Partly allowed

Dt Collector Warangal v. Dmt.Tahara Khatoon and 15 Others

Telangana HC8 Oct 2009AS/1007/2001

Case brief

AI extract

What is this about?

This court dismissed the Government appeal regarding land acquisition, confirming the defendants' title to 3733 sq. yds. The enhancement of compensation was supported, while interest award was restricted to begin from the notification date, not the date of possession.

What did the court decide?

Defendants entitled to 3733 sq. yds compensation; interest award modified to start from notification date.

Dt Collector Warangal Vs Dmt.Tahara Khatoon and 15 Others — Land Acquisition | Telangana HC (2009)

¶1

THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR A.S.Nos.1799 of 2000, and 996, 1007 & 1155 of 2001 And

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C.M.P.No.5905 of 2001

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COMMON JUDGMENT: (per Hon’ble Sri Justice A. Gopal Reddy)

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These four appeals have been heard together because common issues are involved in the common judgment and decree passed by the II Additional Senior Civil Judge, Warangal on 28.01.2000 in O.S.No.146 of 1996 and O.P.No.29 of 1996, and order in O.P.No.30 of 1996 of even date, whereby the learned judge dismissed the suit and answered the reference under Section 30 of the Land Acquisition Act, 1894 (for short ‘the Act’) in favour of defendants/claimants holding that they are the owners of the land and are entitled to compensation awarded.

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The essential facts, which are relevant for disposal of these appeals, are briefly stated as under.

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An extent of 3733 sq. yds. of land in Waddepally Revenue Village is originally belonged to one Mr. Hakim Ali Khan, who has purchased the same through a registered sale deed under Ex.B.1 (marked in O.S.No.146 of 1996) on 16^th Thir, 1316 Fasli equivalent to 3.03.1907. He sold the said land to one Mr. Khairul Mubeen Khan through registered sale deed under Ex.B.2, dated 30^th Farwadi, 1319 Fasli (equivalent to 3.03.1910). The claimants herein are the legal heirs of late Khairul Mubeen Khan. The said Khairul Mubeen Khan in his lifetime had acquired lot of properties in Hyderabad, including the abovementioned land in Warangal. After his death, disputes arose among the family members, in respect of the partition of the said properties.

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Accordingly O.S.No.139 of 1340-41 Fasli came to be filed by the sons of the second wife of Khairul Mubeen Khan, against the other

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children for partition in Dar-ul-Quaza Court at Hyderabad, which was having jurisdiction for partition of Matruka properties. Pending the suit, the Municipality, Warangal, which is known as Local Fund at that time, has occupied the said land under the guise of providing a part it for general public. In the said suit, Dar-ul-Quaza Court appointed Deputy Secretary, Law Department as receiver to take possession of the suit property. Accordingly, the said receiver took custody of the entire suit schedule properties. When he found that the Municipality, Warangal is in possession of the land, he brought the same to the notice of Dar-ulQuaza Court. Accordingly, the Court addressed a letter to the Municipality, Warangal, calling upon it either to vacate the land or to pay compensation for the land under its occupation. The Municipality contended that they are in possession of the said land since 1348 Fasli as the land is Government poramboke land. When the suit was pending, Dar-ul-Quaza Court was abolished on 9.09.1950 and the partition suit was transferred to the High Court, which was having original jurisdiction. Thereafter, the powers were conferred upon the City Civil Court to deal with the suit. The High Court returned the files pertaining to the partition suit to the City Civil Court, Hyderabad, on 30.04.1952 and the same was renumbered as O.S.No.128 of 1952, in which the legal heirs of Khairul Mubeen Khan relied upon Ex.A.5-sale deed executed by the office of the First Talukdar of Warangal District in 1316 Fasli, in favour of one Hakim Ali Khan, form whom Khairul Mubeen Khan purchased the property. Meanwhile, the fifth respondentMunicipality filed a writ petition before the High Court, in which the fifth respondent was directed to pursue its remedy in the preliminary decree proceedings instead of in the writ petition. On dismissal of writ petition, the Warangal Municipality impleaded as fifth respondent in I.A.No.1092 of 1966 and subsequently, final decree was passed in I.A.No.1766 of 1968.

