Judgment :- BALAKRISHNAN, J. 1. The requisitioning authority-K.S.I.D.C, represented by the Secretary, (impleaded as the 2nd respondent in LAR 153/98) has filed this appeal challenging the quantum of compensation determined by the Reference Court. An extent of 1.8894 hectares of land comprised in R.S.No.16/2 and 4.8686 hectares of land in R.S.No.17 of Panacaud village Panacaud block of Malappuram District were acquired for setting up of IGC, Panacaud Block I. The notification u/s 4(1) of the Land Acquisition Act was published on 14.9.1995. The entire property was categorized as block A and block B. For the property, include block ‘A’, the land value was fixed by the Land Acquisition Officer at Rs.4,200/- per cent. For the land categorized and shown in block-B, the land value was fixed at Rs.3,360/- per cent. An amount of Rs.24,74,818/- was awarded by the Land Acquisition Officer as compensation for the land measuring 1.8894 hectares comprised in Sy.No.16/2. A sum of Rs.63,96,487/- was awarded by the L.A. Officers as compensation for the property measuring 4.8686 hectares of land comprised in R.S.No.17. Complaining of inadequacy of compensation the claimant sought for reference u/s 18 of the Land Acquisition Act. 2. By the impugned award the learned Sub Judge refixed the land value at Rs.24,347/-per cent for the rocky area. For the entire remaining area the land value was refixed by the learned sub Judge at Rs.4,200/- per cent. For the granite rocks existing in the area of 9.60 acres the Court below thus redetermined the total value at Rs.2,33,73,520/-. (It was dividing that amount by the extent, namely 960 cents, the land value was determined by the learned Subordinate Judge at Rs.24,347/-.) The method of calculation adopted by the learned Subordinate Judge and the compensation redetermined by the Court are challenged by the requisitioning authority contending that the Court below went wrong in awarding enhanced compensation at the rate of Rs.24,347/- per cent for the rocky area. It is pointed out that all the minerals belonged to the Government and thus the land including rocks belonged to the Government and as such the claimant is not entitled to get compensation for the granite rocks. It is further contended that the Court below overlooked the decisions of this Court and of the Hon’ble Supreme Court that the lands are held in Malabar area by persons under Ryotwari settlements and as such the minerals belonged to the Government. It is further contended that the Court below overlooked the decisions of this Court and of the Hon’ble Supreme Court that the lands are held in Malabar area by persons under Ryotwari settlements and as such the minerals belonged to the Government. It is also contended that the claimant did not put forward any claim for the minerals before the Land Acquisition Officer for the rocks and as such a specific issue should have been raised by the Court below with regard to the claim for value of granite made by the claimant. 3. A cross objection was filed by the claimant contending that the Court below should have granted Rs.1,000/- per cent more as compensation for the land measuring 7.03 acres of land. 4. Sri. M.C. Sen, learned senior counsel appearing for the appellants/requisitioning authority and Sri. Krishnanunni, learned senior counsel appearing for the claimant and also senior Government Pleader have been heard in this matter. 5. The following points arise for consideration. (i) Whether the granite rocks existing above the surface level belongs to the owner of the land or did it vest in the Government? (ii) Whether the claimant is entitled to get compensation for the granite rocks existing in an area of 9.60 acres acquired from his possession? (iii) Whether the method of calculation adopted by the Court below is correct? (iv) Whether the compensation redetermined by the Court below is just and reasonable? (v) Whether the claimant is entitled to get any further amount as compensation? Points 1 and 2: 6. The first argument advanced by Sri. M.C. Sen, learned senior counsel is that the property is situated in Malappuram District, which was part of the erstwhile Madras State. It was part of the Malabar area. So the persons holding land have to be treated as Ryotwari Pattadars and they can never be considered or treated as proprietors of the land though they would be having many of the advantages of a proprietor. It was part of the Malabar area. So the persons holding land have to be treated as Ryotwari Pattadars and they can never be considered or treated as proprietors of the land though they would be having many of the advantages of a proprietor. In support of his argument learned senior counsel has relied upon the decision of the Hon’ble Supreme Court in Kunhikoman v. State of Kerala (AIR 1962 SC 723) where it was held, “The basic idea of ryotwari settlement is that every bit of land is assessed to a certain revenue and assigned a survey number for a period of years which is usually thirty and each occupant of such land holds it subject to his paying the land revenue fixed on that land. But it is open to the occupant to relinquish his land.” “Though therefore the ryotwari pattadar is virtually like a proprietor and has many of the advantages of such a proprietor, he could still relinquish or abandon his land in favour of the Government. It is because of this position that the ryotwari pattadar was never considered a proprietor of a land under his patta, though he had many of the advantages of a proprietor.” 7. The Ryotwari Pattadar is generally called a tenant of Government but he is not a tenant from year to year. Though he can relinquish or abandon his land in favour of the Government such a situation does not arise here. In the aforesaid decision the result of the introduction of Ryotwari Settlement in south Canara (Malabar area) on the rights of a ‘Mulwargdar’ was discussed and decided. Therefore the learned counsel for the appellant would submit that since the claimant can only be treated as Ryotwari Pattadar he has no right over the minor minerals existing in the property. On the other hand, the learned senior counsel for the claimant would submit that the right of relinquishment of jenmom right of a jenmy s is available to a Ryotwari Pattadar holding lands in Malabar area by itself confer jenmom rights in the Ryotwari Estate. In this connection the Full Bench decision of this court in Thressiamma Jacob v. District Office of the Department of Mining and Geology (2000 (2) KLT 162) has been referred to. In this connection the Full Bench decision of this court in Thressiamma Jacob v. District Office of the Department of Mining and Geology (2000 (2) KLT 162) has been referred to. The question for consideration in that case was regarding the royalty payable by the petitioners therein on the minerals extracted from the properties belonging to them. The properties were situated in Malabar area of the State. The question referred to the Full Bench was whether the owners of jenmom lands in the Malabar area are the proprietors of the soil and in view of that whether they are the owners of the minerals underneath the soil. The contention advanced by the petitioners therein was that in so far as they continue to be the owners of the soil there is a presumption that they are also the owners of the minerals underneath it and that even if there was change after the Ryotwari Settlements that has not affected their ownership right over the minerals in the soil. It was held by the Full Bench: “Hence, we are of the view that so far as the lands in question are concerned, the minerals belonged to the Government and royalty has to be paid to the Government for quarrying leases.” 