JUDGMENT 1. Appellants have filed this first appeal under section 54 of the Land Acquisition Act, 1894 against order dated 28.7.2012 passed in Land Acquisition Case No.26/2011 by VIIth Additional District Judge, Rewa (MP). 2. Appellants are owner of land bearing Khasra No.470, 471, 472 and 474 measuring total 0.599 Hq. situated at Village-Rathara Tehsil Hajoor District-Rewa (MP). State Government decided to acquire land belonging to private land owner/farmers for construction of bypass road National Highway No.7, Rewa. Notification under section 4 of Land Acquisition Act was issued on 19.4.2006 and notification under section 6 of LA Act was issued on 26.4.2006. Land of appellants is also to be acquired. At the time of notifications, aforesaid disputed khasra numbers were entered in revenue record in name of Ramrati wife of Ramsia Kol. Land in question was sold by Ramrati to appellants Awadhesh Pratap Singh and Vinod Kumar Patel on 5.5.2005. Said land was tribal land, therefore, Collector on 16.10.2006 cancelled permission granted for sell of land. Due to said action of Collector, dispute of title over land in question arose and assessment of compensation in respect of land was not made. Dispute between Ramrati and appellants was finally settled in favour of appellants by Board of Revenue vide its order dated 8.8.2007. Mutation of land was done favour of appellants on 10.2.2009. Assessment of compensation in respect of land in question was separately taken. Appellants had filed an application before Land Acquisition Officer that notifications under sections 4 and 6 of LA Act were in respect of land measuring 0.283 hq. but actually total land belonging to appellants i.e. measuring 0.599 hq. has been acquired, therefore, appellants be paid compensation in respect of 0.599 hq. of land. Land Acquisition Officer published notifications under sections 4 and 6 of LA Act in respect of 0.599 hq. of land on 18.10.2010 and 18.11.2010. Land Acquisition Officer passed award dated 28.2.2011 for compensation of Rs.15,57,125/-. Dissatisfied by the award, appellants filed application for reference before Collector which was forwarded before VIIth Additional District Judge, Rewa and Case No.26/2011 was instituted on 3.10.2011. 3. Appellants averred that land in question is not agricultural land but land of commercial value. In surrounding areas of disputed land, shops, educational institution, colleges, workshop, RTO office and other institutions are located. 3. Appellants averred that land in question is not agricultural land but land of commercial value. In surrounding areas of disputed land, shops, educational institution, colleges, workshop, RTO office and other institutions are located. Land Acquisition Officer has awarded compensation for unirrigated land on basis of notification of year 2006 and compensation was paid only in respect of 0.283 hq. of land. Compensation ought to have been awarded as per Government guideline for commercial land as on 2010-2011 @ Rs.5400/- per square meter. 4. It is submitted by appellants that respondents had initially determined compensation at Rs.3,85,00,000/- but had arbitrarily altered it to Rs.15,57,125/-. Appellants made a claim of Rs.3,23,46,000/- and interest of 12% from 2006 and also paid for additional benefit under sections 23(1) and 23(2) of LA Act. Reference Court held that appellants failed to prove that land in question is residential and commercial. Court held that compensation is not to be paid from guideline for year 2010-2011. It was also held that appellants failed to show that an amount of Rs.3,85,00,000/- was initially assessed as compensation amount. Court altered compensation amount to Rs.17,62,735/- and said amount will carry interest of 15% per annum from 01.03.2011 till payment is made. 5. hereafter, appellants filed writ petition for grant of compensation for acquisition of their land. Writ Petition was disposed off vide order dated 29.7.2010 directing respondents to access compensation of land in question and pay it along with interest of 12% per annum. After passing of orders by Writ Court and appellants filed fresh application on 27.9.2010 for grant of compensation. Fresh notification under section 4(1) was issued on 18.10.2010 and under section 6 on 18.11.2010 with respect to 0.599 hectares of land belonging to appellants. Possession of said land has been taken in 2006. By award dated 28.2.2011, Land Acquisition Officer awarded compensation of Rs. 15,57,125/-. It is submitted that reference Court committed an error in holding that appellants failed to prove that acquired land was used for commercial and residential purpose. Courts below determined compensation on basis of recorded usage of acquired land and did not take into consideration potential usage of land as residential and commercial. Compensation ought to have been assessed at market value of land in year 2010 when notification under section 4 was published. Date of publication of notice is material for determination of compensation. Courts below determined compensation on basis of recorded usage of acquired land and did not take into consideration potential usage of land as residential and commercial. Compensation ought to have been assessed at market value of land in year 2010 when notification under section 4 was published. Date of publication of notice is material for determination of compensation. Taking possession of land in 2006 cannot form the basis for determining the compensation for the land. In these circumstances, prayer is made for enhancement of compensation amount. 