IN THE HIGH COURT OF JUDICATURE AT PATNA First Appeal No.191 of 2000 Smt.Savitri Devi .... .... Claimant-Appellant Versus The State Of Bihar & Ors ........ Opposite party-Respondent/s with First Appeal No. 192 of 2000 Omprakash Khetan ........ Claimant-Appellant Versus The State Of Bihar & Anr ....... Opposite party-Respondent/s with First Appeal No. 193 of 2000 Jaiprakash Khetan ........ Claimant-Appellant Versus The State Of Bihar & Anr ........ Opposite party-Respondent/s with First Appeal No. 194 of 2000 Chandra Prakash Khetan ........ Claimant-Appellant Versus The State Of Bihar & Anr ........ Opposite party-Respondent/s with First Appeal No. 237 of 2000 National Thermal Power Corporation ........ Claimant-Appellant Versus Sabitrai Devi & Anr ........ Opposite party-Respondent/s with First Appeal No. 234 of 2000 National Thermal Power Corporation ........ Opposite party-Appellant - 2 - Versus Om Prakash Khetan & Anr ........ Petitioner(Claimant) -Respondent/s with First Appeal No. 235 of 2000 National Thermal Power Corporation ........ Opposite Party-Appellant Versus Jai Prakash Khetan & Anr ........ Petitioner(Claimant) -Respondent/s with First Appeal No. 236 of 2000 National Thermal Power Corporation ........ Opposite Party-Appellant Versus Chandra Prakash Khatan & Anr ........ Petitioner (Claimant) /Opposite party- Respondent/s with First Appeal No. 422 of 2000 State Of Bihar Through The Collector ....... Claimant-Appellant Versus Sabitri Devi & Anr ........ Opposite party-Respondent/s *************** Against the Judgment and Award dated 02.03.2000 passed by Sri Diwakar Singh, Land Acquisition Judge, Bhagalpur in L.A. Case No.2 of 1995, 3 of 1995, 4 of 1995 and 5 of 1995. For the appellant in F.A. No.191 of 2000 to 194 of 2000 and respondent in other Appeals 1. Mr. Ganapaty Trivedi, Advocate 2. Mr. Dev Kumar Pandey, Advocate 3. Mr. Madan Mohan, Advocate For the appellant in F.A. No.234 of 2000 to 237 of 2000 and respondent in other appeals. 1. Mr. Anil Kumar Sinha, Advocate 2. Mr. Mritunjaya, Advocate For the appellant in F.A. No.422 of 2000 and respondent in other appeals 1. Mr. Binod Kumar, A.C. to S.C.16. - 3 - Dated : 21stday of September, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. All these 9 Appeals have been filed by the claimants-appellants, the National Thermal Power Corporation, and the State of Bihar against the common Judgment and Award dated 2nd March, 2000 passed by Sri Diwakar Singh, the learned Land Acquisition Judge, Bhagalpur in Land acquisition case No.2 to 5 of 1995. First Appeal No.191 of 2000, First Appeal No.237 of 2000 and First Appeal No.422 of 2000 arises out of land acquisition case NO.2 of 1995 and likewise First Appeal No.192 of 2000 and 234 of 2000 arises out of land acquisition case No.3 of 1995. In the same way, First Appeal No.193 of 2000 and 235 of 2000 arises out of land acquisition case No.4 of 1995 and likewise First Appeal No.194 of 2000 and 236 of 2000 arises out of land acquisition case No.5 of 1995. It may be mentioned here that the lands having mango groves, i.e., orchards measuring 5.33 acres was acquired by the State of Bihar for the purpose of National Thermal Power Corporation, Kahalgoan for construction of Permanent Township. There were other trees such as Sagwan, Jamun, Palm etc. in the orchard. 2. The Collector awarded Rs.4,69,050/- in land acquisition case No.2 of 1995 wherein the land involved having orchard was 1 acres 39 decimal. The Collector awarded compensation of Rs.4,65,200/- in land acquisition case No.3 of 1995 wherein also the land having orchard was 1 acres 39 decimal. The Collector also awarded Rs.4,74,200/- in land acquisition case Mungeshwar Sahoo, J. - 4 - No.4 of 1995 wherein the land involved was 1 acres 32 decimal having orchard. The Collector awarded Rs.4,74,100/- in land acquisition case No.5 of 1995 wherein the land having orchard was 1 acres 16 decimal. The Collector determined the aforesaid compensation in each case fixing the rate of mango tree at Rs.600/- per year and capitalized it by multiplying 20 years. The Collector awarded Rs.100/- per Sagwan trees and Rs.50/- for palm trees and Rs.100/-for Jamun trees. 