J.S. Narnag, J.
1. Chandigarh Administration issued notification No. 10273-UTFI (IV)-78/110 dated 2.1.1979 vide which land/structures and trees were acquired by the U.T. Administration for the public purpose defined as 'construction of commercial complex for the Notified Area Committee Manimajra'. It may be clarified that the Chandigarh Administration had also issued notification No. 3957-UTF1 (IV)78/10524-A dated 28.6.1978 vide which the land structures and trees in respect of similarly situated area had been acquired meaning thereby for the area in question two notifications had been issued but in any case nothing hinges on that.
2. The appellants have not contested the award of the land Acquisition Collector in respect of the compensation awarded upon acquisition of the land and the structure but the appellants were not satisfied for the compensation awarded to them for fruit bearing trees grown in their respective lands. Being not satisfied, reference had been sought under Section 18 of the Land Acquisition Act (hereinafter referred to as the Act). The enhancement had been sought on the ground that the fruit bearing trees cannot be equated with timber trees and both cannot be treated alike.
3. On the other hand, the respondents had taken the stand that the compensation is reasonable and has been rightly and correctly determined on the basis of treating the fruit bearing trees as timber.
4. Learned District Judge declined the reference while relying upon the judgment of this Court in Nanak Singh v. Union of India, R.F.A. No. 1374 of 1977, decided on 15.10.1979 vide which the fruit bearing trees were not considered separate in any manner than the timber trees and the compensation was considered by determining their fuel value. The appellants had been allowed compensation by determining the fuel value in respect of the number of trees falling in the area concerned. Learned counsel for the appellant has made reference to the Division Bench judgment of this Court rendered in Ranjit Singh v. The Union Territory of Chandigarh, (1983)85 P.L.R. 471 decided on 7.2.1983. The decision of the Single Bench of this Court was doubted because by virtue of the said judgment, the fruit bearing trees had been treated equivalent to the timber trees (fuel based). The question as to whether the fruit bearing trees can be treated equivalent to the timber trees was referred to the larger Bench. The Division Bench of this Court decided the question while rendering the judgment in Ranjit Singh's case (supra) (R.F.A. No. 284 of 1980). The judgment in Nanak Singh's case (supra), was over ruled. It shall be apposite to refer the relevant para, i.e. para 9, which reads as under:-
'9. Without being exhaustive and as has been pointed out by the Supreme Court in Smt. Tribeni Devi and Ors. v. The Collector, Ranchi, A.I.R. 1972 S.C. 1417, some of the methods of valuation to be adopted in ascertaining the market value of the land on the date of the notification under Section 4 of the Act are:-
(i) Opinion of experts.
(ii) The price paid within a reasonable time in bona fide transaction of purchase of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages: and
(iii) a number of years purchase of the actual or immediately prospective profits of the lands acquired.
These methods, however, do not preclude the Court from taking any other special circumstance into consideration, the requirement being always to arrive at as near as possible an estimate of the market value. In arriving at a reasonably correct market value, it may be necessary to take even two or all of those methods into account in as much as the exact valuation is not always possible as no two lands may be similar either in respect of their situation or the extent of potentiality nor is it possible in all cases to have reliable material from which that valuation can be accurately determined. In the normal course, the sale deeds of lands situated in the vicinity of the acquired land having comparable benefits and advantages, furnish a rough and ready method of computing the market value but even in those cases potential value thereof has also to be taken into account. It is a matter of common knowledge that potentiality of the land varies to a very great extent on account of its location. It is also likely to vary even if the two pieces of the land-one lying on the outskirts of the city of Chandigarh as in the case in hand and the other at a distant place and far away from habitation or a growing town-are under similar or same type of fruit trees. Thus to work out the market value of the orchard lands on the basis of the annual value or according to the formula known as capitalisation, is most likely to work to the prejudice of the claimant whose land under the fruit trees has enormous potentiality to be utilised as residential or commercial area. In such a case the value of the fruit trees or the orchard has to be assessed independently of the value of the land or in other words the potentiality of the land to be utilised for residential or commercial purposes. It appears, it is in the light of this principle that even the Land Acquisition Collector in the case in hand chose to evaluate the land and the fruit trees separately, though to our mind he wrongly gave two separate awards for the same acquisition. It would have been fair to the appellant to assess the market value of his fruit trees and then to add that to the market value of the land as such keeping in view its potentiality. In view of this conclusion of ours, we find it difficult to reconcile with the ratio of the above noted three judgments referred to in the opening part of this judgment that once the claimant has been awarded compensation for his land-in case of acquisition of orchard land-then for the orchard he has only to be paid the timber value of the same or so far as these lay down that in the case of orchard lands the compensation can be paid to the claimants either on the basis of the annual income of the fruit bearing trees by multiplying the same by 15 to 20 years or by determining value of the land plus the value of timber and the trees growing on that land. We see no justification for treating the fruit trees as timber and to evaluate these on that basis. It is a matter of common knowledge that fruit trees yield comparatively a small quantity of fuel and only a few fruit trees will have any timber value. Thus we respectfully find it difficult to reconcile with the view expressed by the learned Single Judge in Nanak Singh's and Gurcharan Singh's case (supra) and over rule the same.'