8. The learned senior counsel Sri. T. Krishnanunni would submit that in the light of the Full Bench decision the argument canvassed on behalf of the appellant that the claimants have no right to extract the rock which is classified as minor mineral cannot be sustained at all. In the aforesaid decision the right of the owner of the land to extract rocks lying above the surface level was upheld but subject to the payment of royalty to the Government. 9. The decision in T. Swaminathan v. State of Madras reported in 1971 Madras 483 was relied upon by the learned senior counsel Sri. M.C. Sen where it was held that Ryotwari Pattadar has no ownership over the minerals below the surface of the land. Sri. T. Krishnanunni would submit that in this case the claimant has founded his claim only in respect of the mineral/rock existing above the surface of the and not in respect of the rock or minerals situated below the surface and hence the aforesaid decision is actually in favour of the claimant. Sri. T. Krishnanunni would submit that in this case the claimant has founded his claim only in respect of the mineral/rock existing above the surface of the and not in respect of the rock or minerals situated below the surface and hence the aforesaid decision is actually in favour of the claimant. Though the State maybe entitled to the whole of the minerals underneath the soil that restriction cannot be there with respect to the minerals or rocks situated above the surface as in this case. Therefore, the aforesaid decision also does not help the appellant to support the contention that the rocks above the surface level also belongs to the Government. 10. In the decision in T. Swaminathan’s case cited supra it was held by the Division Bench of the Madras High Court that though in theory a Ryotwari Pattadar is a kind of tenant with right to hold his tenure so long as he pays his assessment, in practice he has full ownership and is entitled to sell, mortgage, lease or otherwise deal with his holdings and he has every right to the use of the surface of the soil but his proprietary right does not extent to the minerals underneath the soil. It was further held that the well established proposition is that all minerals under the ground belonged to the crown (now the State) except in so far as the State has parted with the right wholly or partly in favour of an individual or a body. 11. The decision reported in Shibu v. Tahsildar (1993 (2) KLT 870) has also been relied upon in this connection where it was held: “Even assuming that the ownership of the pattadar extends to the mines and minerals in the patta land, the provisions of the Mines and Minerals (Regulation and Development) Act, 1957 and the Rules made thereunder, including the Kerala Minor Mineral concession Rules, 1967, issued by virtue of S.15 of the Act operate even in respect of the mines and minerals in the patta lands and therefore the appellant cannot claim any right to exploit the mines and the patta lands and therefore the appellant cannot claim any rights to exploit the mines and minerals in patta lands outside the provisions of the Act and Rules.” 12. The points which arose for consideration in that case were whether mineral rights in Pattadar lands vest in the Pattadar and not in the State and whether the mineral rights in Malabar area vest in the Pattadar and whether there is likelihood of discrimination between members of other parts of Kerala. The other point was whether the Pattadars can conduct mining operations with reference to the Central Act of 1957 and the Rules made thereunder including the minor mineral Concession Rules. It was held that the vesting of mineral rights in the State was held to be independent of and unaffected by the Central Act of 1957 which only deals with regulation and development and therefore the proclamation of Maharaja of Travancore dated 14.6.1881 fixing the mineral rates in the State is wholly unaffected by the Central Act of 1957. Even in that case the reference was made in respect of the minerals below the surface of the land and not in respect of the rocks existing above the surface. 13. In State of Tamil Nadu v. Hind Stone AIR 1981 SC 711 it was held by the Hon’ble Supreme Court that Rivers, Forests, Minerals and such other resources constitute a nation’s natural wealth and therefore in the absence of any specific plea and proof that the claimants are owners of the sub soil and minerals also, they are not entitled to compensation for the minerals. But as stated earlier learned counsel for the claimant would submit that in this case the claimant does not stake his claim for compensation for the rocks beneath the surface but only for the rocks above the surface. As such the aforesaid decision also cannot help the appellant. 14. After having gone through the various judgments and the ratio decided in those cases especially the Full Bench decision in Thressiamma Jacob’s case there could be no doubt that though minerals underneath the soil belonged to the Government, so far as the minerals above the surface are concerned, the owners are entitled to extract but royalty has to be paid to the Government for quarrying leases. The contention that the whole minerals-rocks above the soil belong to the Government and that the claimant is not entitled to get any amount as compensation for the rocks above the surface of the soil cannot be countenanced. The contention that the whole minerals-rocks above the soil belong to the Government and that the claimant is not entitled to get any amount as compensation for the rocks above the surface of the soil cannot be countenanced. Since the claim is made only in respect of the rocks above the surface/ground level, the claimant cannot be denied the compensation in respect of the same though the claimant is bound to pay the royalty to the Government at the rates fixed from time to time. Points 3 & 4: 15. Now we have to see whether the method of calculation adopted by the learned Subordinate Judge is correct. Incidentally it must also be seen whether the calculation of the rock content made by the advocate Commissioner, with the help of two other experts is acceptable. The appellants contend that the Commissioner and the experts and also the Court below did not advert to certain aspects, namely regarding the royalty to be paid to the Government, the amounts that may have to be spent for obtaining the quarrying licence from the Geological Department etc. Whether licence is required under the Minor Minerals Act and Rules and whether any such licence or permission is to be obtained under the Pollution Control Act and Rules or under the Environmental Protection Act and Rules and Explosives Act which are matters germane for consideration were not taken note of by them, the appellant contends. 