6. Counsel for the respondents supported the order passed by Reference Court. It was argued that Reference Court had rightly appreciated evidence of P.W.-1, P.W.-2 and P.W.-3 and exhibits filed by appellants, it was rightly held that enhancement in value of land took place only within last 4-5 years after acquisition of land and construction of road on it. Appellants’ land had been acquired in year 2006. Appellants failed to prove documents which has been filed by appellant to show that land acquired was unirrigated agricultural land. Land has not been diverted for commercial purpose. In view of same, Reference court has rightly passed order dated 28.7.2012. Prayer is made for dismissal of appeal. 7. Heard the counsel for appellants as well as respondents. 8. Reference court held that appellants did not file copy of sale deed dated 5.4.2005 executed by Ramrati Kol in their favour. Said sale deed could have been an evidence that land in question was purchased for residential or commercial use. Khasra Ex.P-47 i.e. Khasra Panchshala for year 2006 to 2012 shows that acquired land was agricultural land. Trial Court also considered the deposition of PW-1 Awdhesh Pratap Singh, PW-2 Vinod Kumar Patel and PW-3 Chandramohan. Court held that respondents were in possession of land since year 2006. Appellant Awdhesh Pratap Singh has admitted that he has not got his land diverted for commercial purpose nor he has filed any application for permission to use land for commercial purpose. Appellants were in knowledge of acquisition of land since 2006. It is also admitted in para 17 of cross-examination that at the time of measurement of land, it was found that there was no plotting on Khasra No.470, 471, 472 and 474. Though witness has stated that trees were planted on the plot but entries in Ex.P-47 does not reflect the same. PW-2 Vinod Kumar has also given similar statement. It is also admitted in para 17 of cross-examination that at the time of measurement of land, it was found that there was no plotting on Khasra No.470, 471, 472 and 474. Though witness has stated that trees were planted on the plot but entries in Ex.P-47 does not reflect the same. PW-2 Vinod Kumar has also given similar statement. Contrary to statements of PW-1 and PW-2, PW-3 Chandramohan has stated that only I.T.I. College and R.T.O. Office was constructed near the site at the time of acquisition of land. Said witness does not depose about existence of shops, primary and junior schools. His statement points out that escalation in prices took place only after acquisition of land and construction of bypass. Court also held that as per Madhya Pradesh Amendment in Land Acquisition Act in section 24 and 24(1), escalation in value of land subsequently shall not be taken into consideration. Reference Court also held that appellants have failed to prove that amount of Rs.3,85,00,000/- was assessed as value of land. Appellants had made allegation of malice against Shri L.L. Yadav and demand of commission by him, but he has not been made party in personal capacity, therefore, said allegations were not taken into consideration. It was also held that Ex.P-29 is only a letter of demand and not assessment of land, therefore, on basis of said letter, it cannot be said that land of appellants was assessed at Rs.3,85,00,000/-. Reference Court also take into consideration order passed in W.P. No.3803/2009 dated 29.7.2010. In said petition direction was given to Land Acquisition Officer to consider the case of appellants to award compensations as done in case of other land holders in accordance with award. Award has been passed on 30.11.2006 and as per directions issued by High Court, Land Acquisition Officer has determined the compensation from the date of taking of possession and from date of publication under section 6 on 24.4.2006. Appellants failed to adduce any evidence to show the price of unirrigated agricultural land in year 2006. Guideline filed by appellants Ex.P-31 and Ex.P-33 was not considered as same was in respect of residential and commercial plots. Considering the evidence of witnesses and documents available on record, Reference Court awarded compensation of Rs.17,62,735/-. 9. Appellants failed to adduce any evidence to show the price of unirrigated agricultural land in year 2006. Guideline filed by appellants Ex.P-31 and Ex.P-33 was not considered as same was in respect of residential and commercial plots. Considering the evidence of witnesses and documents available on record, Reference Court awarded compensation of Rs.17,62,735/-. 9. Following questions arise for determination by this Court :- (i) Whether compensation for land in question is to be assessed at prevalent rate for year 2010? (ii) Whether land in question is of commercial and residential value? (iii) Whether Land Acquisition Officer has assessed the value of land in question at Rs.3,85,00,000/-? 