5. In view of the above, judgment in Nanak Singh's case (supra) and Gurcharan Singh's [R.F.A. 1132 of 1979 decided on May 21, 1981 - Editor] case stand over ruled.
6. So far as determination of the market value of the orchard or fruit bearing trees is concerned, the matter had been succinctly discussed and reliance had been placed upon the publication which had been placed on record. It shall be apposite to make reference to the paragraph where the said publication has been discussed and the table has been referred, which depicts the normal growth of the trees in this part of the country. Para 10 reads as under:-
'10. Luckily the learned Counsel for the claimants have referred to us a publication (Exhibit P.4 in R.F.A. No. 280 of 1980) dealing with the basic Principles and Methods of evaluation of fruit trees, published by S. Harbans Singh, formerly Director of Horticulture, Himachal Pradesh, and now holding the high office of Chief Agriculture Expert and Agricultural Production Commissioner in the Ministry of Agriculture, published in the year 1966, after realising that in matters of awarding compensation of acquired lands, the evaluation of trees was being done without any scientific basis, it was felt necessary to lay down a scientific formula to make the determination of value of orchards or fruit bearing trees as fool proof and perfect as possible so that it could be understood and applied with ease by the acquiring authorities. According to this publication the evaluation of a fruit trees depends upon many factors like the expenditure incurred by the grower till it comes into bearing the capacity of the tree to earn profits for the owner during the remaining years of its life and the amount which the wood is likely to fetch at the time of assessment. For the purposes of this evaluation, the fruit tree is generally divided into two stages-firstly, the pre-bearing or sapling stage and secondly, the bearing stage. Under the conditions prevalent at the time of the publication of this formula, non-recurring expenditure upto the plantation or sapling stage was determined at Rs. 5/- per plant, keeping in view the expenditure on preparation of site, lay out, digging and filling of pits with manure, cost of plant, including transport and planting etc. Similarly, after noticing the cost of maintenance and expenditure on hoeing, irrigation, manures and fertilizers, protection operations, supervision etc. it was determined that the average expenditure will be about Rs. 5/- per plant, per year till it starts bearing under normal conditions. The valuation of the pre-bearing stage is, therefore, to be determined by the non-recurring expenditure (Rs. 5/-) plus the recurring expenditure at the rate of Rs. 5/- per year of age. Thus the market value of four years' old non-bearing tree comes to Rs. 25/- (Rs. 5/- as non recurring expenditure plus Rs. 20/- i.e. expenditure for four years at the rate of Rs. 5/- per year, as recurring expenditure). This has been termed as Basic Valuation in this formula. Once the fruit tree has reached the bearing age, them many factors need to be considered while determining its market value. These include kind and variety of fruit, conditions of management, growth and productivity of the trees, age of the trees, etc. Average income over a number of years from a good commercial variety planted under favourable conditions of growth and productivity and under good management conditions has been given in column No. 7 of the Appendix to this publication. After noticing and taking into consideration all factors affecting the income of trees-per tree per year-it has been tabulated in the following manner. We feel it is necessary to reproduce the entire table here and have thus confined its reproduction to the trees which normally grow in this part of the country:-