16. The learned counsel for the appellant has referred to the relevant provisions relating to the issue of licence under the Rules. Mines and Minerals (Regulation and Development) Act, 1957 provide for regulations of mines and development of minerals under the control of the Union. “Minor minerals” as defined in Section 3 means building stones, gravel, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may, by notification in the Official Gazette, declare to be a minor mineral. By virtue of the power conferred under Section 15 of the Act the State Government made Rules in respect of minor minerals. In exercise of that power the Government of Kerala has framed Kerala Minor Mineral Concessions Rules, 1967. 17. Chapter III deals with grant of quarrying permit in respect of lands in which minerals belong to a private person. By virtue of the power conferred under Section 15 of the Act the State Government made Rules in respect of minor minerals. In exercise of that power the Government of Kerala has framed Kerala Minor Mineral Concessions Rules, 1967. 17. Chapter III deals with grant of quarrying permit in respect of lands in which minerals belong to a private person. Rule 17 reads: “(1) The holder of a mining lease granted on or after the commencement of these rules shall pay royalty in respect of any mineral removed by him from the land in respect of which the lease has been granted at the rates specified in Schedule I in respect of the mineral. (2) The State Government, by notification in the official gazette, amend the Schedule I, so as to enhance or reduce the rate at which royalty shall be payable in respect of any mineral with effect from such date as may be specified in the notification.” 18. Rule 18 deals with the application for grant of quarrying lease and its renewal. This Rule deals with the payment of prescribed fee for grant of renewal of licence. 19. Rule 22 deals with the power of the competent authority to pass any order refusing to grant or renew a quarrying lease. 20. Rule 29 deals with the conditions of quarrying lease and Sub Rule (c) stipulates the royalty to be paid by the lessee to the State Government on any mineral moved out of the quarry held at the rates specified in schedule 1 as may be fixed by the State Government from time to time. 21. Rule 29(1)(e) stipulates the payment of surface rent at such rate as may be prescribed in the lease for the surface area used by him for the purpose of mining operations. Thus as per the rules for quarrying lease, royalty has to be paid to the Government. 22. It was contended that the acquired land is situated in a commercially important locality. The northern and western sides of the acquired land were abutting the Conompara Karathode public road. It was stated by the learned Subordinate Judge that the acquired land was near to Hajiyarpalli and Edayipalam public road and was also near Navodaya School, Panacaud High School and Ayurveda hospital. The northern and western sides of the acquired land were abutting the Conompara Karathode public road. It was stated by the learned Subordinate Judge that the acquired land was near to Hajiyarpalli and Edayipalam public road and was also near Navodaya School, Panacaud High School and Ayurveda hospital. Further it was stated by the learned Subordinate Judge that within a radius of one k.m., ALP School Muthuvathuparambu, Darul Ulum High School, Mosque, Madrassa etc. are also situated. If such educational institutions and hospitals are situated very near to the land whether the quarrying operations, blasting, extraction and removal of granite rocks, would be allowed and whether the required licence and permit would be given by the authorities because of the objections which may be raised by the local people, educational institutions, hospitals etc. are also to be taken into consideration. The learned senior counsel for the appellant would submit that these aspects were not highlighted by the Court below. According to the learned counsel in view of the fact that the schools madrassas, mosques and hospitals are situated very near to this rocky area it is reasonable to assume that the authorities will not be inclined to grand the required licence permissions etc. as it would invite strong opposition and protect from the local people, especially from the students, parents and teachers of the schools. Therefore, according to the appellant simply because granites of such a magnitude is existing in the acquired land it cannot be assumed that the entire rock can be blasted extracted and removed overnight. This argument has been very much pressed into service by the learned senior counsel since the learned Subordinate Judge took the value of the entire quantified rock to be given as compensation immediately without taking note of the fact that it will take about 20 years or more for blasting and removal of the rock. In this connection learned senior counsel would submit that while determining the compensation potential possibilities should exist as on the date of notification. Similarly the statutory impediments like obtaining sanction for quarrying purpose, after getting clearance from all concerned authorities are also to be taken into consideration, but no such consideration was made by the Court below. As such the learned senior counsel for the appellant submits that the award passed by the Court below cannot be sustained at all. 23. Similarly the statutory impediments like obtaining sanction for quarrying purpose, after getting clearance from all concerned authorities are also to be taken into consideration, but no such consideration was made by the Court below. As such the learned senior counsel for the appellant submits that the award passed by the Court below cannot be sustained at all. 23. It was held by the Apex Court in LAO v. Kurigowdar 2010 (5) SCC 708. “What is required to be assessed is the land and its existing potentiality alone as on the date of acquisition. Moreover, the potentiality has to be directly relatable to the capacity of the acquired land to produce agricultural products or, its market value relatable to the known methods of computation of compensation which we shall shortly proceed to discuss.” So much so, the learned counsel for the appellant would submit that such blasting and extraction of granite from a quarry which was yet to be established or operated upon is not a relevant consideration for determination of the fair market value on date of notification issued u/s 4(1) of the Act. 24. It was further argued by the learned counsel for the appellant that unlike in the case dealt with in State of Kerala v. Malayalam Plantation 1981 KLT 913 in the case on hand the acquisition was not for starting or conducting a quarry. In the aforesaid case a quarry was already in existence and the purpose of acquisition itself was for quarrying rubbles for the construction of the dame. Hence, according to the appellant the aforesaid decision has to be distinguished on facts. The computation of market value does not depend on the purpose of acquisition but the potentialities of the land. What actually is germane for consideration is the worth or the wealth contained in that property, the claimant contends. A land containing granite rocks above the surface which is really the most valuable part of that property when expropriated by the State, the claimant is entitled to fair, just and reasonable compensation. The fact that at present no quarry is there and that the claimant also did not make preparation to have a quarry in the said property, though he had purchased that land so many years back, will not divest the claimant of his right to get compensation based on the value of the quantity of rocks existing therein. The fact that at present no quarry is there and that the claimant also did not make preparation to have a quarry in the said property, though he had purchased that land so many years back, will not divest the claimant of his right to get compensation based on the value of the quantity of rocks existing therein. Therefore, the contention that since no granite quarry was functioning in the said property and extraction of granite stones from that property was not started cannot in any way affect the claim put forwarded by the claimant. 