FIRST APPEAL No.213 OF 1989 ------ Against Judgment dated 30th July, 1988 and Award dated 11th August, 1988 passed by Sri Abdul Samad, Land Acquisition Judge, Bhagalpur in L.A.Case No.62 of 1983. ------ 1.Kusum Devi Khetan (Deceased) 2. Atul Kumar Khetan ----------- Appellants Versus The State of Bihar through the Collector, Bhagalpur ---------- Respondents ------ For the Appellant : Mr.Ganpati Trivedi,Adv. For the Respondent: ------ P R E S E N T THE HON'BLE MR. JUSTICE JAYANANDAN SINGH Jayanandan Singh,J: Substituted appellants are the heirs of the original landholder whose land was acquired by the respondents under the Land Acquisition Act, 1894 (hereinafter referred to as `the Act’). Now, on the death of appellant no.1, appellant no.2 remains the sole surviving heir of the original land holder. 2. Facts are that for an irrigational project known as Bateshwar Asthan Ganga Pump Mukhya Nahar Pariyojna in Bhagalpur District, 1.52 acres of land of the landholder, out of his khesra no. 349 of khata no. 34 situated at village Colgong, P.S. Colgong, District Bhagalpur, was notified for acquisition through notification dated 1.2.1980 issued u/s 4(1) of the Act. A declaration with regard to the said area of land u/s 6 of the Act was made on 29.9.1981 which was published in District Gazette in its issue dated 1.10.1981. Notice was thereafter given to the landholder u/s 12(2) of the Act of the Award prepared, in response to which he filed his objection before the Land Acquisition - 2 - Officer, Bhagalpur claiming higher compensation and compensation on different counts. However, his objection and claims were rejected by the Collector and a total sum of Rs.28,870.18 was awarded. Landholder received the amount with protest and filed an application u/s 18(1) of the Act seeking reference. Accordingly, reference was made to court which was registered in the Court of the Land Acquisition Judge, Bhagalpur as L.A. Case No. 62 of 1983. 3. According to the landholder, the land acquired had building potential and at the time of acquisition it was worth Rs.20,000/- per katha. He also claimed that there were many fruit bearing trees on the land and therefore he was entitled for the price of the trees as well as compensation for the loss of income from the trees. He also claimed that as only part of the plot had been acquired there was a damage caused to the remaining part of the plot and therefore he was entitled for compensation on this count also. 4. To substantiate his claims the landholder examined 5 witnesses, including himself. He also exhibited a number of documents, namely, the application u/s 18 of the Act as Ext. 1; certified copy of one award of Collector passed in L.A.Case No. 27/1977-78 as Ext. 2; certified copy of khatiyan as Ext. 3; certified copy of sale deed dated 13.1.1981 as Ext. 4; certified copy of another sale deed dated 28.6.1978 as Ext. 4/A; Pleader Commissioner’s Report as Ext. 5; Order Sheet of - 3 - Pleader Commissioner as Ext. 6; Survey Map of Mouza Colgong as Ext. 7 and certified copy of an award given by the L.A.Judge, Bhagalpur in L.A.Case No. 72 of 1983 as Ext.8. 5. The respondent State of Bihar did not file any rejoinder before the learned L.A.Judge. However it contested the claim of the landholder by exhibiting three documents, namely, Land Valuation Khatiyan as Ext. A; Rate Report as Ext. B and Sale Statement as Ext. C and contended that the claims of the landholder were exaggerated and without any basis and the award of the Collector was fit to be confirmed. 6. While considering the cases of the rival parties, the learned L.A. Judge did not accept the claim of compensation at the rate of Rs.20,000/- per katha and took into account Ext.-2 & Ext.-8, both of which were certified copies of award of compensation in respect of land acquired for the same irrigational project and were situated in the vicinity of the land acquired. The learned Judge, although held that the acquired land had building potential and the land in respect of Ext. 2 was in front of the acquired land in which case compensation at the rate of Rs.7000/- was awarded, but held the landholder entitled for compensation of the land at the rate of Rs.2000/- only, taking cue from Ext. 8 in which case compensation at the rate of Rs.2500/- was awarded. The learned Judge rejected the claim of the landholder for the loss of trees and its income. The learned Judge held him also - 4 - entitled for additional compensation at the rate of 30% on the enhanced amount as the acquisition was compulsory in nature, as also for interest at the rate of 9%, as also entitled to the get an amount calculated at the rate of 12% per annum on such market value as per Section 23(1-A) of the Act. 7. Being aggrieved by the judgment and award of the learned Land Acquisition Judge, the landholder preferred this appeal. 8. Learned counsel for the appellant submitted that when once the learned court below had accepted the evidence of the witnesses to come to a finding that the land had building potential, there was no option left to the learned court below than to accept the valuation of the land as claimed by the appellant and duly supported by the witnesses, especially in view of the fact that there was no challenge to the said assessment of valuation of the land by the respondents in the cross-examination of the witnesses. He further submitted that in any case, while considering the value of the land, learned court below ought to have relied on Ext.-2 and not Ext.-8 as the court below itself had found that the land acquired under Ext.-2 was in front of the land of the appellant. The mere fact that the land acquired under Ext.