1. The land of the Cross-objector bearing Gat No. 38 admeasuring 3.95 HR located at village Ridhora, Tahsil and District Nagpur came to be acquired for Wadgaon Dam under Lower Vena Project. Notification under Section 4 of the Land Acquisition Act, 1894 (for short, ‘the Act’) was published in the Official Gazette on 27/4/1995, which is last date of publication. The Land Acquisition Officer has passed Award dated 30/4/1997 under Section 11 of the Act. The Land Acquisition Officer has awarded compensation of Rs.1,78,186/- for the land, Rs.47,985/- for pipe-line, Rs.6039/- for a structure standing on the land and Rs. 4,86,316/- for the trees. It will be pertinent to mention here that there were 375 orange trees in a portion admeasuring 1.22 HR land acquired from the Cross-objector.

2. As stated above, the Land Acquisition Officer passed Award dated 30/4/1997. The Cross-objector made an application seeking reference under Section 18 of the Act, since he was not satisfied with the amount of compensation awarded by the Land Acquisition Officer. Accordingly, reference was made to the Civil Court, which came to be registered as Land Acquisition Case No. 154 of 2005.

3. The Cross-objector/land owner did not raise any dispute with respect to rate of the land. The grievance was with respect to valuation of the trees, principally, orange trees. It may be stated that the perusal of paragraph 12 of the reference application, wherein particulars of the claim are mentioned indicates that the Cross-objector had sought enhancement of compensation only for 375 orange trees, 3 Ajan trees and 15 Teak trees and in addition, sought compensation for the electric motor-pump and pipe-line. However, thereafter at the stage of final hearing, the Cross-objector filed a pursis vide Exhibit-29 restricting the claim for enhancement in compensation for orange trees only.

4. The Appellant/Acquiring Body filed its written statement and justified the compensation awarded by the Land Acquisition Officer. Apart from that, issues were raised with respect to limitation and acceptance of amount of compensation without protest.

5. Based on rival pleadings, the learned Reference Court framed issues in the matter. The Cross-objector examined himself and one Dadan Harbaji Borkar, Valuer, who has given valuation of fruit bearing trees standing on the acquired land. The Appellant did not lead any evidence in the matter.

6. The Cross-objector has reiterated the facts stated in the reference application in his evidence. However, since the dispute pertains to valuation of orange trees, the evidence of Valuer is significant. Mr. Dadan Borkar, Valuer has stated in the Valuation Report dated 20/10/1995 (Exhibit-14) that he had visited the agricultural land of the Appellant on 15/10/1995. He states that when he had visited the field, orange trees were bearing fruits. He has stated that provision was made for irrigation by means of 3.5 HP electric motor-pump for drawing water from Vena river and a pipe-line of 300 feet was also laid. The orange trees are valued at Rs.5481.22/- per tree. The price of oranges is taken at Rs.5.75/- per kilogram and average yield of each orange tree is taken at 125 kilograms per year. He has stated that the age of orange trees was around seven years. The height and girth of the trunk of tree is recorded as 4.5 meters and 0.5 meters respectively. The Valuer has estimated gross income of each tree at Rs.718.25/- per annum and has thereafter made deduction of Rs. 25/- per tree for the cost of cultivation and further deduction of Rs.71.90/- towards profit of cultivator. Accordingly, he has derived net income from each tree at Rs.621.85/-. Considering the future age of trees as 20 years, he has applied multiple of 8.804 towards ‘Years Purchase’ and thus, arrived at capitalized value of each orange tree at Rs.5474.98/-. The fuel value of tree is arrived at Rs.6.23/-, and accordingly, net compensation payable for each tree is determined at Rs. 5481.22/-.

7. While considering the evidence of the Valuer, the learned Reference Court has observed that the material, on the basis of which, the Valuation Report was prepared, was not produced by the Appellant or the Valuer for perusal of the Court and the authenticity and genuineness of the material was also not proved. It is observed that the basis, on which the age of all orange trees was determined at seven years, was also not clarified by the Valuer in his report and also in his examination-in-chief. Likewise, it is also observed that the basis for determining annual yield of each tree was also not mentioned by the Valuer. In the light of above, the Reference Court has deemed it appropriate to not accept the report of the Valuer/PW-2 Mr. Dadan Borkar.

8. However, the learned Reference Court has considered Circular dated 27/12/1990 and other guidelines issued by the Government for valuation of fruit bearing trees. The learned Reference Court has also accepted the version of the Cross-objector that there were 375 orange trees standing on the acquired land and the age of the said trees was seven years, since these statements made in the examination-in-chief of the Appellant and the Valuer were not challenged during the course of cross-examination.

9. The learned Reference Court determined the compensation for each orange tree at Rs.3406/-, Rs.362/- for the first year and Rs. 3044/- for the subsequent years after full growth. Accordingly, compensation for the orange trees was fixed at Rs.12,77,250/- (3406 x 375). Accordingly, the learned Reference Court passed Judgment and Award dated 30/3/2019 granting compensation of Rs.12,77,250/- for 375 orange trees.

10. The VIDC/Acquiring Body has filed the present Appeal challenging the said Judgment and Award. At the outset it needs to be mentioned that point of limitation and acceptance of compensation without protest are not argued by the Appellant. Ms. Athalye, learned Counsel for the Appellant has contended that the learned Reference Court has not applied the parameters for valuation of orange trees properly. She also contends that the deduction taken into consideration by the learned Reference Court for upkeep and maintenance of the trees is very low.

11. She also contends that once the trees are valued by following income capitalisation method, separate compensation cannot be awarded for the land. According to her, income capitalisation method gives market value for the trees along with land. She argues that since the orchard is extending over a portion of land admeasuring 1.22 HR, separate compensation cannot be awarded for the said portion of land.

