JUDGMENT Manjunath, , J.— Heard the counsel for the appellants and the Government Advocate for the respondents. 2. This is one of the classic cases to demonstrate how the public money is being wasted on account of callousness or irresponsibility or loss of vision or fore thought on the part of the officers who are dealing with the acquisition of property under the guise of the public purpose. 3. The appellants are the owners of 18 acres 17 guntas in Block No. 23 of Sannasompur Village in Dharwad Taluk which land is situated in the outskirts of Dharwad city. An area of 10 acres out of 18 acres 17 guntas was notified for acquisition under Section 4(1) of Land Acquisition Act vide preliminary notification dt. 10-8-1992. Final notification under Section 6(1) of the Act was issued on 24-9-1993. The possession was taken on 15-12-1989 much prior to the issuance of the preliminary notification. 4. After taking the possession of the lands, the authorities allowed the Contractors who were constructing the National Highway to remove the soil and thereby entire land was converted into a tank. Under a notification dated 26-3-1997 the State Government issued a notification under Section 48(1) of the Land Acquisition Act withdrawing the acquisition proceedings in respect of the lands. Since the soil was removed and land was converted into a big tank since the land could not be made use by the petitioners, they knocked the door of this Court by filing a Writ Petition challenging the legality and correctness of issuance of a notification under Section 48(1) of the Land Acquisition Act in W.P. No. 29017/1997 requesting the Court to direct the respondents to pass an award and to pay the compensation. Later on, the petitioner did not press the prayer in regard to the quashing the notification issued under Section 48(1) of the Land Acquisition Act. However, they requested the Court to direct the respondent to pass an award. In the circumstances, this Honble Court permitted the petitioner to make an appropriate representation under Section 48(2) of the Land Acquisition Act within a period of eight weeks from 22-6-1999. Accordingly, the writ petition was disposed of on 22-6-1999. 5. After the disposal of the Writ Petition, a representation was submitted by the petitioner and an award was passed on 31-7-2003 determining the market value awarding the compensation of sum of Rs. Accordingly, the writ petition was disposed of on 22-6-1999. 5. After the disposal of the Writ Petition, a representation was submitted by the petitioner and an award was passed on 31-7-2003 determining the market value awarding the compensation of sum of Rs. 1,16,963/- for the entire extent of 10 acres. 6. Being not satisfied with the award, the petitioners requested the Special Land Acquisition Officer to send a reference under Section 18 of the Land Acquisition Act read with Section 48(3) of the Act to the Reference Court and to determine the correct damages suffered by the petitioners under Section 48(2) of the Act in view of the denotification of the land by the Government. The reference sent was registered as LAC No. 14/2002 by the II Additional Civil Judge (Sr. Dn.) Dharwad. In the above proceedings an Advocate was appointed as Commissioner to ascertain the actual quantity of soil removed by the Contractor on the lands in question for construction of National Highway running adjacent to the lands. He submitted the report by taking assistance of a Surveyor to survey the land and find out the quantity of the soil removed by the respondents. No objections were filed to the aforesaid Commissioners report by both the parties. Thereafter, the Reference Court determined the market value of the land acquired at the rate of Rs. 1,30,340/- per acre and granted other statutory benefits by its judgment and award dated 31-7-2003. 7. Being aggrieved by the judgment of the Reference Court, Land Acquisition Officer, filed an appeal in MFA No. 7854/2003 and cross-objections were filed by the appellants herein in cross-objection No. 15/2004. The appeal and cross-objections were heard together by a Division Bench of this Court and by its judgment and award dated 19-6-2006 allowed the appeal and cross-objections and remanded the matter to the Reference Court for fresh adjudication in accordance with law keeping in mind the provisions of Section 48(2) and 48(3) of the Land Acquisition Act and directed the Reference Court to dispose of the case on merits and in accordance with law granting liberty for both the parties to file an additional claim petition or objection statement if they so desire. 8. After remand a claim statement was filed by the appellants and evidence was also let in. 8. After remand a claim statement was filed by the appellants and evidence was also let in. On behalf of the claimants one Giridhar Laxman Deshpande was examined as P.W. 1 and two witnesses by name Satappa Bheemappa Kurubar and Yellappa Mojandad Shingri were examined as P.W. 2 and P.W. 3 and they relied upon Ex. P1 to P3. The Commissioner who was appointed to survey the land to find out the quantity of soil removed was examined as C.W. 1. Through him Ex. C1 to C5 were marked. On behalf of the Government, one Sanganagouda Basanagoud Momanahalli was examined as R.W. 1 and record of rights were marked as Exs. R1 to R3 and a report of the Executive Engineer was marked as Ex. R4. 