-2 was a small area whereas land acquired by the appellant was much larger in area was not very material as, as per the finding of the learned court below itself, the land of the appellant had roads on its two sides and certain institutions were in existence at considerable - 5 - distance from the same and the land had building potential. He further submitted that the valuation fixed for acquisition of land by Ext.-8 for same irrigational project could not be a guiding factor for determination of price of the land as the land acquired under Ext.-8 had no opening on the road and was purely agricultural piece of land in the midst of a large plot and had no building potential. He further submitted that the existence of trees on the acquired land stood proved from the report of the Pleader Commissioner and therefore, learned court below has erroneously rejected the said claim of the appellant. He also submitted that learned court below has not at all considered the claim of the appellant with regard to loss of value of the remaining land of the plot which were not acquired and erroneously did not award compensation to the appellant in that respect. 9. Learned counsel for the respondents, on the other hand, submitted that the learned court below has rightly ordered compensation to the appellant taking into account the valuation of the land acquired under Ext.-8. He further submitted that the claim of the appellant with regard to trees on the acquired land was conflicting in nature as the number of the trees claimed by the appellant on the acquired land stood falsified by the report of the Pleader Commissioner. He further submitted that the claim of loss of value of the remaining plot was just a presumptive claim and therefore, the same was rightly not considered. - 6 - 10. In support of his claim, five witnesses were examined on behalf of the land holder appellant. Out of said five witnesses, original land holder himself appeared as A.W.1. In his evidence, he had claimed that Kahalgaon Railway Station was situated at about 200-250 meters east from the acquired land. He said that on the west of said Railway Station there was a Stone Crusher and on the south there was house of one Mohan Lal Khaitan which was nearby. He further said that in the east there was office of Block and Anchal. The road passes through the side of the Block and the Irrigation Colony was at a distance of about 25 ft. from the acquired land which was set up about six years earlier to the acquisition. He said that his earning from the land was rupees twenty to twenty five thousand per year and he had trees also on the land which comprised fruit bearing trees. In his evidence he had given approximate income which he derived from different category of trees per year. However, in his cross-examination, he has admitted that he had not purchased or sold land and he had not kept the account of his income. 11. A.W.2 is a businessman, who has supported the claim of the appellant with regard to location and valuation of the acquired land and existence of fruit bearing trees and the income derived by the appellant from them. In his cross-examination, he has admitted that he has no personal relation with the appellant, although he states that he has indulged in the sale of his land, but in his evidence he has not given any details of the same. - 7 - 12. A.W.3 is an agriculturist who has come to support the claim of the appellant with regard to the location and valuation of the land and existence of fruit bearing trees. 13. A.W.4 is the Pleader Commissioner and A.W.5 is Surveyor of the State Government. They have appeared in the case as witnesses to testify about inspection of the acquired plot and have proved the report which has been exhibited as Ext.-5. 14. From the side of the respondents, no witness has been examined. However, on their behalf three documents as noticed above were produced which were marked as Ext.-A, Ext.-B and Ext.-C without objection. But during the arguments, learned counsel for the respondents did not refer to those documents and only defended the findings and valuation given by the learned L.A.Judge in his award. 15. With regard to the valuation of the land, evidence of the appellant and his witnesses, namely, A.W.2 and A.W.3 establish that there are buildings and habitation near the acquired land. This statement of the witnesses on oath has not been challenged by the respondents either during cross- examination of the witnesses or during arguments or in pleadings. Therefore, the evidence that the land had building potential cannot be denied and the learned court below has rightly held the land to be so. But so far as valuation of the land is concerned, in the light of habitation near and around the acquired land, the appellant had not produced any supportive material for arriving at the - 8 - conclusion that the land was worth Rs.20,000/- per katha as claimed by the land holder. It is true that the witnesses have stated the valuation of the land as such in their evidence which has not been specifically challenged by the respondents in the cross-examination. But merely because the same does not stand specifically challenged, the valuation given by the witnesses cannot be taken as determinative factor for fixing the valuation of the land. The appellant has not produced any material to show that the land adjoining or in the vicinity of the acquired land was actually sold or purchased at that rate within close proximity of acquisition of his land, nor has produced any objective material to give credence or substantial support to his claim of valuation of the land as given by him. In absence of any material in support of the same, the valuation given by the witnesses in their evidence is only presumptive and speculative which cannot be taken as a guiding factor by a court of law for fixation of just and reasonable price of the acquired land. It is true that Ext.