CHAND BAI BAJORIA Vs. THE COLLECTOR, VARANASI

JUDGEMENT

(1.) This appeal is directed against the judgment and decree of the Chairman, Nagar Mahapalika Tribunal, Varanasi dated 17-12-1967 in Reference No. 11 of 1955 awarding a sum of Rs. 80,663.55 to the claimant as compensation for acquiring the land of the claimant together with interest at the rate of 6 per cent per annum on the sum in excess of the amount already deposited with effect from the date of possession.

(2.) Portions of three plots with a total area of 2.38 acres (about 3 Bighas 16 Biswas) situate in village Bhadaini, Pargana Dehat Amana, district Varanasi were acquired for the Improvement Trust for project No. 3 of 1948-50 Bhelupur Housing and General Development Scheme. The notification under Sec. 36 of the Town Improvement Act was issued on 24-12-1949. The notification under Sec. 42 of the Town Improvement Act followed on 1-9-195) and possession of the land was taken on 10-3-1955. It may be noted at the very outset that about 10 Biswas of the land was covered by constructions and the remaining was a well-kept garden consisting of fruit and flower bearing trees. The acquired land was adjacent to the palatial building of the claimant Smt. Chand Bai Bajoria. The Land Acquisition Officer had awarded Rs. 5,601.25 as compensation for the land, Rs. 2,940 for trees, Rupees 20,642.25 for constructions and Rupees 2,000 as damages for severance. The claimant had asked for compensation of the land at the rate of Rs. 2,500 per Biswa. Dissatisfied with the award the owner applied for a reference under Sec. 18 of the Land Acquisition Act and before the Tribunal constituted under Sec. 371 of the U. P. Nagar Mahapalika Adhiniyam at Nagar Mahapalika, Varanasi the owner claimed Rs. 2,00,000 for the land, Rs. 28,251 for the constructions, Rs. 25,000 as severance charges and Rs. 25,000 for the trees. The Tribunal awarded compensation as follows:- <FRM>JUDGEMENT_97_LAWS(ALL)3_1979.html</FRM> The claimant was also awarded 15 per cent compulsory acquisition charges and interest at 6 per cent per annum on the amount awarded in excess of Its. 35,561.00 with effect from the date of possession. The Tribunal treated the alleged garden on the land as a garden for all intents and purposes and determined the compensation for the same on .the basis of the profits derived from the same. It did not award separate compensation for the land covered by the trees of the garden.