9. Since both the parties did not file objections to the Commissioners Report, reference Court accepted the report. However the reference Court without assigning any reasons and without considering the schedule of rates prevailing on the date of the notification in regard to the amount payable to a contractor by the Government to fill up the soil, awarded a sum of Rs. 4,10,000/- as damages with interest of 6% per annum from the date of reference till the date of the order and further directed the Deputy Commissioner, Dharwad to recover the excess amount paid to the claimant pursuant to the earlier award. This judgment and award is called in question by the appellants in this appeal. 10. The Government has not filed any cross-objections. 11. The following grounds are raised by the learned counsel appearing for the appellants at the time of arguments before us :- When the Reference Court has accepted the quantity of the soil removed by the contractors from the land in question and when the claimants had placed the material before the Court to show what was the prevailing rate payable for filling up the soil by the Government to a contractor during relevant period as per Ex. P10, the Reference Court ought to have calculated the total quantity of soil based on the Commissioners report and the cost incurred by the petitioners to restore the land to its original position and to award interest in terms of Part III of the Land Acquisition Act. P10, the Reference Court ought to have calculated the total quantity of soil based on the Commissioners report and the cost incurred by the petitioners to restore the land to its original position and to award interest in terms of Part III of the Land Acquisition Act. He further contends that in addition to compensation for filling the soil, the Reference Court was required to assess the loss of income from the land on account of taking possession of the land till the land is restored to its original position. According to him the Reference Court did not consider these two aspects and has submitted a Memo of calculation to show how much quantity of soil is removed by the contractor from the land and the rate applicable as per Ex. P10 and requests the Court to award the compensation for filling up the soil along with other statutory benefits and contemplated under Part III of the Land Acquisition Act. He further requests us to direct the respondent to pay the loss of income along with the other statutory benefits considering the provision of Section 48(3) of the Land Acquisition Act. 12. The learned Government Advocate submits though the Commissioner is examined, after remand since the Commissioner was actually appointed at the first instance Reference Court need not have considered the report of the Commissioner. According to him, after remand the Court was required to appoint one more Commissioner in order to ascertain the quantity of the soil removed from the land in question. He further submits that part III of the Land Acquisition Act is not applicable to award statutory benefits while assessing the loss caused to the appellants for filling the soil and bring the land restored to its original position. He further submits since the petitioners were not cultivating the land even earlier to the acquisition, they are not entitled to for loss of income from the land or other statutory benefits. Therefore, he requests the Court to dismiss the appeal. 13. He further submits since the petitioners were not cultivating the land even earlier to the acquisition, they are not entitled to for loss of income from the land or other statutory benefits. Therefore, he requests the Court to dismiss the appeal. 13. Having heard the learned counsel for the parties, we are of the opinion the following two points would emerge for reconsideration in this appeal : 1) What was the total quantity of soil required to restore the land to its original position and at what rate the compensation has to be awarded for restoration of the land to its original position and if it is so whether the appellants are entitled to claim interest and other statutory benefits under Part III of the Land Acquisition Act ? 2) Whether the appellants are entitled to claim the loss of income from the lands on account of removal of soil due to acquisition and not restored the land to its position ? 3) If it is so, till what period the appellants are entitled to claim loss of income from the lands ? 