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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 ..... 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 forest would also have to be paid for. A separate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 416 (A). It is surprising that the learned Arbitrator quotes a passage from that judgment but is not correct in its application. The compensation is to be determined for the period the property is in the occupation of the Military Authorities. The compensation for the damage done is to be assessed separately. This, learned Arbitrator has failed to appreciate. ( 18. ) Learned Arbitrator has also been in error so far as the question of onus in proving the amount of compensation is concerned in a compulsory acquisition 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing placed on the claimant to prove by evidence aliunde that the offer made by the Collector was not a proper one. ( 25. ) Under the Land Acquisition Act the Land Acquisition Collector makes the award which is of a binding character unless the claimant or party interested makes a reference. Whereas in the case of ah acquisition under Section 19, Defence of India Act there are negotiations between the Collector and the claimant and what the Collector does is to make the offer which is not binding unless the 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 Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principles of reinstatement as stated apply; and the material consideration would seem to be first the nature of the business which is to be displaced; it would be unreasonable to incur great expenses in reinstating the business which can only be carried on at a loss secondly the time during which the business is to be displaced; if the time was very short it might be unreasonable to incur any expenses in reinstating it. But if he were not reasonable to shut up the business and claim compensation 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 we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es under the Statutes abovementioned reference may respectively be made to -- 'Ashton Charities Trust Ltd. v. Stpney-Borough Council', (1952) 2 AER 228 (C) and to -- 'Lidle v. War Damage Commission', 1949 LJR 1069 (D). ( 34. ) The tests which should be applied for introducing the principle of reinstatement arc that the income derived from the premises acquired would not in the special circumstances of the case constitute a fair basis in assessing the value to the owner. This 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility and necessity of afforestation reference was made both in the lower Court as also by the Advocates appearing before us to standard authorities on Forests like Troupe-Siviculture of Indian Forests, Reports by Government Committees as the (1) Stephenson Committee (1908) and (2) Bengal Forest Committee (1939). The experts examined also had referred to some of the standard authorities. ( 41. ) Jitendra K. Banerjee P. W. 1 a forest supervisor of Jhargram Raj Estate that he had tried 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat passed between the officers of the claimant and the representative disclose the quantum of compensation claimed for afforestation. Such estimates were prepared in the first instance of the estate forest officer, attempted to be supported at the last moment when the suit was being heard by calling an expert who as stated already visited the forest as a friend for two days. ( 45. ) That the principle of reinstatement is only applicable where land for reinstatement 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requisition. It has been suggested that the value of the trees which had been removed or up-rooted would be the fair compensation. We do not think that such a valuation would be fair in the circumstances of this case or because of the special nature of the property in question. The extent to which the income from the forest has been affected by the depredation multiplied by a certain number of years may be a method of be considered. ( 51. ) The result therefore is that the 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/- ..... 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