25. It was argued by the learned counsel for the appellant that no specific claim was made by the claimant for compensation for the granite deposits, while enquiry was conducted by the Land Acquisition Officer as a ground to reject the claim. That plea is resisted by the claimant pointing out that higher compensation was claimed based on the decision in State of Kerala v. Malayalam Plantations (cited supra) and hence the argument advanced by the learned counsel for the appellant to negative the claim made by the respondent must fall to the ground. 26. Ext.X1 is the report submitted by the advocate Commissioner (AW5). It is seen that in fact the quantification of the mineable rock existing in the property was estimated by AW4, a senior Geologist and AW3 who was the Asst. Engineer attached to Malappuram Roads Division. It was stated by AW3, the Asst. Engineer that as directed by the Court he assisted AW4, the Geologist. 27. The inspection was conducted in the presence of AW5, the advocate Commissioner. It was stated by AE3 that elevations at 9 points on the hillock were fond out. Ext.X3 is the report prepared by him for that purpose. No serious objection was raised by the appellant with regard to the fixing of the nine elevation points and the calculation/assessment of the volume of rock content. Though it was argued with vehemence by the learned Senior counsel Mr. M.C. Sen challenging the correctness of the elevation points fixed by AW3 and the calculation of the volume of rock made by AW4 it was not pointed out as to how the arithmetical calculation is wrong. Though it was argued with vehemence by the learned Senior counsel Mr. M.C. Sen challenging the correctness of the elevation points fixed by AW3 and the calculation of the volume of rock made by AW4 it was not pointed out as to how the arithmetical calculation is wrong. Learned counsel for the respondent/claimant would submit that in fact no objection was raised by the appellant before the Court below regarding the correctness of the arithmetical calculation regarding the volume of rock content, prepared and submitted by AW4. Therefore, it is too late in the day for them to mount the challenge without any foundation, the claimant contends. 28. In Ext.X1 it was reported by AW5 that hardrock (charnokite) covered by hard laterite and laterite soil were found in block Nos.1 to 5 and block No.27, which was seen spread over 3 acres and 54 cents. (The exact area was shown to be 14147.46 sq.mtr.) In another area of 6 acres 73 cents, hard rock exposed and partly exposed was seen. It was stated that the area where the aforesaid rock was found was shown as block Nos.6 to 9, 13 to 17 and 20 to 25. It is pointed out that the hard rock exposed within a distance of 50 mtrs. of the public road and situated in 67 cents, show in block Nos. 18 and 19 was totally excluded since according to the claimants the licence for quarrying granite from that area will not be granted by the authorities concerned. No specific instance of arithmetical or other mistakes in the calculation of rock content could be pointed out by the appellant. Learned counsel for the claimant would submit that since the Asst. Engineer (AW3) and the senior Geologist (AW4) were Government officials and since no serious exception was taken to the method of calculation or the assessment of rock content made by them it would be a futile exercise on the part of the appellant to contend that the rock content estimated is wrong or unacceptable. Though arguments were addressed before this Court challenging the acceptability of the report submitted by the advocate Commissioner and the experts it could not be found as to how the calculation made by them is wrong. 29. Though arguments were addressed before this Court challenging the acceptability of the report submitted by the advocate Commissioner and the experts it could not be found as to how the calculation made by them is wrong. 29. An attempt was made by the appellant before the Court below to get over the reports and the evidence given by AWs.3 to 5 by relying on the evidence given by RW1. Ext.R1 is the report prepared by him independently without giving notice to the claimant or his advocate. It is submitted by the learned counsel for the respondent that since the Court had already issued a Commission for inspection of the property and when the inspection was conducted by the advocate Commissioner along with the Asst. Engineer and the Geologist and as reports were filed, if at all, there was any objection to the acceptability of the report, the appellant could have sought for setting aside the report on valid grounds or could have requested for a 2nd inspection by those officials so as to obtain further details or to show that the details furnished in the earlier report are wrong. Since the reports were submitted by the officers as directed by the Court the effect of those reports cannot be nullified on stultified by a self serving report prepared by RW1. Admittedly RW1 did not inspect the property as directed by the Court nor was the inspection done by him after giving notice to the claimants. Therefore, Ext.R1 cannot be given any probative value. 30. The learned counsel for the claimant would submit that RW1 has admitted that charnockite is a hard rock which is generally termed as granite building stones. It was admitted by RW1 that there is no dispute with regard to the quantity of rock reported in Ext.X2 report. Similarly he also did not dispute the total value as assessed under Ext.X2. Further, he admits that Ext.X2 was prepared by a qualified Geologist. According to him, quarry owner has to pay royalty to the Government and once the royalty is paid the party can deduct the income. So much so, the evidence given by RW1 cannot over shadow the oral evidence and the reports submitted by AW3 to AW5. 31. Further, he admits that Ext.X2 was prepared by a qualified Geologist. According to him, quarry owner has to pay royalty to the Government and once the royalty is paid the party can deduct the income. So much so, the evidence given by RW1 cannot over shadow the oral evidence and the reports submitted by AW3 to AW5. 31. AW4 in his report marked as Ext.X2 stated that the entire area measuring 12.06 acres has an undulating topography as the rock was seen exposed at various locations in the area. It was identified as charnockite. It was also stated that the eastern part of the area is comprised of hard laterite covered by laterite soil having an average thickness of 14.6. mtrs. It was below that strata charnockite is existing. It was stated that as per Kerala Minor Minerals Rules, 1967 rocks could be quarried only from a place 50 mtrs. away from the public road. It is reported that there is a public road passing on the western boundary of the aforesaid property. Hence the quantity of rock within 50 mtrs from the road was not taken into account while calculating the quantity of rock available at the site. Ext.X2(a) is the map prepared by him which shows that AW3 has divided the area into 27 blocks. 