14. After hearing the learned counsel for the appellants and the Government Advocate for the respondents, the following points are not disputed in this appeal : Though 10 acres of land out of 18 acres 17 guntas of land in Block No. 23 of Sannasompur village was acquired under a preliminary notification dated 10-8-1992 and actual possession was taken on 15-12-1989 much prior to the date of the preliminary notification and that the contractors who had undertaken the work of construction of National Highway have removed the soil from the land in question, it is also not disputed that the land acquired was later on denotified under Section 48(1) of the Land Acquisition Act and the same was challenged by the appellants by filing a writ petition in W.P. No. 29017/1997 and that a direction was issued by this Court in the aforesaid writ petition to determine the loss caused to the appellants herein and that an award was passed on 31-7-2001 determining the market value of the land determining the compensation payable to the appellants and that a reference was sent to Reference Court under Section 18 of the Land Acquisition Act in LAC No. 14/2002 and the Reference Court determined the compensation payable at the rate of Rs. 1,30,340/- per acre. 1,30,340/- per acre. Which judgment and award was set aside by this Court in MFA No. 7854/2003 connected with the Cross-Objection No. 15/2004 dt. 19th June 2006 directing the Reference Court how it has to adjudicate the claim of the claimants/appellants. 15. After remand the Commissioner was examined before the Reference Court. It is not in dispute that the Court Commissioner who was appointed in order to ascertain the actual quantity of soil removed from the land in question, submitted his report at an undisputed point of time, by taking the assistance of a surveyor. The correctness of the Commissioner report is neither disputed by the appellants nor by the respondent. The claimants have produced the schedule rate of contracts for the relevant year in respect of Dharwad circle issued by the P.W.D. Department of State of Karnataka. This document is also not in dispute, which discloses how a contractor would be paid for filling the soil during the relevant period. 16. Before us, the appellants counsel submitted that the appellants have to fill up 1,04,663 cum of soil and he requested us to consider the price fixed under the scheduled rate of contract at Rs. 10.45 ps. per Cmt. and to consider the cost for bringing the soil from a distance of 5 Kms. to the land and based on the scheduled rates he contends that he is entitled to claim Rs. 24.20 ps. per Cmt. on this head and levelling charges as per Ex. P10. On these grounds he requests the Court to consider the amount of compensation payable in order to fill up the soil and restore the land to its original position. 17. Since the Memo of calculation filed by the appellants was disputed by the Government Advocate, we directed the Government Advocate to file his memo of calculation to find out the quantity of soil required to restore the land to its original position with the help of a concerned Engineer. The learned Government Advocate submits that since the Commissioner was appointed at the first instance before the order of remand, the Government is not bound by the said report and that Court cannot compel him to calculate the quantity of soil required based on the Commissioners Report. The learned Government Advocate submits that since the Commissioner was appointed at the first instance before the order of remand, the Government is not bound by the said report and that Court cannot compel him to calculate the quantity of soil required based on the Commissioners Report. We have to reject the contention of the Government Advocate since the Commissioner was appointed by the Reference Court at the first instance in order to ascertain the actual quantity of soil removed from the land. when the Government has not filed its objection to the Commissioners report disputing the correctness of the measurement shown in the Commissioners report, there was no necessity for the Reference Court to appoint one more Commissioner in order to find out the actual extent of the soil required to restore the land. Because the removal of the soil is not in dispute and he has submitted the report based on the assistance of a Government surveyor. When the Government has not filed its objection, the measurement shown in the Commissioners Report cannot be doubted by this Court and if a fresh Commissioner is appointed it may not be for the advantage of the Government since the Commissioner was appointed long back and if fresh Commissioner is appointed, in such an event the Government has to pay further cost also. The Government had also not requested the reference Court to appoint a Commissioner afresh. 18. Therefore, we do not see any substance in the arguments advanced by the learned Government Advocate and after rejecting the contention of Government Advocate, we directed the Government Advocate to calculate the actual quantity of soil required based on the Commissioners Report through Executive Engineer. Mr. Chavan, the Executive Engineer of the concerned area, who was in the Court also was directed to calculate the quantity of soil required. The Government Advocate submitted that 1,03,134.64 cum. of soil is required in terms of the Commissioners report. The variation between the appellants calculation and the Memo of calculation of the Executive Engineer is only 1,529.10 cum. The learned counsel for the appellants submits that in view of the Memo of calculation submitted by the Executive Engineer, the Memo of calculation submitted by the Engineer may be accepted by this Court and the difference of calculation in terms of his Memos of calculations may be ignored. 