It follows from the above judgments that when the Land Acquisition Officer ignores or overlooks to take into account one of the components of the property taken, while computing the compensation, the Civil Court could still go into the question notwithstanding the fact that there was no award for that component of property acquired. If that is the legal position, it would logically follow that the Civil Court while deciding the dispute under Section 18of the Act would have also necessary jurisdiction to decide about the character and the nature of the components of the property which was acquired for determining the amount of compensation.
I am of the opinion that the Civil Court while adjudicating the issue under Section 18 of the Act would be competent to go into the question whether the Bamboo is standing crop or trees for the purpose of determining the compensation as provided under the provisions of the Act.
Gorinta Seetharama Raju Vs. Spl. Tahsildar & Land Acquisition, Jangareddigudam, W.G. Dist.
Court : Andhra Pradesh
Judge : J. Chelameswar, J.
Subject : Property
Decided On : Nov-13-1998
Case Number : WP No. 20373 of 1993
1. This writ petition raises an interesting question regarding interpretation of Sections 18 and 23 of the Land Acquisition Act, 1894 (for short 'the Act').
2. An extent of 33 acres of land in Survey Nos.397/2 and 410 of Mathamiagudem village was acquired for the purpose of construction of Yerrakalva Reservoir of which 8 acres of land is the subject-matter of this writ petition. It appears that with reference to acquisition of 8 acres of land. Notification under Section 4(1) of the Act was given and subsequently an award came to be passed on 15-10-1993. The case of the petitioner is that in the said 8 acres of land there existed Bamboo plantation and, therefore, he is entitled to compensation for the Bamboo apart from the value of the land acquired.
3. The Land Acquisition Officer (LAO) while fixing the compensation payable to the petitioner treated Bamboo as standing crop and awarded the compensation accordingly. The case of the petitioner is that the Land Acquisition Officer ought to have treated Bamboo as not standing crop, but as trees. However, the petitioner received the compensation under protest and it appears that he sought a reference under Section 18 of the Act to the Civil Court. The respondents accordingly referred the matter to the Civil Court in OP No.68 of 1993. Though the petitioner in the said reference raised a claim that Bamboo is to be treated as trees for the purpose of fixing up the compensation. He choose to approach this Court by way of filing the writ petition in the following circumstances.
4. Sri K. V. Satyanarayana, learned Counsel for the petitioner submitted that in view of the judgment in Maharaja Sir Rameshwar Singh Bahadur v. Basudev, AIR 1923 Patna 95, Bamboo is to be treated as tree and not as standing crop. Whereunder a Division Bench of Patna High Court held as follows:
'A Question is then raised as to bamboos. The tenants claim the entire compensation for bamboos on the ground that they are not timber.
'By the term timber is meant properly such trees only as are fit to be used in building and repairing houses. Many descriptions of trees which are not generally considered as timber are so in some places by custom of the country, being there used for the purposes of building.
Applying this test it seems to me thatwhatever the botanical classification of bamboos may be, they are timber inasmuch as they are used, by the custom of the country, in the building and repairing of the houses and must, therefore, fall under the present rule.'5. However, the Land Acquisition Officer treated Bamboo as standing crop and awarded compensation accordingly, basing on the report given by the Divisional ForestOfficer, Eluru. Even according to the said report, the Divisional Forest Officer opined as follows:
'As per sericulture principles, the matured Bamboos in the Bamboo plantation or in natural Bamboo Forests have to be harvested on a three year felling cycle. Therefore the felling cycle could be considered as one rotation of three years. The Bamboos are thus extracted once in three years till the plantations are gregariously flowered with which its life ends. As per convention the Bamboos flower once in between 30 to 40 years. In the instant case the life time of the Bamboo plantation is taken as 32 years which mean the plantations last long upto 2012. Thus yields could be derived from these plantations upto eight rotation i.e., from 1991 to 2012 in addition to one rotation yield already derived in 1988.'