32. It was contended by the appellant that though AW1, the claimant states that he had started taking steps for getting permission for extraction of rock no such application was submitted by him to the concerned authorities. He admits that he does not have the copy of the application said to have been given by him long back. Similarly though he says that a quarry was conducted by him earlier in a property measuring four acres at another place he says that quarry was stopped more than 10 years back. He does not know what was the quantity of rock extracted nor could he produce any document pertaining to the same. Had he received any amount for the rocks quarried from that place then that could have been produced to show what was the rate per lorry load he was getting. According to the appellant that area is situated about 15 kms. away from Malappuram town. 33. AW2 was examined to state that there was an oral agreement with regard to the quarrying of rocks from the acquired land. According to the appellant that area is situated about 15 kms. away from Malappuram town. 33. AW2 was examined to state that there was an oral agreement with regard to the quarrying of rocks from the acquired land. AW2 claims to be the manager of a crusher unit by name K.P. Metals. He says that he had obtained licence from the Government for blasting rocks. He further says that a sum of Rs.100/- is to be paid per load to the Government as royalty. It was also stated by him that for blasting rocks licence has to be obtained under the Explosives Act. For getting such a licence the consent obtained from the neighbours had to be submitted to the authorities concerned. According to AW2, in his crusher unit the rocks would be purchased only if it was made into pieces of ‘6’ inches size. It was suggested to him that there are rocks near his crushing unit which could not be blasted or extracted as licence was refused by the authorities. He could not deny the same. It is pointed out by the learned counsel for the appellant that even according to AW2 his crusher unit receives/purchases granites only of very small size, namely size of six inches and that his unit does not purchase big blocks which are used only for construction of sea walls or for construction of buildings. The learned counsel submits that while quantifying the total rocks it was calculated only as big blocks because it was the case of the claimant that one lorry load would take in only three cubic meter of rock. If it is to be sold out as big blocks intended for the construction of sea walls or building then it has to be taken to such destination which would be situated several kilometres away from the acquired land. 34. The Land Acquisition Officer was examined as RW2. It was he who conducted the enquiry and passed the award. Learned counsel for the claimant would submit that RW2 did not even inspect the property involved in this case since at one place RW2 even went to the extent of saying that he did not even see the rocks (capable of being quarried) existing in the acquired land. Since rock was situated as a hillock it is inconceivable how it could be lost sight of had he inspected this property. Since rock was situated as a hillock it is inconceivable how it could be lost sight of had he inspected this property. So the claimant would contend that RW2 did not inspect the property at all. But when he was cross examined by the counsel appearing for the claimant it was stated by him that in a small portion of the property there was rock but he was not in a position to say the extent of the land where there was rock. RW2 further says that he did not see rock existing or spread over in an area of about 10 acres. The advocate Commissioner says that this property is having road frontage but RW2 at one place says that there is no road abutting this property but at another place it was stated by him that there is no transport facility to this property. At the same time he says that the entire land which belonged to the claimant is abutting the road. Therefore, learned counsel for the claimant is justified in his submission that the evidence given by RW2 cannot in any way help the appellant since it is the admitted fact that there is a hillock of granite rocks existing in about 10 acres of the acquired land. 35. In Secretary of State for India in Counsil vs. Shanmugaraya Mudliar reported in (1893) ILR 16 Mad. 369, the Privy Council was concerned with an award of compensation for a land which had ‘special adaptability’ for use as quarry. The method of capitalization of income was adopted by the courts below in that case. When reference was made the District Judge found that the zamindar had granted the right of quarrying over portions of the hills for 5 years at the rate of rent of Rs.140/- per year. The District Judge found that at the same rate a right of quarrying over the whole area might give a rent of Rs.200/-. Calculating the amount at twenty-five years’ purchase the total amount was calculated. It was accepted by the Privy Council. That would show that the principle of capitalization of the rental derived by the landlord of the land with a quarry was adopted by the Privy Counsel. Calculating the amount at twenty-five years’ purchase the total amount was calculated. It was accepted by the Privy Council. That would show that the principle of capitalization of the rental derived by the landlord of the land with a quarry was adopted by the Privy Counsel. But at the same time the imponderables as referred to above also have to be taken into account, so that 25 years cannot be reckoned as multiplier even if multiplier method is to be adopted, it is argued on behalf of the appellant. However, it is clear that the potentialities for quarrying possessed by the landlord should be taken into account in assessing the market value of the land. The aforesaid decision was referred to in Additional Special Land Acquisition Officer Vs. V.P. Anantha Bhar (AIR 1972 Mysore 315. There it was held by the Division Bench: “Assuming that this would be the correct and proper method to determine the market value of a quarry, it seems to us that the result arrived at on that basis would be highly misleading. Several imponderable factors will have to be taken note of while adopting such a method. To earn the amount of Rupees 3,70,000/- which represents profits according to the learned Judge, the quarry had to be exhausted by working over a continuous and unbroken period running possibly into decades. The wherewithal by way of finance and skill for working it and marketing the product must be available with the owner. Even if it is worked by a lessee or a licensee, the owner of the quarry will not be getting anything out of the profits made by such a lessee of licensee. What he will get is only the rent. A further assumption must be made that one would be able to work it continuously for several years and find a market for gravel or stones so produced”. 