12. Per contra, Ms. Rai, learned Counsel for the Respondent No.1/Cross-objector contends that the only evidence that is available on record with respect to valuation of trees is of PW-2 Mr. Dadan Borkar, who is a renowned Valuer. She states that the evidence of the Valuer examined by the Cross-objector is relied upon by the learned Reference Courts and also by this Court in serval cases. She contends that the Appellant has not led any evidence to the contrary, and therefore, evidence of PW-2, the Valuer examined by the Cross-objector should be accepted.

13. The learned Counsel for Cross-objector further contends that the controversy in the matter pertaining to valuation of orange trees is already covered by the three Judgments of this Court. She has placed reliance on the Judgments in following Appeals, decided by this Court, determining compensation for lands bearing fruit bearing orange trees in the same village which were acquired under the same Land Acquisition Case, under which the land in the present Appeal was acquired, wherein based on the Valuation Report of Mr. Dadan Borkar, who is also examined as Valuer in the present case, compensation for each orange tree is granted at the rate of Rs.5000/- per tree :

Sr. No.	First Appeal No.	Date of Judgment
1.	269/2010	05.06.2023
2.	419/2006	11.12.2023
3.	434/2004	11.12.2023

14. Apart from this, she has contended that compensation @ Rs.2,50,000/- should be awarded for the land since the land is perennially irrigated land. She has referred to the judgments to demonstrate that compensation at the said rate is awarded for perennially irrigated lands in the same village which are acquired under the same notification.

15. Having heard the rival submissions following points arise for my consideration:

"(i) What should be the valuation of orange trees

(ii) Should separate compensation be awarded for the land in view of compensation awarded by adopting income capitalisation method If yes, at what rate

(iii) What should be the compensation awarded for the acquired land which is not covered by orange orchard "

AS TO POINT NO. (i) :

16. The principal contention of the cross-objector with respect to compensation for trees is based on the aforesaid judgments of this Court.

17. All these judgments are pertaining to acquisition of lands bearing orange trees in the same village which were acquired under the same notification issued under Section 4. In all these cases, Mr. Dadan Borkar is examined as expert witness.

18. It is, therefore, necessary to consider the said judgments.

JUDGMENT DATED 5/6/2023 IN FIRST APPEAL NO. 269/2010 :

I. In this case, the Valuer had valued the orange trees at Rs.4110/- per tree. A Division Bench Judgment in First Appeal No.699/2015 was cited in this case. It was noticed that compensation in First Appeal No. 699/2015 was awarded at the rate of Rs.5000/- per orange tree and the land acquired in the said case was from the same village and was acquired under the same Notification. In view of the above, a contention was raised that compensation for orange trees should be awarded at the same rate i.e. Rs.5,000/- per tree. However, having regard to the fact that the Valuer had valued orange trees at Rs.4110/- per tree, this Court granted compensation for each orange tree at the rate of Rs.4110/-.

JUDGMENTS DATED 11/12/2023 IN FIRST APPEAL NOS. 419/2006 AND 434/2004 :

II. Both the Appeals are decided on 11.12.2023. In both these Judgments reliance is placed on the Judgment in First Appeal No. 699/2015, and applying the principle of parity, compensation for each orange tree was fixed at Rs.5000/-. It will be pertinent to mention that the lands forming subject matter of these Appeals were also from the same village and were acquired under the same Notification.

JUDGMENT DATED 14/12/2020 IN FIRST APPEAL NO. 699/2015 :

III. This is a Division Bench Judgment pertaining to lands bearing orange trees in the same village which were acquired under same Notification. Compensation for each orange tree is awarded at the rate of Rs.5,000/- per tree. The Judgment places reliance on another Judgment delivered in First Appeal No. 676/2005, pertaining to compensation for orange trees in adjoining village Isapur, wherein compensation was awarded at the rate of Rs.5000/- per tree.

JUDGMENT DATED 15/1/2018 IN FIRST APPEAL NO. 676/2005 :

IV. This is the basic Judgment which is relied upon in First Appeal No. 699/2015. Perusal of the said Judgment indicates that Section 4 Notification in the said case was issued on 29/3/1998. The Award was passed by the Land Acquisition Officer on 26/12/2000. Mr. Dadan Borkar, who is Valuer in the present case, as also in all the cases referred above, was examined as expert Valuer in the said case. He had valued the orange trees at Rs.6211/- per tree. The Reference Court has awarded compensation for each orange tree at the rate of Rs.5000/-. The said rate was maintained in the Appeal by this Court.

19. The three judgments relied upon by the learned Counsel for Cross-objector/land owner are based on the Division Bench Judgment in First Appeal No. 699/2015. Perusal of Division Bench Judgment in First Appeal No. 699/2015 will demonstrate that compensation at the rate of Rs.5000/- per tree was awarded, placing reliance on the Judgment in First Appeal No. 676/2005.

20. However, it appears that inadvertently the fact that Judgment in First Appeal No. 675/2005 is pertaining to land acquired in the year 1998 was not brought to the notice and kind attention of the learned Division Bench. If compensation was to be awarded at the same rate despite a gap of three years between the Section 4 Notifications in the two cases, the learned Division Bench would have certainly recorded the reasons for the same. However, perusal of the Judgment does not disclose any reason for awarding compensation at the same rate despite a gap of three years in Section 4 Notification in the two cases. It can, therefore, be inferred that the learned Division Bench has granted compensation at the same rate due to oversight.

21. The Judgment in First Appeal No. 976/2015 is delivered by a Division Bench, which will normally have to be followed. It also needs to be mentioned that the principle of parity should be followed while awarding compensation in land acquisition cases.

22. Principle of parity is judicially recognised in land acquisition cases. This principle of parity is followed for valuation of trees as well in the case of D. Eswara Naidu V/s The Special Deputy Collector (Land Acquisition) (2019) 13 SCC 785. A contention was raised before the Hon’ble Supreme Court that with respect to lemon trees standing on acquired lands, compensation @ Rs.4000/- was granted in a particular case, and therefore, the same rate should be applied for lemon trees on lands acquired under the same Notification. In this context, the Hon’ble Supreme Court has observed in paragraph 5 as under :

“5. Needless to say that in case, similarly situated persons covered under the very same notification have been granted, compensation at the rate of Rs.4000/- per Lemon tree, the petitioners herein may not be discriminated on the ground of delay”

Therefore, there cannot be any dispute that principle of parity needs to be followed for valuation of trees as well.