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The Chief Judge, City Civil Court, after considering the evidence

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placed before him, decreed the suit holding that the land in B-schedule appended to the preliminary decree, belongs to Khairul Mubeen Khan. Aggrieved by the said judgment, the Municipality, Warangal filed C.C.C.A.No.80 of 1972 before this Court, which was marked as Ex.B.7. This Court through its judgment, dated 16.06.1975 dismissed the appeal filed by the Municipality. The Municipality unsuccessfully challenged the dismissal of appeal in L.P.A.No.207 of 1975 under Ex.B.8. As no stay was granted in L.P.A., execution proceedings were taken up in the year 1977. When the Court Bailiff went there to deliver the possession of the property, he found certain structures such as pump house, fence etc., were erected by the Municipality. The Bailiff asked the officials of the Municipality to remove the structures, for which they requested him to grant three days time to remove them. Accordingly, the Bailiff granted time. Thereafter, when the Municipal officials sought some more time to remove the structures, the Bailiff expressed his inability to grant further time. Since the Bailiff could not execute the warrant, he has drawn a panchanama under Ex.B.11, and handed over the possession of the property along with the structures to the decree holders and obtained a receipt from them, which was marked as Ex.B.10. Thereafter, he submitted Ex.B.9-report to the Executing Court having executed the warrant. At that stage, the Municipality promised the claimants to initiate land acquisition proceedings and pay the compensation. Accordingly, it addressed a letter, dated 23.06.1982 under Ex.A.7 (marked in O.P.No.30 of 1996) to the Revenue Divisional Officer, Warangal, requesting him to initiate land acquisition proceedings, but no notification was issued. Then the claimants got issued legal notice to the Municipality and the District Collector, Warangal, which was marked as Ex.B.4 in O.S.No.146 of 1996, for which the Municipality gave reply stating that the land belongs to the Government and therefore no compensation shall be payable. Hence the claimants filed W.P.No.8995

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of 1994 before this Court against the District Collector and the Municipality. This Court allowed the writ petition directing the Municipality either to surrender the vacant possession of the land or to initiate land acquisition proceedings by granting two months time.

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Questioning the correctness of the order passed in the writ petition, the Municipality filed W.A.No.604 of 1995 and the same was disposed of on 13.08.1996. Thereafter, the claimants filed contempt caste. At that stage to avoid contempt proceedings, a notification under Section 4(1) of the Act was published on 14.06.1996 for an extent of 3196 sq. yds.

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Though the claimants claimed that they are the owners of 3733 sq. yds, the Land Acquisition Officer passed award for an extent of 3196 sq. yds determining the market value @ Rs.250/- per sq. yd. But the compensation was paid only for an extent of 1996.25 sq. yds i.e., 16 ½ guntas, fixing the land value at Rs.1/- per sq. yd, and awarded interest from the date of taking possession till the date of notification i.e. from 1.01.1938 to 14.06.1996, for depriving the possession of the defendants/claimants. Since the claimants have claimed title for the remaining extent of 1210 sq. yds., the matter was referred to the civil Court under Section 30 of the Act in O.P.No.29 of 1996 on the file of II Additional Senior Civil Judge, Warangal.

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The claimants received the compensation under protest in respect of 1966 sq. yds, and sought to refer the matter to the civil Court. On reference being made under Section 18 of the Act the same was registered as O.P.No.30 of 1996 on the file of the II Additional Senior Civil Judge, Warangal. Meanwhile, the State of A.P., through District Collector filed O.S.No.146 of 1996 for declaration of title over the land admeasuring Ac.4.01 gts, in S.No.37 situated at Subedari, Hanamkonda and also for permanent injunction restraining the defendants from interfering with the suit schedule property and for costs and other reliefs.