36. The decision in State of Mysore v. Swamy Sathyanand Saraswathy reported in 1972 (2) SCC 88 is inapplicable to the facts of this case since the question considered there in was whether compensation payable would include the value of subsoil rights. It was held by the Apex Court that mineral will not be held to have formed part of the grant in the absence of express evidence to that effect. It was held by the Apex Court that mineral will not be held to have formed part of the grant in the absence of express evidence to that effect. It was also held that subsoil rights must be treated as having been conveyed by implication in grants of surface rights to the tenure holders. Here the issue is whether the claimant is entitled to the value of the rocks existing above surface level. 37. In the decision cited supra, Supreme Court held: “(i) There is no scope for any presumption that the Nizam had parted with mineral rights, to the Jagirdar or that the Jagirdar had done so in his turn. The original Sanads have not been produced and the Pattas issued do not include mineral rights. (ii) Subsoil rights are not to be treated as having been conveyed by implication in grants of surface rights to the tenure-holders, Pattadar (lessees), etc. Hari Narayan Singh v. Sriram Chakravarti, 37IA 136; Durga Prasad Singh v. Braja Nath Bose, 39 I 133; Girdhari Singh v. Megh Lal Pandey, 44 IA 246, referred to. (iii) Minerals will not be held to have formed part of the grant in the absence of express evidence to that effect.” 38. It is trite law that compensation must be determined by reference to the price which a willing seller might reasonably expect to obtain from a willing purchaser. In the decision reported in Daya Khushal v. Asst. Collector, Surat, (AIR 1914 Bom 284) also the special adaptability of the land for quarrying was considered. Therefore, it is clear that the potentialities for quarrying possessed by the land should be taken into account in assessing the market value of the land. What is to be assessed is the market value of the land taking into consideration the special adaptability of the land for being used as a quarry. 39. The term ‘compensation’ is used to indicate what constitutes or is regarded as equivalent or recompense for loss or privation. What is to be assessed is the market value of the land taking into consideration the special adaptability of the land for being used as a quarry. 39. The term ‘compensation’ is used to indicate what constitutes or is regarded as equivalent or recompense for loss or privation. The ultimate basis for determining the market value on the basis of which compensation is payable under Section 23 of the Act means, the price that a willing purchaser would pay to a willing seller for a property having due regard to its existing condition, with all its existing advantages, and its potential possibilities when laid out in its most advantageous manner, excluding any advantage due to the carrying out of the scheme for the purposes for which the property is compulsorily acquired. The court in determining the compensation should sit in the armed chair of a willing vendee and determine whether in the given facts and circumstances he would be willing, depending upon the prevailing market conditions, to offer the rates which the Court proposes to determine as a prudent purchaser. 40. It is reasonable to hold that no prudent man would offer that much amount, as determined by the court below, for purchasing that land since for the realisation of the entire profit/income the purchaser may have to wait for more than 20 years. A balance sheet of plus and minus factors may have to be drawn for this purpose and the relevant factors may have to be evaluated as a prudent purchaser would do. 41. The decision in Gem Granites v. Deputy Superintendent of Police 2008 (1) KLT 937 has been relied upon by the learned counsel for the appellant to fortify his submission that to run the quarry necessary licence from the Panchayath under the Panchayath Raj Act and Rules has to be obtained. Besides, the permission under the Kerala Minor Minerals Concession Rules should also to be obtained. It is not in serious dispute that for quarrying purpose the party has to pay royalty to the Government which may be fixed from time to time. 42. The learned counsel for the appellant would submit that the fact that the land is adapted for quarrying may be a special circumstance which the owner is entitled to take advantage of but here the acquisition was not for quarrying purpose but for the improvement or development of Industrial Growth Center. 42. The learned counsel for the appellant would submit that the fact that the land is adapted for quarrying may be a special circumstance which the owner is entitled to take advantage of but here the acquisition was not for quarrying purpose but for the improvement or development of Industrial Growth Center. When the property is not a quarry at all the fact that a quarry can be operated upon in the acquired land in future provided competent authorities grant licence, permit etc. after clearing all possible objections that may be raised by the neighbouring people, environmentalist etc., is not a justification to assess compensation in respect of acquired land as if there is already a quarry functioning therein or that the acquisition itself was for quarrying purpose. But at the same time while assessing compensation the fact that huge hillock consisting of building rocks and other rocks do exist in the acquired land cannot be overlooked or totally ignored. The possibility of using the rock for quarrying purpose, for blasting and extraction of granites should also be taken into consideration. 43. In assessing the compensation to be paid for such lands it is necessary to estimate the total rock content situated above the surface which can be extracted from the said land but the value of total quantity of rock content cannot be the total value of the amount to be paid at once since for extraction of so much quantity of rock it may take decades together. It is contended by the appellant that even if capitalization method is adopted, the capitalized value can be arrived at only by adopting a multiplier of 8 or 9 of the net profit that can be derived by the owner of the land by extracting the rock or by leasing it out or by calculating the amount per lorry load. It is pointed out that even accepting the evidence adduced on the side of the claimant the amount that can be obtained by the claimant is only Rs.60 per lorry load. The fact that the granite has to be blasted and made into such pieces capable of being loaded and the further fact that such lorry loads had to be taken to far away places also have to be taken into account. The fact that the granite has to be blasted and made into such pieces capable of being loaded and the further fact that such lorry loads had to be taken to far away places also have to be taken into account. Even if one lorry can transport rocks to a distant place 5 times a day and even if 10 such lorries are made use of for that purpose, the total quantity of rock that can be removed from the quarry would be only 50 lorry loads for which the claimant would get only Rs.3,000/- per day. Even if such extraction and removal takes place on 300 days a year the annual income which the appellant can obtain would be only Rs.9,00,000/-. It can be argued that even if 10 is adopted as the multiplier the compensation on that count which the claimant may be entitled to get would be only Rs.90 lakhs. 