3. The claimants received the compensation with protest and filed application under Section 18 of the Land Acquisition Act for enhancement of compensation which was referred to the Land Acquisition Judge. The Land Acquisition Judge by the impugned Judgment and Award fixed the value of income of mango tree per year at Rs.1190/- and it was multiplied by 20 years of purchased value. The Land Acquisition Judge fixed the value of Sagwan at Rs.1000/- per tree. On the basis of the above enhancement plus interest, the total compensation of the Land Acquisition Judge became either double or more than double of the compensation granted by the Collector. For instance, in land acquisition case No.2 of 1995, Collector awarded compensation including all at Rs.7,22,337/- whereas according to the Land Acquisition Judge, the compensation awarded was Rs.14,37,128/-. After deducting the award of Collector, the remaining compensation to be paid is Rs.7,14,791/- on addition of interest thereon it becomes Rs.12,13893.80/-. Likewise in all other land reference cases, the compensation has been enhanced. It may be mentioned here that the Notification under Section 4 of the Land Acquisition Act was published on 07.02.1990. 4. The claimant’s case is that there were about 158 Diggha Malda mango trees on the acquired land and other trees. In land acquisition case - 5 - No.2 of 1995 and 3 of 1995, there were 39 mango trees whereas in other two land acquisition cases, there were 40 each mango trees, in land acquisition case No.2 of 1995, there were one Sagwan and 4 palm trees. In land acquisition case No.3 of 1995, there were two Sagwan trees. In land acquisition case No.4 of 1995, there was one Sagwan tree and one Jamun tree and in land acquisition case No.5 of 1995, there was one Sagwan tree. The claimants claimed that the mango trees were being settled in Satta and the owners were earning approximately Rs.2,000/- per tree per year and for the next 50 years, the trees were capable of giving fruits, therefore, the claimants claimed that the compensation should have been fixed by multiplying Rs.2,000/- for 50 years purchased value. They also claimed Rs.4,000/- per Sagwan tree and Rs.1,000/- per palm tree and Rs.3,000/- for Jamun tree per year for 50 years. According to the claimants, the dudhiya malda mango was costly and in fact National Thermal Power Corporation itself had decided that these mango groves should not be acquired as it is very costly but subsequently the same was acquired. 5. According to the opposite parties, the Collector awarded just and proper compensation fixing Rs.600/- per mango tree per year and multiplying the same by 20. 6. After trial, the learned Land Acquisition Judge considering the evidences available on record fixed the compensation as stated above. 7. The learned counsel, Mr. Ganapaty Trivedi appearing in the appeals on behalf of the claimants-appellants submitted that the learned Land Acquisition Judge should have fixed the value of mango tree each at Rs.2,000/- but wrongly fixed at Rs.1190/-. The learned counsel further submitted that the appellants-claimants examined witnesses in support of - 6 - the claim and also produced the Satta papers but the learned Court below did not rely on the same. The learned counsel further submitted that the learned Court below should have multiplied by 50 because the experts report mentioned that the mango trees were capable of giving fruits for 100 years. 8. The learned counsel further submitted that the learned Court below should have awarded interest at Rs.15 per cent per annum as provided under Section 28 of the Land Acquisition Act but the learned Court below has awarded only 9 per cent per annum on the excess amount till the date of payment. On these grounds, the learned counsel submitted that the impugned Judgment and Award are required to be modified and the compensation of the claimants be enhanced. This is the submission of the learned counsel in other appeals as respondent. 9. On the other hand, the learned counsel, Mr. Anil Kumar Sinha, appearing on behalf of the appellants in the First Appeal filed by National Thermal Power Corporation submitted that the Hon’ble Supreme Court has held that the multiplier of 10 is appropriate in regard to the fruit bearing trees but the learned Court below has multiplied by 20 which should not have been done. The learned counsel further submitted that the learned Court below wrongly did not rely the documentary evidences produced by the National Thermal Power Corporation (N.T.P.C.). The said documents were the papers relating to auction made by N.T.P.C. and are admissible under Section 114 of the Evidence Act being the official Act of N.T.P.C. The learned counsel submitted that the learned Court below wrongly relied upon the report of the expert as conclusive proof for determining the rate of the mango trees without considering the fact that the report of expert is only an opinion and very weak type of evidence. In any view of the matter, the - 7 - learned Land Acquisition Judge should not have enhanced the compensation by fixing the rate of mango tree just double than the rate fixed