Dayaprakash Trikambhai vs Special Land Acquisition Officer, Baroda

Sheth, J.

* * * * *

A short, but an interesting question arises in this appeal.

The notification u/s 4(1) of the Land Acquisition Act, 1894 was published in the Government Gazette on 3rd September, 1958. In pursuance of

a notice, issued u/s 9 of the Act, the appellant-claimant filed his claim statement on 20th August, 1959. At that time, on the land under acquisition

he had not planted the plantain plants. The award was given by the Land Acquisition Officer on 10-11-1959. The possession of the Land was

taken on 5-12-1959, i.e. after the award. The Land Acquisition Officer had made the Panchnama at the time of taking possession of the land. That

Panchnama is Ex. 40 of 29-11-1959. It means that the Panchnama was also made after the award was declared. At that time, the Panchnama of

the standing crops was made. The Panchnama reveals that there were 2,000 plants of plantains standing on the land under acquisition, and the

possession of the land alongwith those plants was taken. The claimant-appellant, in the reference application that came to be made, had claimed

compensation for the damages caused to him on account of taking possession of the land with the standing crops. He has stated therein that the

income therefrom would have been to the extent of Rs. 9,000. No doubt, he laid that claim, stating it to be one of the grounds in support of his

total claim of Rs. 12,000/- and odd. The learned trial Judge observed in para 10 of his judgment, in regard to this claim, as under.

The claimant has led evidence regarding the loss of the crop of plantains in the land. There were plantain plants nearly two months old when

possession was taken on 5th December, 1959. Already the award had been passed on 10th November, 1959 and hence, naturally the claimant

did not claim any amount before the Land Acquisition Officer on this ground u/s 9 of the Land Acquisition Act. There was no crop when the

notification u/s 4 was published. Hence, the claimant is not entitled to any compensation for the crop as compensation for the land itself. He can

claim compensation only u/s 23 ""Secondly"". But from the application for claim it is clear that he has not claimed anything for the crop of plantains.

He has paid court-fee only for the additional compensation claimed for the land itself. He has been paid only the costs of cultivation while taking

possession. No doubt, he would be entitled to claim the loss he suffered because he could not harvest the crop. He has-examined an expert who

has estimated that the yield from 3,000 plants would have been 1,42,500 punds of plantains (Ex. 47) assuming that there were 3,000 plants on the

land. The expert Chandulal Chhotalal (Ex. 45) did not actually see the crop but he only examined the soil and other factors. Moreover, his estimate

is about average cultivation. He admits that the cultivation of the field in question was below average. Hence the yield that the claimant would have

Rot would have been definitely much less than what the expert states. It is in evidence that the rate of the unripe plantains was Rs. 2-4-0 to Rs. 3-

0-0 per maund. According to the claimant, there were 3,000 plants. In the Panchnama made by the Government (Ex. 40), the number of plants is

stated to be 2,000. There is no satisfactory evidence to prove that there were 3,000 plants. The claim of the claimant for the crop of plantains is

Rs. 9,000. The amount he would have been entitled to, to my mind, would not have been more than Rs. 3,000. However, as already stated as he

has not paid the Court-fee stamp for the claim and as he has not actually made any claim on the ground, he is not entitled to any compensation for

the plantain plants that were standing on the land when possession was taken. It should be noticed that in the application for the claim, in paragraph

3, the fact about there being 3,000 plantain plants on the land is mentioned only as one of the grounds for claiming Rs. 12,650 for the land itself.

The question for consideration before us as contended by the learned Assistant Government Pleader, Shri Sompura, was that as no such claim was

made by the claimant-appellant before the Land Acquisition Officer, and no specific contention has been raised in that regard before the Land

Acquisition Officer, no objection on that basis could be raised in the Court in the reference that came to be made u/s 18 of the Land Acquisition

Act. In short, his argument was that the reference being not an independent judicial proceeding, the question for consideration in that reference

could be against the question agitated before the Land Acquisition officer and no fresh question could be agitated in the reference that be made u/s

18 of the Land Acquisition Act. In support of his argument, he invited our attention to a decision, reported in 57 Bom LR 934, in Special Land

