1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. FIRST APPEAL NO.359 OF 1993. 1. Smt.Sharifa Begum W/o Yusuf Khan, Age 48 years, Occ.Agril., 2. Yusuf Khan S/o Haji Ibrahim Khan, Age 59 years,Occ.Agril., Both R/o Kasabkheda, Tq. Khultabad, Dist.Aurangabad. ... Appellants. Versus The State of Maharashtra ... Respondent. ... WITH FIRST APPEAL NO.360 OF 1993. 1. Dilawar Begum W/o Shabbar Khan, Age 45 years, Occ.Agril. 2. Shabbarkhan S/o Haji Ibrahim Khan, Age 50 years,Occ.Agril., Both R/o Kasabkheda, Tq. Khultabad, Dist. Aurangabad. ... Appellants. Versus The State of Maharashtra ... Respondent. 2 ... Mr.A.B.Kale, advocate for the appellants. Mrs. V.A.More, A.G.P. for the Respondent. ... CORAM : V.R.KINGAONKAR,J. Date : 17.12.2009. ORAL JUDGMENT : 1. These appeals are being decided together. The appeals arise out of common judgment rendered by learned Additional District Judge, Aurangabad in Land Acquisition References No.247/1989 and 248/1989. The appellants are original claimants on whose instances the Land References were made U/s 18 of the Land Acquisition Act. 2. There is no dispute about the fact that agricultural land to the extent of 65 Ares out of S.No.168-A owned by claimants Sharifa Begum and another in LAR No.247/1989 and 32 Ares out of S.No.159-A owned by claimants Dilawar and another in LAR No.248/1989 had been acquired for purpose of Mategaon Medium Project, to construct an 3 Irrigation Canal through the lands in question along with other seven (7) lands as indicated in joint measurement plan. The claimants were aggrieved by the quantum of compensation awarded to them by the SLAO. They accepted the amounts under protest. According to them, the fruit bearing sweet lemon trees, Mosambi trees and the sugarcane crop has not been valued while determining the quantum of compensation. They asserted that there were large number of sweet lemon trees, Mosambi trees which were evaluated by the Horticulture Department. They submitted that the Land Acquisition Officer gave palpably low compensation for the acquired trees. 3. The Respondent (State) resisted the claim applications. It was denied that the quantum of compensation awarded to the claimants was on lower side. The Reference Court dismissed both the Reference Applications with costs. 4. Heard learned counsel and learned A.G.P. 4 5. What appears from the observations of the Reference Court is that the record regarding joint measurement was indicative of the existence of the trees in land S.No.159. The Reference Court noticed that there was no reference to existence of trees in S.No.168. The joint measurement was not of much help, therefore, to the claimants in LAR No.247/1989. The learned Additional District Judge observed, however, as follows : "I am not required to doubt the existence of Mosambi trees for which compensation has been provided by the Land Acquisition Authority......." The Reference Court also was cognizant of the fact that panchanama was drawn on 5.5.1984 in respect of the existence of Mosambi trees. It is true that the Horticulture Department could not carry out physical verification of the trees in the year 1987. 6. The contention of the appellants was 5 that their trees were damaged or lost as a result of the acquisition of the above referred lands. Thus, the existence of trees in land S.No.159/A could not be doubted by the Reference Court. However, the joint measurement did not show existence of any tree in S.No.168. Therefore, it is necessary to decide whether there were such trees standing in the acquired lands. The claimants alleged that the trees were "affected" due to the acquisition. The claimants are required to establish whether the trees were lost because of the orchard being in the acquired land itself. 7. Mr.Kale, would submit that the appropriate method for valuation of the trees was not followed by the LAO nor it was adhered to by the Reference Court. He would point out that possession was already taken before passing of the award. 8. Notification U/s 4(1) of the Land Acquisition Act was issued on 23.2.1984. Subsequent notification U/s 6 was issued on 6 4.9.1986. The award was rendered by the SLAO on 25.3.1988. Thus, there was a gap of about four (4) years between the first notification and the impugned award. It is explicit that the Land Acquisition Officer awarded compensation as per the value of the land at rate of Rs.5,400/- (Rupees five thousand four hundred) per acre. 9. Mr.Kale, would submit that the valuable trees ought to have been considered separately. As against this, Smt.More, learned A.G.P. seeks to rely on certain observations of this Court in "State of Maharashtra Vs. Ambya Kalya Mhatre since deceased through his legal heirs Gangabai Ambya Mhatre and others" 2009 (1) Mh.L.J.781. A Division Bench of this Court held that the compensation of the land as well as fruit bearing trees can not be determined separately. It is laid down that the compensation is to the value of the acquired land. So, composite compensation is required to be determined. As against this, Mr.Kale, invited my attention to observations in "Bhagwat Vishwanath Patil (D) by Lrs. and others Vs. The State of Maharashtra (Civil Appeal No. 7 5241/2006). The Apex Court referred to "Koyappathodi M. Ayisha Umma Vs. State of Kerala (1991) 4 SCC-8 and held that the market value could be fixed on the basis of annual income of the fruit bearing trees, on basis of the annual net income multiplied by an appropriate capitalisation of 15 years. In cases where thee are no fruit bearing trees as such, the trees are to be separately valued as timber. It is observed that the determination of the compensation of the land as well as of the trees is illegal. The Apex Court was pleased to set aside the relevant part of the judgment of this Court and remanded the matter to the Reference Court for consideration of the matter afresh on the question as to whether the value of the said 40 gunthas land which were said to have fruit bearing trees shall be valued on applying capitalisation method in terms of the earlier jugment of the Apex Court. 10. It appears that the Reference Applications came to be rejected due to certain prejudice created by submissions of the learned A.G.P. because the learned Additional District 8 Judge observed that the claimants were lucky to get compensation for the fruit bearing trees. In other words, there was no element of fairness in assessing the value of the land by adopting capitalisation method in terms of the relevant factor applicable as per age of the tree and fruit bearing capacity. 11. Considering the foregoing reasons, I refrain myself from expressing any opinion on merits. It would be appropriate, therefore, to remand the matter to the Reference Court for afresh consideration. The Reference Court may consider any other record in order to find out whether, in fact, there were certain trees standing in the lands in question, whether the joint measurement plan was sufficient to indicate existence of such trees and ages of the trees could be determined appropriately, and that what was the reasonable value of the orchard if any. The Reference Court thereafter shall determine the composite compensation payable having regard to the relevant factors. 9 12. In the result, both the appeals are partly allowed. The impugned judgments rendered by the Reference Court are set aside. Both the matters are remitted to the Reference Court with direction to decide the same afresh after considering the observations noted hereinabove. The Reference Court may permit the parties to lead additional evidence. 13. The parties are directed to appear before the Reference Court on 1.2.2010. The Reference Court to expeditiously decide the References as early as possible. (V.R.KINGAONKAR,J.) asp/office/fa35993