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The learned II Additional Senior Civil Judge, Warangal by a

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common order dated 28.01.2000, in O.S.No.146 of 1996 as well as O.P.Nos. 30 and 29 of 1996 observed that the claim of the defendants cannot be rejected or taken away, because there is a finding by the High Court as long back as 1972 and 1975 that the land claimed by the defendants in the suit, who are the claimants in the O.P., over an extent of 3733 sq. yds, is the same land claimed by the Municipality or the Government, and the Municipality had, in fact, occupied the land of the defendants as long back as 1938. Further, the contention of the Municipality that the land claimed by the defendants in S.No.37 is belonged to the Government, was negetived in the previous proceedings, which clearly establishes that the suit schedule property was purchased by Hakim Ali Khan under a registered sale deed Ex.A.1 from the then Collector of Warangal on behalf of the Government and subsequently it was purchased by Md. Khairul Mubeen Khan under a registered sale deed marked as Ex.A.2 and from him the defendants have succeeded to the property. When the Municipality was unsuccessful, the suit filed by the Government is only to deprive the defendants/claimants of their rights in the suit schedule property, and the plaintiff neither established its ownership nor possession over the suit schedule land claimed by the defendants. Therefore, the plaintiff is not entitled to declare as the owner of the land claimed by the defendants in regard to an extent of 3733 sq. yds, and accordingly dismissed the suit.

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While dismissing the suit, the reference made under Section 30 in O.P.No.29 of 1996 was answered in favour of the defendants holding that the plaintiff is not entitled to claim ownership in any part of the land belonged to the defendants, and in fact, the compensation has to be awarded for an extent of 3733 sq. yds, but not to an extent of 3176.3 sq. yds, and they are entitled to receive the compensation. It was further held in the final decree proceedings that the defendants are entitled to

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3733 sq. yds, since the Municipality also had previously sent proposals for acquisition of the land in an extent of 3733 sq. yds, under Ex.A.7 marked in O.P.No.30 of 1996 hence, the Government ought to have paid compensation for the extent of 3733 sq. yds, but not 3176.3 sq. yds.

¶19

With regard to reference made under Section 18 of the Act for enhancement of compensation, and also objection to the measurement of the land in O.P.No.30 of 1996, the learned Judge by a separate order allowed the reference, and fixed the market value of the acquired land @ Rs.600/- per sq. yd. and after deducting 1/3^rd towards developmental charges, fixed the market value @ Rs.400/- per sq. yd., with all statutory benefits such as 12% additional market value from the date of notification till the date of award and interest @ 9% p.a., on the enhanced compensation from the date of taking possession for a period of one year i.e., 1.01.1938 to 31.12.1938, and thereafter,15% p.a., from 1.01.1939.

¶20

On dismissal of the suit in O.S.No.146 of 1996 and answering the reference in favour of the claimants in O.P.No.29/1996, the Government filed A.S.No.1007 and 996 of 2001. Pending the appeals, the appellants in A.S.No.1007 of 2001 filed C.M.P.No.5905 of 2001 under Order 41 Rule 27 C.P.C., for receiving the documents such as 1) village map; 2) correlation sketch showing the old Sy.No.37 of Waddepally village, Sub-division sketch, Notification issued under Section 4(1) of the Act, as additional evidence.

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Against the enhancement of compensation in O.P.No.30 of 1996, the Government also preferred A.S.No.1155 of 2000 and seeking further enhancement of compensation awarded in O.P.No.30 of 1996 the claimants preferred A.S.No.1799 of 2000.

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Learned counsel for the respondents/defendants stated that the respondents have no objection for marking of above documents. Therefore, with the consent of both the counsel, the documents

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mentioned in the petition as well as the order passed by the Supreme Court in Civil Appeal No.1758 of 2006 are marked as Exs.A.6, A.7 and A.8.

