(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. As all the Appeals arise from a common judgment and award of the Reference Court, they are being considered simultaneously. The Reference Court has awarded compensation for the trees of Rs.01,54,42,700/- as stated in the Schedule with interest with solatium and the interest at the rate of 9% per annum for the first year and at the rate of 15% per annum for the subsequent years.
2. Short facts are that for the project of Meghal Tidal Regulation Scheme on river Meghal, lands were to be acquired at village Sukhpur under the Land Acquisition Act (hereinafter referred to as 'the Act'). The Notification under Section 4 of the Act was published on 10th June, 1993 and Notification under Section 6 of the Act was published on 24th August, 1993. Thereafter the award was passed by the Special Land Acquisition Officer whereby he awarded compensation at Rs.500/- per Are for the irrigated land. As the claimants were not satisfied with the compensation, they raised dispute under Section 18 and prayed total compensation at Rs.01,00,000/- per Vigha for irrigated land and further compensation for different type of trees, compound wall, etc. on the basis of capitalized method. The said disputes were referred to the Reference Court for adjudication being Land Reference Case Nos.1671 of 1999, 1672 of 1999, 1673 of 1999 and 1674 of 1999. The Reference Court at the conclusion of the References, passed above- referred judgment and award, against which present Appeals preferred before this Court.
3. We have heard Mr.Rahul Dave, learned Assistant Government Pleader for the appellant and Mr.Y.J. Patel for the respondent-original claimants in all the Appeals. We have considered the judgments and reasons recorded by the learned Judge. We have also considered the Record and Proceeding.
4. Learned Assistant Government Pleader submitted that the Reference Court has not enhanced the compensation for the land, and has maintained the compensation awarded by the Special Land Acquisition Officer at the rate of Rs.500/- per Are, but the Reference Court has additionally awarded compensation towards trees, which as per the claimants were on the land in question and therefore, it has been submitted that huge compensation has been awarded towards trees without there being proper verification on the part of the Reference Court for the age of the trees, year in which the trees were grown, fruits realised therefrom with the bills or vouchers for sale of such fruits, etc. It was, therefore, submitted that there is error committed by the Reference Court. The learned Assistant Government Pleader also contended that whenever the trees are there over the land, which are under acquisition, the State Government has issued a Circular dated 02nd January, 1993 whereby for different type of trees, price is considered and they can be granted by the Special Land Acquisition Officer, if ultimately found that the trees were there on the land and the trees had a particular age. It was submitted that even in the said Circular of the Government, rates are prescribed on the basis of age of the trees. In the present case no evidence has been led on the part of the claimants nor considered by the Court about the date on which trees were grown or the age of the trees at the time of acquisition. Therefore, it was submitted that grave error has been committed by the Reference Court in awarding compensation.
5. Whereas Mr.Patel, learned counsel appearing for the respondent-original claimants submitted that the Reference Court has relied upon the decision of the Apex Court in the case of State of Madras Vs Rev Brother Joseph reported in (1973) 2 SCC 504 for considering the capitalized value of the coconut trees as was found by the Apex Court in the said matter, trees were located on the seashore in the State of Madras. It is submitted that therefore when the revenue record was produced and oral evidence was led for the income by way of lease of orchard, the Reference Court was justified in calculating the capitalized value of the trees and to consider the compensation accordingly and therefore, the learned counsel submitted that the award passed by the Reference Court may not be interfered with by this Court.
6. Before we proceed to examine the aspects for consideration the case for compensation, we need to record the peculiar aspect, which cannot be lost sight by us that the compensation awarded for the land by the Special Land Acquisition Officer was at Rs.500/- per Are and therefore, it would come to Rs.5/- per Sq. Meter. If the total area under the acquisition is considered, as per the award, the same was 5 Hector 67 Are and 89 Sq. Meters. Therefore, it would be about 56,789 Sq. Meters. Calculating the compensation awarded at Rs.5/- per Sq. Meter, the said amount would come to Rs.02,83,945/- being the market price considered and awarded for the land in question. The perusal of the award passed by the Special Land Acquisition Officer (Exhibit 2) shows that while assessing the market price of the land, he has taken into consideration the sale instances showing that the price realised per Are was from Rs.375/- to Rs.379/- for Survey Nos.55 and 57, Rs.563/- for Survey No.48 and he has recorded that the land is a fertile land and further fruits can be grown and therefore, he found it proper to award Rs.500/- per Are, i.e. Rs.5/- per Sq. Meter, as the market price. The pertinent aspect is that under the head of other claims at paragraph 11 and 12 of the award, compensation for well was claimed and the Special Land Acquisition Officer found it proper to award total amount of Rs.02,04,577/- for four well located over the land in question. So far as the trees are concerned, though in the earlier part of the award at paragraph 2 and 3 it has been mentioned that no claims are made, at paragraph 12 and 13 of the award, it has been stated that occupiers have demanded compensation for the trees and the details are mentioned in Schedule D. It was found by the Special Land Acquisition Officer that those trees, which were giving fruits, compensation can be awarded as per the Government Circular dated 02nd January, 1993, but those trees, which are not giving any fruits, the same may be counted but compensation does not deserve to be granted since because of the water clogging the wood of such trees was spoiled and is already used by the occupier for the purpose of fire, etc. It was also stated that in the joint measurement it is found that those trees, which are giving fruits, are not specifically recorded and some plants of the trees are grown at a later stage. In the Schedule B read with Schedule D, total amount under the head of trees compensation fixed for the trees was assessed at Rs.01,53,205/- only.
