by him in the course of his cross-examination in the following terms:
"I did not calculate how much water was coming out from the borewell per hour. With my general knowledge I mentioned in my report that the water in the borewell is sufficient to irrigate the entire land acquired under this reference."
P.W.4 also admitted the same in the course of his cross-examination. His version on this aspect reads as under:
"In my presence the petitioner did not water the entire pomegranate trees from his borewell. So I cannot say whether the borewell water is sufficient or not to irrigate the entire garden of the petitioner under reference. It is true that we have to take into consideration litre per second from the source of irrigation and pan evoboration in the district to arrive whether the available water is sufficient to irrigate the entire garden land of the petitioner. I have not taken into consideration the said facts when I inspected the petitioner garden land."
They did not even bother to verify the depth of the borewell. To say the least, this attitude on the part of P.Ws.3 and 4, whose primary duty is to safeguard the interest of the State is most irresponsible, particularly, when they have recommended payment of lakhs of rupees as compensation. Ex.B-11, the Notes of Inspector of the Joint Collector dt.23-1-1993, is silent about the availability of sufficient water. The evidence of P.Ws.5 and 6 is also silent on this aspect.
20. There is not much in the evidence of R.W. 1 about the maximum quantity of water a borewell with 41/2" width could supply. However, R.W.2 testified that in a borewell of 4 1/2" width it is not possible to insert two pipes of 4" width. Obviously, it is impossible. However, it is elicited from him that it is possible to insert 4" pipe upto a depth of 40 feet. Be that as it may, on earnest consideration of the entire evidence on this aspect, we are not prepared to believe that a borewell of 41/2" width could supply water for 10 H.P. motor so as to irrigate Ac.29-56 cents of garden land.
21. Age of trees: On this aspect, there is the evidence of P.Ws. 1, 3, 4 and 5 Exs.B-4 to B-8, B-10 and B-11. P.W.1 asserted that he raised the pomegranate plants on the entire extent in the year 1987. But, he admitted in the course of cross-examination that on 5-8-1987 Government took possession of Ac.17-00 out of Ac.29-59 cents as surplus land under the provisions of Andhra Pradesh (Ceiling on Agricultural Holdings) Act, 1961. He further admitted that as he succeeded in the appeal he was put back in possession of the same on 28-6-1990. Admittedly, the draft notification Under Section 4(1) of the Act was published in the Gazette on 21-5-1991. Therefore his version that the age of the trees was five years as on the date of publication of the draft notification cannot be accepted. It is not his case that there were pomegranate and other plants by the time he surrendered the surplus land of 17 acres to the Government on 5-8-1987. It is also not his case that he was maintaining the said garden even after surrendering the same on 5-8-1987. Nor is it his case that he planted the trees after possession of the land was re-delivered to him on 28-6-1990. His evidence that he continued to be in posession of the land ' even after he surrendered the same to the Government on 5-8-1988 is belied by his own witness P.W.3, who asserted that prior to 28-6-1990 the land acquired was in possession of the Government. The version of P.W.3 has been corroborated by P.W.5, who admitted in the course of his cross-examination as under:
"It is true that the Government took possession of the land of P.W.1 which was acquired under this reference as P.W.1 was having excess land and thereafter it was handed over to P.W.1 before it was acquired by the Government."
P.W.3 deposed that he inspected the land on 17-10-1992 and again on 7-11-1992. Obviously, this was subsequent to the publication of draft notification. In his chief-examination, he merely stated that there were fruit bearing pomegranate and ber trees in the acquired land as on the date of inspection. But he did not specify their age. He did not also state that the plants were bearing fruits as on the date of his inspection. P.W.4, the then Assistant Director, Horticulture Department, Anantapur, who is stated to have inspected the lands of the claimant on 17-10-1992 testified that there were fruit bearing trees on the acquired land. He also deposed that the claimant maintained the garden very well. But in the course of cross-examination he admitted that he has recorded the age of the trees only on the basis of adangals furnished by the claimant himself. He also admitted that said adangals were not counter-signed by the concerned Revenue Authorities. He has also admitted that he has not observed the technical procedure to determine the age of trees. He further admitted that on the date of his inspection there were no pomegranate fruits. But, curiously he stated that he tested only few plants to know their variety. It is not understandable how he could test the fruits when there were no fruits at all. It is specifically put to P.Ws.1, 3 and 4 that as on the date of publication of the draft notification, the age of the plants was only one and half years. This suggestion receives strength from the evidence of P.W.6, who admitted in the course of cross-examination that as on the date of publication of draft notification, the age of trees standing on the acquired land was only one and half years. It is further strengthened by the fact that P.W.1 came into possession of 17 acres of land only on 28-6-1990. In the light of this evidence, we are unable to persuade ourselves to hold that the age of the trees was five years as on the date of publication of notification Under Section 4(1) of the Act.
