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2023 DIGILAW 591 (AP)

S. Peda Venkata Reddy v. Special Tahsildar

2023-03-17

M.GANGA RAO, T.MALLIKARJUNA RAO

body2023
JUDGMENT : (M. Ganga Rao, J.) 1. This appeal is initially filed by the original claimant, under Section 54 of the Land Acquisition Act, 1894 [for short, ‘the Act’] against the order and decree passed by the Principal Senior Civil Judge, Eluru, in OP.No.1 of 1985 dated 20.06.2002, pursuant to the order dated 04.09.2001 passed by this Court in AS.No.3845 of 2000 remanding the matter to the Court below; and seeking compensation of Rs.9,79,200/-for 204 Cashew Nut trees with all statutory benefits. 2. The facts that lead to the filing of the present appeal are that the Land Acquisition Officer and Special Tahasildar (LA) Unit No.IV, Jangareddigudem, issued notification under Section 4(1) of the Act, which was published on 10.01.1980, acquiring the land extent Ac.15.81 cents in various survey numbers situated in Vallampatla village for the purpose of ‘Yerrakaluva reservoir scheme’. Out of the said extent, land extent Ac.3.65 cents of dry land in RS.No.76/1A and extent Ac.1.10 cents of dry-wet land in RS.No.90/1B belong to the appellant. Declaration under Section 6 of the Act was published on 25.07.1980. The possession of the land was taken on 01.09.1984. The Land Acquisition Officer and Special Tahasildar Unit 4, Jangareddygudem passed Award No.18/84, dated 05.09.1984. The LAO fixed the market value for the land in RS.No.76/1A and 76/2A at Rs.2,000/-per acre and for the land in Sy.No.90/1B at Rs.5,357/-per acre and for cashew nut trees, the LAO had valued Rs.20/-each. The claimant – land owner, not being satisfied with the compensation awarded by the LAO, sought for reference under Section 18 of the Act to the Civil Court. The said reference was numbered as OP.No.1 of 1985. The Principal Senior Civil Judge at Eluru, on considering the rival contentions and the evidence available on record, by common order dated 02.02.1998 in OP.Nos.1 & 2 of 1985 fixed the market value for the lands covered by RS.No.76/1A and 76/2A of Vallampatla village @ Rs.5,000/-per acre and for the land covered by RS.No.90/1B of Vallampatla village at Rs.10,000/-per acre. However, the award passed by the LAO with regard to the value of the cashew nut trees was confirmed. However, the award passed by the LAO with regard to the value of the cashew nut trees was confirmed. Being aggrieved by the said order, the appellant preferred AS.No.3845 of 2000 and this Court by order dated 04.09.2001 while setting aside the order dated 02.02.1998 passed in OP.No.1 of 1985, remanded the matter to the Civil Court for fresh adjudication inter alia observing that the civil court shall decide the claim of the appellant for granting compensation for the land acquired and also for trees on the basis of the report of the Commissioner, within a period of six months from the date of receipt of a copy of the said order while giving opportunity to both sides. The Reference Court, on remand, having relied on the decision of the Apex Court in State of Hariyana v. Gurucharan Singh [ AIR 1996 (SC) 106 ], awarded compensation by fixing the market value of the acquired land of the claimant in R.S.No.76/1A at Rs.5,000/-per acre and for the dry wet land in RS.No.90/1B at Rs.20,000/-per acre besides other statutory benefits as envisaged under Section 23(2) of the L.A.Act as per the decision of the Apex Court in Sunder v. Union of India [ 2001(7) Supreme 37 ] but declined to grant separate compensation to the fruit bearing cashew nut trees. Being aggrieved by the same, the present appeal is filed seeking separate compensation for 204 fruit bearing cashew nut trees. 3. Be it noted that during the pendency of the appeal, the sole appellant died and the legal heirs were brought on record. 4. Sri Addepalli Suryanarayana, learned Senior Counsel appearing for Sri P. Gopal Das, learned counsel for the appellants on record, would contend that this Court in the order dated 04.09.2001 passed in AS.No.3845 of 2000 while setting aside the order dated 02.02.1998 passed in OP.No.1 of 1985 and remitting the matter to the Civil Court for fresh adjudication categorically stated that the Civil Court shall decide the claim of the appellant for granting compensation for the land acquired and also for the trees on the basis of the report of the Advocate Commissioner. In the said order, this Court held that the report of the Commissioner forms part of the record as provided under Order XXVI Rule 10 of CPC and the Civil Court is bound to act upon the report of the Commissioner and pass appropriate orders on the basis of the report of the Commissioner. But the reference court simply ignored the Commissioner’s report and has not even properly dealt with the same and passed the impugned order on erroneous appreciation of facts and law. The appellants are entitled for enhancement of compensation for the land at the rate of Rs.22,000/-per acre and an amount of Rs.9,79,200/-for 204 fruit bearing cashew nut trees. 5. Per contra, learned Government Pleader for Appeals would contend that the land includes trees also and the reference court relying on the decision of the Apex Court in State of Hariyana (supra) found that the value of the dry land with the trees should be fixed at Rs.5,000/-per acre and the value of the dry wet land with trees should be fixed at Rs.20,000/-per acre with all statutory benefits. He has drawn the attention of this Court to the Award passed by the LAO and contended that at the time of acquisition there were only 16 palmyrah trees and 26 cashew nut trees and during the award enquiry, the claimant requested that he will take away the 16 palmyrah trees for his personal use and not to pay the compensation for the palymyrah trees. He further contended that in the order passed in the OP at the first instance also, it was specifically stated that there are only 26 cashew nut trees in the land. Whereas the Commissioner states that there were 204 cashew nut trees aged 15 years in the acquired land of PW1. Commissioner was examined as PW2 and Commissioner’s report was marked as Ex.C.1. It shows that there are total 204 cashew nut trees and 20 small trees. There is a discrepancy with regard to total number of trees. Whereas the Commissioner states that there were 204 cashew nut trees aged 15 years in the acquired land of PW1. Commissioner was examined as PW2 and Commissioner’s report was marked as Ex.C.1. It shows that there are total 204 cashew nut trees and 20 small trees. There is a discrepancy with regard to total number of trees. However, the reference court ought to have considered the commissioner’s report with reference to the number of cashew nut trees on the land with reference to the evidence on record as per the directions of this Court while remanding the matter but the reference court based on the Apex Court decision in Gurucharan Singh (supra) enhanced the compensation of the land but not awarded compensation to the trees. 