Chaturbhuj. Panda & Ors Vs. The
Collector, Raigarh  INSC 158 (23 July 1968)
23/07/1968 HEGDE, K.S.
CITATION: 1969 AIR 255 1969 SCR (1) 412
E 1973 SC 305 (6)
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
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 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]
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
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
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 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
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
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.
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 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
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
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.