22. It has come in the evidence of P.W.3 that for 10 years prior to the date of passing of the present award i.e. 7-5-1993, Government was acquiring lands situated in the villages of Mylarampalli and Karkuntam for foreshore submersion in PABR. In this view of the matter, it looks probable that P.W.1 raised the garden in question in anticipation of the acquisition proceedings.
23. Equally, P.W.1 cannot sustain his case on the basis of Exs.B-4 to B-8, B-10 and B-11. Ex.B-4 is the Inspection Report of the Special Tahsildar dated 3-7-1990. Therein, the age of the trees is not mentioned. Ex.B-5 is the Notes of Inspection of P.W.3, the then Special Deputy Collector dt.4-7-1990. It is recorded therein that there were 8593 pomegranate trees which were of fruit bearing stage. It is thus evident that they were not bearing fruits by that time as claimed by P.W.1. Ex.B-6 is the proforma valuation of fruit bearing trees prepared by P.W.4 on 8-10-1992. True, it is recorded therein that the age of the pomegranate trees was five years and that of ber trees was four years. But in view of the evidence of P.W.4 that the age of the plants was recorded on the basis of unauthenticated adangals furnished by P.W.1, no credence can be given to this document. Ex.B-7 is the Notes of Inspection of P.W.3 dt.7-11-1992. Herein also, it is merely mentioned that the pomegranate garden was at fruit bearing stage. Ex.B-8 is only a covering letter. Ex.A-10 is only an approved preliminary valuation statement dt.9-11-1992. Ex.B-11 is the Notes of Inspection Report of Joint Collector dt.23-1-1993. In this document also, there is no reference to the age of the trees.
24. Income from the garden: The most relevant factor for the purpose of capitalisation method is the annual income derived from the land or garden as the case may be. On this aspect, there is the solitary testimony of P.W.1. He deposed that he realised a sum of Rs. 3,50,000/- by selling the first crop and a sum of Rs. 4,50,000/- by selling the second crop. It is his evidence that he was selling ber fruits in his village in one K.G. packets. He was also selling them at Raketla Bus-stand and Mylaram Bus-stand. As far as pomegranate fruits are concerned, it is his specific evidence that he sold the same to Basanna, a wholesale fruit seller at Bangalore. But not a single document has been filed to show that pomegrante fruits were sold to Basanna. He has not even filed any document to show that he deposited the sale proceeds realised by him in any bank. Normally, one would not keep heavy amounts like lakhs of rupees in the house. Added to that, he has not filed any document to show that he purchased any fertilisers and pesticides. It has been held by the Supreme Court in Dilawarsab v. Special Land Acquisition Officer, that too much reliance should not be placed On oral evidence about the income from the lands. In the present case, excepting the self serving oral testimony of P.W.1, there is absolutely no other evidence about the income from the garden land in question. Having given our anxious consideration, we are unable to persuade ourselves to accept the same.
25. In view of our findings that the claimant is not entitled to claim compensation solely on the basis of Ex.A-15, he has failed to establish that there was sufficient water to irrigate the entire garden land, measuring Ac.29-56 cents; he has failed to prove the age of trees; he has failed to prove the income from the garden land and he has raised the garden in anticipation of the present acquisition proceedings, the irresistable conclusion is that he is not entitled to claim compensation on capitalisation method. In consequence, we are left with the question as to what is the fair and reasonable amount of compensation the claimant if entitled for the land covered under Group-III. In this context, it is significant to note that the existence of borewell to irrigate the land covered under this group is not in dispute. It may not be able to irrigate the entire extent at one time. It has also come in evidence that the pipe line has been laid underground for a distance of 1200 feet. Having regard to these facts, we consider it just and proper to determine the market value for the same on the basis of the value reflected under Ex.A-4 dated 6-2-1988, whereunder P.W.5 purchased Ac.1-23 cents for a consideration of Rs. 45,000/- which works out to Rs. 36,585/- per acre. On that basis, the respondent/Cross-Objector would be entitled to a compensation of Rs. 10,81,453/- for the land covered under Group-III, for which he was already paid a sum of Rs. 17,03,977/- pursuant to the award of the Land Acquisition Officer. However, in view of the provisions of Section 25 of the Act neither the reference Court nor this Court has any power to award compensation less than what was awarded by the Land Acquisition Officer. That way, respondent/cross-objector is fortunate enough.
