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3. It was submitted by the learned AGP that the method adopted for determining the compensation for the fruit bearing trees by the Reference Court is based on income capitalization method and the same cannot be adopted when the compensation for the land has been awarded by fixing the market value as Bagayat land (perennially irrigated). It was submitted that if the market value of the land is fixed on the basis that it is Bagayat land, the fruit bearing trees cannot be separately valued and compensation if at all has to be on the basis that it was firewood. In the alternative it was submitted that if the compensation for fruit bearing trees is calculated and awarded on the basis of income capitalization method, no compensation is required to be given for the land acquired and the claimants cannot have both the benefits. They must opt for one of them and it was fairly conceded before us that better of the two benefits could be allowed to be retained. It was further submitted that the valuation done in respect of the fruit bearing trees is also excessively high, it is unreasonable and unrealistic.

If the Reference Court accepted the Government Valuer's report (Deputy Director of Horticulture at Exhibit 14), the said report was required to be accepted in toto and not in bits and pieces.

The learned AGP, therefore, submitted that even the compensation fixed for the fruit bearing trees even by following income capitalization method is excessive and is required to be slashed down and in no case there could be separate compensation granted for the land on which the fruit bearing trees were standing. In support of these arguments the learned AGP has placed reliance on the following decisions:

2. Special Land Acquisition Officer, M.I.W., Jalgaon Vs. Chindha Fakira Patil (deceased) Heirs Dharma Chindha Patil [2007 (2) Mh.L.J. 130]

3. State of Maharashtra Vs. Sahadu Aba Shete & ors. [2009 (1) ALL MR 186] As per the learned AGP, the possession of the land was taken over on 8/4/1987 and thus for about seven long years, the claimants had derived and enjoyed the income from the fruit bearing trees as per their own case and this period of seven years was required to be deducted from the life span of the trees while calculating compensation by the income capitalization method in Exh. 14. Mrs. Mulekar by referring to the depositions of PW 3 - Shri Uttamrao Patil, the Private Expert Valuer examined by the claimants, submitted that if the said valuer had visited the acquired land on 15/10/1985 and noted that 970 grape trees were of 6 years of age and 273 Guava trees were of 9 years of age, it was clear that the grape trees were planted after the notification under Section 4 of the Act was issued on 30/10/1980 and, therefore, the land owner cannot claim compensation for the grape trees at least. She also made the said argument in respect of the acquired land and covered under L.R. Nos. 412, 415 and 417 of 1989 as PW 3 has stated that he had noticed in the said Gat number, 562 grape trees of 5 years of age which clearly implied that all these trees were planted after the notification under Section 4 of the Act was issued. She referred to Section 24 - fifthly of the Act and submitted that these trees were planted to increase the value of the land and after the notification was issued under Section 4 of the Act, Section 24 - seventhly made it clear that the land owners were required to obtain the sanction from the Collector before undertaking such plantation of fruit bearing trees. The learned AGP, therefore, urged before us that the land owners were not entitled for any compensation in respect of the fruit bearing trees on the basis of income capitalization method when the market value of the land was fixed on the basis that it was a bagayat land.

4. Mr.Joshi, the learned counsel for the claimants on the other hand, submitted that as per the scheme of Section 23 of the Act, the compensation to be awarded to the claimants is in different parts. Firstly it is the market value of the land and in addition, for the fruit bearing trees or structures thereon are required to be valued for payment of additional compensation by way of damages. As per Mr. Joshi in the instant case the Reference Court has awarded compensation for fruit bearing trees and structures by way of damages and, therefore, it does not call for any interference more so when the said valuation is based on the report of the State Government Valuer as well as private valuer PW 3 examined by the claimants. It was submitted that the valuation so made is not realistic and in fact it is on the lower side and, therefore, it requires to be enhanced because while fixing the compensation the Reference Court has not taken into consideration the total life of the trees as well as the yield and market rate as per the private Valuer's report. In the alternate Mr.Joshi submitted that even if this Court finds that the valuation for the fruit bearing trees made by the Reference Court is just and proper, there is no reason to interfere with the award passed by the Reference Court and the claimants ought to receive the market value for the land as well as the compensation for fruit bearing trees. Mr. Joshi does not agree with the submissions made by the learned AGP that the claimants can have either of the benefits i.e. either the compensation for the land by way of its market value or the compensation for the fruit bearing trees on the basis of the income capitalization method.