Acquisition Officer Bombay City and Bombay Suburban District v. Kalyanji Dewji Dharsi. The learned Advocate, Shri Patel, appearing on behalf

of the claimant, contended that the claimant had put forward a total claim of Rs. 12,000 and odd. In support of his claim, one of the grounds

mentioned was that at the time of taking possession, there were 3,000 plantain plants standing on the land under acquisition. If the possession had

not been taken with those standing plants, he would have got an income of Rs. 9,000 therefrom. That was the ground, no doubt, taken up by him

as shown in that reference application in support of his claim made for Rs. 12,000 and odd. He contended that the possession having been taken

after the award was declared and as these plants were not existing or standing at the date of notification u/s 4(1) of the Act, was published, no

question arose for laying the claim before the Land Acquisition Officer. He, therefore, contended that the ratio of the decision cited by the learned

Assistant Government Pleader cannot be pressed into service. Before we advert to the decision cited by the learned Assistant Government

Pleader, we first propose to refer to several important sections for understanding the scheme of the Land Acquisition Act, 1894.

The material part of Section 9 of the Act runs as under:--

9(1) The Collector shall then cause public notice to be given at convenient places on or near the land to be taken stating that the Government

intends to take possession of the land, and that claims to compensation for all interests in such land may be made to him.

(2) Such notice shall state the particulars of the land so needed, and shall require all persons interested in the land to appear personally or by agent

before the Collector at a time and place therein mentioned (such time not being earlier than fifteen days after the date of publication of the notice),

and to state the nature of their respective interests in the land and the amount and particulars of their claims to compensation for such interests and

their objections (if any) to the measurements made u/s 8. The Collector may in any case require such statement to be made in writing and signed by

the party or his agent.

A perusal of this Section indicates that on receipt of a notice under that Section the person interested has to state the nature of his respective

interests in the land and the amount and particulars of his claim to compensation for such interests and to file objections (if any), regarding the

measurements. It will be significant to note that in the instant case, at the time the notification u/s 4(1) was issued, there were no such plants

standing on the land under acquisition. It transpires from the evidence of the claimant''s power of attorney holder, Ex. 32 that they were not even

standing on the date, the claim was made by the claimant before the Land Acquisition Officer on receipt of notice, issued u/s 9 of the Act. If these

crops or the plants were standing on the land under acquisition at the date of publication of Section 4(1) of the Act, the claim would have been

covered in his claim made for the compensation for the land itself. As that was not the position, that claim could not have been covered in the claim

made for the land itself. As these plants were not standing on that date as well as on the date, the claimant laid the claim before the Land

Acquisition Officer, in pursuance of the notice u/s 9 of the Act, he could not have given the particulars of the claim and could not have valued that

interest of his. The obvious reason being that they were not existing on that date and eventually, no occasion could arise for evaluating that interest

of his. It also transpires from the evidence that these plants were about 1 1/2 months old at the time, the Panchnama, Ex. 40 came to be made, and

it was made after the award was declared. The question for consideration is, therefore, as to whether in the absence of any claim made in that

regard prior to the declaration of the award, this claim could be made in the reference application that came to be made u/s 18 of the Act.

Section 11 of the Act deals with a question regarding the inquiry and award to be made by the Collector.

(i) He has to determine the true area of the land;

(ii) the compensation which in his opinion should be allowed for the land; and

(iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose

claims, he has information, whether or not they have respectively appeared before him.

Section 15, which in our opinion is material for our purposes, runs as under:--

In determining the amount of compensation, the Collector shall be guided by the provisions contained in Sections 23 and 24.

Thus it is evident that the Collector is also enjoined to take into consideration Sections 23 and 24 of the Act, no doubt, he has to take guidance

only from those provisions.

Section 18 states that:

(1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the

Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons

to whom it is payable, or the apportionment of the compensation among the persons interested.

(2) The application shall state the grounds on which objection to the award is taken. . . . .

This section indicates that the claimant who seeks reference to the Court, can take objection regarding the measurement of the land; (2) the amount

of compensation; and (3) the persons to whom it is payable or the apportionment of the compensation amongst the persons interested.