6. We have carefully considered the facts and circumstances of the case and submissions of the learned counsel. The Reference Court pursuant to the remand orders in AS.No.3845 of 2000 dated 04.09.2001 ought to have considered grant of compensation for 204 cashew nut trees as per the Commissioner’s report, Ex.C1, and the evidence of the Commissioner, who was examined as PW2. The commissioner’s report forms part of the record as provided under Order XXVI Rule 10 CPC and the Reference Court is under statutory obligation to consider the same and pass appropriate orders with reference to the cashew nut trees on the land. The reference Court grossly erred in granting compensation only to the land referring to the decision of the Apex Court in Gurucharan Singh (supra) wherein it is held that if a land with fruit bearing trees is acquired, no separate compensation for the land and the fruit trees can be awarded; that the compensation is the value of the acquired land and the land includes benefits to arise from the land; it is settled law that the collector or the court, who determines the compensation for the land as well as fruit bearing trees, cannot determine them separately and the compensation is to the value of the acquired land; the market value is determined on the basis of the yield; under no circumstances, the court should allow the compensation on the basis of the nature of the land as well as fruit bearing trees. The reference Court has not taken note that the Apex Court in catena of decisions held that separate compensation needs to be awarded for the fruit bearing trees also. For grant of compensation to the cashew nut trees, it requires valid evidence with regard to the cashew nut trees and age of the trees and fertility of the land and the earnings of the trees per year for the application of appropriate capitalization to arrive at the just compensation payable to the cashew nut trees. Without proper legal evidence on record, this Court cannot straight away grant compensation to the trees. In these circumstances we felt it appropriate to remand the matter again to the Reference Court for determination of the compensation for the cashew nut trees separately with reference to the evidence on record. 7. It is alternatively contended by the learned Senior Counsel appearing for the appellants that on remand, the reference court may be directed to determine the compensation as per the provisions of the Right To Fair Compensation And Transparency In Land Acquisition, Rehabilitation And Resettlement Act, 2013 [for short, ‘Act 30 of 2013] inter alia stating that the award dated 05.09.1984 is not final and conclusive award under Section 12 of the Land Acquisition Act, 1894, in which circumstance, the claimant is entitled to get back the lands. However, as there is no possibility of reconveyance of the acquired land to the claimant as the land is submerged in Yerra Kalva project, no fresh compensation can be determined under old Act, 1894. Therefore, treating the notification as issued on 01.01.2014 when the new Act came into force, the claimants are entitled for compensation with all benefits under Section 24(1)(a) of the Act 30 of 2013 and placed reliance on the decision of the Apex Court in Hariyana Industrial Infrastructure Development Corporation Limited and others v. Deepak Agarwal and others [2022(3) RCR (Civil) 934] and Madho Ram and others v. The Collector Baramulla [AIR 1962 Jammu & Kashmir 37]. In Hariyana Industrial Infrastructure (supra), the Apex Court, while dealing with the provisions of Section 24(1)(a) of the Act 30 of 2013, specifically held that determination of compensation under the New Act arises only if land acquisition proceeding was initiated under the L.A.Act but no award was passed under Section 11 thereof and if upon initiation of acquisition proceedings under the LA Act an award is passed under the provisions of Section 11 of the L.A. Act, the land acquisition proceedings shall continue as if the provisions of the L.A. Act are in force. In the present case, admittedly, the LAO has passed an award and the claimants being dissatisfied with the quantum of compensation awarded by the LAO sought for a reference and the reference Court also passed orders against which the claimant preferred appeal in AS.No.3845 of 2000 and this Court remanded the matter to the Reference Court to decide the claim of the appellant for granting compensation for the land acquired and also for the trees on the basis of the report of the Commissioner. Hence, by no stretch of imagination, it can be said there is no award passed under Section 11 of the LA Act to determine the compensation by invoking the provision of Section 24(1)(a) of the Act 30 of 2013. Accordingly, the said contention is unsustainable in law. 8. In view of the above discussion, the impugned award passed by the Reference Court insofar as the market value fixed for the land is upheld. However, the same is set aside insofar as not granting any separate compensation for the cashew nut trees as directed by this Court by order dated 04.09.2001 in AS.No.3845 of 2000 and the matter is remanded to the reference Court to pass award afresh granting separate compensation for the trees also by considering the report of the Commissioner and evidence available on record as per law. As the OP.No.1 of 1985 is old matter, the reference Court is directed to pass judgment and decree as expeditiously as possible not later than four months period from the date of receipt of a copy of this judgment. 9. Accordingly, the LAAS is allowed to the extent indicated above. There shall be no order as to costs. Pending interlocutory applications, if any, shall stand closed.