Gauhati High Court
Airport Authority Of India vs Satyagopal Roy And Ors. on 27 July, 2000
Equivalent citations: AIR 2001 GAUHATI 26, (2001) 1 GAU LR 225
Author: H.K.K. Singh
Bench: H.K.K. Singh
JUDGMENT P.G. Agarwal, J.
1. This appeal under Section 9(C) of the Air Craft Act is directed against the award dtd. 15.11.1995 made by the Sole Arbitrator, Sri R.B. Sinha.
2. The facts of the case in brief are that the respondents 1 to 10 had their land and houses situated adjacent to the Agartala Airport. There were standing trees on the said land and as the trees endangered the safety of the Aircraft and passenger as provided under the said Aircraft Act, the District Magistrate and Collector, West Tripura was authorised by the competent authority vide order dtd. 22.10.1990 to cut the tall trees and other obstruction within the radius of the run way. Thereafter, the District Magistrate issued necessary direction to the 22 families and thereafter 16 families cut and removed the trees and they were paid necessary compensation. The remaining six families covering the Respondents 1 to 10 did not cut their trees, where-upon notices were issued to them on 10.9.1990, 15.10.1990 and 17.11.1990. The respondent also filed their objection. Thereafter, another notice dated 11.2.1991 was issued and ultimately on 14.2.1991 trees were cut with the help of necessary labourers by the SDO, Sadar, West Tripura, The respondents, thereafter prayed for compensation as provided, but as no compensation was paid to them, they approached this Court in Civ. Rule 199 of 1991 and as per the direction of this Court, the Central Govt. appointed Sri R.B. Sinha. a retired District Judge, as Arbitrator vide order dtd. 29.1.1993. The learned Arbitrator received the claims from both sides, recorded the evidence of witnesses and thereafter made the award on 15.11.1995. The Airport Authority of India, feeling aggrieved, has filed the present appeal.
3. We have heard Mr. A. Chakraborty, learned senior Counsel for the appellant-Airport Authority of India and Mr. A.K. Bhowmik, learned senior Counsel for the respondent 1 to 10 and Sri U.B. Saha, learned Govt. Advocate for the respondents 11 to 13.
4. In this case, the facts as stated above are not in dispute. The factum of cutting of tall trees belonging to the respondents 1 to 10 stands admitted by both sides. In notices issued to the respondents 1 to 10 on behalf of the appellants, the number of trees proposed to be cut was mentioned, but the claimants-respondents had alleged that some excess trees, not stated in the notices were also cut by the authority concerned. The learned Counsel for the appellant submits that number of excess trees cut was never mentioned in the replies or even in the writ petition and it was for the first time disclosed in their claims before the Arbitrator. There was no scope to mention about the number of trees cut in their notices as the claimants could not have any knowledge or apprehension that excess trees will be cut by the authorities. As required under law, the claimants pleaded their case before the Arbitrator when asked for. Further in this case, the appellant and the respondents 11 to 13 did not adduce any evidence before the Arbitrator to dispute the claim of the claimants. As matter of fact, no record even was produced before the arbitrator to show the number of trees cut by the authorities on 14.2.1991.
The learned Arbitrator had accepted the claim made by the respondents as regards cutting of excess trees which was also not much and we find no irregularity in it.
5. Learned Counsel for the respondents has submitted that this being an award made by the Arbitrator, there is limited scope for interference and for error of law fact appearing on the face of the award it can only be set aside by the Court. Learned Counsel has also referred to a decision of this Court in a case of Bina Rani Dey and others, v. State of Tripura and others (1998) 3 GLR 23. The above decision was in respect of Section 30 of the Arbitration Act, 1940.
6. As stated above, the matter was referred to the Arbitrator as per provision of Aircraft Act and Section 9B(1)(g) provides that nothing in the Arbitration Act, 1940 shall apply to arbitration under this Seetion. Further Section 9C provides for an appeal before the High Court within the whose jurisdiction the Acrodrum is situated. Thus, we find that this is a statutory appeal under the Aircraft Act. On perusal of the said Act, we find that the Act had not prescribed any special procedure for disposal of the appeal under Section 9C. Learned Counsel of both sides have also informed that neither the Act nor the Rules provides any special procedure for hearing of the appeal. We, therefore, hold that the observation of the Apex Court in the case of Collector Varanasi, Appellant v. Gauri Shankar Misra and others. Respondents (AIR 1968 SC 384) Shall be relevant and applicable to the present case, In Collector, Varanasi (supra), the Apex Court held :
"The Rule is well settled that when a statute directs that an appeal shall lie to a Court already established, then that appeal must be regulated by the practice and procedure of that Court".
7. In the result, we are of the opinion that the limitation and provisions of the Arbitration Act, 1940 shall not be applicable to the present appeal.
8. On perusal of the award it is seen that the learned Arbitrator in Para-17 of the award has detailed the number of trees including the bamboo trees belonging to the 10 claimants cut by the authorities. It clearly shows the number of trees, notice of which was given by the authority i.e. SDO and the D.M. and the additional or excess trees alleged to have been cut down by the claimants. In view of the above, the number depicted in para-17 of the award needs no intervention and compensation will be paid on the basis of the above chart.
