1. The appeal arises out of a reference made to the District Court of Godavari under Section 18 of the Land Acquisition Act I of 1894. The greater part of the land acquired was grown with cocoanut trees and the District Judge has assessed the compensation' separately on the trees, and on the land excluding the trees and on the aggregate so calculated has added 15.per cent of the whole as the allowance prescribed by Section 23(2) of the Act.
2. The Government has appealed on the single ground that the allowance of 15 per cent ought to have been calculated on the value of the land alone and not on the value of the trees.
3. We are unable to take this view. We think that though the District Judge has separately assessed the compensation for the land and for the trees respectively it was not necessary for him to have done so, and that the value of the trees is properly a part of the market value of the land.
4. The word 'land' as defined in Section 3(a) includes 'things attached to the earth' and therefore trees, and this definition has to be applied to Section 23 unless there is something repugnant in the subject or context.
5. The Government Pleader contends that the 2nd clause of Sub-section 1 of Section 23 shows that in this section the trees standing upon land cannot be regarded as a part thereof, but we do not think that that is the effect of the clause. This clause refers to damage sustained by reason of taking the standing crops or trees which may be on the land at the time of the Collector's taking possession thereof, and cannot, without a misuse of language, be applied to a case of purchase of land with trees upon it. In such a case if the price is fair, no damage is sustained by each party.
6. We think the clause may be applied to the case provided for in Section 17 when the Collector takes possession before award and the owner of the land declines to accept the sum then offered as payment for the crops or trees taken, or possibly as suggested for the respondent, to the case of crops or trees grown after the date of the declaration under Section 6, the date with reference to which the market value has to be estimated.
7. It may be, as the Government Pleader suggests, that the Collector is not making an offer under Section 17(3) and is not bound to allow 15 per cent, over the value of the trees to be paid for, but the offer made under that section is one which the owner of the land can accept or reject and he may prefer to take a sum down rather than to wait for the award.
8. Moreover to read the first clause of Section 23(I) as referring to the bare land without trees, involves the difficulty that there is no provision in the Act for the separate assessment of compensation for buildings apart from the land on which they stand. In as much as it is impossible to hold that they are liable to be acquired without payment of compensation, it must be taken that in Section 23 the word 'land' includes 'buildings standing thereon.' If so, that must be because buildings are 'things attached to the earth,' but so are trees 'things attached to the earth' and it is anomalous to interpret the same word as including one class of things attached to the earth and excluding another.
9. We avoid this difficulty by including the trees as part of the land, and we can at the same time give due effect to the second clause of Sub-section (i) by applying that clause to the special cases to which we have already referred.
10. In the present case the trees were on the land when the declaration under Section 6 was published and their value is therefore included in the market value of the land on which the allowance of 15 per cent, is to be calculated under Section 23(2).
11. The appeal therefore fails and we dismiss it with costs.