19. The learned counsel for the appellants submits that in view of the Memo of calculation submitted by the Executive Engineer, the Memo of calculation submitted by the Engineer may be accepted by this Court and the difference of calculation in terms of his Memos of calculations may be ignored. 19. Since such submission is for the advantage of the respondent-Government we are inclined to accept the Memo of calculation filed by the Executive Engineer. The same is taken on record. 20. We have also directed the Government Advocate to calculate the compensation payable based on the quantity of soil arrived at by the Executive Engineer in terms of the Commissioners report taking into consideration the scheduled rate of contracts marked as Ex. P10(a) to (c). According to him, it works out to Rs. 40,42,878/-. The same is also taken on record. 21. Therefore, it is clear that on the date of Ex. P.10(a) to (c), considering the quantity of soil removed by the respondents and considering the transportation charges, the appellants-claimants are entitled for a sum of Rs. 40,42,878/- to restore the land to its original position. Till today, the land looks like a tank as could be seen from the photographs produced before the Reference Court. With this position, the appellants are unable to make use of their property and cannot cultivate and it can be brought for cultivation only if the land is restored to its original position. 22. The next question is whether this Court has to award the benefits available to a claimant under Part III while awarding compensation to fill up the soil and whether the appellants are entitled to claim interest on this amount. If it is so at what rate. 23. In order to consider this point we have to consider the provisions of Sections 23 and 48 of the Act : 23. If it is so at what rate. 23. In order to consider this point we have to consider the provisions of Sections 23 and 48 of the Act : 23. Matters to be considered in determining compensation- (1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration- first the market-value of the land at the date of the publication of notification under Section 4 sub-section (1); secondly, the damage stained by the person interested, by reason of the taking of any standing crops or trees which may be on the Land at the time of the Collectors taking possession thereof; thirdly, the damage (if any) sustained by the person interested, at the time of the Collectors taking possession of the land, by reason of severing such land from his other land; fourthly, the damage (if any) sustained by the person interested, at the time of the Collectors taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings; fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under Section 6 and the time of the Collectors taking possession of the land. (1-A) In addition to the market-value of the land, as above provided, the Court shall in every case award an amount calculated at the rate of twelve per centum per annum on such market-value for the period commencing on and from the date of the publication of the notification under Section 4, sub-section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. Explanation —In computing the period referred to in this sub-section, any periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded. Explanation —In computing the period referred to in this sub-section, any periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded. (2) In addition to the market value of the land, as above provided, the Court shall in every case award a sum of thirty per centum on such market-value, in consideration of the compulsory nature of the acquisition. 48. Completion of acquisition not compulsory, but compensation to be awarded when not completed.- (1) Except in the case provided for in Section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken. (2) Whenever the Government withdrawn from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land. (3) The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section. 24. Sub-section (3) of Section 48 says that the provisions of Part III of the Act shall apply, so far as may be, to the determination of the compensation payable under this section. Therefore, while awarding compensation or damages consequent to withdrawal from acquisition or de-notification Part III of the Act has to be applied. 25. Part-III of Section 23 deals with matters to be considered in determining compensation. While the first clause of sub-section (1) of Section 23 deals with the market value of the land at the date of the publication of the notification under Section 4(1) is a relevant factor while determining the amount of compensation, the other clauses of sub-section (1) of Section 23 speak of various types of damage that may be sustained by the persons interested to it. Clause 3 of sub-section (1) of Section 23 deals with the damage sustained by a person interested at the time of taking possession of the land by reason of severing such land from other land and Clause 4 speaks of loss of earnings. 