9. The Arbitrator has determined the compensation on the basis of loss of earnings of the claimants due to cutting down of fruit bearing trees. There were 12 variety of fruit bearing trees and after considering the evidence and materials on records and yield per tree per annum, the Arbitrator had fixed the annual loss as below :-
1. BE11 (Marmalos) tree Rs. 62.50 P Per annum
2. Jack fruit tree Rs. 200.00 Per annum
3. Mango tree Rs. 150.00 Per annum
4. Jalpai tree Rs. 400.00 Per annum in case of Satya Roy and Rs. 200.00 per annum in case of Manindra Bhowmik.
5. Cotton Tree Rs. 200.00 per annum
6. Boroi Tree Rs. 30.00 per annum
7. Kamranga Tree Rs. 5.00 per annum
8. Jam tree Rs. 25.00 per annum
9. Amloki tree Rs. 40.00 per annum (Amblic myrobalan)
10. Lichi Tree Rs. 300.00 per annum
11. Tetul (Tamarind) tree Rs. 100.00 per annum
12. Coconut Tree Rs. 300.00 per annum
10. Learned counsel for the claimants has submitted that the loss of annual income of fruit bearing trees has been fixed at a lower price by the Arbitrator, but in this case no cross-objection has been filed by the claimants and the Arbitrator has given detailed reason for arriving at the above figure. We, therefore, hold that loss of income in respect of each tree determined by the Arbitrator is just and proper.
11. Learned Arbitrator has used the multiplier of 30 stating that the trees would have given or yielded fruits for a period of thirty years. It is also stated that there is no evidence on record to show the age of the trees. In the case of State of Harayana, Appellant v. Gurcharan Singh and another etc., Respondents (AIR 1996 SC 106), the Apex Court observed :-
"Under no circumstances, the multiplier should be more than 8 years multiplier as it is settled law of this Court in catena of decisions that when the market value is determined on the basis of the yield from the trees or plantation. 8 years multiplier shall be appropriate multiplier. For agricultural land 12 years multiplier shall be suitable multiplier".
12. In the present case, the compensation is for loss of income due to cutting of the trees and not for the land with standing trees. The purpose of computing the annual loss and then adopting a suitable multiplier is to arrive at at figure so that if the resulted amount is invested in a Bank or other sacred security, the aggrieved person may get his actual loss compensated. Such a procedure is adopted in a case of fatal accident or motor accident. Although it is not a case under Motor Vehicles Act, the observations of the Apex Court in the case of General Manager. Kerala State Road Transport Corporation, Trivandrum, Appellant v. Mrs. Susama Thomas and others. Respondents (AIR 1994 SC 1631) are relevant. In a case of death of a person, maximum multiplier of 16 was allowed in that case which was later on increased to 18 in a case of U.P. State Road Transports Corp. v. Trilok Chandra (1996) 4 SCC 362.
13. This is a case of cutting down of tall trees only for the purpose of safety of Aircraft. The respondents were/are not divested from their land and they were eligible to grow any other crops over the land and thereby earn the livelihood. Further as the trees did not cover the entire area of land, the limitation in the case of State of Haryana (supra) are also not applicable because if the above multiplier is adopted their loss will not be compensated. In his usual fairness ; Mr. Bhowmik, learned Counsel for the respondents has also submitted that the multiplier adopted by the Arbitrator is admittedly on higher side.
14. Considering all aspects of the matter, we hold that multiplier of 18 shall be just and proper. This would also take care of inflation and loss of increased income due to price rise. Hence, it is provided that claimants shall be entitled to compensation in respect of cutting down of their fruit bearing trees at the rate of annual loss as stated above to be multiplied by factor 18 and number of trees belonging to each of the claimants. As stated in para 17 of the award.
15. So far the non-fruit bearing trees, other trees and bamboo trees are concerned, the compensation has been determined on consideration of the materials on record and this finds place in Para-39 to 44(a). On consideration of the materials, we find that the above findings need no interference.
16. The learned Arbitrator did not award any compensation for the alleged dimination of the market value of land and in absence of any country-claims, the matter needs no discussion.
17. In Para-46 and 46(A) and 47, the learned Arbitrator has awarded compensation for damage of timber due to cutting of trees. The damage has been assessed on two counts, namely loss of log value of timber and loss due to improper cutting of the trees. It is stated that the trees were not cut at the bottom, but at a height of 1-1/2' to 3' above ground level which has resulted a loss of the timber. It may be stated that big trees are generally cut at the height of 2' or more of the ground and not below that. Moreover, from the copies of the notices admittedly received by the claimants, it is seen that the claimants were asked on number of occasion to cut the trees and when they failed to do so, the authorities had no other option but to take up the job themselves, Thus, the claimants are not entitled to any compensation on that count. Moreover, as regards the log value of the timber is concerned, the finding of the Arbitrator in para-47 is that "the D.M. and collector. West Tripura and S.D.O. Sadar allowed removal cost of the trees. The D.M. and Collector or S.D.O., Sadar has not taken away the trees" During the course of argument also on our query even, there was no submission that the trees cut by the authorities were removed by them. Thus, we hold that there was no loss of timber or log value of the timber and the claimants are not entitled to any compensation as awarded under Para-46 and 47 of the award.
18. In Para 48, 49 and 50 of the award, the learned Arbitrator has granted some compensation for the damage of the Betal nut plants of the claimant Manindra Bhowmik, Segun (teak) plants of Anjan Nag and damage of tin-roofed house of Gourdhan and Haridhan. No interference is called for in the above.
19. The arbitration cost of Rs. 1,000 per claimant and interest awarded also needs no intervention.
20. In the result, the appeal stands allowed to the extent as indicated above. The claimants shall be paid the amount as per above less the amount already paid. The appellants are given 90 days time to pay the balance amount.