The estimated value of the estimated yields assessed under each methods detailed above is furnished hereunder:
(i) Estimated value of the existing crop by clear felling the total plantations: Rs.1,60,000/-(ii) Estimated value of extractable bamboos i.e., for eight rotation is adopting 10% increase on value of bamboo for each rotation expecting escalation in market rates from rotation to rotation. Rs. 14,30,300/-
I am finally to inform that if the value of Bamboo plantations by clear felling and uprooting the total standing growth is taken, it would be about Rs. 1,60,000/- and if the value of the extractable bamboos for the total life cycle of the bamboo plantations i.e., upto 2012 is taken by allowing 10% expected escalation in market rates, the estimated value would be about Rs.14,30,300/-.'
In the background of the said report of the Divisional Forest Officer, the Land Acquisition Officer chose to treat the Bamboo as standing crop.
6. The learned Counsel for the petitioner, submitted that in view of the Judgment of the Privy Council in Pramatha Nath Mullick Bahadur v. Secretary of State, AIR 1930 PC 64, and the Judgment of the Supreme Court in State of Bihar v. Kundan Singh, : [1964]3SCR382 , the Scope of jurisdiction of Civil Court in a reference under Section 18 of the Act appears to be limited and as per the language of Section 18 of the Act, the question whether the Bamboo is to be treated as plantation/trees or as standing crop is not the matter which could be legally adjudicated upon by the Civil Court by the reference under Section 18 of the Act. The learned Counsel for the petitioner relied on the following passages of the abovementioned two judgments. In Pramatha Nath's case (supra) while dealing with the scope of reference under Section 18 of the Act, their Lordships held as under;
'The Section clearly specifies four different grounds of objection, viz., (1) to the measurement of the land; (2) to the amount of compensation; (3) to the person whom it is payable and (4) to the apportionment. .....
Their Lordships have no doubt that the jurisdiction of the Courts under this Act is a special one and is strictly limited by the terms of these Sections. It only arises when a specific objection has been taken to the Collector's award, and it is confined to a consideration of that objection. Once therefore it is ascertained that the only objection taken is to the amount of compensation, that alone is the 'matter' referred, and the Court has no power to determine or consider anything beyond it.'
7. The Supreme Court in State of Bihar v. Kundan Shah (supra) held as under:
'..... It is thus clear that the scope ofthe enquiry under Section 18(1) is specifically indicated by the Section itself. The objections which the Court can consider on a reference made to it underSection 18 may be either in respect ofthe measurement of the land, the amount of compensation, the persons to whom it is payable and the apportionment of the compensation among different persons. In dealing with the question about the amount of compensation, the Court may have to take into account the matters specified in Section 23.'
8. Therefore, the learned Counsel for the petitioner submitted that in view of the authoritative pronouncements of the Supreme Court and the Privy Council (AIR 1930 PC 64 and : [1964]3SCR382 supra) notwithstanding the fact that the petitioner had urged that Bamboo is to be treated as tree for the purpose of fixing the compensation in the pending reference under Section 18 of the Act, the decree to be passed in the said reference would be the subject, perhaps, to attack on the ground of lack of jurisdiction. Therefore, he invited this Court to decide this question.
On the other hand, the learned Government Pleader for Land Acquisition relied on the decision of this Court rendered in Writ Petition No.14010 of 1996 dated 26-3-1997 and the decision rendered by Supreme Court in Monanji v. State of U.P., JT 1995 (8) SC 599, submitted that the Civil Court would have necessary jurisdiction to deal with the issue acting under Section 18 of the Act, more particularly in view of the fact that the petitioner positively chose to raise the said ground even in the reference under Section 18 of the Act.
9. To resolve the problem, a look at the provisions of the Act is required. Section 3(a) of the Act defines the 'land' as follows:
'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.'
