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TMI Blog1954 (9) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... duced the same to ₹ 38,377/1/-. It was stated that out of the amount offered ₹ 1,968/12/- had already been paid for trees-cutting in the year 1944. On behalf of the claimant the offer was not accepted. Accordingly under Section 19(1), Defence of India Act, 1939 (35 of 1939) the question of compensation was referred to an arbitrator. ( 3. ) On behalf of the claimant ₹ 4,55,438/14/-was claimed as compensation. It will be necessary hereafter to give further details as to the different heads under which the claimant had preferred his claim. ( 4. ) It is an admitted fact that the total area requisitioned was 362.82 acres. During the period of requisition trees standing on 257.31 acres had been uprooted and on the remaining area of 105.51 acres some of the trees had been cut down. ( 5. ) On behalf of the claimant it was contended that the damage that had been done to the forest was such that steps would have to be taken for new afforestation. It would lake about 25 years for the new forest to grow and the loss of income during that period should be compensated. The compensation for the trees that had been removed but which would not ordinarily be removed from a fores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letting out was a bona fide one, evidence of such letting value will be relevant. ( 12. ) In assessing the compensation the first item will be what is considered to be the fair rental value for the period under requisition. ( 13. ) Neither the parties nor the Arbitrator appears to have determined the compensation on that footing. ( 14. ) The position has however been greatly complicated by the admitted tact that over a large area trees have either been uprooted or cut down. How is compensation for such damage to be ascertained? As already stated the claimant maintained that because of the peculiar nature of the property and that a Sal forest did not grow in that area without methods of forestry being adopted the compensation payable should be assessed on the basis of reinstatement. Evidence was produced in the Lower Court by the parties as to the possibility and practicability of rearing a new forest on the affected portion, the time to be taken to grow the new trees so as to be productive of normal and regular forest income. ( 15. ) The claim for compensation was made on behalf of the claimant under the following heads: 1. Value of one outturn of the fuel plants which had b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion or requisition under the Defence of India Rules. ( 19. ) The State had not appreciated in this case, as in certain other cases as well, the duty cast upon the Slate when the matter is before the Arbitrator. This is fundamentally different front what is provided under the Land Acquisition Act. ( 20. ) When land is acquired under the provisions of the Land Acquisition Act the Land Acquisition Collector after giving notice to the persons interested and making enquiries into the measurement value and claims makes the award under Section 11 of the said Act. The compensation so fixed is binding on the Government. Any person interested who does not accept the award may require the Land Acquisition Collector to make a reference under Section 18 of the said Act and the question of valuation is, referred for determination by the Court, the Land Acquisition Judge. When a reference is before the Judge the burden is on the claimant referee to establish by adducing necessary evidence that the valuation as made by the Collector was low and insufficient. No doubt when no evidence had been taken by the Collector or if no reasons had been given by the Collector in his award to support the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e claimant accepts the same and finality is reached. ( 26. ) This being the correct position and the learned arbitrator having overlooked the intrinsic difference between the proceedings under the Land Acquisition Act and those under the Defence of India Act ho thought that that which had been offered by the Collector or the amount which had at one stage been mentioned by the Government Pleader as in his opinion a fair amount of compensation was to be binding unless a contrary view is made out by evidence. The learned arbitrator went so fur as to observe that the opposite party State must prove by cogent evidence that the earlier offer which had been made on behalf of the Government viz., 1,21,000/- and odd was wrong. The approach by the learned arbitrator had therefore not been a correct one. ( 27. ) It has been argued before us on behalf of the appellant State that before the Court proceeds to consider what costs would be incurred for afforestation it is necessary to decide whether in the facts of the present case the Court will be entitled to introduce the principle of reinstatement and only if the answer he in the affirmative that an enquiry as to the costs of afforestation w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion on the foot of its total destruction if the reasonable course were to keep it alive by transplanting it elsewhere then the nest question would be, was it reasonable for the proprietor to take the premises he took and incur the expenses he incurred in adapting them to the requirements of the business?" ( 30. ) On the facts the court of appeal held that the appellant claimants in that case had been able to establish that they were entitled to have compensation on the footing of reinstatement. The claimants in that case carried on business as motor garage proprietors