' A. V. AKHUND, J.-This is an appeal brought by the Land Acquisition Officer, Lower Sind Barrage, Hyderabad, respondent in Land Acquisition Suit No, 38 of 1965 of District Court, Hyderabad, against judgment and decree dated April 28, 1969, of an Additional District Judge, Hyderabad, who has decreed the claim for compensation in favour of applicant, Mirza Kamberali Beg, for Rs, 57,950 for his land acquired by the Government for Line ' Channel, Hyderabad, against Rs, 5,790.98 awarded by the Land Acquisition Officer, Lower Sind Barrage, Hyderabad, on April 1, 1964.
2. Brief facts are that S. Nos. 132/2 & 3 measuring 4 acres 8 ghuntas in Deh Ghanghro. Taluka Hyderabad, on unrestricted tenure, belonged to Mr. Kamberali Beg Mirza. P. W. D. Authorities on May 10, 1951, before resorting to the acquisition proceedings, took forcible possession of 1 acre 14 ghuntas of S. No, 132/2 and 1 acre 19 ghuntas of S. No, 132/3, in all 2 acres 53 ghuntas for the project of Line Channel between R. D. 33 to 38.
3. Some seven months thereafter, preliminary Notification No, 8-89- 3-E/51 dated 29th December, 1951 under section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) was issued, in respect of S. No, 132/2. Notice under section 9 of the Act was issued on 10th October, 1952, in respect of S. No, 132/2 to the respondent to state the nature of his interest and particulars of his compensation. Respondent filed objections on 30th October, 1953, claiming Rs, 5,000 per acre as compensation for the land acquired.
4. Twelve years after taking possession of the land in S. No, 132/3, preliminary Notification No, 88-5- J/63 dated 3rd April, 1963, under section 4 of the Act was issued in respect and by another notification dated 7th May, 1963, under section 9 of the Act, appellant invited claims for compensation. The respondent filed his claim on the 4th June, 1963, and claimed Rs, 15,000 per acre, plus Rs, 3,300 per each mango tree and Rs, 360 per annum for Zerdarkhti (ground produce).
5. By award dated February 27, 1967, the appellant awarded compensation to the respondent for the land acquired, namely, 2 across 33 ghuntas, Rs, 5,125, at the rate of Rs, 1,000 per acre, plus 15% on such value in consideration of compulsory nature of acquisition and 6} %interest from the date of possession actually taken, in all Rd. 5,790. The award was approved by the Assistant Revenue Officer, Left Bank. Ghulam Muhammad Barrage Project, Hyderabad, on 1st April 1963.
6. On 20th July, 1964, Mirza Zakir Hussain son of respondent accepted the amount of the award under protest.
7. On 16th April, 1964, the respondent made an application under section 18 of the Act of the Land Acquisition Officer-appellant, that as he did not accept the award, the matter be referred to- the Principal Civil Court of Original Jurisdiction to determine the amount of compensation, alleging that award was inadequate and unfair that the land acquired was productive garden land within municipal limits of Hyderabad, near Hyderabad Market . That in each acre of land there was about 40 fruit bearing mango trees ; that he claimed Rs, 15,000 per acre and Rs, 3,000 for each fruit bearing trees cut down by the P. W. D. Authorities, as compensation ; that the Land Acquisition Officer, did not give him opportunity to adduce evidence regarding evidence of mango trees, their number and value. The appellant made a reference to the District Court, Hyderabad, on the 13th November, 1964, which was admitted on 2nd March, 1961.
8. In the objections filed by the appellant to the reference he alleged that there were no trees on the land acquired and the respondent is not entitled to enhanced compensation.