Admittedly, the present appellant/ claimant had taken objection regarding the amount of compensation. He in all claimed compensation of Rs.

12,000 and odd. Amongst the grounds mentioned in support of the claim, he referred to the fact that there were 3,000 plants of plantains standing

on the land under acauisition at the time of taking over its possession and he suffered a loss of an income of Rs. 9,000 therefrom. That fact should

be taken into account while awarding compensation to him. It will be significant to note that the learned Assistant Government Pleader also

concedes that this is not a case where this claim made by the claimant is hit by the provisions of Section 25 of the Act. His contention is that as this

claim was not made before the Land Acquisition Officer, the Court cannot go into this question. The Court had to confine itself to the questions

considered by the Land Acquisition Officer only. The Court cannot go into any other question. If we read this Section 18 of the Act, on a plain

reading of it also it does not appear that it lays down any such rule. No doubt, if no objection regarding the measurement is taken before the Land

Acquisition Officer, objection regarding it cannot be taken before the Court in the reference that be made to the Court u/s 18 of the Act. If the

amount of compensation is stated to be inadequate, in the Court, in the reference, he can lay a claim for the compensation for the land value etc. It

was contended by the learned Assistant Government Pleader that even though possession was not taken prior to the date of declaration of the

award, the claimant could have anticipated these damages and could have laid a claim in regard to it before the Land Acquisition Officer. He

further contended that even though these plants were not existing on the date, the claimant filed his claim statement before the Land Acquisition

Officer, he could have amended his claim before the Land Acquisition Officer and could have put forward his supplementary claim for these

damages. As he has not done it, his claim in that regard cannot be entertained in the reference. No doubt, the observations made by Mr. Justice

Tendolkar of the Bombay High Court, in 57 Bom LR 934, prima facie lend support to the argument, advanced by the learned Assistant

Government Pleader, Shri Sompura. The relevant observations made therein can be referred to, with advantage at this stage. They are as under:--

Where a claim for damages of the nature contemplated in the grounds ""secondly"" to ""sixthly"" in Section 23(1) of the Land Acquisition Act, 1894,

is not put forward before the Collector u/s 9(2) of the Act, it cannot be allowed to be put forward for the first time upon a reference u/s 18 of the

Act.

The claimant must, in the first instance, if he wishes to claim damages under any of the heads ""secondly"" to ""sixthly"" enumerated in Section 23 of

the Act, make such a claim when he puts forward a claim u/s 9(2). If he fails to do so, it is not open to the Collector to consider of his own motion

whether the claimant has sustained damage under any of the sub-heads ""secondly"" to ""sixthly"" described u/s 23. Before the Collector''s award is

made, the Collector may allow the claimant to amend his claim by giving particulars as regards any alleged damage, and if he does so, the

Collector may proceed to adjudicate upon it; but in the absence of an adjudication as regards damages sustained by the claimant, no question can

arise of the claimant coming to Court on a reference and claiming that damage has been sustained by him.

When Section 23 of the Land Acquisition Act, 1894, refers to damage sustained at the time of possession, it can only be such damage as can

have been reasonably anticipated at or before the time of making the award.

The learned Assistant Government Pleader invited our attention to certain observations made by Mr. Justice Tendolkar in the body of the

judgment at pages 937-938. They are as under:--

When the Court rose for the day yesterday and after the judgment was part-delivered Mr. Mody for the claimants drew my attention to the fact

that compensation which is ""secondly"" and ""fourthly"" described in Section 23 is for damage sustained at the time of the Collector''s taking

possession; and the point apparently made is that whereas the Collector does not ordinarily take possession, except when resort is had to his

special powers u/s 17, until after the award is made these two grounds of damage in any event will arise at a date subsequent to the making of the

award; and that being so the damages cannot possibly be claimed before the award is made or indeed before the Collector takes possession. The

matter has not been argued at the bar but prima facie there appears to be more than one answer to this contention. In the first instance, Section 23

deals with matters which are to be taken into consideration by the person making the award, viz. the Collector in the first instance, and once the

award has been made, there can be no question of the Collector considering anything at all. Therefore, when Section 23 refers to damage