by the Collector. The Collector examined pros and cons of the matter and also considered the report of the expert and then fixed the rate. The learned counsel further submitted that while determining the compensation for mango orchard, the learned Court below did not deduct anything towards the expenses in maintaining the orchard and also did not considered the fact of uncertainty of income. This is the submission of the learned counsel in other appeals in which National Thermal Power Corporation is respondent. On these grounds, the learned counsel submitted that the Frit Appeal filed by the claimants should be dismissed and the First Appeals filed by the National Thermal Power Corporation be allowed and it be held that the compensation awarded by the Collector is just and proper. 10. The learned A.C. to S.C.16 supported the submission of the learned counsel appearing on behalf of the N.T.P.C. 11. In view of the above contentions of the parties, the point arises for consideration in these appeals is whether the compensation awarded by the Collector is just and proper or whether the compensation awarded by the Land Acquisition Judge is just and proper and whether it is sustainable in the eye of law or not. 12. Admittedly, here the land measuring 5.33 in total containing 158 mango trees and other trees as detailed above were acquired for the purpose of construction of permanent town. The orchard was situated in village Shampur, Kahalgoan, Distt. Bhagalpur. The said orchard situated over part of plot No.287 and 288 of Khata No.7. The parties have produced oral as well as documentary evidences in support of their respective cases. - 8 - According to P.W.1, he had taken on Satta orchard in the year 1986-87 for Rs.4,74,000/-. He has also stated that there were 158 malda dudhiya mango trees. He has also stated about the other trees. However, in the cross-examination, he has admitted the fact that there were few other qualities of mango trees and rest were malda dudhiya quality. Likewise P.W.2 has stated that in 1988-89, he has taken on Satta of the said orchard for Rs.5,37,000/-. P.W.3 has stated that in the year 1990, he had taken the said orchard in Satta for Rs.3,16,000/-. These witnesses have proved the Satta which have been marked Ext. ‘1’, ext. ‘1/A’ and ‘1/B’. P.W.4 is one of the claimants. He has stated that he used to earn Rs.2100/- to Rs.2200/- per mango tree. In 1986, he received the notice for acquisition of the orchard but later on he was given to understand by the Land Acquisition Officer that the mango groves are not going to be acquired because of the fact that it is high quality and costly. However, subsequently, the same mango groves was acquired. The Collector called for a report from two experts in the year 1990 from Director of Guardian, Bhagalpur and in the year 1991 from expert of Sabaure Agricultural College for fixing valuation but the Collector had not considered the said reports of the two experts. The groves contain Jamun trees which were also costly. He claimed Rs.2000/- per mango tree on the basis of Satta of the year 1990, i.e., ext.1/B. P.W.5 has stated that the mango trees were aged about 25-30 years and the said mango trees were maintained by gardener, Jagarnath Mandal. He used to irrigate it by pumping set. There were 8 palm trees and 5 Sagwan trees and one Jamun trees. He also stated about his own mango orchard and that he is earning of Rs.2000/- to Rs.2500/- per trees. PW.6 is the gardener named by P.W.5. He stated that he worked as gardener from the year 1970 for 20 years. According to him also at the time of execution, the age of the trees - 9 - were 25 to 30 years. These are the oral evidences produced by the claimants. 13. Ext.2 and 3 are the letters issued by the Land Acquisition Officer, N.T.P.C., Bhagalpur in favour of the claimants informing that the mango orchard has been released from acquisition. Ext.I and I/1 are the report of the experts. So far these report of the experts are concerned, we shall consider the same later on. Now, let us consider the evidences of the N.T.P.C. O.P.W.1 is Amin who has proved Ext. ‘A’, the valuation Khatiyan. Rate report has been proved which has been marked as Ext. ‘C’ and estimates have been marked as Ext. ‘D’. He admitted that earlier, it was informed to the claimants that the mango orchard will not be acquired. O.P.W.2 is senior Engineer in N.T.P.C. He has stated that he had seen the orchard under acquisition. Senior Assistant, Horticulture, namely, Rakesh Kumar Pandey, has also been examined on behalf of N.T.P.C. He stated that there were Bombaya, Zardalu, Sukul, Phasli, Gulbakhas and Malda mango trees in