23. However, since the principle of parity is sought to be applied on the basis of a judgment, it is necessary to consider judgments of the Hon’ble Supreme Court in the matters of Ranbir Singh and others V/s Union of India (2005) 12 SCC 59 and Babibai Babu Patil V/s State of Maharashtra and others 2017 SCC OnLine SC 2130, wherein it is held that a Judgment in the earlier case pertaining to compensation awarded is merely a piece of evidence and is required to be evaluated and examined as such. It cannot be followed as a precedent.

24. In this regard, since reliance is placed on the Judgments of this Court, which also have a precedential value, it will be appropriate to clarify that the ratio flowing from the said Judgments will have to be followed as a precedent, however, the factual aspect of the Judgments relating to valuation will have to be appreciated as an evidence and not as binding precedents.

25. The principle of parity, which is the ratio of the Judgments relied upon by the Cross-objector, will have to be accepted. However, parity can be applied when all parameters are same or similar. Factual aspects of the matters cannot be ignored while applying principle of parity, else it may result in promoting disparity.

26. It needs to be reiterated that in the light of Judgments of the Hon’ble Supreme Court in the matters of Ranbir Singh and Babibai Babu Patil (supra), the said Judgment will have to be looked upon as a piece of evidence, and therefore, unless factual aspects on the basis of which the rate is determined in the said case come to the fore, it will not be safe to rely upon the said Judgments in order to apply principle of parity.

27. As stated above that the Judgments granting rate of Rs.5000/- per tree for the lands acquired in the year 1995 placing reliance on an earlier Judgment where the rate of Rs.5000/- per tree is granted with respect to acquisition of land in the year 1998. There is a gap of three years in between the two acquisitions. In my considered opinion, it will, therefore, not be safe to grant compensation at the rate of Rs.5000/- per tree, as has been granted due to oversight in the earlier cases, relied upon by the learned Counsel for the Cross-objectors.

28. Since the compensation cannot be awarded by following principle of parity in view of the reasons recorded above, it is necessary to evaluate the evidence to determine compensation payable for the orange tree.

29. As noted above, the learned Reference Court has discarded the Valuation Report. The learned Reference Court has recorded that the Valuer has not produced the material on the basis of which valuation of trees is done. It is also recorded that although the age of orange trees is mentioned seven years, the method by which the age is determined is not mentioned. The learned Reference Court also refers that the Valuer has not asserted to actual annual yield of orange trees and has merely taken figures from textbooks. Based on these observations, the learned Reference Court has recorded that the Valuation Report relied upon by the Respondent/land owner is not based on any scientific evidence and concrete material. The learned Reference Court has, therefore, discarded the Valuation Report.

30. Before dealing with the Valuation Report, it is necessary to briefly discuss the Judgments of the Hon’ble Supreme Court which prescribe as to how evidence of an expert Valuer should be evaluated and appreciated.

31. The learned Counsel for Cross-objector contends that the evidence of Valuer is relied upon by this Court in the four Judgments which are relied upon by her. She also places reliance on the Judgment of this Court in the matter of VIDC V/s Champatrao 2020(4) Mh.L.J. 297, wherein this Court has accepted evidence of the Valuer, Mr. Dadan Borkar, observing that he was undisputedly an Horticulture Expert, whose evidence is accepted by this Court in several matters. She argues that it will not be proper to discard the evidence of the Valuer in view of the fact that the Appellant has not brought any evidence on record to the contrary.

32. As against this, the learned Counsel for Appellant places reliance on paragraph Nos. 13 and 14 of the Judgment of the Hon’ble Supreme Court in the matter of Executive Engineer, M.I.W., V/s Vitthal Damodhar Patil (2019) 7 SCC 225 to contend that the evidence of Valuer will have to be assessed in every case independently and only because the evidence of Valuer is accepted and relied upon in one case would not mean that it should be accepted in each and every case.

33. She then places reliance on the Judgments in the matter of Special Land Acquisition Officer V/s Sidappa 1995 (Supp) 2 SCC 168 and State of Himachal Pradesh V/s Jailal (1993) 7 SCC 280 to contend that unless Valuer satisfies that he has gathered relevant factual data, the Valuation Report cannot be relied upon and that report of Valuer is not binding on the court and is only a piece of evidence, which may or may not be accepted. She then refers to the Judgment of this Court in the matter of Narayanlal V/s State 2012 (1) Mh.L.J. 642 to contend that even in the absence of proper cross-examination, Valuation Report in land acquisition cases cannot be accepted mechanically.

34. The Hon’ble Supreme Court has held in the matter of Sidappa (supra) that before placing reliance on the Valuation Report of his Valuer the Court must satisfy itself that the opinion formed by the Valuer is on the basis of relevant factual data or material. Such material is required to be produced before the Court. The material must be proved to be genuine and reliable as any other evidence. The Court must be satisfied with respect to authenticity and reliability of the material on which the expert relies. It is held that the Court must examine the data or the material, on the basis of which, the Valuation Report is prepared before placing reliance on the Valuation Report. Similar view is taken in the matter of Jailal (supra). It is held that an expert is not a witness of facts and his evidence is only advisory in nature. The Court may seek guidance from the opinion of the expert. However, the conclusions drawn by the expert are not binding. The opinion must be based on relevant material and it is open for the Court as to whether the opinion is given on the basis of any relevant material to support the observation/findings/conclusions arrived at by the expert.

