HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO A.S.No.796 of 2002 AND CROSS-OBJ.(Sr.)No.1830 of 2003 Dated: 11-06-2010 Between: The Land Acquisition Officer & Special Deputy Collector (L.A.) Unit, P.J.P., Gadwal, Mahabubnagar District. Appellant AND B.Srinivasulu & Others. Respondents. This Court made the following: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO A.S.No.796 of 2002 AND CROSS-OBJ.(Sr.)No.1830 of 2003 COMMON JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) This appeal and cross-objections are directed against the order of the Senior Civil Judge, Narayanpet, Mahabubnagar District made in O.P.No.14 of 1999, dated 28.11.2001. By the said order, the reference Court enhanced the compensation of the acquired land from Rs.22,500/- to Rs.52,500/- per acre. Questioning the enhancement, the Land Acquisition officer preferred the above appeal, and whereas, seeking further enhancement of compensation for the land and also for the guava trees, the claimants filed the cross-objections. Brief facts that are necessary for disposal of the appeal and cross-objections are as under: An extent of Ac.19.10 guntas of land belonged to the claimants-cross objectors in Sy.No.493 of Anugonda Village of Makthal Mandal with 3506 guava trees along with some other lands, in all measuring Ac.310.07 guntas was acquired due submergence of the land under Priyadarshini Jurala Project, by publishing draft notification under Section 4(1) of the Land Acquisition Act, 1894 (for short ‘the Act’) in the A.P. Gazette on 29.2.1992. The Land Acquisition Officer after conducting enquiry, passed an award on 3.8.1993 fixing the market value of the acquired land at Rs.22,500/- per acre and also awarded compensation for 2052 guava trees at Rs.187.39 ps. per tree. The claimants having not satisfied with the fixation of the market value, sought for reference to the Civil Court for due determination of the market value. On reference being made, the claimants appeared and filed claim statements before the reference Court claiming compensation at Rs.1.00 lakh per acre for the land and claimed separate compensation for the guava trees 3506 in number in terms of G.O.Ms.No.601, dated 19.6.1992 apart from Rs.1,50,000/- for the pipeline. The Land Acquisition officer filed a rejoinder to the statement in support of the award passed by him stating that he fixed the market value of the acquired land basing on the earlier acquisition of similar land in respect of which, he fixed the market value at Rs.22,500/- per acre. It is stated that the Horticulture Department inspected the said plantation and found that it was not in accordance with the norms fixed under G.O.Ms.No.601, dated 19.6.1992 according to which, one acre of land should not contain more than 108 trees, and therefore, the trees existed in the acquired land were arrived at 2052 for fixation of the market value, and therefore, the award needs no interference. To prove the market value, on behalf of the claimants, P.Ws.1 to 8 were examined and Exs.A.1 to A.10 were marked. On behalf of the referring officer, L.A.O. himself examined as R.W.1 and the copy of award was marked as Ex.B.1. On consideration of the evidence available on record, the reference Court fixed the market value of the acquired land at Rs.52,500/- per acre with all additional benefits but confirmed the award of L.A.O. in respect of 2052 guava trees. Hence, the appeal and cross-objections. Sri D.Prakash Reddy, learned senior counsel appearing for the claimants-cross objectors contends that the claimants now restricted their claim to Rs.70,000/- per acre though they have claimed at Rs.1,00,000/- per acre before the reference Court. He contends that when actually 3506 guava trees were existed in the acquired land, the Land Acquisition Officer is not justified in restricting the number of trees to 2052 by calculating at 108 trees per acre in the light of the G.O.Ms.No.601, dated 19.6.1992. When the Land Acquisition officer followed the guidelines issued in the said G.O. for fixation of number of trees, he ought to have followed the fixation of the market value at Rs.78.66 per year multiplied by 15 years purchase per tree. Even if the claimants have taken two crops, they are entitled to 13 multiplier for the entire trees, and the learned counsel fairly conceded that if the compensation is awarded on capitalization method for the trees, no separate value need be paid to the claimants for the land and any amount paid towards the land value, the same can be deducted from total amount arrived on capitalization method. Per contra, learned Government Pleader for Appeals sought to sustain the impugned order of the reference Court contending that the fixation of the market value by the Land Acquisition officer is on the basis of determination made by the Horticulture Department as its Director inspected the land and found that the trees planted are not in accordance with the norms fixed in G.O.Ms.No.601. It is contended that when the claimants were already awarded land value at Rs.52,500/- per acre, they are not entitled to the market value of the land on the basis of capitalization method. In the light of the above submissions, the point that arises for consideration is ‘what is the market value for which, the claimants are entitled to for the acquired land as well as fruit bearing trees?’ The Supreme Court in Assistant Commissioner-cum-Land Acquisition Officer, Bellary v. S.T.Pompanna Setty[1] after referring to its various earlier decisions in fixation of the market value in respect of fruit bearing trees and the multiplier to be followed, held that normally in the cases where compensation is awarded on yield basis, multiplier of 10 is considered proper and appropriate, and that the multiplier of 15 applied was held to be on higher side and accordingly, allowed the appeal reducing the compensation for the acquired land along with fruit bearing trees like Mango, Margosa, Tamarind, coconut etc. In State of Madras v. Rev. Brother Joseph[2] the Supreme Court dismissed the appeal and maintained the award of the Land Acquisition Officer, where he applied 20 years purchase for all the fruit bearing trees such as coconut, orange etc. existed in the land. The ratio laid down in the above case is not applicable to the facts of the case on hand for the reason that in view of the bar contained under Section 25 of the Land Acquisition Act, the reference Court or the appellate Court cannot reduce the compensation or multiplier applied by the Land Acquisition Officer on a reference being made. In State of Haryana v. Gurcharan Singh[3], the Supreme Court while upholding the increase of compensation to the fruit bearing trees by 60% by the High Court, held that the Collector or the Court, who determined the compensation for the land as well as fruit bearing trees cannot determine them separately. Once 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, and the 8 years multiplier is the proper multiplier on the compensation determined on the basis of the yield. Keeping in view of the above principles, now, we shall examine the point of appropriate fixation of the market value of the acquired land. Second claimant, who was examined as P.W.1, deposed that himself and his two brothers i.e. claimants 1 and 3 raised guava garden in the land to an extent of Ac.19.10 guntas, which is subject- matter of reference. The guava trees are of 7 years old when acquired by the Government; that there are 3506 trees in the land; that the trees were yielding fruits three years after they were raised. Since they are unemployed, the source of livelihood is only the income derived from the garden. The village is connected with telephone facility, schools are situated and that R.T.C. buses ply to the village frequently. He stated that the lands are fertile lands, and that the expenditure for maintaining each tree comes to Rs.1,000/- per year and that they incurred Rs.1.50 lakhs to lay pipeline from the river to the garden for watering the trees. He relied on the sale deeds covered by Exs.A.6 and A.9. Under Ex.A.6, dated 18.7.1988, Ac.1.21 guntas of land situated in Earlandine Village was sold for Rs.91,000/-, and that under Ex.A.9, dated 19.7.1988 the land to an extent of Ac.2.00 situated in Mustipalli Village was sold for Rs.78,000/-. P.W.2 is the purchaser of the land under Ex.A.6, which was also acquired, and that P.W.3 is the attester of sale deed covered by Ex.A.6. P.W.3 stated that his land was acquired by Government which was also garden land, and in the appeal in A.S.No.739 of 1994 arising out of the reference, this Court fixed the compensation at Rs.45,000/- per acre and also fixed Rs.1360/- per each coconut tree, and the said compensation was also confirmed by the Supreme Court. P.W.4, whose land was acquired five years prior to the present acquisition, deposed that he was one of the claimants in O.P.No.187 of 1990 marked as Ex.A.7, wherein the Government awarded compensation at Rs.13,500/- per acre. On reference being made, the reference Court in O.P.No.187 of 1990 enhanced the same to Rs.45,000/- per acre, which was also confirmed by this Court in A.S.No.200 of 1996, dated 28.11.1997. P.W.6, who is one of the claimants in O.P.No.187 of 1990 also corroborated the evidence of P.W.4 about the fixation of the market value at Rs.45,000/- per acre by this Court under Ex.A.8. However, in the cross- examination, he admitted that the distance between his village and the village of Anugonda is about 3 miles. P.W.7 was examined to prove that guava trees yield fruits after three years and continuously yield fruits from 4th year. The cost of planting guava trees comes to Rs.40/- per each tree. The lifetime of each tree will be 25 to 30 years, and he used to get Rs.15,000/- to Rs.20,000/- per acre by leasing out the garden. P.W.8 was examined to prove that he obtained lease of garden of one Venkatachary at Gadwal and paid an amount of Rs.80,000/- towards lease amount for 7 acres of land. According to him, the guava trees would yield twice in a year and each tree gives one quintal of