the orchard. According to him, the fruit letting capacity of mango tree is 50 to 100 years. He stated that he had auctioned groves containing 325 trees in the town of Bhagalpur and fetched Rs.1,34,000/- only. The auction document has been proved as Ext. ‘F’ ‘G’ and ‘H’ and ‘I’. He denies the income of Rs.2000/- per mango tree per year. 14. From perusal of the Ext. ‘1’ series produced by the claimants, it appears that all these Sattas are private Satta entered into between the claimants and P.W.1 to 3. Since the learned Court below disbelieved these exhibits on the ground that it cannot be ruled out that these documents might have been created after notice for acquisition, there is no reason as to why the reasoning of the learned Court below is to be interfered with. In - 10 - Ext. ‘1’ and ‘1/A’, the Satta was made for two years whereas in Ext. 1/B, the Satta was made for only one year. It is admitted fact that in one year, the fruits product is high and in the next year, the food product is less and, therefore, generally Satta is made for two years. For determining the rate, it is not safe to rely upon the private documents of the claimants which are ext. ‘1’ series. As has been held by the trial Court, these documents can be created at any time. In such view of the matter, I do not find any force in the submission of the learned counsel for the claimant that the learned Court below should have relied upon these documents. In my opinion, the learned Court below has rightly not relied upon these private documents. 15. So far the oral evidences of the claimants are concerned, we have seen that the statements of the witnesses are based on these 3 exhibits. Now, therefore, on the basis of oral evidence only, the valuation of orchard cannot be determined. 16. So far the documents of N.T.P.C. is concerned, the auction papers have been proved as Ext. ‘F’, ‘G’, ‘H’ and ‘I’. From perusal of the said documents, it appears that auction were held regarding various other trees situated in the colony of N.T.P.C. consisting of mango and Jack fruit. It further appears that maintenance charge was also given. The said auction do not relate to the mango groves under acquisition. There is no evidence in support of the fact that the nature of mango trees which were auctioned were also dudhiya malda mango trees. In my opinion, therefore, the learned Court below has rightly not relied upon this auction. On the basis of these auction held by N.T.P.C., which relates to village Bhader, the compensation for the mango orchard of village Shampur cannot be determined and rightly the learned Court has not determined the same. - 11 - 17. From perusal of the impugned Judgment, it appears that the learned Court below gave much emphasis on the two expert’s reports which have been marked as ext. ‘I’ and ‘I/1’. From perusal of the said reports, it appears that for determining the market value of the orchard, the Collector himself called for the reports. The first report ext. ‘I’ is dated 19.11.1991 and the second report is dated 27.12.1990 ext. I/1. From perusal of the report, it appears that in Ext. ‘I’, the opinion has been given that if it is properly maintained then for next 50 years, the mango tree will give fruits and in one year income from one tree will be Rs.1500/- and in off year income will be Rs.600/- and, therefore, the average will become Rs.1,050/- per tree. The experts also opined that Rs.100/- per tree will be the expenses in maintaining mango tree per year. It may be mentioned here that this report is latter report. In view of the above report, if it is taken to be true in its face value, the income of a mango tree will be Rs.950/- per year as Rs.100/- is to be deducted on account of expenses for maintenance. So far the other report, i.e., ext. ‘I/1 is concerned, it is dated 27.12.1990 which is prior to the report as contained in ext. ‘I’. So far the report as contained ext. ‘I’ is concerned, it was given by Board of 3 experts, namely, Dr. Ram Kumar, Chief Scientist, Dr. Ramakant Sharma, Dr. M.M. Hota, whereas the other report, as contained in ext. ‘I/1 is only by Mr. M.K. Raman, MSc, Agriculture. From perusal of the said report, it appears that he has only stated according to him that the value of the mango fruit per tree will be Rs.1400/- to Rs.1600/- which is exaggerated. These exhibits, i.e., the report were called for by the Collector and, therefore, it cannot be said that the Collector did not consider these reports. From perusal of the impugned Judgment, it appears that the learned Court below calculated the average value of mango tree by adding the two reports. In my opinion, the report of the