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Learned Special Government Pleader contended that an extent of 3196 sq. yds. of land, which works out to 26 ¼ guntas, was notified under Section 4(1) of the Act, but the Government claimed ownership only 10 guntas of land acquired. Since the Government is not a party to the suit for partition in O.S.No.128 of 1952, and the Municipality, which is the fifth defendant in the said suit, unsuccessfully carried the matter in appeal being C.C.C.A.No.80 of 1972 and again in L.P.A.No.207 of 1975, the finding recorded therein will not bind the Government. He further contended that only 26 ¼ guntas of land was the subject matter of notification, but not the other five guntas claimed by the claimants and hence the same cannot be the subject matter of reference under Section 18 of the Act. Therefore, the reference Court erred in awarding compensation for the entire extent of 3733 sq. yds, instead of 3196 sq. yds, covered by the notification. Further, the enhancement of market value made by the lower Court basing upon Exs.A.5 and A.6 sale deeds, cannot form basis for fixation of market value since the said sales are small extents being 125 and 113 sq. yds, respectively. He has taken us through the evidence adduced by the parties and contended that since the market value was determined in the year 1996, the claimants are not entitled to interest on such market value from the date of taking possession i.e., from 1.01.1938. In support of his submission he placed reliance on a judgments of the Supreme Court in Sharda Devi v. State of Biha r^[1] and M/s. Ahad Brothers v. State of M.P^[2] .

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Learned counsel for the defendants/claimants contended that though notice was issued under Ex.B.4 calling upon the Commissioner, Warangal Municipaliaty, and the District Collector, Warangal, for initiating land acquisition proposals as per the requisition made by the

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Municipality in its later dated 23.06.1982 marked as Ex.A.7 in O.P.No.30 of 1996, or to redeliver the possession of the land to an extent of 3733 sq. yds, situated at Subedari of Hanamkonda Mandal to the defendants, the Government has not chosen to redeliver the possession, but notified only 3196 sq. yds, in the year 1996, which clearly goes to show that the Government or the Municipality cannot claim title to an extent of 10 guntas of land as claimed before the Land Acquisition Officer. Since the Municipality was contending all along that it took possession of the property, which is a Government poramboke, and made its claim, claiming it as a Government land in O.S.No.128 of 1952 and unsuccessfully challenged the decree, it is not open for the Government to claim title for 3733 sq. yds., since the earlier findings declaring that the defendants are the owners remained unchallenged. Further, since the Municipality took possession of the property without following due process of law, the claimants are entitled to suitable compensation towards damages for keeping them out of possession of the property. Therefore, the interest awarded by the lower Court from the date of taking possession can be sustained by way of damages.

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In view of the above rival submissions, the points that arise for

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consideration in these appeals are –

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1. Whether dismissal of O.P.No.29 of 1996 on the basis of the findings recorded in O.S.No.128 of 1952 declaring the defendants as the owners of the property, can be sustainable or not?

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2. Whether the defendants/claimants are entitled to compensation for an extent of 3733 sq. yds or only for 1996.25 sq. yds, which is equivalent to 16 ½ guntas? and

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3. Whether the claimants are entitled to enhancement of compensation and interest from the date of taking possession, i.e. from 1.01.1938?

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Point Nos.1 & 2

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Apparently, there is no dispute with regard to the facts narrated above where the defendants are claiming title to the property under Exs.B.1 and B.2. Ex.B.1-sale deed was executed by Hawal Talukdar in favour of Hakim Ali Khan with regard to the schedule property i.e., house belonging to Bhadrachal Fund situated behind the big Mosque, which was under the supervision of the Government with specific boundaries measuring 305 feet in length from North to South and 161 feet in breadth from East to West, forming an area of 49105 sq. feet, has been sold to Mr. Hakim Ali Khan. The said Hakim Ali Khan sold the said land to Khairul Mubeen Khan on 30^th Farwadi, 1319 Fasli, and delivered the possession of the property. On the death of Khairul Mubeen Khan, the sons of his second wife instituted O.S.No.139 of 1340-41 Fasli for partition, which was transferred and renumbered as O.S.No.128 of 1952 on the file of the Chief Judge, City Civil Court, Hyderabad, in which Warangal Municipality was arrayed as the fifth defendant. On decreeing the suit, the Municipality preferred appeal in C.C.C.A.No.80 of 1972, and the same was dismissed by this Court, affirming the title of the heirs of Khairul Mubeen Khan over an extent of 3733 sq. yds., which was marked as Ex.B.7, in which a final decree was also passed.