35. In the matter of Narayanlal (supra) it is held that even in the absence of proper cross-examination of an expert in land acquisition cases, the Court must exercise due care and caution in placing reliance on the evidence of expert. It is the duty of the Court to examine whether the opinion of expert inspires confidence, having regard to the material, on which the opinion is based and the principles of which opinion is formed. This Court has referred to the Judgment of the Hon’ble Supreme Court in the matter of P. Ram Reddy and Others V/s Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad and Others, (1995) 2 Supreme Court Cases 305 wherein it is held that ineffective cross- examination of the witness is a common feature in land acquisition cases. Having regard to the manner, in which land acquisition cases are defended by the State, it is held that the evidence of witnesses in land acquisition cases cannot be accepted simply because there is no effective cross-examination or evidence in rebuttal is not led by the State. The evidence of witnesses examined by the land owners must be evaluated on broad probabilities. It is held that it is the duty of the Court to prevent public money being fleeced only because of failure on the part of State to contest land acquisition cases properly.

36. In the light of above decisions, it has to be held that an expert is not a witness of facts; his evidence is in the nature of an opinion; the opinion is not binding on the Court and the Court has to independently examine and assess the opinion. An expert, while he submits his report to the Court for consideration, must place before the Court entire material on the basis of which he arrives at the opinion given to the Court. It is the duty of the Court to assess the opinion in the light of the material relied upon by the Valuer. The Court may, as well, decide as to whether the opinion of Valuer is based on any relevant material.

37. The contention of the learned Counsel for Appellant with respect to the rates of oranges is liable to be rejected, since it is duly proved vide document at Exhibit-20 and there is no evidence to the contrary brought on record by the Appellant.

38. However, as regards the annual yield, the contention of the learned Counsel for Appellant will have to be accepted. In this regard, it is pertinent to mention that the Valuer has stated in the Valuation Report itself that when he had visited the field on 15/10/1995, the orange trees were bearing fruits. It was expected of the Valuer to make a fair and reasonable assessment of the yield based on his physical inspection and verification. However, he has refrained from doing so. The Valuer should also have asked the Cross-objector/land owner to produce documents relating to sale of oranges. The Valuer has also not done so. He has taken the annual yield of orange trees at 125 kgs per annum based on the text-book. It will be pertinent to mention here that the reference books or extracts thereof are not placed on record. The contents thereof are not proved. It is, therefore, difficult to place reliance on the Valuation Report with respect to the alleged annual yield of orange trees.

39. It will be pertinent to mention that in all connected matters i.e. First Appeal Nos. 27/2016, 28/2016, 962/2022, 504/2023, 679/2023 and 302/2023, he has taken the annual yield of orange trees at 125 kgs per annum. This uniformity indicates that he has not made actual assessment of the yield, but has simply given report based on some text-book.

40. Apart from this, the Valuer has mentioned that the age of trees was seven years. He has recorded that height of all trees was 4.5 meters and their girth was 0.45 meters. It will be pertinent to mention here that in other connected matters also the Valuer Mr. Dadan Borkar has mentioned the age of trees as seven years and height and girth of all trees as 4.5 meters and 0.45 meters respectively. This uniformity in the age, height and girth cannot be a mere co-incidence. The Valuer has recorded that the fruit bearing life of orange trees is 25 years and probably, therefore, he has mentioned the age of trees in all cases as seven years. It will be pertinent to mention that orange trees start bearing fruits from the age of five to six years and the optimum yield is expected from seven years and onwards. It appears that in order to compute maximum value in all the cases, he has mentioned the age of tree as seven years. It will be pertinent to mention that he has not given any explanation, on the basis of which, he has determined the age of the trees. It is reiterated that the uniformity with respect to height and girth in all cases is also surprising.

41. Having regard to the aforesaid, I am of the opinion that the learned Counsel for Appellant/Acquiring Body is right in submitting that the Valuation Report cannot be relied upon, in as much as, it is not worthy of any credence. The learned Counsel for Appellant/Acquiring Body is justified in placing reliance upon the Judgments as referred above.

42. The Valuer is obviously a remunerated witness. Although the testimony of remunerated witness cannot be discarded, solely on the ground that his services are engaged by one of the parties to the lis and he receives fees for the opinion given, in the case at hand, there is sufficient material on record to discredit the PW-2 Dadan Borkar, the Valuer. The report of Valuer does not inspire confidence. There is good material to discredit the Valuer. His intentions do not appear to be bona fide. It will not be safe to place reliance on his report. In view of the above, the Valuation Report is liable to be discarded.

43. The Valuer has made deduction of Rs.25/- per year towards the cost of cultivation. This deduction appears to be inadequate. He has also not taken into account the deduction towards labour charges of plucking and packing fruits, packing material, transportation charges and brokerage. It needs to be mentioned that around 20% of gross annual income is generally deducted against the above heads in order to arrive net annual income from each orange tree.

44. As stated above, in the present case, the material on the basis of which opinion regarding valuation is made, is not produced on record. He has not made independent assessment of annual yield on inspection of the orchard or even on the basis of documentary evidence relating to sale of oranges by the Cross-objector. The opinion with respect to annual yield is based on the certain text books, which are not filed on record. Likewise, the expenses towards several factors are not taken into consideration at all and even deduction for cost of cultivation appears to be grossly inadequate.

45. The learned Reference Court, having discarded the Valuation Report, has proceeded to value the trees in view of the guidelines issued by the State Government. The learned Reference Court was justified in placing reliance upon the Circular dated 27/12/1990. The said Circular is relied upon in several land acquisition appeals by this Court for the purpose of determination of annual yield of orange trees. The Circular dated 27/12/1990 states that annual yield of fully grown orange trees is between 40 kg. to 90 kg. The learned Reference Court has taken average of the annual income. The average annual yield should be 65 kg. (40+90 = 130/2= 65). However, the learned Reference Court has taken average yield as 75 kg. It will be pertinent to mention that the annual yield of 75 kg. is not taken into consideration on conscious application of mind. It is an inadvertent mistake. The learned Reference Court has recorded that it will be proper to take average of the annual yield as mentioned in the Circular dated 27/12/1990, however, while making the calculations, instead of 65 kg. yield, 75 kg is erroneously considered. Therefore, calculations must be made taking into account annual yield as 65 kg. instead of 75 kg. In view of the above, gross income from each orange tree as per the above Circular will be Rs. 375.75/- (Rs.5.75/- x 65 kgs).