44. it can also be contended that if the rate of extraction and removal of rocks is assessed as stated above the quantity of rocks that can be extracted per year would be only 15,000 lorry loads. At the rate of 3 cubic Meter per lorry load the quantity that can be extracted per year would be only 45,000 M3. At that rate, for removing 11,686,76 M3 of rocks it would take more than 25 years. If the assessment of compensation as done by the court below or as required to be done by the claimant is accepted then for the granites which can be removed for over a period of 25 years, its entire value would have to be paid to day though one can collect the entire amount only within a period of about 25 years. That aspect was not taken into account at all by the Court below. 45. There could be yet another argument. If at the rate of 7.5% p.a. the claimant is to get Rs.9 lakhs per year it would be sufficient to deposit only Rupees one crore twenty lakhs in Fixed Deposit. But it can be seen that the party would be getting interest at that rate through out since even after the expiry of 20 to 25 years the corpus (the amount in fixed deposit) would remain as such. The claimant cannot have undue enrichment. But it can be seen that the party would be getting interest at that rate through out since even after the expiry of 20 to 25 years the corpus (the amount in fixed deposit) would remain as such. The claimant cannot have undue enrichment. Of course, there would be another argument that in the course of time the amount per lorry load which the claimant can get would get increased to more than Rs.60/- per lorry load. That factor also may have to be considered by the Court while assessing the compensation. 46. As stated earlier to earn the amount of Rs.2,33,73,520/-which represents the profits or rent which the claimant may be able to collect, the quarry had to be operated, blasting and extracting the entire quantity of 11,686,76 M3 of rock for an unbroken period of about 25 years. 47. It is in evidence that when large scale blasting and extraction is required the licence has to be issued by the Director or Mining and Geology and not by the senior geologist of the concerned District. While issuing licence for the successive periods reports have to be obtained from the concerned officers as to the feasibility and they should ensure that no danger or nuisance is caused to the public etc. Also, report may have to be obtained from the Pollution Control Board and other Departments and also from the local Panchayath. According to the appellant it is not an easy task to obtain licence without complying with the procedural formalities. It is further contended that to get over the legal impediments itself the owner may have to spend huge amount. Of course, if it is leased out then the lessee who intends to operate the quarry may be doing whatever is required. Still all those matters have to be taken into account while assessing the amount payable to the owner as rent, profits or otherwise. While carrying out such blasting operations for over a long period, some unforeseen and untoward incident also may happen. It so happens while blasting is done by using explosive substances. All those plus and minus factors will certainly be taken into account by a purchaser who intends to invest money only for earning profit. 48. While carrying out such blasting operations for over a long period, some unforeseen and untoward incident also may happen. It so happens while blasting is done by using explosive substances. All those plus and minus factors will certainly be taken into account by a purchaser who intends to invest money only for earning profit. 48. It is further contended that in the course of time there would be protest from all corners as the blasting and extraction would cause public nuisance and danger to the society and to the people residing nearby. It is further contended that explosives/explosive substances are to be used for blasting operation which also would invite all these procedural formalities and legal impediments. Therefore, allowances are to be made for the imponderables referred to earlier which are by no means exhaustive. In such circumstances it may be even uncertain as to the time that may have to be spent for earning such profits or rents. At any rate, even going by the calculation mentioned above, it would require more than 20 years to extract the quantity of rock mentioned earlier. For these reasons we have to hold that the method adopted by the learned Sub Judge in awarding the entire value of the granite rock, capable of being quarried from the acquired land as compensation is not reasonable or realistic, at any rate it is excessive. The fact that what is calculated is the lump sum payment, to be paid at once which the party can get only after a period of about 20 years, if the quarry was put into operation, was not considered by the Court below. In other words, the advantage or benefit arising from accelerated payment of the lump sum amount was not considered by the learned Sub Judge. 49. Sri. T. Krishnanunni, learned senior counsel for the claimant has relied upon the decision in State of Kerala v. Malayalam Plantations 1981 KLT 913. This decision was relied upon by the learned Sub Judge for assessing the compensation payable in respect of the granites existing in the acquired land. Some of the earlier decisions were referred to by the Division Bench wherein market value of the quarry was arrived at on quantitative basis. It was held that such a method of valuing quarry is also a well recognized one. Some of the earlier decisions were referred to by the Division Bench wherein market value of the quarry was arrived at on quantitative basis. It was held that such a method of valuing quarry is also a well recognized one. It was held that if there is no difficulty in quarrying, blasting collecting and transporting rubbles, a fair test of value would be the price the rubble would fetch as and when collected, less the cost of working the quarry. Referring to other decisions it was further held that the majority view was that the basis of compensation to be awarded in respect of quarrying is that amount of workable stone likely to be got therefrom taken at a rate to be determined from the evidence. It was hence held that a quarry can be valued on a capitalization basis or on a quantitative basis. Both these methods were discussed and approved in Sirkar v. Ouseph (1946 Travancore Law Reports 637 F.B.). 50. In Malayalam Plantation’s case, cited supra, the report submitted showed the quantity of rock available to be 7,12,500 cubic meters. In the absence of other materials the trial Court found the quantity of rock available at 7,12,500 cubic metres. It was observed by the Division Bench that to extract that much quantity it may take years. The cost of working the quarry, the outlay and labour necessary for it, the equipment to blast and crush rubble, seignorage payable, transporting it to a place where it could be sold, would all involve cost and those are hazardous estimates not easy of proper ascertainment. The claimant/respondent in that case claimed about 84 paise per cubic metres. Before the High Court the claimant claimed Rs.2/- per 100 C.Ft. i.e. at the rate of about 70 paise per M3. 