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Pending the suit, the Court appointed a receiver to manage the suit property, and the receiver took custody of the same. Since the Municipality failed to deliver the property, execution proceedings were filed for due eviction of the Municipality. On filing of Execution Proceedings, the Municipality addressed a letter to the Revenue Divisional Officer, Warangal on 23.06.1982 for initiation of Land Acquisition proceedings for an extent of 3733 sq. yds., and the said proposal was accepted by the Collector. As no notification was issued, the claimants filed W.P.No.8995 of 1994 in which the District Collector,

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Warangal was also added as a respondent apart from Warangal Municipality and the Revenue Divisional Officer, Warangal. This Court by order dated 20.02.1995 allowed the said writ petition with a finding that the Municipality, having suffered preliminary decree and also final decree, unsuccessfully questioned the said decree in appeals and the final decree proceedings have become final, and hence the Municipality has to deliver vacant possession or acquire the same under the provisions of the Land Acquisition Act, and accordingly set aside the impugned proceedings dated 15.02.1992 issued by the Revenue Divisional Officer informing the Municipality that the land in S.No.37 of revenue village is a Government Poramboke land. The said order has been confirmed in W.A.No.604 of 1996 to which the Government through District Collector, Warangal is a party, who never claimed that the property belongs to the Government.

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In the earlier suit in O.S.No.128 of 1952 filed for partition, the Warangal Municipality was added as fifth defendant in I.A.No.1092 of 1966, and subsequently, final decree was passed in I.A.No.1716 of 1968. In the said final decree the claim for mesne profits has been rejected by the trial Court. But in the said suit the claim of the Municipality that it is in possession and enjoyment over a period of 45 years and the defendants have no manner of right in respect of the same, was negatived by the lower Court since the property was clearly identified.

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As per the sale deed under Ex.A.5 there was a house in the land purchased by Hakim Ali Khan. Ex.A.16 is the letter addressed by the Court to the Chairman, Warangal Municipality, dated 1^st Thir 1346 Fasli, in which it is stated that a copy of the Receiver’s report has been sent to him through the office letter No.835 dated 29^th Isfandar 1346 Fasli. It will be evident from the report and the final decree proceedings under Ex.B.3 that the local fund has taken possession of vast plot of land

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belonging to Mr. Khairul Mubeen Khan situated opposite to the Iwaneshahi, and has laid a part thereof, which was in the custody of the Court, and informed the Municipality either to acquire the land or make assessment of compensation, so that settlement can be made. In view of the same, the trial Court after elaborately considering the entire evidence adduced by the parties held that the ancestors of the defendants/claimants sent notice, dated 1.07.1965 to the Collector, Warangal, claiming right over the property purchased by them. The Collector simply forwarded the notice to the Municipality because the Municipality was in possession of the property. The Government having permitted the Municipality to defend its title and having failed in its attempt to claim the property through the Municipality, it is not open for the Government now to contend that it is the owner of the land to an extent of 3733 sq. yds. In view of the same, the finding recorded by the lower Court that the Government cannot claim right in the said property is unassailable on any ground whatsoever. Therefore, the suit filed by the Government cannot be decreed to the extent of 3733 sq. yds. but the Government is entitled to decree for the remaining extent only.

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Coming to the claim of the Government over the 10 guntas of land, which is the subject matter of O.P.No.29 of 1996, it is now fairly well settled by the Supreme Court in one supra that

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A dispute as to pre-existing right or interest of the State Government in the property sought to be acquired, is not a dispute capable of being adjudicated upon or referred to the Civil Court for determination either under Section 18 or Section 30 of the Act. The reference made by the Collector to the Court was wholly without jurisdiction and the Civil Court ought to have refused to entertain the same. All the proceedings under Section 30 of the Act beginning from the reference and adjudication thereon by the Civil Court suffer from lack of inherent jurisdiction and are therefore a nullity liable to be declared so.

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In view of the same, once the Government failed in its attempts to establish its title and acquired the property for an extent of 3196 sq. yds, the defendants/claimants are entitled to receive the compensation deposited to the credit of O.P.No.29 of 1996. Therefore, we do not see any merit in the appeal. Therefore, A.S.No.996 of 2001 filed by the Government, is liable to be dismissed. Accordingly, Point Nos.1 and 2 are answered in favour of the defendants/claimants.