9. The trial Court found it proved that the acquired and was garden land and there were about 100 fruit bearing mango trees as old as 9 to 10 years till the year 1951, when possession was taken over by the P. W. D. Authorities ; that the compensation awarded by the Land Acquisition officer at the rate of Rs, 1,000 per acre, on the basis of adjoining agricultural lands on which there were no fruit bearing or other trees, was inadequate ; that respondent Mirza Kanberali Beg could not claim compensation for the land on one hand and separately for the trees on the other hand ; that there were 48 fruit bearing mango trees in S. No, 132/2, out of which 27 trees were cut by the WADPA for which compensation was paid to the respondent, and there remained 21 trees which were cut by the P. W. D. Authorities each of which the Court valued at Rs, 2,400 on the basis of estimation that each would yield 12 maunds of fruit in each season which could be sold at the rate of Rs, 10 per maund which would have fetched Rs, 120 per year, and, in 20 years it could fetch Rs, 2,400 ; that the Court awarded to the respondent Rs, 6,750 as compensation for S. No, 132/2 as he claimed only Rs, 5,000 per acre as compensation for 1 acre 14 ghuntas-the land acquired in the survey number ; that there were 21 fruit-bearing trees in the land acquired in S. No, 132/3, when possession was taken by the P. W. D. Authorities, for which compensation awarded was Rs, 50,400 at the rate of Rs, 2,400 each tree, as against the claim of respondent Rs, 15,000 per acre and Rs, 3,0:0 for each tree ; that the respondent is further entitled to Rs, 800 for the loss of jawar crop.
10. Points to determine are :-
(1) Whether land acquired was garden land ? If so, how many fruit bearing trees were in the land when possession of it was taken by the P. W. D. Authorities.
(2) To what compensation is respondent entitled ?
10. In the award Exh. 5, in the comments of the Land Acquisition Officer on the claim of the respondent, the former admitted- ' However it is correct that it was garden land which is also supported by copy of cultivation details.
Cultivation details show it is a garden land and Bajri Barsim etc were also grown."
' This Form VI is maintained by Tapedar, and, Mr. Shamdas admits- "But in practice some of them note it and other do not It may be due to the negligence of Tapedar that numbers of trees were no mentioned for previous and subsequent years his explains why there were blanks left in Form VI, as some of Tapedar negligently omitted to enter the number of particular years.
12. Affidavit of Mirza Kanberali Beg Exh. 51 prove that there were l0 trees per acre in S. No, 132/2 and
3. His Manager Mirza Asif Ali Beg who looked after the garden of Mirza Kamber Ali Beg swears that there were very 100 trees in S. No, 132/2 and 3 as the trees were placed at the distance 36 feet from each other. Noor Muhammad, Exh. 53, Ismail Exh. 54, Hussain Exh. 55, who were lessees of Zerdarkliti produce of the acquired land, also expose that there were about 100 fruit bearing mango trees in the acquired and. Muhammad Hussain Exh. 60, clerk in Masu Sub-Division, has produced Garden Register Exh. 61, kept in the handwriting of Canal assistant, Ahmed Khan, who is dead, which proves that in. S, No, 132/2, here were 48 mango trees while in S. No, 132/3 there were 45 mango trees. 'here is no evidence to show that any of these trees were cut or removed the respondent before the P. W.
D. Authorities took possession of acquired and. Mr. Muhammad Hussain clerk in Massu Sub- Division, in para. 10 of is affidavit states- "That if at any time the mango trees of S. No, 132/1, 2 and 3 had been cut off or decreased, notice would have been issued to the owner and water supply cut off. That at no time to my knowledge has any notice been issued."
13. Out of 48 mango trees in S. No, 132/2, as per the entry in the garden Register Exh. 61, 27 mango trees seemed to have been left out by e P. W. D. Authorities at the time of taking over possession, which trees, 1961, were cut by WAPDA, for which the compensation was paid to e respondent. There were left 21 trees in S. No, 132/2 which the P. W. D. Authorities cut or removed when they took possession of the land. In No, 132/3, there were 45 mango trees, as per the Garden Register Exh.
61. Portion of this Survey number with 13 mango trees is a subject matter of separate land acquisition proceeding. 11 mango trees are still in existence the bank of the canal. There remained 21 trees in this Survey number which the P. W. D. Authorities cut off or removed while taking possession the land.
14. According to Mr. Shamdas, the Executive Engineer too possession the acquired land on 10th May, 1951, sent a report to the Land Acquisition car on 21st June, 1951, that there were no standing trees which were acted by acquisition. Predecessor of Mr. Shandas had visited the acquired d on 8th May, 1951. The names of the Executive Engineer and the n Land Acquisition Officer have not been disclosed. They have not en examined nor their affidavits are filed to prove that there were no it bearing or 5 other trees on the acquired land at the time of taking assession. The Revenue Surveyor who recorded measurements at site, also not examined to prove that there were no trees at the time of taking amusements. His name even is not disclosed.