7. It is in this light of the compensation fixed for the land and the compensation awarded for the well and the trees, approach of the Reference Court for consideration of the matter deserves to be further examined. As observed earlier, if the first aspect for compensation of the land is considered, the Reference Court has found that no evidence is led on behalf of the claimants and therefore, no additional compensation deserves to be awarded for the value of the land. Whereas on the aspect of compensation towards trees are concerned, Reference Court has awarded the above-referred compensation and if the Schedule is considered, the total amount for compensation for the fruit bearing trees and non-fruit bearing trees is assessed at Rs.01,54,62,700/-. Therefore, if compared with the market value of the land, which is found, the value of compensation under the head of trees, it is about 54 times more in comparison to the compensation to the land, which in our view, is a surprising aspect and the reason being that is if the value of the land is Rs.5/- per Sq. Meter, the value of the tree over the said land would not be Rs.272/- if proportionately distributed over the land, i.e 54 times than the value of the land. Even if it is considered independently for the purpose of awarding compensation, the evidence on record shows that there was no specific evidence led on behalf of the claimants for a particular age of the trees for which comparison was prayed. Whether the tree is fruit bearing or non-fruit bearing would essentially depend upon the age coupled with the weather condition. If the age of the trees is upto a particular year, it can be treated as non-fruit bearing. As per the Circular of the State Government, if the age of the tree is upto seven years, it will have practically five times less value in comparison to the value assessed for the trees exceeding seven years. Further, the Special Land Acquisition Officer in the award based on the said Circular of the State Government dated 02nd January, 1993 has already assessed value of the trees and has awarded compensation. No evidence was produced on behalf of the claimants with specific detail about the year in which trees were grown and further details about the actual yield realised of a particular tree or a particular orchard or survey number. It is true that one Lease Deed was produced to make a show that orchard was given on lease basis at Rs.65,00,000/- per year for the period of two years, which in our view, is highly unreliable if considered and compared with the value of the land of about Rs.02,83,000/- or at the best Rs.03,00,000/-. It is difficult to swallow that a land of which market value is about Rs.03,00,000/- will fetch a rental income, may be after growing trees, at Rs.05,00,000/- per month, roughly about double the market price of the total land itself. No reliable evidence is produced about the payment of the amount by cheque or through banking transaction nor any evidence is produced about fruits sold by the owner prior to the lease including bills of the Market Committee or fruit purchaser or otherwise.
8. If the judgment of the lower Court is considered in light of the aforesaid facets of the assessment of the compensation, we find that there is no discussion whatsoever on the said aspect. We may also record that the learned counsel appearing for the respondent- claimant has also not been able to show any evidence specifically led on the part of the claimant for the age of the trees grown and for which the compensation was claimed. Even if it is considered for the sake of examination that on the date when the orchard was given on lease basis, fruits were being grown, then also whether it was first year at which fruits were bare by the trees or it was the end of the fruit bearing age of the trees may also be an aspect to be considered, if ultimately the Court was to assess the market value based on the capitalized method. Under these circumstances, we find that unless proper evidence was led on the aspect of age of the trees and the actual yield realised prior to the period of alleged lease, the assessment made by the Reference Court on hypothesis and surmises cannot be sustained in eye of law. Hence, we find that both the sides may be permitted to lead the evidence on the age of trees and the yield realised therefrom of the fruits from such trees with the documentary evidence, if any, and thereafter the matter may further be considered.
9. It has been stated on behalf of the appellant by the learned Assistant Government Pleader that out of the total amount with accrued
respondent-claimant, accrued interest of about Rs.04,00,00,000/- is yet to be deposited by the Government. We are at pains to record that no stay application has been filed in the First Appeal on behalf of the State Government and as a result thereof, award operated resulting in the situation created as referred hereinabove. Had it been a case where the stay application was filed, the Court might have controlled the withdrawal or otherwise in order to see that there may not be any irreversible situation, but for one reason or another or rather reasons best known to the concerned Officer of the State Government, stay application was not filed and therefore, in absence of any order of this Court in the proceedings of the First Appeal, principal amount is deposited and is withdrawn and as observed earlier, accrued interest is yet to be deposited and withdrawn. It is true that in the event the Appeals are finalised or the References at a later stage are finalised, principles of restitution would apply, but at this stage, since the aforesaid development has already occurred, it would be appropriate to further direct for no further withdrawal or no further deposit towards compensation or accrued interest until the Reference Court finalise the issue and thereafter rights of the parties may stand governed accordingly, subject to rights of either side to carry the matter before the higher forum.
10. In view of the aforesaid observations and discussion, the judgment and award passed by the Reference Court, which is impugned in the respective First Appeals are quashed and set aside with the further direction that the References shall stand restored. The Reference Court shall give opportunity of leading evidence to the parties on the age of the trees and the yield realised therefrom prior to the lease and thereafter the Reference Court after giving opportunity of hearing to both the sides, shall pass judgment and the award afresh in accordance with law, preferably within a period of one year from the receipt of the order of this Court.
11. Before partying with, we find it proper to forward the copy of the judgment to the Secretary, Irrigation Department of the State Government to examine the case and to take suitable action ensuring that the case of the Government is properly placed in accordance with law before the Reference Court so as to protect the interest of the public money.
12. Until the judgment and award is pronounced afresh by the Reference Court, status quo qua the payment and/or disbursement of the compensation shall be maintained by the Reference Court.
13. The Appeals are allowed to the aforesaid extent. Considering the facts and circumstances of the case, no order as to cost.
(Jayant Patel, J) (C.L. Soni, J) Anup