46. In order to arrive at net annual income, deductions will have to be considered. The learned Reference Court has made 20% deduction towards expenses for upkeep and maintenance, manual, fertilizers, pesticides, labour charges, brokers commission etc. The said deduction of 20% is upheld in the following cases, and therefore, no fault can be found with the deductions made by the learned Reference Court on account of expenses:

"(i) Chindha Fakira Patil V/s S.L.A.O. (2011) 10 SCC 787;

(ii) Narayan Kapase V/s State of Maharashtra, 2020 (5) Mh.L.J. 391; and

(iii) The Judgment dated 26/10/2015 passed by this Court in First Appeal No. 2356/2016."

47. In view of 20% deduction, the net annual income of each tree will be at Rs.299/- (gross income of Rs.373.75/- minus 20% deduction i.e. Rs.74.75/-).

48. In order to arrive at the amount of compensation by income capitalization method appropriate multiplier of ‘years purchase’ will have to be considered. Normally, multiplier between eight to ten years is considered as an appropriate multiplier by the Hon’ble Supreme Court as also by this Court. In the present case, the Valuer has adopted the multiplier of 8.804. It will, therefore, safe to adopt multiplier of 9 which is the average of eight to ten years, which is generally considered by the Courts and also in close proximity with the multiplier adopted by the Valuer. In the light of above, the compensation of each tree is calculated as under :

"(i) Gross income : Rs.5.75/- x 65 kg = Rs.373.75

(ii) Expenses (20% of gross income) : Rs.74.75/-

(iii) Net annual income : Rs.299/-

(iv) Value by income capitalization : Net Annual Income Rs. 299/- x years purchase of 9 years = Rs.2691/-.

(v) Add wood value : Rs.6.236/-

(vi) Total value : Rs. 2697.236 (Rounded of to Rs.2700/-)

(vii) Value of 375 trees : Rs. 10,12,500/-"

49. There is no dispute with respect to value of other trees and cost of electric pump and PVC pipeline as determined by the Land Acquisition Officer. It will be pertinent to mention here that claim for enhancement with respect to valuation of other trees and pipeline was given up vide pursis at Exhibit-29 filed before the learned Reference Court. Likewise, no arguments were canvassed for enhancement of compensation for other trees and pipeline during the course of hearing of the present Appeal. Therefore, value of other trees, pump and pipeline as determined by the Land Acquisition Officer will have to be accepted.

AS TO POINT NO. (ii) :

50. The question that now arises is whether the compensation payable for an orchard determined by adopting income capitalization method is for the value of trees alone or for value of the land along with the trees.

51. Ms. Rai, the learned Counsel for Respondent No.1/Cross-objector has raised a contention that the learned Reference Court has granted compensation only for trees standing on the land bearing Survey No. 221. She contends that apart from the compensation for trees, the learned Reference Court ought to have awarded compensation for land. She contends that the land owner cannot be deprived of his land without making payment of compensation for the same. In support of his contention that separate compensation should be paid for the land and the trees, he places reliance on Section 23(1) of the Land Acquisition Act as also on the Judgments of the Hon’ble Supreme Court in the matter of Ambya Kalya Mhatre (Dead) through LRs. and Others V/s State of Maharashtra (2011) 9 SCC 325 and Bhupendra Ramdhan Pawar V/s VIDC (2021) 12 SCC 58. She states that when valuation of an orchard is made on the basis of comparable sale instance of a land not bearing fruit bearing trees, compensation has to be awarded firstly for the land and thereafter separate compensation is required to be paid for the fruit bearing trees on the land. She states that as regards the land bearing Survey No. 221, the learned Reference Court ought to have awarded compensation for the land treating it to be a dry crop land and thereafter the compensation should have been awarded for the trees as well. The sum and substance of the contention is that value of the trees and land will have to be added to the value of land in order to compute compensation payable for Survey No. 221, which is an orchard.

52. In the matter of State of Haryana V/s Gurcharan Singh and Another 1995 (Supp) 2 SCC 637, the Hon’ble Supreme Court has held as under:

“3. 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. The compensation is to the value of the acquired land. The market value is determined on the basis of the yield. Then necessarily applying suitable multiplier, the compensation need to be awarded. Under no circumstances the court should allow the compensation on the basis of the nature of the land as well as fruit bearing trees. In other words, market value of the land is determined twice over and one on the basis of the value of the land and again on the basis of the yield got from the fruit bearing trees. The definition of the land includes the benefits to arise from the land as defined in Section 3(a) of the Act. After compensation is determined on the basis of the value of the land from the income applying suitable multiplier, then the trees would be valued only as fire-wood and necessary compensation would be given.”

53. In the matter of Ambya Kalya Mhatre (supra) a contention was raised before the Hon’ble Supreme Court that once compensation is awarded for an orchard, additional or separate compensation cannot be awarded for the trees standing on the land. The contention was raised placing reliance upon the Judgment of the Hon’ble Supreme Court in the matter of Gurcharan Singh (supra). The Hon’ble Supreme Court, after considering the said Judgment, has held as under:

“35. We are afraid that the High Court has misread the said decision in regard of valuing the land and trees separately. If the land value had been determined with reference to the sale statistics or compensation awarded for a nearby vacant land, then necessarily, the trees will have to be valued separately. But if the value of the land has been determined on the basis of the sale statistics or compensation awarded for an orchard, that is land with fruit-bearing trees, then there is no question of again adding the value of the trees. Further, if the market value has been determined by capitalizing the income with reference to yield, then also the question of making any addition either for the land or for the trees separately does not arise. In this case, the determination of market value was not with reference to the yield. Nor was the determination of market value in regard to the land with reference to the value of any orchard but was with reference to vacant agricultural land. In the circumstances, the value of the trees could be added to the value of the land.”

