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PETITIONER: CHATURBHUJ. PANDA & ORS.

       Vs.

RESPONDENT: THE COLLECTOR, RAIGARH

DATE OF JUDGMENT: 23/07/1968

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. BACHAWAT, R.S.

CITATION:  1969 AIR  255            1969 SCR  (1) 412  CITATOR INFO :  E          1973 SC 305  (6)

ACT:     Land  Acquisition  Act  (1  of  1894),  s.  23---Orchard acquired--Determination of ’market value--Trees if  included in  benefits  arising out of land--Statutory  allowance,  if permissible--Practice--Award of Costs.     Natural  Justice-Looking  into  documents  not  part  of record, and without giving opportunity to the other party to rebut--Practice.

HEADNOTE:     The  appellants’  lands  consisting  of  orchards   were acquired under the Land Acquisition Act. 1894 and they  were awarded  compensation.   The appellants,  were  dissatisfied with the amount, so it was referred to  the District  Court, which  enhanced  it.  The respondent appealed  to  the  High Court.  The High Court looked into: documents which were not a part of the records of the case and also did not give  any opportunity  to  the  appellants to  rebut  the  conclusions reached  on  the basis of those documents.  The  High  Court held that value of the trees fell under the secondly  clause of s. 23(1) therefore disallowed the 15% allowance permitted by  s.  23(2)  and directed the parties to  bear  their  own costs.  In appeal, this Court,     HELD:  The  High Court was wrong  in   disallowing   the statutory allowance permitted by s. 23(2) over the value  of the trees in the orchard. Section 3(a) prescribed that  "the expression  ’land’ includes benefits. to arise out of  land, and things attached to the earth".  Therefore the trees that were standing in the land were a component part of the  land acquired.  The  High Court failed to notice  that  what  was acquired was not the trees but the land as such.  The  value of trees was ascertained only for the purpose of .fixing the market  value  of  the land.  On the value of  the  land  as determined,  the court was bound to allow the 15%  allowance provided by s. 23(2) of the Act. [415 D-F]     Sub-Collector of Godavari v. Seragam Subbareyadu & Ors., I.L.R. 1907, Mad. p. 151, approved.     (ii) The High Court was not right in looking into. fresh documents.  If the court wanted to take  into  consideration any  fresh  evidence, it should have admitted  the  same  in

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accordance with law.  So these  documents ought to have been excluded from consideration, though it was of no  assistance to the appellants. [414 D-F]     (iii)  There was no reason to interfere with the  orders as  regards costs.  Costs are essentially in the  discretion of  the  courts.  The claim of the appellants was  a  highly exaggerated  one,  and the bulk of the evidence  adduced  by them   was   found  to.  be   unacceptable.    Under   those circumstances. the courts thought that the appellants should not be granted any costs. [416 B]