year 1990 which is - 12 - submitted by Mr. M.K. Raman wherein the value has been fixed much higher than the value fixed in subsequent year, i.e., in the year 1991. As stated above, the report of the year 1991 is given by a Board of scientist and, therefore, in my opinion, this report is reliable report. In view of the above facts, in my opinion, the learned Court below should not have calculated the average from the two reports. As stated above since the report of 3 scientists which is contained in ext. ‘1’ is latter one, i.e., one year after the ext. ‘I/1 it is better to rely upon ext. ‘I’. In my opinion, therefore, the learned Court below has committed error by calculating the average of the two reports. 18. It is well settled principle of law that the evidences of an expert is a weak type of evidence and the Courts do not generally consider it as offering conclusive proof of the fact alleged. The learned counsel for the claimants submitted that the repot was called for by the Collector itself and, therefore, the State of Bihar and the N.T.P.C. are estopped from challenging the said report. So far this submission is concerned, I do not agree with the learned counsel. Merely because the report was called for by the Collector, the Court or the Collector will not blindly rely upon the same in toto. The report is merely an opinion. The said report will act as guideline to the Collector and the Court for determining the just and proper compensation. Here the learned Court below has fully relied on the expert’s reports without considering the fact that for maintaining the orchard expenses were being incurred. The witnesses have admitted that gardener was appointed for the same who was irrigating by pumping set. The expert also in exhibit ‘I’ gave opinion that Rs.100/- per tree per year should be the expenses. Further, the learned Court below has not deducted any amount regarding uncertainty of the income. - 13 - 19. The learned counsel for the N.T.P.C. submitted that the multiplier should be 10. In support of his claim, the learned counsel relied upon a decision reported in 2005 (2) P.L.J.R. 128 Supreme Court. It appears that in that case, the orchard was not acquired. In the Notification of the State Govt. of Bihar No.B/L-1-440/56-7611R, dated 03.10.1955 directed that when the lands were regular orchards of lichis, mangoes, guava etc., have been acquired the average annual letting value of the orchard would be a fare basis for calculation of compensation. A chart has been annexed for using multiplier. So far mango orchard is concerned, 20 years of purchase value has been fixed. It appears that the Collector also followed the Notification of the Stare Govt. and also the Land Acquisition Judge. I, therefore, find no reason to interfere with the said multiplier used by the Collector as well as by the Land Acquisition Judge. 20. In the present case as stated above according to the report of the 3 Scientists, if it is taken to be true in its face value then also rate of income per mango tree per year comes to Rs.1050/- - Rs.100 for maintenance= Rs.950/-. The learned Court below himself observed that the second report has given high valuation. Out of the said Rs.950/-, Rs.50/- is liable to deducted on the ground of uncertainty of income as has been provided in the State Govt. Notification paragraph 2 stated above. Now, therefore, the approximate income per mango tree per year comes to Rs.900/- only. IN my opinion, therefore, the compensation should be fixed on this rte regarding the mango trees multiplying it by 20 years purchase value. So far other value fixed by the Land Acquisition Judge is concerned; I do not find any reason to interfere with the same. According to Section 28 of the Land Acquisition Act, the land owner claimants are entitled to interest at the rate of Rs.15 per cent on the enhanced rate from the date of expiry of one year - 14 - from the date of possession is taken. The learned Court below has not considered this provision of Land Acquisition Act and granted only 9 per cent interest till date of payment. I, therefore, held that the Land Acquisition Judge should have fixed the annual letting value of mango tree at Rs.900/- per mango tree which is just and proper value of determining the compensation. So far the finding of the learned Court below contrary to this is required to be modified. As stated above the claimants are entitled to receive compensation at the rate of Rs.900/- per mango tree for 20 years and in addition to that the statutory benefits including interest at Rs.15 per cent per annum after expiry of one year from the date of possession on the enhanced rate from