sustained at the time of taking possession, it can only be such damage as can have been reasonably anticipated at or before the time of making the

award. Of course, in a case in which possession has been taken under the provisions of Section 17 the damage may be actual and in other cases

only prospective. But that does not prevent the claimant from claiming the damage which could have been reasonably foreseen before the date of

the award. It is possible to conceive of cases, however, where the damage caused could not be so reasonably foreseen. What the remedy of the

claimant would be in such a case, it is not necessary to determine in these proceedings because it is not alleged in this case that any damage

resulted which could not have been reasonably foreseen at or before the date of making the award. Such damage can certainly not be claimed

upon a reference for the simple and ample reason that you can on reference only raise objections to the award of the Collector u/s 18; and if the

damage could not even have been reasonably foreseen at the date of the award, certainly no objection can be raised to the award itself on the

ground that such damage was not allowed. It is said that there is no wrong without a remedy, and it is quite possible that the general law confers

upon the claimants power to recover in proper proceedings any damage that he may sustain by reason of the acquisition which could not have

been reasonably foreseen at or about the time of the making of the award by the Collector and which could not, therefore, have been claimed

before the Collector.

I, therefore, uphold the objection and disallow any evidence to prove such damages.

It will be significant to note that in that case, the claimants at the time of hearing urged that as the land was acquired for a particular use, it would

injuriously affect the value of the remaining land of the claimant and, they therefore, sought to prove that they had sustained damage by the reason

of acquisition for such purposes.

It is, therefore, evident that in that case, the claimants could have very well anticipated the damages on account of the injurious affection of his

remaining property by the acquisition of the land for the use as a cemetery. In the instant case, the possession of the land was not taken. The plants

of plantain were planted after the appellant-claimant had already laid a claim before the Land Acquisition Officer in respect of his interests.

Section 16 of the Land Acquisition Act states that:

When the Collector has made an award u/s 11, he may take possession of the land, which shall thereupon (vest absolutely in the (Government),

free from all encumbrances.

It does not lay down any time limit within which the Collector is obliged to take possession after the declaration of the award. The Collector can

take possession at Ms own sweet will. It is not certain as to when he will take possession. The claimant is not expected to keep his land

uncultivated till the Collector decides to take possession of it. If the possession had not been taken prior to the reaping of these crops, no question

of claiming any compensation in regard to it would have arisen. It, therefore, cannot be said that the claimant could have anticipated these damages

and could have claimed it. If the possession had not been taken prior to the reaping of these crops, the question of making any claim for these

damages would not have arisen. In such an event, we are of the view that no such objections against this claim could be sustained on these grounds

in a reference that could be made. The claimant in our opinion, is entitled to make such a claim.

If we now examine the wordings of Section 23 of the Act, it indicates what are the matters to be considered by the Court in determining

compensation. It does not deal with the matters to be considered by the Collector at the time of making an award. It is only in view of the

provisions of Section 15 of the Act to which we have already made a reference earlier that the Collector is to be guided by the provisions

contained in Sections 23 and 24 for determining the amount of compensation.

With the greatest respect to Mr. Justice Tendolkar, we are of the view that his remarks at page 938 are not wholly justified. Those remarks

are as under:--

In the first instance Section 23 deals with matters which are to be taken into consideration by the person making the award, viz. the Collector in

the first instance, and once the award has been made, there can be no question of the Collector considering anything at all.

Section 23 deals with a question regarding the matters to be considered by the Court in determining the compensation. It means, the Court is

obliged to take into consideration the matters referred to, in Section 23 of the Act, while the Collector, in view of the provisions of Section 15 of

the Act, has to take guidance from Sections 23 and 24 while determining the compensation. Clause 2nd of section 23(1) of the Act with which we

are concerned in the present appeal, runs as under:--

23(1). In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration the

damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of taking

possession.