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Point No.3:

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Admittedly, the Land Acquisition Officer passed the award fixing the market value of the acquired land at Rs.250/- per sq. yd, and also 12% additional market value as on the date of issuance of 4(1) notification, dated 14.6.1996. The claimants are seeking enhancement and disputing the measurements mentioned in the notification, and sought for reference claiming compensation for total extent of 3733 sq. yds, whereas, the award was confined only to an extent of 3196 sq. yds.

¶44

Under Ex.A.5 and A.6 relied upon by the claimants an extent of 125.83 sq. yds and 113.25 sq. yds was sold at Rs.1500/- per sq. yd. PW.2, who is the vendor of the sale deeds under Ex.A.5 and A.6, deposed that he sold an extent of 125.83 sq. yds, to Smt. K. Sudharani on 5.07.1995 under Ex.A.5-registered sale deed for a consideration of Rs.1500/- per sq. yd. He also sold 113.25 sq. yds., of land under Ex.A.6 to one Mr. K. Damoder on 24.07.1995 @ Rs.1000/- per sq. yd, as it is just away from the main road. The land was acquired by the Government for the purpose of water tank. The distance between the acquired land and the land sold by him was below one kilometer. The acquired lands are more valuable than the land sold by him. He denied the suggestion that the acquired land and the land in the vicinity was not fetching Rs.4000/- or 4500/- per sq. yd. by 1995.

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Whereas PW.1, who is the son of claimant No.11, deposed that

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Ex.A.2 is the report of the Bailiff, where an extent of 3733 sq. yds, was delivered to the claimants. Ex.A.3 is the receipt, dated 27.04.1977 and Ex.A.4 is the certified copy of panchanama. The acquired land is situated in Subedari opposite to the Collector’s office in Warangal. Nearby the acquired land commercial establishments, Rohini hospital, Kakatiya School and Mhanti Junior College and computer institute like ICC are situated apart from hotels, S.B.I., S.B.H., and Vyshya Banks. The acquired land got all the commercial potentiality, since there is no vacant land available. Ex.A.7 is the requisition given to the Revenue Divisional Officer by the Municipal Commissioner dated 23.06.1982 where the extent proposed for acquisition was mentioned as 3733 sq. yds. After receiving the notices they have also filed claim petitions before the Revenue Divisional Officer, claiming compensation for the total extent of 3733 sq. yds. Except making a suggestion that the compensation was awarded only for 1966 sq. yds, and the balance extent of land is belonged to the Government, nothing was suggested to him that they are not the owners of the land over an extent of 3733 sq. yds.

¶47

When the evidence adduced by the parties clearly establishes that the requisitioning department is a party to the final decree proceedings where 3733 sq. yds, was the subject matter, which was allotted to the claimants and where symbolic possession was also delivered in final decree proceedings, the claimants are entitled to compensation to the whole extent of 3733 sq. yds. Therefore, we do not see any merit in the contention of the learned Government Pleader that the claimants are entitled to compensation only to the extent, which was notified under Section 4(1) of the Act. If the claimants are not satisfied that the measurements of the land or fixation of market value, they can always seek for reference of the matter under Section 18 of the Act claiming higher compensation and disputing the measurements of the land notified.

¶48

It was contended that the market value fixed by the lower Court at Rs.400/- per sq. yd., as against Rs.250 sq. yds, awarded by the Land Acquisition Officer is not based upon the evidence adduced by the parties, and the claimants are entitled to higher compensation in view of the sale deeds under Exs.A.5 and A.6.

¶49

PW.2, who is the vendor and who executed Exs.A.5 and A.6 sale deeds, deposed that he sold 125.83 sq. yds of land to one Smt. K. Sudharani on 5.07.1995 under Ex.A.5-registered sale deed, for a consideration of Rs.1500/- per sq. yd., and the said plot of land is situated abutting to the main road leading from Hanamkonda to Kazipet. He also sold 113.25 sq. yds of land to one Mr. K. Damoder on 24.07.1995 under Ex.A.6-sale deed @ Rs.1000/- per sq. yd., as the said land is situated just away from the main road.