Prebearing orsapling stage Bearing stateor Basis valueSr. Kind of Non-recurring Recurring per Age at which Average Yearly fruit. (in rupees) year age. the tree comes bearing incomeinto bearing life in from ayears Class Itree(inrupees)1. Mango grafted) 5.00 5.00 5th 50 60.002. Litchi ) 3. Jack fruit 5.00 5.00 8th 50 40.004. Mango seedlings 5.00 5.00 8th 60 40.005. Jaman 5.00 5.00 8th 60 25.006. Loquat. ) 5.00 5.00 6th 40 40.007. Chiku.)8. Grape 5.00 5.00 3rd 30 10.009. Guava. 5.00 5.00 4th 30 25.0010. Malta )11. Sangtra) 5.00 5.00 5th 25 60.0012. Grape )Fruit. 13. Fig. 5.00 5.00 5th 20 35.00superior.14. Lemon. 5.00 5.00 4th 20 40.0015. Kagzi lime. 5.00 5.00 5th 30 50.0016. Galgal. 5.00 5.00 4th 25 35.0017. Ber 5.00 5.00 5th 45 25.00l8. Falan. 5.00 5.00 2nd 10 5.0019. Banana 2.00 ___ 2nd 1 10.002O. Papaya 5.00 5.00 5th 45 60.00It deserves to be noticed here that this formula had duly been approved by the Directors of Agriculture, Punjab and Himachal Pradesh for assessment of the market value of fruit trees. We thus have no hesitation in relying upon the above noted formula published by S. Harbans Singh for determining the market value of the fruit trees of the claimant.
Another matter which is manifestly clear from this publication is that while evaluating the fruit trees, the price or the cost of land underneath has not been taken into consideration. This is obviously for the reason that the price of the land underneath as orchard or plantation of trees is bound to vary from place to place on account of various factors, including the location of the land. It is, therefore, not true that while working out the market value of the orchard or grove land either the price of the land as such (without the fruit trees) and timber value of the trees has to be taken into account or the same has to be determined on the basis of the formula known as 'Capitalisation'. It is further clear from the publication that value of fuel or timber is only one of the consideration in determining the value of the orchard or fruit bearing trees. In all probability, it was in the light of some such formula that the land Acquisition Collector has tried to work out the evaluation of the acquired trees but he has neither made the details of that formula clear anywhere nor have the experts referred to in his award disclosed in their report as to on what basis they had determined the market value of the trees.'
7. The learned District Judge has taken into consideration as to how many fruit bearing trees were contained in the land of the persons who had claimed reference before him and the dicta laid down in Nanak Singh's case was applied and reference was dismissed accordingly. It is correct that the claimant is required to prove inadequacy of the compensation awarded to him and the Government or the acquisition authorities are under no obligation to render any kind of evidence in this regard. The relevant factors which were required to be brought on record, were the age of the trees and the approximate fruit which the tree would bear for a tentative period. In any case, the claim of the appellants having been dismissed on the ground that no substantial evidence had been brought on the record would certainly not imply that the Court has no duty to fix the quantum of compensation payable under the Act independently and also on the basis of some material which becomes available. In the present case, the equation of fruit bearing tree with fuel productive tree is certainly not tenable. I am in respectful agreement with the judgment of Division Bench of this Court rendered in Ranjit Singh's case (supra).
8. As such, I allow the appeal and set aside the judgment dated 25.5.1983, rendered by District Judge, Chandigarh and remand the case to the Land Acquisition Court to determine the market price of the trees of the claimants in accordance with law and the observations made by the Division Bench of this Court in Ranjit Singh's case (supra). However, while determining the market value of the trees in question, the documentary evidence which is already on the record and also the evidence available on the revenue record or otherwise which may be brought on record by the claimants to determine the market value of the fruit bearing trees be taken into consideration in the light of publication referred at parages 9 and 10 and/or any other such publication or in structions issued by the Government. Thus, in this context, the claimants shall be entitled to lead further evidence. If they choose to do so. It is directed that the process of bringing the evidence on record should be preferably completed within a period of nine months. The market value so determined shall be payable to the claimants in accordance with law.