' Thus it is proved beyond doubt that the acquired land is garden land d P. W. D. Authorities cut off or removed 21 mango trees each from Nos. 132/2 and 132/3.
15. Next question is. What should be the compensation for the acquired. No property is to be acquired without compensation being allowed L D 1972 Kar.
128. Compensation is quid pro quo and an equivalent terms of money for the land with a view to fully reimburse and remedy the loss for expropriation of the acquired land (PLD 1972 Lah. 225). Of talaq before Court and in presence of parties that his statement was correct, suit of his wife may be decreed-Court, after acceptance of offer by wife, recording statement of witness on oath and decreeing suit of wife-Such oath found to be common amongst people and locality of parties and not repugnant to justice or decency-Held, judgment passed by Court neither illegal nor suffering from lack of jurisdiction-No exception can be taken to such judgment. [pp. 566, 567]A et seq & B The principle pies laid down for determination of compensation, as clarified by the judicial pronouncements made from time to time, reflect the anxiety of the law give to compensate them who have been deprived of the property adequately enough in the sense that they are to be given gold for gold and not copper for gold. In other words compensation has to be adequate compensation. It is with this end in view that the association of the person interested in the property with the process of determination of its market value by the Collector is a high light of the Land Acquisition Act (PLD 1970 Lah. 321). In Municipal Council of Colombo v. Klima Manna Newanna Suna Lechiman Chettiar (I) their Lordships observed that the market value of the land acquired is the price which a willing vendor might be expected to obtain for his land in open market from willing purchaser.
16. In this case it is proved that the acquired land was garden land with fruit bearing mango trees.
The approved method for valuing such land is to capitalise its net income at the number of years purchase which has to be fixed with reference to the nature of trees and other circumstances (AIR 1950 Andh. Pra. 521) Fruit bearing trees likely to bear fruit for number of years should be valued at twenty years' annual rental V. K. Rajammal v. The Head Quarter Deputy Collector, Vellore (2) followed in AIR 1926 Mad.
945.
17. By virtue of subsection (1) of section 25 of the Land Acquisition Act 1894, when claim to compensation is made by person interested in the land acquired, the amount awarded to him shall not exceed the amount so claimed.
18. In the light of the preceding principles. I will examine the compensation awarded to the respondent by the Additional District Judge, Hyderabad.
19. It is proved that in each of the Survey Nos. 132/2 and 132/3, there were 21 fruit bearing mango trees, when acquired. Respondent Mirza Kamberali Beg in para. 26 of his affidavit. Exh. 51, deposed :- "That a Desi mango on the average bears from 12 to 25 mds. Of mangoes per year. The average price per maund of Desimango varied from Rs, 10 to Rs,
30. The income depends on the size, quality and quantity of the fruit. The total price computed at the lowest scale 12 maunds at Rs, 10 per maund will be Rs, 120 per year. Hence the produce in 20 years would be Rs, 2.400 which at lead should be the price of each trees cut."
' This statement has not been challenged in cross-examination by the appellant, nor has the appellant led any evidence to rebut what respondent stated about the market value of the trees.
The trial Judge, therefore, rightly relied upon the aforesaid calculation and came to the conclusion that Rs, 2,400 would be proper and adequate compensation, per single mango tree.
' Thus, compensation for each of the Survey Nos. 132/2 and 132/3 in each of which there were 21 mango trees at the rate of Rs, 2,400 per tree comes to Rs, 50,400.
20. Although the land in both S. Nos. 132/2 & 3 was taken possession on 10th May, 1951, Notification under section 4 of the Act in respect of No, 132/2 was issued on 29th December. 1951, while in respect of {{FOOT NOTE}}
(1) PLD 1947 P C 40 (2) (1914) 25 I C 393 {{FOOT NOTE}} ' S. No, 132/3, it was issued on 3rd April, 1963. In the award Exh. 5, in the claim filed for S. No, 132/2, respondent claimed Rs, 5,000 per acre as compensation. In his cross-examination respondent admitted :- "It is a fact that I had claimed Rs, 5,003 per acre as the compensation for the land acquired even before notification under section 4 was issued.