-4 and 4/A are two sale deeds from which it appears that the lands were sold and purchased during the period at high prices but it has not been demonstrated by learned counsel for the appellant to the satisfaction of the court that these two sale deeds were in respect of land in close vicinity of the acquired land. Moreover, these two sale deeds are in respect of a very small area and similarity of the nature of the land sold under these two sale deeds with the acquired land has not - 9 - been claimed by the learned counsel for the appellant. Thus, there is no other material on record to support the claim of the appellant that the acquired land was worth Rs.20,000/- per katha or near about. It may be true that it had building potential but that itself is not sufficient to come to a finding in favour of the said valuation of the land only on the basis of oral testimony of the witnesses without any supporting material. 16. During the course of hearing, it came to the knowledge of learned counsel for the appellant that a lay out plan was prepared by the Land Acquisition Office of the said Irrigational Project in connection with the present land acquisition case. The plan shows the route of the canal and plot numbers through which it was to pass. The same being relevant for the purpose of just decision in the case, appellant filed an I.A., namely, I.A.No.7374 of 2008 under Order 41 Rule 27(1)(b) of the Code of Civil Procedure for taking a certified copy of the said lay out plan as additional evidence on the record. Since the lay out plan enclosed with the I.A. was certified copy issued by the Land Acquisition Office, learned counsel for the respondents did not object to it and therefore, by order dated 12.12.2008 the said I.A. was allowed and the certified copy of the said lay out plan of the canal, annexed with the I.A. was taken as evidence on record and marked as Ext.-9. 17. Coming to the question of valuation of the land again, it appears that two documents are - 10 - relevant for consideration, namely, Ext.-2 and Ext.- 8. These two documents are certified copy of award of the Collector passed in L.A.Case No.27 of 1977-78 and certified copy of the award given by L.A.Judge, Bhagalpur in L.A.Case No.72 of 1983 respectively. These two documents are relevant in view of the fact that they are related to the lands which were acquired under different proceedings for the same irrigational project and are falling in the vicinity of the land of the appellant. Ext.-2 is in respect of Khata No.234, plot no.351 with an area of 66 decimals. The Collector by this award fixed the price of the land as Rs.7000/- per katha, whereas, Ext.-8 pertains to acquisition of 3.18 acres of land of khata no.130 and 38 of khesra 479 and 480 in which compensation at the rate of Rs.2500/- per katha was awarded by the L.A.Judge. To consider the similarity of the acquired plots under Ext.-2 and Ext.-8 with that of the acquired land in this case, the lay out plan of the canal exhibited as Ext.-9 and the survey map (Ext.-7) are relevant. From the lay out plan (Ext.-9) as well as from survey map (Ext.-7), it appears that plot no.349 of the appellant from which an area of 1.52 acres of land has been acquired for the project is directly opposite to plot no.351 from which an area of 66 decimals was acquired as per Ext.-2, with only a road passing in between. From the said lay out plan, it also appears that after crossing the said road in between two plots, canal has turned to the right and has entered into plot no.480. Looking to the lay out - 11 - plan (Ext.-9) together with survey map (Ext.-7), it appears that the part of plot nos.479 and 480 from which land was acquired vide Ext.-8 were not contiguous to any road passing in the area and fall in the midst of agricultural pieces of land. 18. Learned counsel for the respondents has tried to distinguish the similarity of the acquisition by Ext.-2 with the land of the appellant on the ground that only smaller area of the land was acquired by Ext.-2 and therefore, price of the land fixed by Annexure-2 cannot be a bench mark for fixing price of land in this case. 19. It is true that the land acquired by Ext.-2 is smaller in area but fact that both the lands had opening on the road and are opposite to each other make them similar for consideration for fixation of its valuation. Apart from this similarity, evidence has come on record, and not challenged by the respondents, that the land of the appellant had building potential as there are habitation and buildings around this land at some distance. Hence, in view of the evidence on record, although the valuation of the land of the appellant at the rate of Rs.20,000/- per katha cannot be accepted in absence of any concrete supporting material but surely the valuation of the land awarded by the Collector to a similar land acquired for the same project just across the road can be a guiding and determining factor. Moreover, existence of 30 trees on the land at the time of taking over of its possession by the Collector, as proved by the - 12 - Pleader Commissioner also adds to the value of the land. It is true that the land of the appellant acquired had considerable depth and therefore other part of the land may not fetch the same value as