(3.) The contention of the learned counsel for the appellant is that the appellant was entitled to separate compensation for the land on which the trees and the garden stood and that this land should have been treated as a potential building site. The very first question, therefore, which falls for consideration is as to whether on the facts of this case the garden should be treated as a garden simpliciter or merely land on which the trees or the flower plants stood. The legal character or label which should be assigned to a property which is the subject-matter of acquisition would depend upon its predominant characteristics. In cases of orchards and gardens there are likely to arise two positions mainly. Firstly, a garden or orchard standing on a plot of land may constitute the principal value, of that property and may be actually utilised as a source of income. In that case it will be in the eye of law' a garden or orchard and nothing more. Secondly, a garden or orchard may be laid out only for purposes of embellishment of a nearby structure or buildings and it may not at all be used as a source of income. In that event the garden would not constitute the principal value of the property and the plot or land simpliciter will be the real subject-matter of acquisition in the eye of law. It is common knowledge that in the days of feudalism the rich used to maintain orchards and gardens quite often without any intention of deriving any profit from them or making them a source of income. They were places where periodically they used to repair for refreshment and repose. With the change of times that luxurious diversion has greatly dwindled but it has not completely disappeared. Even the prosaic and comparatively impoverished age in which we now live is not altogether devoid of some affluent and refined persons, howsoever few, who swear by the Baconian doctrine; 'God Almighty first planted a garden. And, indeed, it is the purest of human pleasures, or the Shevian aphorism: "The best place to seek God is in a garden. You can dig for Him there, and who seem to agree with Voltaire. "That is well said, replied Candide, but we must cultivate our garden". Obviously if gardens or orchards are cultivated and maintained with such non-mercenary motives, they cannot be treated as orchards or gardens 'simpliciter so as to justify determination of their value on the basis of the profits or income they are capable of yielding. In such cases they would merely be certain assets existing on the land the value of which has to be assessed as land 'simpliciter'. In other words, this would mean that it is only the value of the trees as timber and fuel and the price of the flower plants etc. which they would fetch which would be relevant for determination of the value and not their profit or income. In the instant case the claimant led evidence which leaves no room for doubt that the orchard or the garden and the flower plants were never treated as sources of income. The primary character of this property was land and the garden or orchard was secondary. Ganpat Sharma (P.W. 1), Managing Director of the appellant, categorically stated that the flowers were not sold and if the fruits and flowers had been sold, they would have fetched a price of Rs. 4000.00 5000.00 and Rs. 2000.003000 annually respectively. Likewise Sheo Prasad (P.W. 2). a gardener of eminence inasmuch as he had served as a Mali of the Maharaja of Vizianagram for about forty-five years and used to assist Jokhan, who looked after the garden in question, also deposed from personal knowledge that the fruits and flowers of the gardens would fetch Rs. 2500.00 or 3000.00 annually, if sold. Thus, the witnesses examined by the claimant have scrupulously stated that the fruits and flowers were not sold and they only gave their estimate of the price which they would have fetched if they were actually sold. A list of the annual income raised and the total valuation of the fruits and flowers was filed as Exhibit 9 in the case. Relying on the past evidence the Tribunal accepted the figure Rs. 2,500.00per year as profits of the garden and after making a deduction of Rs. 500.00 per year as costs of maintenance, the Tribunal arrived at the figure of Rupees 2000.00 as the annual profits of the garden and multiplying this by 20 the Tribunal arrived at the figure of Rupees 40,000.00 which represented the value of the entire garden, including the constructions and their site. In our opinion, if the contention of the appellant is accepted, namely, that the land on which the garden stood was to be treated as a building site, to which question we shall shortly turn, it will not be correct to fix the value of the garden on the basis of the profits derived from it. The income from the garden accrued by virtue of the trees and plants existing on the land and in such case the land is also a component part of the garden whose income is determined. There cannot be any justification for separately valuing the land in such case and at the same time fixing the value of the trees etc. by taking into account their profits. This will result in duplication of values. As we have already observed, it is the principal character of the property which would be conclusive on the question as to whether it should be treated on the facts of the case as a garden or orchard simpliciter in which case the value would be ascertained by considering the profits or income, or it should be treated as 'land simpliciter and the value of the trees etc. may be added to the value of the land. We are fortified in the view that we are taking by several authorities. In the State of Madras Vs. Alamelutha-yammal, AIR 1970 Mad 184 the earlier decision of the same court reported in AIR 1924 Mad 252 Thereesamma Vs. Deputy Collector , Cochin was affirmed and the contention that the claimants were entitled to the value of the trees on the footing that they were fruit-bearing trees was rejected as untenable, because the basis of the claim was that the lands were valued as building sites and the claimant could not also have the advantage which they would be entitled to only if the lands had been dealt with as agricultural land. It was pointed out that what had been awarded to the claimants was an inclusive price and that they could not be heard to say that the trees should be separately assessed as fruit-bearing trees. To the same effect is the Division Bench decision of the Karnataka High Court in Land Acquisition Officer, Tumkur Vs. T. S. Aswathanarayana Rao, AIR 1974 Kant 112 . It was held therein that when a cocoanut garden, areca garden or mango garden was acquired, the proper method of valuation was not to value the land separately and trees separately, but to consider the market value of the cocoa-nut garden or the like. It was also held that separate compensation could not be awarded for fruit growing trees standing on the land acquired. Hence if we accede to the appellants contention that the land should be treated as building site we cannot in law allow the compensation to be assessed on the. basis of the profits or the income derived from the garden. In that case only, the price of the fruit bearing trees or the flower plants can be taken into consideration. Ganpat Sharma (P.W. 1) proved Exhibit 9 which is a list of fruit bearing trees and plants with their value and trees and plants not bearing fruits. Thus, there is un-controverted evidence on record and nothing has been shown to us which may persuade us to reject this evidence. According to Exhibit 9 the total value of the trees and plants not bearing fruits is Rs. 554 and the total value of the flower plants is Rs. 936. As regards the list of the fruit bearing trees and plants barring a few exceptions, it merely gives the annual income or profits derived from the trees or plants and not the price of the trees and plants. There is, however, some overlapping in the list and the three items in this list, namely, Aam, Ber, (Plum), Jamun and Bel (Kagji) occur in the list of trees and plants not bearing fruits also. Hence, the price of these items indicated therein can also be safely taken into account and the total value of these plants comes to Rs. 600. On this basis the total value works out at Rs. 2090. The Land Acquisition Officer, however, fixed the value of the same at Rs. 2,940. For want of specific evidence with regard to the timber of the remaining trees etc. we are satisfied that the figure arrived at by the Land Acquisition Officer was correct and should be adopted.