¶50

As seen from the above, the difference in consideration between both the sale deeds is Rs.500/- per sq. yd., and it was explained that the land under Ex.A.5 is abutting to the main road and that the distance between the acquired land and the land sold is below 1 km., and the acquired land is nearer to the Collector’s Office situated in commercial area.

¶51

PW.1, in his chief examination, though stated that the acquired land has got commercial potentiality and no vacant land is available in that area, also stated the same is abutting to the main road. But in the cross-examination he admitted that he does not have any personal knowledge with PW.2, but he came to know about him while he was enquiring about the market value of the land. He also admitted that he has no personal knowledge about the acquisition of land and about the inspection made by the Land Acquisition Officer. He further stated that the land of PW.2 sold under Exs.A.5 and A.6 is situated towards Warangal side from his land. He denied the suggestion that the land covered by Exs.A.5 and A.6 is situated at a distance of more than 2

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kms., from his land.

¶53

In view of the same, Exs.A.5 and A.6 though can be taken into consideration, but necessary deductions have to be made, since the said lands are in proximity towards Warangal and the acquired lands are far away from the lands covered by Exs.A.5 and A.6. In view of the same, the lower Court rightly fixed the market value of the acquired land at Rs.600/- per sq. yd., keeping in view the difference between the consideration under Exs.A.5 and A.6, and after giving 1/3^rd deduction towards developmental charges, fixed the market value of the acquired land at Rs.400/- per sq. yd. No principle of law has been violated by the lower Court in fixing the market value of the acquired land in view of the potentiality of the land. We accordingly, confirm the fixation of market value at Rs.400/- per sq. yd.

¶54

It is well settled that starting point for calculation of interest on the amount of compensation under Section 34 of the Act is the date of publication of notification under Section 4(1) of the Act.

¶55

The Larger Bench of the Supreme Court in R.L.Jain v. DDA^[3] held that the stage for taking possession of the acquired land under Sections 16 and 17 of the Act would be reached only after publication of notification under Sections 4 (1) and 9(1) of the Act. If possession is taken prior to the issuance of the notification under Section 4(1) of the Act, it would not be in accordance with Sections 16 and 17 of the Act and will be without any authority of law, and consequently cannot be recognized for the purposes of the Act. For the parity of reasons the words “from the date on which he took possession of the land” occurring in Section 28 of the Act would also mean lawful taking of possession in accordance with Section 16 or 17 of the Act. The words “So taking possession” can under no circumstances mean such dispossession of the owner of the land, which has been done prior to publication of notification under Section 4 (1) of the Act, which is de hors the

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provisions of the Act, and accordingly dismissed the appeal holding that the interest on the compensation awarded can be calculated only from the date of notification.

¶57

We accordingly set aside the award insofar as awarding of interest from the date of taking advance possession and confined the same from the date of issuance of 4(1) notification @ 9% p.a., for a period of one year and thereafter @ 15 % p.a. Accordingly, the appeal filed by the State in A.S.No.1155 of 2001 is partly allowed to the extent indicated above. In view of the same the appeal filed by the claimants in A.S.No.1799 of 2000 seeking further enhancement is dismissed

¶58

In the result A.S.No.1799 of 2000 and A.S.No.996 of 2001 are dismissed. A.S.No.1007 of 2001 is partly allowed decreeing the suit of the plaintiff declaring that the plaintiff is the owner of remaining extent of suit schedule property excluding an extent of 10 guntas of land covered by O.P.No.30 of 1996 and C.M.P.No.5905 of 2001 is allowed. A.S.No.1155 of 2001 is also partly allowed setting aside the award of interest from the date of taking advance possession i.e. 1.01.1938 till the date of notification. There shall be no order as to costs.

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___________________ (A. Gopal Reddy, J.)

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__________________ (B. Chandra Kumar, J.)

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8^th October, 2009 Js.

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APPENDIX OF EVIDENCE

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WITNESSES EXAMINED

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NIL