the part of the land adjoining to the road but once it has been established that the land had building potential, it is difficult to assess as to exactly what price the land could achieve had it been used for construction of buildings by plotting the same. Therefore, considering the over all aspect of the matter, this Court finds that the price of the land of the appellant acquired at Rs.7000/- per katha will be just and proper and the appellant should be compensated for the said land at that rate. 20. So far as separate claim of the appellant for fruit bearing trees standing on the acquired land at the time of its acquisition is concerned, the land holder had stated in his deposition that in his lands there were 25 trees of Mango, 10 trees of Jamun, 10 trees of Guava and 2 trees of Palm. He had also given the value of trees in his deposition and had claimed that he had income of Rs.20,000/- per year from those trees. A.W.2 has also supported the claim of the land holder more or less in similar manner although he has given the figures of number of trees and income derived from the same differently as given by the land holder. A.W.3 has also supported the case of the land holder but has given different price of the trees. It appears that to ascertain the physical feature of the land and to ascertain the claim of the land holder of fruit - 13 - bearing trees standing on the acquired land, a Pleader Commissioner was appointed by the court, who inspected the acquired plot, prepared report and submitted the same. The said report of the Pleader Commissioner is Ext.-5 in the case. From Ext.-5 it appears that the plot was inspected on 6.9.1986 in presence of both the parties. The Pleader commissioner has reported that there were 30 trees standing on the acquired area of the land. He also reported that after comparing the trees with the standing trees, it appeared that the trees were more than thirty years old and of ordinary height. He also reported that the girth of the trees were not more than 3 ft. This report of the Pleader Commissioner has not been challenged by the land holder either before learned Land Acquisition Judge or by learned counsel for the appellant before this Court. Respondents have also not doubted the correctness of this report at any stage. Therefore, in all certainty it can be accepted that the acquired portion of the land had 30 trees. 21. Learned counsel for the appellant has submitted that compensation should have been awarded to the land holder at least for the said 30 trees which were found by the Pleader Commissioner as standing on the acquired land at the time of its acquisition. He also submitted that besides the value of the trees the land holder should have been compensated for the loss of income from these trees. 22. It is true that the fruit bearing trees or for that matter any tree on the land adds to its value. - 14 - Therefore, at the time of acquisition of land, trees standing on the same or for that matter any physical feature of the land which may add to its value has to be taken into account for fixing the compensation. Question arises as to whether separate compensation for the same has to be awarded or the existence of the trees and its income has to be taken into account for fixing the compensation of the land itself. In support of his submission, learned counsel for the appellant has referred to a judgment of the Hon’ble Supreme Court in the case of Chaturbhuj Pandey Vs. Collector, Raigarh, reported in AIR 1969 SC 255. In the said case, it was held that the definition of land as given in section 3(a) of the Act includes benefits arising out of land and things attached to the earth. In view of the said definition, it has been held that for determining the market value of the land for compensation in terms of section 23(1) of the Act, any thing fixed or attached to the earth has to be included. But the question whether compensation for land and fruit bearing trees can be determined separately or not fell for consideration before the Hon’ble Supreme Court in a more recent case of State of Haryana Vs. Gurucharan Singh (AIR 1996 SC 106) and in paragraph 3 of the judgment the same was answered in the following manner :- “.......... It is settled law that the Collector or the court who determines the compensation for the land as well as fruit bearing trees can not determine them separately. The compensation is to the - 15 - value of the acquired land. The market value is determined on the basis of the yield. Then necessarily applying suitable multiplier, the compensation need to be awarded. Under no circumstances, the Court should allow the compensation on the basis of the nature of the land as well as fruit bearing trees. In other words, market value of the land is determined twice over and one on the basis of the value of the land and again on the basis of the yield got from the fruit bearing trees”. 23. Thus, after holding that no compensation could be awarded independently for yield or income from the fruit bearing trees, which has to be only taken into account for fixing the price of the land. The Apex Court held that the trees may be valued separately only as timber or fire-wood and compensation may be awarded for the same. 24. Applying the said ratio laid down by the Apex Court in the present case, this Court finds itself unable to award any separate compensation for the fruit bearing trees taking into account loss of income to the landholder from the same. However, value of the 30 trees as timber or fire-wood is assessed at the rate of Rs.100/- per tree as on the date of taking into possession of