' Thus by virtue of subsection (1) of section 25 of the Act, the amount awarded by the Court shall not exceed the amount claimed by respondent, namely, Rs, 5,000 per acre in case of acquired land of S. No, 132/2. The land acquired in this Survey Number being 1 acre 14 ghuntas, the trial Judge correctly awarded compensation of Rs, 6,750.
21. As regards land acquired in S. No, 132/3 measuring 1 acre 19 ghuntas, the respondent claimed Rs, 15,000 per acre and Rs, 3,000 per each fruit bearing mango tree. In case of land which is covered by trees, the market value should be determined for the land including trees as a whole, and not by valuing the trees separately from the land for the land covered with trees cannot yield any usufruct independent of usufruct of the trees, and without trees such a land will have very little value. The proposition is supported in section 3 (a) of the Act which says that the word "land" includes standing trees (AIR 1962 Pat. 406). In Secretary of State v. Mehraf Din and another (1), it was held that the land which has been assessed as garden cannot also be assessed as agricultural land. At page 950, the Court observed :- "Therefore if the land is treated as agricultural land then it cannot be of much use as garden. In the same manner if the land is treated as garden it would not be useful as agricultural land because crops do not thrive in the shadow of the trees."
' The trial Court, therefore, rightly awarded Rs, 50,400 as compensation to the respondent only for 21 fruit bearing mango trees in S. No, 132/3 at the rate of Rs, 2,400 per tree, as against Rs, 3,000 per tree claimed by the respondent.
22. In the Award, Land Acquisition Officer, awarded to the respondent, compensation at the rate of Rs, 1,000 per acre. The reason given in the award is :- "There has not been any sale of the land itself but there have been sales of neighboring land viz. S. No, 89/1-20 in the year 1951 for Rs, 1500 per acre. There has also been sales of S. Nos. 243, 244 area 1-6 acre for Rs, 1,000 and S. No, 246 A B area 4-23 acres for Rs, 4,000 in the year 1961.
' Appellant has produced Exh. 11, extract showing that 1 acre 20 ghnnias of S. No, 80 was sold by one Mst. Rasti w/o Sanga Ladho for Rs, 1500, to Mirza Abid Hussain Beg on 14th November, 1951. The appellant has not produced any documentary evidence in respect of scales of S. Nos. 243, 244, 246-A and B, nor has he examined parties to the sales to show that the land was sold at a price mentioned in the award. However, respondent Mirza Kamberali Beg in pars 30 of his affidavit Exh.
24, has explained the following reasons which made Mst. Rasti to sell the land at such a price :- -"That one Mst. Rasti had lands in the neighborhood. At that time she sold her land as she was suffering from gangrene which had affected her thumb and hand and required money for treatment. Her {{FOOT NOTE}}
(1) AIR 1933 Lah. 948 {{FOOT NOTE}} ' sons had driven her out from the house, hence she sold her land at Rs, 1,700 per acre."
' There is no affidavit in rebuttal filed by the appellant. Thus there is no reason to disbelieve the affidavit of the respondent explaining the sale of S. No, 80 at Rs, 1,000 per acre. Besides the land acquired from the respondent is garden land, whereas the basis on which the Land Acquisition Officer has given the award is an agricultural land. There is no doubt that garden land fetches more value than an agricultural land. The award of Rs, 1,000 per acre of garden land in this case is, undoubtedly, inadequate.
23. The trial Court has awarded to the respondent Rs, 800 as compensation for the standing jawar crop in the acquired land which was damaged as a result of taking over possession by P. W. D.
Authorities. Ismail son of Dodo Exh. 54, and Hussain son of Dodo Exh. 55, who were working on the acquired land, when possession of it was taken by the P. W. D. Authorities, in their affidavit stated :- "That at the time of this incident, Jawar grass was growing on the land, grown by us which was cut down and spoiled we sustained a loss of about 400 or 500 for which Rais Asif All compensated us on behalf of the plaintiff."
' These affidavits are not rebutted by the appellant. The trial Court calculated the loss of cultivator's share as Rs, 400 plus Zamindari share Rs, 400, in all Rs, 800.
24. In the result, the appeal is dismissed with costs.