10. Section 23 of the Land Acquisition Act, 1894 is quoted as under : “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 the 57 [notification under section 4, sub-section (1)]; secondly, the damage sustained 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  Collector's taking possession thereof; thirdly, the damage (if any), sustained by the person  interested, at the time of the Collector's taking  possession of the land, by reason of severing such land from his other land; fourthly,1 the damage (if any), sustained by the person  interested, at the time of the Collector's 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 Collector's taking  possession of the land. [(1A) 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 period or 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 59 [thirty per centum] on such market-value, in consideration of the compulsory nature of the acquisition.” From perusal of aforesaid section, it is clear that market-value of land at the time of publication of notification under section 4(1) is to be taken into consideration. In this case, there were two notifications under section 4 and under Section 6. First notification under section 4 issued on 19.4.2006 was in respect of land measuring 0.23 hectare. Later on second notification under section 4 was published on 18.10.2010 in respect of 0.599 hectares on land. Second notification issued include land in earlier notification and left over land which was not notified i.e. 0.599 hectares. To rectify mistake, new notification under section 4 and section 6 of Land Acquisition Act was published on 18.10.2010 and 18.11.2020 in respect of 0.599 hectares. In view of said fact, it is clear that earlier notification, which was issued by respondents was superseded by subsequent notifications. As per provision of Land Acquisition Act, market-value of land at the date of publication of notification under section 4(1) is to be taken into consideration. In view of same, Land Acquisition Officer as well as appellate Court had committed an error in assessing the market-value of land from date of publication of first notification under section 4 that was from 19.4.2006. Issue No.1 under consideration before Court is answered in positive. Compensation for acquisition of land belonging to appellants is to be assessed on basis of market-value of land existing in year 2010. Issue No.1 under consideration before Court is answered in positive. Compensation for acquisition of land belonging to appellants is to be assessed on basis of market-value of land existing in year 2010. Accordingly, respondent authorities are directed to re-assess the compensation of acquired land at rates existing in year 2010. Under section 23, damages which is to be assessed is from date of possession of land. Possession of land has already been taken in year 2006. Damage which has been caused to owner of land is to be assessed on the date of taking of possession. Possession of whole land has been taken in year 2006. From possession and documents placed on record, it is clear that no agricultural or other activities was carried out on land in question. Khasra No. also does not show that trees were standing on the land when it was taken in possession by Collector. In view of same, appellants are not entitled to any damages under Clause 23(2), (3), (4), (5) and (6). 11. Land Acquisition Officer as well as Reference Court arrived at a finding that land in question was unirrigated agricultural land. Development of land had taken place after construction of highway by respondents. Appellants were not doing agriculture over land in question and neither they had filed any application for diversion or commercial use of land. Evidence which was placed on record and evidence recorded before Reference Court does not reflect that land was recorded as residential or commercial land. After 4-5 years of construction of highway, there was enhancement in value of land and land also acquired commercial and residential value. Section 24(5) and 24(6) of the Land Acquisition Act, 1894 is quoted as under : “24 Matters to be neglected in determining compensation. - But the Court shall not take into consideration - fifthly, any increase to the value of the land acquired likely to  accrue from the use to which it will be put when acquired; Sixthly any increase to the value of the other land of the person interested likely to accrue from the use to which the  land acquired will be put; [***]” In view of aforesaid law, enhancement in value of land is because of use of acquired land, to which it was put, is not to be considered. Documents i.e. Khasra Panchshala shows the land to be unirrigated agricultural land. Documents i.e. Khasra Panchshala shows the land to be unirrigated agricultural land. Appellants failed to file registered sale deed by which land was purchased, which would have mentioned the nature of land in question. Admittedly, the land was not used for commercial and residential purpose and neither for agricultural activities and it was lying fallow/waste. In these circumstances, value of land is to be assessed as unirrigated agricultural land and not land having commercial and residential value. In view of aforesaid, issue No. 2 is answered in negative. 12. Appellants had argued and made allegations of malafide against officer Shri L.L. Yadav. Said allegations was not taken into consideration because officer in question was not impleaded as party in personal capacity. Therefore, I do not find any error in the approach of Reference Court. Ex.P/29 is only a letter of demand on basis of guess work. There was no actual valuation of land, therefore, it cannot be said that the land of appellants was assessed at Rs. 3,85,00,000/- by Land Acquisition Officer. Issue No. 3 is also answered in negative. 13. In view of the aforesaid facts and circumstances of the case, following relief is granted to appellants : - (a) Respondents are directed to assess the market value of 0.599 hectares of land on basis of un-irrigated agricultural land taking year 2010 as reference year. (b) Respondents are also directed to assess amount under section 23(1A) and 23(2) of the Land Acquisition Act, 1894 on basis of aforesaid compensation. 14. Registry is directed to draw a decree. First appeal is partly allowed and disposed off.