26. In the light of the above discussion, we have to necessarily conclude that the respondent/cross-objector has failed to make out a case for enhancement of compensation. The point is thus answered.
27. Point No. 3: The extent of land covered under Group-IV is Ac.0-16 cents. There is no dispute that there is a open well, a borewell, a pump house and switch board room in that land. It is borne out by Ex.B-3 that the Executive Engineer, I.D., H.L.C. Division, Anantapur prepared the estimate of the open well, the borewell and the pump house etc., situate in the land covered under Group-IV as under:
1. Pump House Rs. 8,176/-
2. Open well with stone revetment Rs. 51,309/-
3. Borewell & pump house Rs. 21,429/-
4. Switch board control room Rs. 6,472/-
5. Revetment at open well Rs. 4,597/-
Rs. 91,983/-
Therefrom, he deducted 10% towards contractor's profit and 5% towards depreciation and estimated the value at Rs. 78,645-50. However, the Land Acquisition Officer, having refused to award compensation for the well on the ground that it was dried up awarded compensation of Rs. 34,706-30 for the other items. The reference Court awarded compensation of Rs. 78,645-50 for the open well and other super structures. It also awarded acompensation of Rs. 5,000/- for the pipeline. It is not in dispute that the open well, the bore-well, the pipeline and super structures etc., were meant only for irrigating the land covered under Group-III. No doubt, the Executive Engineer, T.L.C. Division estimated the value of the Well at Rs. 43,869-20. But it has come in the evidence of P.W.3, the Land Acquisition Officer, that the Joint Collector, " Anantapur, who inspected the land under acquisition, observed that the well was dried up. He also admitted in the course of cross-examination that on the date of his inspection i.e., on 7-10-1992 and 7-11-1992, the well was dried up. When it was dried up in the month of October and November of 1992, it is hard to expect that it would be of any use during summer. Even otherwise, no separate compensation can be awarded for the well in view of the decision of the Supreme Court in O. Janardhan Reddy and Ors. v. Special Deputy Collectors, 1995 LACC 27 SC. Therein, Ramaswamy, J, speaking for the Court observed:
"The advantage which an agricultural land may have because of the irrigation facility it had from the irrigation well, could only enhance the value of agricultural land depending upon the water yield from the well. Again when the agricultural land, the irrigation of which was possible from the water of the irrigation well, is acquired will have to be determined taking into consideration the irrigation facility it has from the well. In this situation the irrigation well in. an acquired agricultural land, cannot have a value apart from the value of the agricultural land itself."
On the same analogy, no compensation can be awarded for the pipeline as well. In this view of the matter, there shall be no hesitation to hold that the reference Court is not justified in awarding compensation for the open well and the pipeline. We hold accordingly. This point is thus answered.
28. Point No. 4: It is recorded in the Judgment under appeal that the possession of the lands acquired was not taken over by the requisitioning department even as on the date of the judgment i.e., 17-1-1996. However, the learned Advocate General states that it is borne out by record that possession was taken over on 8-11-1993 under a panchanama. The learned Counsel for the respondent-cross-objector has not disputed this statement, Both of them state before us that in view of the provisions of Sections 28 and 34 of the. Act, the claimant would be entitled to interest on the enhanced amount of compensation only from the date of taking possession. Thus, there can be no doubt that the reference Court committed an error in awarding interest on the enhanced amount of compensation from the date of the award till the date of payment. The point is accordingly answered.
29. We notice that pursuant to interim order dt.25-4-1996 made in C.M.P.No. 6970/96 to deposit 1/3rd of the enhanced compensation, the appellant has deposited a sum of Rs. 31,71,000/- and the respondent/cross-objector has withdrawn the same. In view of our present conclusion in the appeal that the respondent/cross-objector has not made out a case for enhancement of compensation, he is liable to repay the same. Therefore, we direct him to repay the said amount by 31-7-1997.
30. For the aforesaid reasons, the appeal must succeed and the. cross-objections must fail. Accordingly, the appeal is allowed and the cross-objections are dismissed with costs throughout.