51. The fact that the land was situated by the side of Trivandrum-Chengottai road near Thenmala was also taken into consideration. Considering the hazardous item of expenditure and the number of years it would take to extract the rock, the Division Bench found 25 paise per cubic metres to be the fair value to be paid. It was calculating at that rate the value of the rock was estimated. Considering the hazardous item of expenditure and the number of years it would take to extract the rock, the Division Bench found 25 paise per cubic metres to be the fair value to be paid. It was calculating at that rate the value of the rock was estimated. Thus according to the appellant the compensation awarded by the Court below has to be reduced considering the different items of expenditure and the imponderable as referred to above and so many other factors and also the number of years it may take to extract the entire rock. It is contended that when a suggestion was put to the claimant that it may take about 50 years to extract the entire rock he could not give any definite answer. 52. If the percentage of deduction as shown in Malayalam Plantation’s case cited supra is adopted then the total compensation fixed for the rock has to be reduced by 35.71%. It is contended by the claimant that Rs.60 per lorry load is actually the amount that cloud be obtained by the claimant if it was leased out to the quarry operator and as such no such reduction can be had. As stated earlier it cannot be assumed that a willing purchaser who purchases the property with the hope of extracting granite would pay the entire amount which can be obtained during a long span of about 25 years, on the day of purchase. The argument canvassed by the learned counsel for the claimant cannot be accepted as court cannot ignore the advantage of accelerated payment of lump sum amount. The licence required for operating or functioning quarry may have to be renewed periodically. There would be other legal impediments and imponderables also. All those factors also may have to be considered. The contention that it would be the look out of the quarry operator cannot be accepted since the purchaser would certainly take note of all those aspects while fixing the purchase price. The fact that there would be likelihood of increase in the price of rock also should be duly taken note of. Bearing in mind all those factors and circumstances, we are of the considered view that the compensation payable for the rock quantified by the Commissioners may have to be reduced by 55% of the value determined by the Court below. Bearing in mind all those factors and circumstances, we are of the considered view that the compensation payable for the rock quantified by the Commissioners may have to be reduced by 55% of the value determined by the Court below. If the amount estimated by the court below for the rock at the rate of Rs.60/- per lorry load of 3 cubic metres and quantified by the Court below at Rs.2,33,73,520/- is accepted its 55% would come to Rs.1,28,55,436/-. Even at the modest rate of 7.5% per annum the annual interest for the aforesaid amount would come to Rs.96,41,577/-. This would be slightly in excess of Rs.90 lakhs which the claimant might have been able to collect as the value of granites. (50 lorry loads per day x Rs.60 (per load) x 300 days). This we have mentioned here as we calculated it in our anxiety to ensure that the amount refixed by us is just and reasonable and that no injustice is done to the claimant. We are satisfied that the aforesaid amount of Rs.1,28,55,436/- is a just and reasonable compensation the claimant is entitled to get in respect of 9.60 acres of rocky land mentioned above. Though it was contended by the appellant that the land value fixed in respect of the remaining area at Rs.4,200/- as against Rs.3,360/- in respect of a portion of land is also unreasonable, we find no reason to accept the same. Thus for the entire balance extent (excluding 9.60 acres which is a rocky area for which land value was assessed as above) has to be valued at Rs.4,200/- per cent. Though it was contended by the claimant in the cross objection filed by them that the remaining extent measuring 7.03 acres of land has to be given compensation further enhanced at the rate of Rs.1,000/-per cent, we find no acceptable evidence to enhance the compensation as claimed by the claimants. 53. Ext.A1 sale deed is in respect of a small bit of land. Hence it is not at all comparable to the acquired land which is larger in extent. Ext.A2 is the certified copy of a common judgment as per which Rs.2,310/- per cent awarded by the L.A. Officer was enhanced to Rs.4,000/-. That land was found to be slightly inferior in quality. Exts.R4 and Ext.R5 produced by the respondent in the court below were not proved properly. Ext.A2 is the certified copy of a common judgment as per which Rs.2,310/- per cent awarded by the L.A. Officer was enhanced to Rs.4,000/-. That land was found to be slightly inferior in quality. Exts.R4 and Ext.R5 produced by the respondent in the court below were not proved properly. It was found that the L.A. Officer had fixed land value in respect of an adjacent land at Rs.4,200/- per cent. Thus the court below was in the absence of better evidence, inclined to refix the land value of the remaining extent at Rs.4,200/- per cent. The Land Acquisition Officer assessed land value at the rate of Rs.4,200/- per cent for the land adjoining the road but the value was reduced for the area situated on the rear side. Since the entire land was held by the same owner, it is just and proper that the entire remaining area is given the market value at the rate of Rs.4,200/- per cent. 54. The court below determined the land value in respect of 9.60 acres (rocky area) by dividing the total market value (based on the value of the rock that can be quarried) by 960 (area by cent). That was the method adopted in Malayalam plantation’s case cited supra. Since the total market value of 9.60 acres of rocky area has been determined by us at Rs.1,28,55,436/-, it is actually not necessary to fix the centage value. However on calculation, the centage value would come to Rs.13,391/- (Rs.1,28,55,436/960). Thus the centage value would become reduced from Rs.24,347/- (fixed by the Reference Court) to Rs.13,391/-. For the balance extent of 2.46 acres comprised in R.S.17 the claimant/respondent is entitled to get compensation only at the rate of Rs.4,200/- per cent as fixed by the lower Court. The claimant was awarded compensation at that rate for 1,8894 Hectares of land comprised in S.N.16/2. 55. Besides, the claimant was awarded Rs.35,920/- as fixed by the Land Acquisition Officer as compensation for value of improvements situated in the property comprised in R.S.16/2. The claimant was also awarded another sum of Rs.65,710/- as the value of improvements situated in the property comprised in R.S.17. No modification is required with regard to the same. In the result the appeal is allowed in part. The claimant was also awarded another sum of Rs.65,710/- as the value of improvements situated in the property comprised in R.S.17. No modification is required with regard to the same. In the result the appeal is allowed in part. The total market value of the rocky area measuring 9.60 acres (4.8686 hectares) in R.S.No.1 of Panacaud village is reduced and refixed at Rs.1,28,55,500/- instead of Rs.2,33,73,520/-. In all other respects the award passed by the court below is confirmed. The claimant is entitled to get all the statutory benefits which are provided under Sections 23(2), 23(1A) and S.28 of the Land Acquisition Act. The parties shall suffer their respective costs. The Cross Objection is dismissed.

Kerala State Industrial Development Corporation v. District Collector