54. Perusal of the aforesaid quotation will indicate that the Hon’ble Supreme Court has expressed that when the value of land is determined with reference to the sale statistics or compensation awarded for a vacant land, then the trees are required to be valued separately and additional compensation is required to be paid for the trees. This is required to be done in case where the comparable sale instance pertains to the vacant land. However, if the comparable sale instance is with respect to orchard having fruit bearing trees, then the value of trees cannot be added separately. Most importantly, the Hon’ble Supreme Court has held that in cases where the market value is determined by the income capitalization method on the basis of yield, in that case also making addition either for the land or for the trees separately will not arise. In the matter before the Hon’ble Supreme Court, the market value was not determined by the income capitalization method i.e. with reference to yield of the orchard. Likewise, the market value was also not determined on the basis of a comparable sale instance of an orchard. In such circumstances, the Hon’ble Supreme Court has held that value of the trees can be added to the value of the land. The Hon’ble Supreme Court has, however, categorically stated that when determination of market value is done by the income capitalization method, separate valuation for land and trees is not permissible.

55. The ratio of Award in the matter of Ambya Kalya Mhatre (supra) is that if the market value of land comprising of orchard is done by following sale exemplar method by referring to sale instance pertaining to vacant land, then the trees will have to be valued separately and compensation for the trees will have to be added to the market value of the land in order to determine the total amount of compensation payable. However, the said Judgment does not state that in the cases where market value is of an orchard, is determined by following income capitalization method, separate compensation should be awarded for the land on which the trees are standing. The Judgment rather prohibits it.

56. It will be pertinent to mention that in view of the aforesaid Judgments of the Hon’ble Supreme Court, if compensation for land is computed on the basis of income capitalization method, separate compensation cannot be awarded for the land. The income capitalization method gives market value of the land with the trees standing on it. However, if the land having fruit bearing trees is valued by following comparable sales method, relying upon sale instances of open land, then the trees can be valued separately. However, in view of clear exposition in the matter of Ambya Kalya Mhatre (supra), the trees will have to be valued only as fire-wood or timber and in no case the valuation of trees can be made by yield/income capitalization method. The Hon’ble Supreme Court has held that if the compensation is awarded for the land based on sale instance method and thereafter the trees standing thereon are valued by income capitalization method, then the land owner will get benefit of valuation of the land twice over, which is impermissible in law.

57. The principle that land cannot be valued twice over is also categorically laid down by the Hon’ble Supreme Court in the matter of Koyappathodi M. Ayisha Umma V/s State of Kerala (1991) 4 SCC 8, wherein in paragraph No. 6 of the Judgment, it is held as under:

“6. It is thus settled law that in evaluating the market value of the acquired property, namely, land and the building or the lands with fruit bearing trees standing thereon, value of both would not constitute one unit; but separate units; it would be open to the land acquisition officer or the court either to assess the lands with all its advantages as potential value and fix the market value thereof or where there is reliable and acceptable evidence available on record of the annual income of the fruit bearing trees the annual net income multiplied by appropriate capitalisation of 15 years would be the proper and fair method to determine the market value but not both. In the former case the trees are to be separately valued as timber and to deduct salvage expenses to cut and remove the trees from the land. In this case the award of compensation was based on both the value of the land and trees. Accordingly the determination of the compensation of the land as well as the trees is illegal. The High Court laid the law correctly.”

58. Perusal of the above Judgment will indicate that the Hon’ble Supreme Court has accepted that when valuation of orchard is required to be done, the land and trees can be treated as separate units. In such cases, the Land Acquisition Officer can assess the land with all its advantages and fix the market value having regard to the potential of land. Alternatively, in cases where the credible evidence with respect to net annual income of fruit bearing trees is available, market value of orchard can be determined by applying appropriate multiplier of capitalization to the net income. It is however, emphasized that both methods cannot be adopted. It is held that when the trees are to be valued separately, then they must be valued as wood/timber. This judgment again clarifies the legal position that when separate value is to be awarded for land and fruit bearing trees, the valuation can either be by income capitalization method or by following comparable sale instance method and not both and further even if trees are required to be valued separately, only timber value of tree i.e. wood value of tree can be taken into consideration.

59. It will be pertinent to mention here that the said Judgment states that appropriate multiplier for income capitalization should be 15, however in subsequent Judgments the appropriate multiplier is reduced between 8 to 10. It is now well settled that in no case the multiplier can be more than ten years.

60. A Division Bench of this Court in its Judgment dated 15/12/2009 in First Appeal No. 700/1993 and other connected matters has examined this aspect in great detail, by taking into consideration almost all the judgments of the Hon’ble Supreme Court on the point and has reaffirmed the legal principle that when the market value of land having fruit bearing trees is determined by income capitalization method, the land owner is not entitled to receive separate compensation for the land, since the same will tantamount in valuing the land twice over and awarding the compensation twice by income capitalization method and also by sale exemption method. The same legal principle is reiterated by another Division Bench in the matter of Naresh Samirmal Kotecha V/s State of Maharashtra 2021(1) AIR Bom.R.622 and State of Maharashtra V/s Damu Gorade 2009 SCC OnLine Bom.1296. Similar view is taken by the learned Single Judge in the case of State of Maharashtra V/s Dharma Kana Katekar in First Appeal No. 414/2005 decided on 3/5/2016.