In our view, a plain reading of this clause indicates that the Court is obliged to take into consideration the damage sustained by the person

interested by reason of taking of any crops standing on the land at the time of Collector''s taking possession thereof. It means that the Court has to

take into consideration the damage sustained by the claimant on account of taking of any standing crops or trees which may be on the land at the

time of the Collector''s taking possession thereof. It means that it is only on an event happening i.e., an event of taking standing crops which may be

on the land at the time of taking possession, this question will arise. This section leaves no discretion to the Court. The Court is bound to take into

consideration the damage sustained by the claimant by reason of taking standing crops which may be on the land acquired at the time, the

Collector takes possession. If there are no standing crops at the time of taking possession, that question does not arise. In our view, therefore, the

Court is bound to consider this claim if the claimant has suffered any damages on account of standing crops which may be on the land under

acquisition at the time of Collector''s taking possession. Taking into consideration all these relevant sections and the ''fact that the possession was

taken after the award, and these plants were planted after the claimant had made a claim before the Land Acquisition Officer, in pursuance of a

notice issued to him u/s 9 of the Act, the claimant can agitate this question in the Court in the reference made u/s 18 of the Act. We, therefore,

reject the argument advanced by the learned Assistant Government Pleader, Shri Sompura.

The next question for consideration is regarding the measure of these damages. The claimant had claimed Rs. 9,000 for these damages. The

claimant''s power of attorney holder has been examined at Ex. 132. He has not led any evidence regarding the costs of sapplings, costs of

labourers, etc. He has not also produced any documentary evidence in support of his claim. He also admits that the plantain plants had never been

grown prior to this occasion. He has no doubt, stated that the plants were watered 7 to 8 times by the water of the well nearby. It appears from

the evidence of an Expert, Chandulal Chhotalal Shah, examined by him at Ex. 45, that the water of this well was quite suitable for watering these

plants and the soil was also adaptable for planting the plantain plants. That witness was a Vice-president of Agricultural College, Anand from 1947

to 1955, and was holding M.Sc. Degree of Bombay and Ph.D. Degree of London University. He has also worked as a Joint Director of

Agriculture in the State of Saurashtra, and also worked as a Deputy Director of Agriculture in Gujarat. It is true that at the time he visited the site,

there were no crops standing. From the experience he has given the average yield of the plants. He has stated that the yield per plant would be

about 50 lbs. He has further stated that in Gujarat, the plants are rarely affected by any disease. At the same time, he has stated that generally, the

lands are not very well managed as an expert would like it to be, and this field''s management was below average. It is, therefore, evident that the

yield can not be estimated by him, taking into consideration the factor that the management was below average. The learned Advocate Shri Patel,

appearing on behalf of the claimant, urged that at least compensation of Rs. 3,000 be awarded to him for the damages. As against this, the learned

Assistant Government Pleader urged that the Panchnama, Ex. 40 reveals that the costs of sappling and labour charges would be about Rs. 216.

The claimant would, therefore, be entitled to get only Rs. 216 for these damages. In our opinion, the argument advanced by the learned Assistant

Government Pleader is not well founded.

The learned Author Sanjiva Row, in his book, Law of Land Acquisition & Compensation, 5th Edition, 1966, at pages 574 and 575, made the

following comments under the heading -- ""Clause Secondly"", para 13:--

Compensation, when paid under the clause, is damage and not market value, and the measure of damage is the loss which the owner suffers by

being deprived of the harvest and not the price (if any) of the unripe crop. In other words, the amount would be about the same as the value of the

ripe crop when reaped in due course. In practice, however, it is usual to postpone, wherever possible, taking possession of lands with standing

crops till they are harvested, so that the crops may be saved,

It is pertinent to note that the criterion for compensation is the damage and not the market value. The actual loss to the owner, by depriving him of

the harvest, is the basis, and not the price of unripe crops.

We have, in our opinion, to evaluate the compensation to be paid on this basis.

Certain observations made in Sub-Collector of Godavari v. Seragam Subbaroyadu in a decision, reported in ILR (1907) Mad 151, can be

referred to, with advantage, as they indicate the real purpose of clause 2 of Section 23(1) of the Act. They are as under:--

The word ''land'' as ''defined in Section 3(a) includes ''things attached to the earth,'' and therefore, trees, and this definition has ''to be applied to

Section 23, unless there is something repugnant in the subject or context.