JUDGMENT: CIVIL APPELLATE JURISDICTION:  Civil APPEAL No. 667 of 1965.     Appeal from the Judgment and Order dated April 28,  1961 of the Madhya Pradesh High Court in First Appeal No. 180  of 1959.  413     S.T. Desai, V.D. Mishra and A.G. Ratnaparkhi,  for   the appellants. 1. N. Shroff, for the respondent. The Judgment of the Court was delivered by     Hegde,  J. In this appeal from the decision of the  High Court  of Madhya Pradesh in First Appeal NO. 180 of 1959  on its file the principal question that arises for decision  is as  to the market value of the appellants’ orchard  acquired under  the  provisions of Land Acquisition Act 1894  (to  be hereinafter  referred to as the Act) in connection with  the construction of Hirakud Dam in Orissa State.     Several  lands in the Raigarh District of Madhya  Pradesh were  acquired by the Collector of Raigarh in  pursuance  of the  request  made by the Government of Orissa.   Among  the lands  so acquired some of the appellants’ lands  were  also included.   For  those  lands   the   appellants’    claimed compensation   in   a  sum of Rs. 7,95,770/-  under  various heads  but  the Special Land Acquisition Officer  under  two different  awards awarded to them a sum of  Rs.  59,494/6/-. The  appellants  did  not agree to the  award  made  by  the Special  Land Acquisition Officer and at their instance  the question of compensation was referred to the District  Court of  Raigarh  under  s.  18 of  the  Act.    The   Additional District Judge who tried the reference in question  enhanced the   compensation   payable  to  the  appellants   to   Rs. 3,29,480/-.   In  particular  he valued  the  trees  in  the orchard  acquired  at   Rs.  2,19.220/-.  Aggrieved  by  the decision  of  the learned  Additional  District  Judge,  the Collector   of Raigarh appealed to the High Court of  Madhya Pradesh.   In that appeal the appellants filed a  memorandum of  cross-objections  praying  for the  enhancement  of  the compensation    payable   to   them.     The   High    Court substantially modified the decree of ,the learned Additional District  Judge.  It determined  the  compensation   payable to  the   appellants  at Rs. 1,47,751/7/- with  interest  as provided in the decree. Against that decision the appellants have brought this appeal after obtaining a certificate under Art. 133(1)(a) of the Constitution.     As mentioned earlier the principal question arising  for decision  is  as regards the true  compensation  payable  in respect  of  the  orchard  in  question.   In  that  orchard admittedly  there were 160 Orange trees, 41 Mosambi  trees., 250  Gauva  trees  apart  from  other  trees.   The  learned Additional District Judge valued each one of the Orange  and Mosambi  trees  at Rs. 960/- and Gauva tree  at  Rs.  240/-. There  is no dispute as regards the number of trees  in  the

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orchard.   In that orchard apart from the   Orange,  Mosambi and Gauva trees, there were some other trees but we need not concern ourselves about those trees as no dispute was raised before us either as to .their number or value  ..The learned L12 Sup C1/68--12 414 Additional District Judge computed the net income from  each Orange  tree at Rs. 100/- and of Mosambi at Rs. 70/  to  80/ per year.  He capitalised that income at 12 years’  purchase and thus arrived. at the compensation payable in respect  of those trees.    doing he heavily relied on the oral evidence adduced  by  the appellants.  We may mention at  this  stage that   there   was  absolutely no  documentary  evidence  to support the claim of the appellants.     The  evidence of the first appellant as well as that  of the  witnesses did not commend itself to the learned  Judges of  the  High  Court.  They opined that  the  claim  of  the appellants was a highly exaggerated one and the evidence  of the   witnesses  supporting  that  claim  is   unacceptable. Relying  on  certain  official  reports  and  the  pamphlets published  by  certain  individuals as  to  the  yield  from Orange,  Mosambi  and Gauva trees, average span of  life  of those  trees  and the market value of  Orange,  Mosambi  and Guava,  the High Court re-assessed the compensation  payable and came to the conclusion that the total value of the trees in the orchard in question could be reasonably fixed at  Rs. 58,566/-.     Mr.  8.  T. Desai, learned Counsel  for  the  appellants complained that the High Court was not right in looking into documents  which were not a part of the records of the  case particularly  when  his  clients  had  not  been  given  any opportunity  to rebut the conclusions’ reached therein.   It appears that these documents were looked into by the learned Judges after the conclusion of  the arguments.  If the  High Court wanted to take into consideration any fresh  evidence, it should have admitted the same in accordance with law.  In that  event,  the appellants would have got  opportunity  to rebut  that evidence.  That having not been done, we do  not think  it  was  open  to the High Court  to  rely  on  those document.   We accordingly exclude from consideration  those documents.     But  that  is of no assistance to  the  appellants.   As mentioned earlier, the High Court has refused to rely on the oral  testimony adduced in support of the appellants’  claim as  regards the value of the orchard.  It is true  that  the witnesses examined on behalf    the appellants have not been effectively  cross-examined.   It  is  also  true  that  the Collector had not adduced any evidence in rebuttal; but that does  not  mean  that the court is  bound  to  accept  their evidence.   The Judges are not computers.  In assessing  the value  to  be attached to oral evidence, they are  bound  to call into aid their experience of life.  As Judges of  fact, it  was  open to the appellate Judges to test  the  evidence placed before them on the basis of probabilities.     We   have  been  taken  through  the  evidence  of   the witnesses.  We are in agreement with the learned  Judges  of the High Court   415 that  the evidence in question is unacceptable.  It  may  be that the garden in question was in a very good condition but it  must be remembered that the garden was just 2 acres  and 49  cents  in extent.  It is not possible for us to persuade ourselves  to believe that the value of about  Rs.  59,000/- allowed by the High Court for that garden is by any  measure inadequate.   It  is true that the conclusion  of  the  High