10. The Act provides for payment of compensation for the'land' which is acquired under the provisions of the Land Acquisition Act. If the owner or any other person who is interested on the land acquired is not satisfied with the compensation awarded. Section 18 of the Act, entitles such a person to seek a reference to the Civil Court for the purpose of determining the compensation payable towards the land acquired. However, as observed earlier in the two judgments of the Privy Council and Supreme Court, the language of Section 18 of the Act, restricts the scope of enquiry in the reference. The scope of the enquiry is limited to:
(1) the measurement of the land;
(2) the amount of compensation;
(3) the person to whom the compensation payable; and
(4) the apportionment of the compensation among the persons interested.
11. The question, is whether the dispute raised in the present case would eventually fall within the scope of Section 18 of the Act. To decide the question, a look at Section 23 of the Act is also necessary. Section 23 of the Act insofar as it relates to for the purpose, reads as follows:
'23. Matters to be considered in determining compensation :-- (1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration:
Firstly, the market value ofthe land at the date of the publication of the notification under Section 4, sub-section (1);
Secondly, the damage sustained by the person interested, by reason of the taking of any standard crops or trees which may be on the land at the time of Collector's taking possession thereof;
Thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land by reason of serving such land from his other land;
Fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, moveable or immoveable, in any other manner, or his earnings;
Fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any incidental to such change; and
Sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under Section 6 and the time of the Collector's taking possession of the land.'
12, A conjoint reading of Sections 18, 23 of the Act and the definition of the expression 'land' leads me to come to the following conclusions. The Court acting under Section 18 of the 'Act', may determine the objections of the 'person interested' which term includes the owner of the land. Among other things; such objection could be with reference to the amount of compensation payable to the owner whose land was acquired. Section 23 lays down the principles or factors which are to be taken into consideration by the Civil Court while dealing with the issue. Section 23 mandates that while determining the amount of compensation to be awarded for the land acquired under the provisions of the Act, the Court should take into consideration the market value of the land as provided therein. The Second factor which has to be considered by the Court is - the damages sustained by the 'person interested', by reason of taking standing crops or trees, which could be on the land at the time of acquisition or taking possession thereof. In view of the definition of the 'land' according to Section 3(a) of the Act, such standing crop or trees form part of the land for the purpose of Land Acquisition Act. Therefore, necessarily, the Court while adjudicating the issue under Section 18 of the Act is to consider the objections that a particular item, either standing crop or trees have not been taken into account while awarding compensation. However, the learned Counsel for the petitioner submitted that the scope of enquiry under Section 18 of the Act in the context is limited only to the extent that the item, standing crop or trees, is to be taken into consideration, but not whether the item, is either standing crop or trees. The learned Counsel submitted that such an enquiry in view of the decision of the Privy Council in Pramatha Nath's case (supra) is not permissible under Section 18 of the Act.
13. However, I am afraid, the submission of the learned Counsel for the petitioner cannot be accepted.
14. In Pramatha Nath's case (supra), the issue was whether a person seeking an adjudication of reference under Section 18 of the Land Acquisition Act 'for the determination of proper compensation', without objecting to the measurement of the land as determined by the Land Acquisition Officer, or without raising the issue as to the correctness of the same while seeking the reference, could agitate the issue of the correctness of the measurement before the Civil Court under Section 18 of the Land Acquisition Act. The Civil Court held that the only issue referred to it, was the amount of compensation and therefore the claimant was precluded from agitating any other issue. The said judgment was confirmed by the High Court and the Privy Council. While confirming the said judgment of the trial Court, the Privy Council observed that there is a distinction between the objection to the area and the amount of compensation. The claimant having failed to raise the objection as to the measurement of the land when sought the reference, is precluded from agitating any other issue.