26. Clause 3 of sub-section (1) of Section 23 deals with the damage sustained by a person interested at the time of taking possession of the land by reason of severing such land from other land and Clause 4 speaks of loss of earnings. 26. It is pertinent to note that in the instant case, what has to be computed is the loss sustained by the appellant despite the de-notification of the land in question from acquisition and therefore there is no compulsory acquisition of land as such. Under the circumstances, the determination of market value of the land does not arise in this case. Therefore, compensation has to be determined only on the basis of Clause 3 and Clause 4 of sub-section (1) of Section 23. 27. Further, sub-section (1-A) and sub-section (2) of Section 23 deals with additional 12% to be given on the market value of the land and 30% solatium to be given due to the compulsory nature of the acquisition. Since in the instant case there has been withdrawal of acquisition, these heads of compensation under sub-section (1-A) and sub-section (2) of Section 23 are not to be taken into consideration. This interpretation is supported by the fact that under Section 26, which deals with the form of awards, specifically makes a distinction between the amount awarded under clause (1) of sub-section (1) of Section 23 and the amounts, (if any) respectively awarded under each of the other clauses on the same sub-section. Therefore, it is clear that while awarding compensation under sub-section (3) of Section 48 by taking into consideration Part-III of the Act no compensation is awarded on the market value because in the absence of compulsory acquisition and while considering the damage caused in the event of a subsequent denotification, land (sic) does not arise. Therefore, additional compensation under sub-sections (1A) and (2) of Section 23 do not arise. 28. It is also noted that Section 34 of the Act, which deals with payment of interest at 9% p.a. from the time of taking possession until deposit is in Chapter V of the Act and therefore the payment of interest under Section 34 cannot be part of compensation payable under sub-section (3) of Section 48. 28. It is also noted that Section 34 of the Act, which deals with payment of interest at 9% p.a. from the time of taking possession until deposit is in Chapter V of the Act and therefore the payment of interest under Section 34 cannot be part of compensation payable under sub-section (3) of Section 48. However, there cannot be bar for this Court to grant interest for the delayed deposit of compensation, considering the fact that in the instant case, the possession was taken in December 1989. Keeping in mind, the above interpretation, the compensation for the damage suffered by the appellant is determined in the following manner. 29. The Reference Court did not assess the actual loss suffered by the claimants on account of the damage caused to the appellants from the date of dispossession till the lands are restored. In the instant case though notification is issued under Section 48(1) in the year 1997, actually the appellants were dispossessed on 5-12-1989 much prior to the issuance of the notification under Section 4 of the Act, since then the appellants are deprived from cultivating the lands and eke out their livelihood. In such an event, the appellants can claim interest under part-III only on the loss of income incurred on account of the damage caused to the property. But, we are afraid to accept the arguments of the learned counsel for the appellant that part-III would be applicable even to fill up the soil removed by the respondent. 30. Therefore, we are of the opinion that part-III cannot be made applicable to a peculiar case like this while awarding compensation to fill up the soil and restore the land to its original position. 31. In the circumstances, we are of the opinion that the appellants would be entitled to claim interest on the amount quantified by us from the date of dispossession till the entire amount is deposited. It was also suggested by us to the Government to restore the land to its original position at its cost, but the same was not accepted by the Government Advocate since the expenses require to restore the land to its original position would be much more than the amount of compensation we are awarding. It was also suggested by us to the Government to restore the land to its original position at its cost, but the same was not accepted by the Government Advocate since the expenses require to restore the land to its original position would be much more than the amount of compensation we are awarding. In the circumstances Court has to quantify the compensation to fill up the soil calculating the rate payable by the Public Works Department on the date of preliminary notification. Now the appellant have to bring the soil from not less than a distance of 20 to 25 Kms from Dharwad and required to pay the cost of transportation prevailing today. Considering the cost of transportation of the soil and other expenses that may be required, as we are not awarding the compensation based on todays PWD Schedule rates, we are of the opinion that the appellants would be entitled to claim interest on the amount of Rs. 40,42,878/- at the rate of 9% per annum. The interest shall be calculated from the date of dispossession till the amount is deposited/paid to the appellants. 