The Government Pleader contends that the second clause of Sub-section (1) of Section 23, shows that in this section the trees standing upon land

cannot be regarded as a part thereof, but we do not think that that is the effect of the clause. That clause refers to damage sustained by reason of

the taking of standing crops or trees which may be on the land at the time of the Collector''s taking possession thereof, and cannot, without a

misuse of language, be applied to a case of purchase of land with trees upon it. In such a ease if the price is fair no damage is sustained by either

party.

We think the clause may be applied to the case provided for in Section 17 when the Collector takes possession before award, and the owner of

the land declines to accept the sum then offered as payment for the crops or trees taken, or possibly, as suggested for the respondent, to the case

of crops or trees grown after the date of the declaration u/s 16, the date with reference to which the market value has to be estimated.

It may be, as the Government Pleader suggests, that the Collector is not, in making an offer u/s 17(3), bound to allow 15% over the value of the

trees to be paid for, but the offer made under that section is ''one which the owner of the land can accept or reject and he may ''prefer to take a

sum down rather than to wait for the award.

Moreover, to read the first clause of Section 23(1) as referring to the bare land without the trees, involves this difficulty there is no provision in the

Act for the separate assessment of compensation for buildings apart from the land on which they stand, and, inasmuch as it is impossible to hold

that they are liable to be acquired without payment of compensation, it must be taken, that in Section 23, the word ''land'' includes ""buildings

standing thereon."" If so, that must be, because buildings are ''things attached to the earth'', and it is anomalous to interpret the same word as

including one class of things attached to the earth and excluding another.

We avoid this difficulty by including the trees as part of the land, and we can, at the same time, give due effect to the second clause of Sub-section

(1), by applying that clause to the special cases to which we have already referred.

It will be significant to note that the learned trial Judge has not recorded the finding in categorical terms that the claimant would be entitled to

Rs. 3,000 by way of compensation for these damages. He has observed as under:--

The amount he would have been entitled to, to my mind, would not have been more than Rs. 3,000/-.

It means that he only recorded the finding that at any rate, on this basis, the claimant cannot be entitled to more than Rs. 3,000. The Panchnama

reveals that there were 2,000 standing plants at the date this Panchnama was made. The claimant has not led any satisfactory evidence to prove

that there were 3,000 plants standing at the date of taking-over possession. Furthermore, at the tune of Panchnama, these plants were 1 1/2

months old. Some plants might also wither away. There would be some further costs to be incurred prior to the reaping of the harvest. Taking into

consideration all the relevant factors, we are of the view that the damages suffered by the appellant-claimant, could be reasonably and fairly said to

be Rs. 2,000. The claimant-appellant would be entitled to get compensation of Rs. 2,000 in regard to that claim.

In view of our finding regarding the market rate of the land under acquisition, to be Rs. 3,200 per acre, the claimant is entitled to an additional

amount of compensation of Rs. 582.30 nPs. including solatium at the rate of 15% for the land. He will be further entitled to an additional amount of

Rs. 2,000 for the damages suffered by him on account of digging of plants of the plantains at the time of taking-over possession by the Collector.

The total additional amount that becomes awardable comes to Rs. 2,582.30 nPs. The claimant-appellant will be entitled to this additional amount

of compensation. The decree for that amount to be passed in his favour. He will be further entitled to get 4 1/2% interest per annum on that

additional amount awarded, from the date of taking over possession, i.e. 5-12-1959 till the date of payment. The claimant-appellant to get the

proportionate costs from the respondent for the claim allowed and to pay the costs to the respondent for the claim disallowed in this appeal.

Appeal is partly allowed.

The claimant was and is a minor and hence he is not competent to alienate. In view of the provisions of sections 31 and 32 of the Land

Acquisition Act, 1894, (1 of 1894), the additional amount of compensation that will be awardable to the claimant-appellant will have to be

invested during his minority in Government securities. The appellant''s advocate expresses a desire and states that it will be in the interests of minor

Dahyaprakash Trikambhai to invest the additional amount that is awarded by this Court in National Savings Certificates (First Issue). It is,

therefore, ordered that the additional amount that is awarded by this Court in the appeal, and which will be payable to the appellant, is to be

invested in National Savings Certificates (First Issue).