fruits and the tree survives for 30 years. R.W.1 in his evidence admitted that the adjacent irrigated dry land to the acquired land was also acquired in respect of which, under award No.24/1992, dated 11.12.1992 he fixed the market value at Rs.22,500/- per acre. He admitted that in the acquired land, there is a garden of guava trees. The opinion of Assistant Director of Horticulture Department was obtained in respect of the trees standing on the acquired land and that the Director based on his valuation on the basis of G.O.Ms.No.601, dated 19.6.1992, fixed the total value at Rs.3,84,723.00 calculating the number of trees as 2052 and the same value was awarded by the Land Acquisition Officer. He stated that there is one year gap between the previous award and the present award. In the cross-examination, he admitted that the acquired land is of black cotton soil having guava garden. As per Ex.B.1, there are 3506 guava trees in the acquired land, and that the acquired land is developed land. He also admitted that there was pipeline from the river to the acquired land and it is well developed land by raising the bunds etc. He also admitted that the value of the structure was not included in the compensation awarded by the Land Acquisition Officer, and that the valuation furnished by Executive Engineer in respect of the structure is Rs.14,422/-. He has not visited the acquired land, and that the compensation awarded in respect of the lands situated at Anugonda, Mustipalli and Earladene was enhanced by the reference Court as well as this Court and the same has also been confirmed by the Supreme Court. Further the Supreme Court confirmed the enhancement of compensation made by this Court in respect of Coconut gardens in A.S.No.739 of 1994 and batch, dated 18.10.1996. From the above evidence, it is clear that in the acquired land, there are 3506 guava trees and fruit crops were also taken by the claimants from the said trees by the time they were acquired for submergence under the Priyadarshini Jurala Project. Apart from Ex.B.1 award, R.W.1 in his evidence admitted that there existed 3506 guava trees. But the inference drawn by the reference Court that only 108 trees can be raised in an acre of land, and that it is not known how the claimants raised more than 200 trees in each acre and that itself shows that they are at infant stage and in all probability, they were raised a few years prior to acquisition of land, is not at all warranted. When the evidence adduced by the claimants as well as the Land Acquisition Officer clearly establishes that the trees of five years old, it necessarily implies that two crops were already taken by the claimants from the trees. But it is common knowledge that the trees will not give the same yield if more number of trees are planted in one acre of land, due to congestion. As per G.O.Ms.No.601, if only 108 trees in an acre are planted, the trees would grow healthily and give good yield, but the same yield cannot be expected if the trees are planted double the number. Therefore, the income from the trees varies basing on the number of trees planted in an acre. If the air and ventilation is not properly circulated between the trees, it is bound to give less yield than the one prescribed under G.O.Ms.No.601. Keeping in view of the same, even if we take 3506 trees, the value of the same fixed in G.O.Ms.No.601 cannot be taken for arriving the income on capitalization method. Therefore, basing on evidence available on record, we take 3506 total number of trees and reduce the income derived from them. As per G.O.Ms.No.601 issued by Horticulture Department, we have to take Rs.79/- each for 108 trees, but in the present case, as there are double the trees in an acre, the same has to be confined to Rs.40/- per tree but not more than that. We accordingly, fix the market value for each tree at Rs.40/- and after multiplying with 3506 trees by 10 years purchase, then the compensation for the entire trees comes to Rs.14,02,400/-. Since the claimants are awarded compensation on the basis of capitalization method, they are not entitled to any enhancement of compensation for the land and accordingly, we set aside the order of the reference Court and confine the compensation fixed by the Land Acquisition Officer at Rs.22,500/- per acre for the land and allow the appeal filed by the Government to the said extent. As already observed, the cross- objections are allowed awarding compensation of Rs.14,02,400/- for the guava trees. It is needless to say that the claimants are entitled to compensation on additional market value and interest and the amount received by the claimants pursuant to the interim order passed by this Court shall be given credit to in proportionate to the principal compensation, solatium, additional market value, interest etc. The appeal and cross-objections are allowed accordingly. No order as to costs. ________________ A. GOPAL REDDY, J. __________________ JUNE 11, 2010 RAJA ELANGO, J. Tsr [1] AIR 2005 SC 749 [2] AIR 1973 SC 2463 [3] AIR 1996 SC 106