15. If it is permissible, for the Civil Court acting under Section 18 of the Act togo into the question whether any damage is sustained by the 'person interested' by virtue of acquisition of the land alongwith standing crop or trees, I do not see logically why the Court should be precluded from going into the further question whether such a thing, atlached to the earth is either standing crop or trees. On the other hand, from the Judgment reported in Slate of Bihar v. Kundan Singh (supra) throws some light on this aspect, as follows:
'..... It does not appear that the ownerof property under acquisition may claim additional compensation on the ground that the portion of the property acquired so materially affects the value of the utility of his other property not acquired as to justify a claim for additional compensation under Section 23, and if such a claim is made, it would legitimately from the subject-matter of an enquiry in a reference under Section 18(1), but if the owner of the property wants to claim that the whole of his property should be acquired, and in that connection relies on the provisions of Section 49, tha't cannot be introduced in an enquiry under Section 18; such a claim must form the subject-matter of different proceedings taken by the owner under Section 40 itself.'
16. It can be seen that in view of clause (4) of Section 23 of the Act, the Civil Court would be entitled to go into the question where any damage sustained by the person interested by reason of acquisition injuriously effecting other property of the person interested etc., their Lordships declared that the owner of property under acquisition may claim additional compensation on the ground that the portion of the property acquired so materially affects the value or the utility of his other property not acquired, as to justify a claim for additional compensation under Section 23 and, if such a claim is made, it would legitimately form the subject-matter of an enquiry in a reference under Section 18(1) of the Act. In view of the said Judgment of the Supreme Court ( : [1964]3SCR382 supra), if a dispute falling within the scope of Clause 4 of Section 23, it could be the subject-matter of enquiry in the reference, I have no reason to think that the dispute falling within the scope of Clause '2', would be beyond the scope of enquiry under Section 18 of the Act. Apart from that their Lordships of the Supreme Court in Mohanji's case (supra) had an occasion to deal with a case where the land along with building was acquired for certain public purpose. For the purpose of determining compensation payable to the building, the matter was referred to the Public Works Department, Government of U.P., for their opinion. In view of the delay that occurred in obtaining the said opinion, the Land Acquisition Officer initially passed an award determining the compensation payable for the land component of the property acquired and subsequently a second or supplementary award was passed determining the compensation payable to the building existing on the said land after receipt of the opinion of the Public Works Department. The question arose whether both the above-mentioned awards are to be treated as one Award or different Awards for the purpose of computation of period under Section 11-A of the Act. Their Lordships held that earlier Award must be treated as the whole Award and later Award must be ignored for the purpose of Section 11-A for computing the time contemplated under Section 11-A and the earlier must be treated as an Award providing for the compensation for the land and with no award of compensation for the building, their Lordships held that:
'..... The appellants, therefore, had theright to claim compensation for the building by seeking a reference under Section 18 of the Act treating the award as one in which compensation had been determined and awarded only for the entire land measuring 0.99 acres but not compensation was awarded for the building therein. The appellants had the remedy to claim compensation for thebuilding in accordance with law treating the award made as not awarding any compensation for the building......'
17. Following the above Judgment, their Lordships of the Supreme Court in State of Punjab v. Shanpal Singh, 1995 (7) Scale 310, held that in a case where the land along with trees were acquired: and the compensation about the land component was determined initially and the compensation with regard to superstructure and trees to be decided by separate Award, held that the first Award was the complete Award within the meaning of Section 11 of the Act for the purpose of computation. Holding so, their Lordships also observed that the persons interested could have agitated the issue under Section 18 of the Act on the basis of the first Award and also entitled for the compensation to be paid on the superstructures and trees.
18. It follows from the above judgments that when the Land Acquisition Officer ignores or overlooks to take into account one of the components of the property taken, while computing the compensation, the Civil Court could still go into the question notwithstanding the fact that there was no award for that component of property acquired. If that is the legal position, it would logically follow that the Civil Court while deciding the dispute under Section 18 of the Act would have also necessary jurisdiction to decide about the characler and the nature of the components of the property which was acquired for determining the amount of compensation.
19. I am of the opinion that Ihe Civil Court while adjudicating the issue under Section 18 of the Act would be competent to go into the question whether the Bamboo is standing crop or trees for the purpose of determining the compensation as provided under the provisions of the Act.
20. For the above reasons, the writ petition is dismissed but in the circumstances without costs.
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