61. As regards the Judgment in the matter of Bhupendra Ramdhan Pawar (supra) relied upon by the Cross-objector, the said Judgment also refers to the Judgments in the matter of Gurcharan Singh and Ambya Kalya Mhatre (supra). The Judgment does not deviate from the legal principle laid down in the said cases. It will be pertinent to mention that in the said case, compensation was determined by the sale instance method. The comparable sale instances relied upon were pertaining to open agricultural lands. Therefore, value of trees was directed to be paid separately in addition. The said Judgment is distinguishable, because the Hon’ble Supreme Court has not directed the payment of compensation of land in addition to compensation computed by following income capitalization method. The said judgement does not lay down a legal principle or ratio that when valuation of an orchard is done by income capitalisation method, separate compensation needs to be awarded for the land. The ratio of Gurcharan Singh and Ambya Kalya Mhatre (supra) that orchard land cannot be valued twice over is not disturbed by this Judgement. The Hon’ble Supreme Court does not hold that the land should be valued twice over.

62. In this context it will be profitable to quote the paragraph 14 of the judgment as under :

“14. Admittedly, for 2 hectares of land, compensation has not been awarded and it is not disputed that the land value has been determined with reference to sales statistics and this Court in Ambya Kalya Mhatre held that in a case where the land value has been determined with respect to the sales statistics, the trees will have to be valued separately.”

63. The Judgment in the matter of Bhupendra Ramdhan Pawar V/s VIDC (2021) 12 SCC 58, therefore, is not an authority for the proposition that even when compensation for an orchard is awarded by following income capitalization method, separate compensation should be awarded for the land. Bhupendra’s case (supra) does not alter the legal position set out in the matter of Ambya Kalya Mhatre, wherein in paragraph 35 it is held as under:

“Further, if the market value has been determined by capitalising the income with reference to yield, then also the question of making any addition either for the land or for the trees separately does not arise.”

At this juncture, it needs to be reiterated that in the present case the learned Reference Court has computed market value of orchard by following income capitalisation method.

64. It will be appropriate to refer to the Judgment of the Hon’ble Supreme Court in the matter of Bhavnagar University V/s Palitana Sugar Mill Pvt. Ltd., and Others (2003) 2 SCC 111, wherein it is held as under :

“A decision, as is well-known, is an authority for which it is decided and not what can logically be deduced therefrom. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.”

65. Thus, Bhupendra’s case cannot be considered to be a precedent for the proposition canvassed by the cross objector that separate compensation should be awarded for land and trees even when compensation for orchard is determined by income capitalization method.

66. As regards interpretation of 2nd clause of Section 23, which states that compensation is also payable for trees in addition to the land, it needs to be mentioned that the provision will apply where the compensation is determined by sale exemplars method of an open land. In cases where compensation is determined for an orchard by adopting income capitalization method, there cannot be any doubt in the light of the above judgments of the Hon’ble Supreme Court that the compensation determined includes compensation for both land and trees. Therefore, question of granting separate compensation for land or trees will not arise, when compensation is determined by income capitalization method. The submission of the learned Counsel is, therefore, liable to be rejected.

67. Ms. Rai, the learned Counsel for Respondent No.1/Cross-objector has placed reliance on a Single Bench Judgment of this Court in the matter of Pramilabai V/s State of Maharashtra 2018(3) Mh.L.J. 787. In the said case, the market value of irrigated land having fruit bearing trees was determined by following sale instance method, placing reliance on the sale exemplar with respect to dry crop land. In this backdrop, this Court has held that the land owner was entitled to receive separate compensation for the land and the fruit bearing trees. The ratio of the said Judgment cannot be interpreted to mean that when compensation for orchard is awarded by income capitalization method, separate compensation should be paid for the land.

68. The learned Counsel for Cross-objector has placed reliance on another Division Bench Judgment of this Court in the matter of Ratnamalabai Madhukar Daulat V/s State of Maharashtra 2020 D.G.L.S. (Bombay) 667, wherein separate compensation is held to be payable for the land and trees, since the market value of land was determined by relying upon sale instance of dry crop land not having fruit bearing trees. However, this Judgment does not disturb the legal position as settled by the Hon’ble Supreme Court.

69. Both these judgments do not disturb the legal position as settled by the Hon’ble Supreme Court. They do not lay down that market value can be determined twice over by income capitalization method as also by sale instance method.

70. It will be pertinent to mention here that although separate compensation for fruit bearing trees is awarded in the Judgment dated 22/2/2019 in First Appeal No. 418/2016 passed by this Court, the number of trees in the said case was very less, and therefore, the land could not be classified as orchard. Since the land was not an orchard, separate compensation was awarded for the trees.

71. While appreciating the ratio of above Judgments, it is necessary to bear in mind the legal principle with respect to interpretation of the Judgment laid down in the matter of Dalbir Singh V/s State of Punjab (1979) 3 SCC 745, wherein it is held as under :

“22. …........... According to the well settled theory of precedents every decision contains three basic ingredients:

“(i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct or perceptible facts;

(ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and

(iii) judgment based on the combined effect of (i) and (ii) above.”

For the purposes of the parties themselves and their privies, ingredient (iii) is the material element in the decision for it determines finally their rights and liabilities in relation to the subject-matter of the action. It is the judgment that estops the parties from reopening the dispute. However, for the purpose of the doctrine of precedents, ingredient (ii) is the vital element in the decision. This indeed is the ratio decidendi. (R.J. Walker & M.G. Walker : The English Legal System. Bultterworths, 1972, 3rd Edn., pp. 123-24.]. It is not everything said by a Judge when giving judgment that constitutes a precedent. The only thing a Judge’s decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. Int he leading case of Qualcast (Wolverhamption) Ltd. Vs. Haynes, it was laid down that the ratio decidendi may be defined as a statement of law applied to the legal problems raised by the facts as found, upon which the decision is based. The other two elements in the decision are not precedents. The judgment is not binding (except directly on the parties themselves), nor are the findings of facts. This means that even where the direct facts of an earlier case appear to be identical to those of the case before the court, the Judge is not bound to draw the same inference as drawn in the earlier case.”

72. It will be pertinent to mention here that above view is delivered in the dissenting Judgment. However, the legal principle above is not the dissent. The same view is quoted with approval by the Hon’ble Supreme Court in the matter of Jayant Verma Vs. Union of India (2018) 4 SCC 743.

