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Judgment
The above two appeals u/s 54 of the Land Acquisition Act, 1894 (in short "the Act") are by the claimant and the State respectively as against the award passed on 23.12.1997 by the Civil Judge (Sr. Division), Dharamgarh in M.J.C. No. 40 of 1996 on the basis of reference made by the Land Acquisition Collector. For the sake of convenience, we describe the appellant in First Appeal No. 99 of 1998 as the Claimant and the appellant in First Appeal No. 157 of 1999 as the Opposite Party.
Both the appeals are heard analogously on consent of both the parties and disposed of by this common judgment.
Ac. 0.41 decimals of land was acquired from the possession of the claimant as per the Government''s Notification No. 24580 dated 29.5.1993 published in Extraordinary Gazette No. 871 dated 3.7.1993. The said land was acquired for canal purpose under Upper Indravati Project. Opposite Party determined compensation '' Rs. 10,000/- (rupees ten thousand) per acre and passed the award u/s 11 of the Act for a sum of Rs. 4,100/- (Rupees four thousand one hundred) towards value of the land and a cost of Rs. 10,480/- (rupees ten thousand four hundred eighty) towards cost of excavation of tank over plot No. 505 and award was accordingly passed u/s 11 of the Act. The Claimant claimed for higher compensation and accordingly raised protest to the said award. Reference was thus made to the Civil Judge (Sr. Division), Dharamgarh u/s 18 of the Act. In the said Court both the parties adduced evidence. The Claimant examined four witnesses including himself as P.W. No. 4 and relied on Exts. 1 to 4, out of which Ext. 1 is the report of a retired Junior Engineer relating to the cost of excavation and Exts. 3 and 4 are two receipts in proof of purchase of fish-seeds. Opposite Party examined two witnesses, who are respectively the Revenue Inspector and the Land Acquisition Officer and relied on the documents marked Exts. A to F. Out of the same Ext. E is the report of the Executive Engineer and Ext. B is the true copy of the sales statistics. On assessment of such evidence Learned Civil Judge (Sr. Division) rejected the claim of the Claimant that the acquired tank existed on Ac. 0.96 decimals of land and because of acquisition of the aforesaid Ac. 0.41 decimals of land the remaining portion of the tank have become useless. He also rejected the high cost of excavation claimed by the Claimant. Learned Civil Judge similarly rejected the valuation of the land as determined by the opposite party and held that in the absence of any evidence regarding proof of contemporary market price of the acquired land, it was proper to adopt the method of capitalization to determine the compensation. In that process, after making a thorough analysis of the evidence adduced by the parties he found that the net income of fish from the tank of Ac. 0.41 decimals was five quintals a year and '' Rs. 20/- per Kg. the gross income comes Rs. 10,000/- (rupees ten thousand) and on deduction of the investment of Rs. 1500/- per annum for the saplings and rearing of fish the net income comes to Rs. 8,500/- (rupees eight thousand five hundred). By adopting 5 multipliers on that amount he found the compensation to be Rs. 42,500/-. On the other hand, by assessing the cost of excavation he found such cost to be Rs. 31,400/-. Therefore, taking these two figures into consideration he rationalized the same by fixing the compensation at Rs. 35,000/- (rupees thirty five thousand). While doing so learned Civil Judge held that said Rs. 35,000/- shall be in addition to the amount of Rs. 4,100/- which was determined as the price of the land by the opposite party. Learned Civil Judge also decided that Claimant is entitled to all statutory benefits under the Act. Accordingly he passed the impugned award.
The Claimant advances the contention that on the face of the evidence of P.Ws. and the report-Ext. 1 the award passed by Learned Civil Judge is grossly inadequate and the Claimant is entitled tot he cost of excavation as per the report, Ext. 1. Learned Counsel for the claimant-appellant alternatively argues that even if accepting the calculation in the method of capitalization, in this case the multiplier should have been 16 times of net annual income in accordance with the ratio in the case of the Executive Director v. Sarat Chandra Bisoi and Anr. AIR 2000 SC 2619. Accordingly he argues to enhance the compensation.
Learned Counsel for the State, on the other hand, argues that the report-Ext. E being an undisputed document showing a cost of Rs. 10,000/- and odd towards the cost of excavation of the pond over plot No. 505, Learned Civil Judge was wrong in granting compensation on both the plots by treating the same as part of the same tank. He further argued that dimension of the tank being small, the amount of income would not have been five quintals, of fish and therefore the net income could not have become Rs. 8,500/-. He further argues in reply to the contention of the claimant regarding 16 multiplier by placing reliance on the case of Airports Authority of India Vs. Satyagopal Roy and Others, and Satpal Kapoor Vs. State of Punjab, , and submits that in a case of this nature 8 multiplier is appropriate.
On perusal of the evidence on record, the findings recorded by the Trial Court via-a-vis the above noted arguments of the parties, we find that the determination of the fact by the Court below relating tot he extent of land, its use as tank, and the claimant was carrying on pisci-culture in that tank are based on sound appreciation of evidence and therefore such finding is not disturbed. Contention of the opposite party that the market value, as available from Ext. B, should have been accepted by the Civil Judge is not sustainable because no sales statistics is available on record relating to value of a tank. The Two plots acquired from the possession of the Claimant was being possessed as a tank is supported from the evidence of the opposite party, i.e., the report Ext. E. So, once that becomes the fact situation and the opposite party having not considered that aspect at the time of determination of valuation, therefore, Learned Civil judge was justified in rejecting the methodology adopted by the opposite party in determining the valuation of the land in respect of the award u/s 11 of the Act.
On perusal of the evidence, we find that a net income of five quintals of fish per annum from a tank comprising of an area of Ac. 0.41 decimals is neither unreasonable, unjust, improper nor devoid of evidence. Therefore, we also do no. disturb that finding of the Trial Court. Price per quintal of fish '' Rs. 20/- per Kg. in 1992-93 has remained unchallenged. Therefore, the gross income comes to Rs. 10,000/- and on deduction of Rs. 1500/-towards expenditure the net income comes Rs. 8,500/-. Such finding of the Trial Court being very unreasonable, we also do not disturb that finding. Indeed, in the case of The Executive Director (supra) the Apex Court approved the 16 multiplier adopted by this Court relating to agricultural land. In the case of Airports Authority of India and Satpal Kapoor (supra) the Apex Court has laid down the ratio that in case of agricultural land the multiplier should be 12 and in case of horticulture or orchards the multiplier should be 8. In this case the land under acquisition being not for agriculture but it being used for pisci-culture, we follow the ratio in the latter two decisions for adopting 8 multiplier. In that process we find that the market value of the acquired tank comes to Rs. 8,500/- x 8 = Rs. 68,000/- (rupees sixty eight thousand) and the claimants are entitled to that compensation along with other statutory benefits under the Act. The Apex Court, in the above-cited decisions, have deprecated the practice of providing compensation twice, i.e., one by capitalization method of the usufructs and the second one on the valuation of the land. Therefore, we find that the Learned Civil Judge has gone wrong in allowing cost of the land at Rs. 4,100/- in addition to the aforesaid compensation in method of caiptalization. In other words, the compensation, which the claimant is entitled to, is Rs. 68,000/- (rupees sixty eight thousand) towards the cost of the land besides the solatium, etc. as admissible under the Act.
In view of the aforesaid decision, First Appeal No. 99 of 1998 of the Claimant is allowed in part and First Appeal No. 157 of 1999 filed by the opposite party is dismissed. Under the given facts and circumstances, we direct the parties to bear their respective cost of litigation so far as this forum is concerned.