and the extensive premises properly equipped had been peculiarly well suited for their purpose. ( 31. ) These premises were requisitioned during the first Great War. The claimants having tried and failed to acquire a substitute premises temporarily bought another premises fitted them for use as a garage and transferred there the appliances of their business. When the original premises were restored to the owner the latter sold the substitute premises. They claimed a difference between the amounts they had expended in acquiring the substituted premises and for fitting them up and the sum they received on the sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is is because of the special character of the use to which the premises had been put to at the time of the acquisition. It is the nature of the business which is to be displaced requires the first consideration. Secondly there must be a bona fide intention to be reinstated and thirdly the costs of reinstatement are not unreasonably abnormal or have no relation to the market value of the property under acquisition. ( 35. ) There is no occasion for applying the principle of reinstatement in a case on a problematical calculation of estimated loss for a quarter or a fifth of a century and in attempting to provide for reinstatement where such reinstatement is either not feasible or there may be reasonable doubt whether it is practicable at all to provide for reinstatement. ( 36. ) The proposition of reinstatement was considered in this Court in -- 'Chairman Serampore Municipality v. Secretary of State', AIR 1922 Cal 386 (E). The Court was called upon in that case to assess the market value of a piece of land over which there was a municipal drain and which had been acquired by the Government for public purposes as the drain was used at the time of the acquisition by the Scramp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d afforestation in other places in Jhargram but had not been successful. He had made estimates for afforestation which had failed. There is no afforested jungle in Jhargram. ( 42. ) Sachindranath Mitra P. W. 10 who had passed from the Dehra Dun College and retired the year previous (in 1947) as the Divisional Forest Officer Sunderban Division and was acting as the Timber Adviser to Eastern Equipment and Stores Ltd. owned by Birla Brothers has deposed as an Expert. He had inspected at the forest in question for 2 days as a friend and not professionally. He was called to support the estimate and Report dated 5-3-1947 already prepared by the claimant's Forest Supervisor (Ex. 1) for afforestation. His experience in Europe and Africa was according to him of no help in the present case. There were no Sal trees in Africa and Europe or in the Sundarbans. On an examination during a two days slay of the topography of Jhargram, nature of the neighbouring forests, local conditions regarding supply of labour and water, climate and soil he proceeded to express his expert opinion. He had made notes which he did not preserve as also a Report written by him is not produced. The opinion express ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is available or can be obtained on reasonable terms" finds a place in Halsbury, Volume 6, page 45 after the passage which has already been quoted at an earlier part of this judgment. ( 46. ) One of the essential points for enquiry therefore before the principle of reinstatement is applied is whether reinstatement is possible on reasonable terms. The matter in which the calculation for costs for afforestation can be done and the long period over which steps are required to be taken to bring back if it is possible at all to the conditions in which the forest was at the time of requisition make it abundantly clear that the terms and conditions under which reinstatement would have to be allowed would be not only in terms wholly unreasonable but would be a speculative one and merely a wishful thinking. ( 47. ) The other test which should be applied before compensation is calculated on the basis of reinstatement is that on the ground of intrinsic reasons reinstatement becomes necessary and the claimant is reasonably anxious to take advantage of such reinstatement. From this aspect, also it will be seen when reference already made to the evidence in the instant case will conclusiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal is allowed and judgment and decree passed by the learned arbitrator arc set aside and it be declared that the claimant is entitled to 1. Compensation for the fuel trees removed ₹ 19,291/- 2. Compensation for the removal of mother sal trees etc. ₹ 11,684/- 3. Compensation for the loss of income for 20 years including the year during which the property was under requisition at the rate as fixed by the learned arbitrator, compensating there-by damages for the trees cut or up-rooted ₹ 1,47,600/- Total Rs.1,78,575/- ( 52. ) So far as the question of costs is concerned we direct that each party will bear its respective costs of this Court, inasmuch as the parties themselves were under Section 19, Defence of India Act and the Rules framed thereunder duty bound to produce necessary materials before the Arbitrator for fixing the fair amount of compensation. The Government had not taken necessary steps in proper time for adducing such materials before the Arbitrator and the Arbitrator was not assisted by bringing before him the correct legal position in this case. Under such circumstances we direct that the parties will bear their own costs in this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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