32. In regard to the second point, we are of the opinion the Reference Court did not consider the loss incurred to the appellants on account of acquisition. Admittedly, the possession of the land was taken by the Government on 15-12-1989 and notification under Section 48(1) was issued on 26-3-1997. Even though the land is denotified on 26-3-1997 till today the appellants are unable to cultivate the land on account of removal of huge quantity of soil converting the entire land into a big lake or tank. Therefore, we are of the opinion, it is for the Reference Court to reconsider the matter by permitting both the parties to let in oral and documentary evidence to show what would be the loss of crop per acre per annum from the date of taking possession till the amount quantified by us for restoration of land to its original position is paid or deposited. 33. So far as the awarding of other statutory benefits, it is for the Reference Court to adjudicate the same in the light of the provision of Section 48(2) and (3) of the Land Acquisition Act. 34. In the result, we allow this appeal in part. 33. So far as the awarding of other statutory benefits, it is for the Reference Court to adjudicate the same in the light of the provision of Section 48(2) and (3) of the Land Acquisition Act. 34. In the result, we allow this appeal in part. The judgment and award of the Reference Court is hereby set aside as hereunder : The respondents-1 and 2 are hereby directed to pay a sum of Rs. 40,42,878/- with interest at 9% on the aforesaid amount from 15-12-1989 till the date of deposit. Out of which, respondents-1 and 2 shall deduct the amount already paid to the appellants pursuant to the award made by the Land Acquisition Officer. Any amount already paid by the respondents and received by the appellants respondents are also entitled to deduct counter interest only in respect of the amount already paid. Three months time is granted for the respondents to deposit the above amount before the Reference Court and the appellants are entitled to draw the same. The matter is remanded to the Reference Court in order to adjudicate the loss of income incurred by the appellants on account of deprivation to cultivate their land from the date of 15-12-1989 till the amount awarded by us as compensation to fill up the soil is deposited. Both the parties are at liberty to lead further evidence and the Reference Court while considering the loss of income on account of deprivation of the land due to acquisition shall consider the provision of Section 48(3) of the Act. The appellants are not entitled to claim statutory benefit of 30% or 12% additional amount, but they are entitled to claim only interest on the loss of income which has to be calculated as stated by us. The Reference Court shall dispose of the matter within four months from today. 35. We are compel to make certain observations in regard to the conduct of the authorities concerned in this case. On account of their loss of foresight or irresponsibility, the Government is made to pay heavy compensation only for removal of soil and they could have brought the soil from any other Government land. 35. We are compel to make certain observations in regard to the conduct of the authorities concerned in this case. On account of their loss of foresight or irresponsibility, the Government is made to pay heavy compensation only for removal of soil and they could have brought the soil from any other Government land. Even if they were of the opinion that the soil from the land in question had to be removed on account of the proximity of the land and the National High way, there was no necessity to denotify the land under Section 48 of the Act. If the land was not de-notified, the cost of acquisition would not even 10% of the compensation now payable to the appellants on account of removal of soil and loss of crop compensation. In addition to this 10 acres of land within the Corporation of Hubli-Dharwad would have left with the Government which could have been made use of by the Government either for establishing a park or constructing a Stadium or for any other public purpose, since the market value of one acre of land as on today is more than Rs. 50 lakhs. Now the appellants are benefited to enjoy the same. Let the copy of this judgment is sent to the Chief Secretary to the Government to issue proper directions to the concerned authorities not to repeat the same. 36. In view of the allowing of the appeal, the appellants are entitled for refund of court-fee. 37. Appeal partly allowed.