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Court  as  regards the valuation  of  the  garden  rests  on inadmissible  evidence  but the appellants  cannot  complain about  that.  If the evidence adduced by the  appellants  is rejected  as  has  been  done by the  High  Court  then  the valuation  made  by  the Special  Land  Acquisition  Officer should   have   remained  but  that   valuation   has   been substantially  enhanced  by  the High Court  by  relying  on inadmissible  evidence.    The Government had  not  appealed against  that decision.  Therefore the decision of the  High Court in that regard stands.     The  High Court in our opinion was wrong in  disallowing the statutory allowance permitted by s. 23(2) over the value of  the  trees.  The High Court erred in thinking  that  the value of  the trees falls under the secondly clause of s. 23 (1).  The first clause of s. 23 provides for determining the market value of the land acquired.  Section  3(a) prescribes that  "the expression ’land’ includes benefits to arise  out of  land,  and things attached to the earth  or  permanently fastened  to anything attached to the earth"’ Therefore  the trees  that were standing in the land were a component  part of the land acquired.  The High Court failed to notice  that what  was acquired are not the trees but the land  as  such. The value of the trees was ascertained only for the  purpose of fixing the market value of the land.  On the value of the land  as determined, the court was bound  to allow  the  15% allowance provided by s. 23(2) of the Act.     In Sub Collector of Godavari v. Seragam Subbaroyadu and’ Ors.(x)  the  High  Court  of Madras  held  that  the  trees standing  on the land acquired are ’things ’attached to  the earth  and  hence they  are included in the   definition  of land  in   s.   3(a)’  and that  definition  must  apply  in construing s. 23 of the Act. It further held that the  value of the trees as are on the land when the declaration is made under S. 6 must be included in the market value of the  land on  which  the allowance of 15 % should be  given  under  s. 23(2) of the Act.  The same view was taken by the  Allahabad High  Court  in Krishna Bai v. The Secretary  of  State  for India in Council(g).  We are satisfied that these  decisions lay  down the law correctly.  No decision taking a  contrary view was brought to our notice.     The  only  other  contention  taken  on  behalf  of  the appellants  is as regards the costs.  Both ,the trial  court as well as the High (1)I.L.R. 1907 Mad.p. 151. (2) (42) I.L.R. 1920  All. P. 555. 416 Court  directed  the parties to bear their own  costs.   Mr. Desai  contended that the compensation awarded by  the  Land Acquisition  Officer having been substantially  enhanced  by 0those courts, they were bound to award his clients costs to the  extent of their success.  Costs are essentially in  the discretion  of the courts.  Both the trial court as well  as the  High Court have given good reasons in support of  their order  as to costs.  The claim made by the appellants was  a highly exaggerated one.  The bulk of the evidence adduced by them   was   found   to   be   unacceptable.   Under   those circumstances, the courts thought that the appellants should not  be  granted any costs,  We see no reason  to  interfere with  that  order. In the result this appeal is partly allowed.  In addition to the  compensation awarded by the High Court, the  appellants will get the statutory allowance of 15% on the value of  the trees standing on the acquired land i.e., they will get  15% allowance on a sum of Rs. 58,752/-.  In other respects  this appeal fails. There will be no order as to costs.

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Y.P.                           Appeal allowed in part 417