73. In all the Judgments quoted above, the ratio laid down in the matter of Gurcharan Singh and Ambya Kalya Mhatre (supra) that the land cannot be valued twice over, is not doubted. None of the Judgements hold that even if an orchard is valued by following income capitalisation method, separate compensation should be awarded for the land.

74. In view of the above legal position, I am of the considered opinion that the Cross-objector is not entitled to receive separate compensation for the land by sale instance method. Since the compensation is computed by the learned Reference Court by income capitalization method, the compensation includes compensation for both, the land and the trees. Compensation computed by income capitalization method will not be the compensation for trees alone, it will be composite compensation for both, the trees and for the land.

75. It is true that if compensation for an orchard is determined by following sale exemplars method and the sale exemplars are with respect to open agricultural lands, separate compensation needs to be awarded for the trees. However, separate compensation for the trees cannot be computed by following income capitalization method. If compensation for trees is computed by following income capitalization method then the compensation so determined will be compensation for the orchard i.e. land along with the trees. In the present case, while awarding compensation for the trees, the learned Reference Court has computed the same by following income capitalization method. In this backdrop, reference needs to be made to paragraph 35 of the Judgment of the Hon’ble Supreme Court in the matter of Ambya Kalya Mhatre (supra), wherein it is held as under :

“Further, if the market value has been determined by capitalizing the income with reference to yield, then also the question of making any addition either for the land or for the trees separately does not arise.”

76. In the light of above, it is held that the Cross-objector/land owner is not entitled for separate compensation of land for the 1.22 HR land, which is an orchard. The compensation derived by income capitalization method will include compensation for trees as well as the land. In the light of computation of value by income capitalization method as aforesaid, the total compensation payable for 1.22 HR land will be Rs.10,12,500/- + value of other trees as determined by the Land Acquisition Officer.

AS TO POINT NO. (iii) :

77. The total area of acquired land is 3.95 HR. As noted above, the 1.22 HR land is covered under orchard. The remaining land is 2.73 HR. As mentioned above, the claim before the learned Reference Court was restricted only to valuation of orange trees. The Cross-objector/land owner did not seek any enhancement in the amount of compensation awarded for the land. Having given up the claim, now the Cross-objector/land owner have claimed compensation for the land at the rate of Rs.2,50,000/- per hector. The Cross- objectors have placed reliance on the Judgment dated 22/2/2019 passed by this Court in the matter of S.L.A.O. V/s Suryabhan Bandu Nagpure in First Appeal No.418/2006. The said judgment pertains to the lands at same village, acquired for the same project under the same Notification. In the said Judgment, compensation for an irrigated land is awarded at Rs.2,50,000/- per hectare. Now it is well settled that market value of perennially irrigated land is generally considered to be twice the market value of dry crop land and market value of seasonally irrigated land is considered to be one and half times the market value of dry crop land. Thus, the market value of dry crop land, as per aforesaid Judgment, will be Rs.1,25,000/- per hectare.

78. The 7/12 extract filed on record indicates that there is an entry regarding water being drawn for the acquired land from river. Compensation is also awarded for pipeline, which indicates that the irrigation facility was available. However, there is no evidence to suggest that the river has water all throughout the year. Likewise, the 7/12 extract demonstrates only one crop was being taken in Kharip Season. The Cross-objector/land owner has not brought on record any evidence to demonstrate cultivation of land in Rabi season. In the light of above, the land needs to be treated as seasonally irrigated land.

79. In view of the aforesaid Judgment dated 22/2/2019 delivered in First Appeal No. 418/2006, the compensation for acquired land needs to be awarded at the rate of Rs.1,87,500/- per hectare. The area of acquired land excluding the orchard is 2.73 HR. Therefore, compensation of Rs.5,11,875/- is payable for the said land.

80. It will also be pertinent to mention that, although the Cross- objector/land owner did not seek enhancement of compensation for the land before the Reference Court, it is now well settled that a land owner is only required to raise a grievance in the reference stating that he is not satisfied with the amount of compensation. The land owner is not required to quantify the claim. Likewise, it is also well settled that it is the duty of the Reference Court as also the Court entertaining Appeal under Section 54 of the Land Acquisition Act, 1894 to award adequate compensation. In view of the legal position as aforesaid, although the land owner did not seek any additional compensation for the land and had restricted the claim only for orange trees, appropriate compensation will have to be awarded for the acquired land.

81. In view of the above, the Appeal and Cross Objection are disposed of in the following terms :

ORDER

(1) First Appeal No. 285/2022 is dismissed. The Cross Objection No.19/2023 is partly allowed.

(2) The Cross-objector/land owner will be entitled to sum of Rs.10,12,500/- towards total compensation for 1.22 HR land in Gat No. 38 of village Ridhora, Tahsil and District Nagpur. This amount will include the compensation for the trees and land. Separate compensation will not be payable for 1.22 HR land.

(3) The total compensation payable for 2.73 HR land in Gat No. 38 of village Ridhora, Tahsil and District Nagpur is determined at Rs. 5,11,875/-.

(4) The Cross-objector will not be entitled to receive interest on the amount of Rs.5,11,875/- for the period of 122 days i.e. period of delay in filing Cross Objection in view of the order dated 10/3/2023 passed on the application for condonation of delay in filing Cross Objection.

(5) In addition to this, separate compensation will be payable for the electric water pump, pipe-line, structure and trees, both fruit bearing trees and forest trees except orange trees at the rate determined by the Land Acquisition Officer in the Award dated 30/4/1997 passed under Section 11 of the Act of 1894.

(6) The operative order in the Judgment and Award dated 30/3/2019 passed by the learned 14th Joint Civil Judge, Senior Division, Nagpur in Land Acquisition Case No. 154/2005 is modified in aforesaid terms.

(7) Parties to bear their own costs.

(8) The office is directed to prepare Decree/Award accordingly.