1. This writ appeal is directed against the judgment and order dated 30.11.94 passed by a learned Single Judge in Civil Rule No.518 of 1992 allowing the Civil Rule, quashing and setting aside the judgment of the Assam Board of Revenue dated 31.10.91 passed in Case No.59RA (Dib) of 1991 and also the letter dated 22.1.92 issued by the 3rd respondent.
2. Brief facts for the purpose of disposal of this writ appeal are: The appellant No. 1 is a company incorporated under the Companies Act and the appellant No.2 is the Managing Director of the said company. The company owns a tea estate known as Sarojini Tea Estate at Tingkhong in the district of Dibrugarh, Assam. The 1st respondent is a licensee for exploring, extracting and processing of petroleum. It is also a company under the Companies Act. On the basis of a licence granted to it, it is engaged in exploring, extracting and processing of petroleum in Upper Assam and various other parts of the country. The 1st respondent while carrying on the drilling operation for extracting crude oil and natural gas in Upper Assam on the basis of the licence granted to it, found that the three well fell in the garden land belonging to Sarojini Tea Estate. Pursuant to that the 1st and 2nd respondents approached the appellant No. 1 for purchase of the land of the proposed sites. The appellants also in order to avoid unnecessary delay in acquisition of land agreed to the proposal at the price quoted by the 1st respondent. Negotiations went on. However, suddenly without any information to the appellants the 1st respondent obtained an order of right of entry from the Deputy Commissioner under Rule 189 of the Settlement Rules made under the Assam Land and Revenue Regulation. On the basis of the authority granted by the Deputy Commissioner to enter into the said plots of land belonging to the garden of the appellant No. 1, the 1st respondent entered into those plots of land. While doing so, it had uprooted 16,160 tea bushes, cut down many tree, and removed wire fencing over an area of 0.96 hectares. The Additional Deputy Commissioner assessed the value of trees cut and fencing removed. He while making the assessment in respect of tea bushes destroyed by the Respondent No.1, applied the Krishnamurthy Formula and awarded Rs.3.25 per tea bush. According to the appellants said Krishnamurthy Formula was absolutely obsolete and did not reflect the actual loss suffered by the owner of the tea bushes. This assessment was, however, a provisional one. The tea estate of the appellant did not agree to the compensation granted by the Additional Deputy Commissioner and accepted the amount under protest. As only a right of entry was given under Rule 189, the right, title and interest over the land remained with the appellants. However, the land was subsequently transferred to the 1st respondent by a registered sale deed executed on 15th of December, 1987. At the time when the land was transferred by way of sale, there was no tea bushes. Therefore, the price of the tea bushes was not included in the said sale deed. The appellants further state that the written authority was granted to the 1st respondent to enter upon the land of the tea garden belonging to appellant company for surface operation in respect of an area measuring 31 Bighas 2 Kathas 10 Lechas covered by petroleum exploration licence granted to respondent No. 1. 16,160 tea bushes were uprooted by the 1st respondent from land measuring 7 Bighas 0 Kathas 15 Lechas out of the said land. The appellants pointed out to the ADC that the Krsihnamurthy Formula was merely an execcutive order. This formula had no basis and in fact it was a nonstarter. Besides, this was formulated long back i.e. in the year 1972. By efflux of time also this had become obsolete. However, the ADC ignored all those points and awarded an extremely low rate. Situated thus the appellants approached this Court by filing an application under Article 226 of the Constitution which was numbered as Civil Rule No. 1400 of 1989. This Court by an order dated 4.4.90 disposed of the writ petition directing the Deputy Commissioner to reopen the matter of assessment after giving opportunity of hearing to the parties and further pointed out thatthe Deputy Commissioner should not follow the Krishnamurthy Formula. This Court further observed that the value of the tea bushes had gone up since 1974. The matter, thereafter, went back to the Deputy Commissioner for reassessment.
Before the Deputy Commissioner appellants submitted an affidavit furnishing all materials on the basis of which they claimed Rs.65/ per tea bush. This time also the Deputy Commissioner applying the Krishnamurthy Formula fixed Rs.6/ per bush and added another sum of Rs.4/ to it holding, inter alia, that the garden had become uneconomic. Thus a total amount of Rs.10/ per bush was awarded. According to the appellants, Rs.10/ per bush was also extremely on lower side inasmuch as the ONGC paid Rs.10/ per bush as far back in the year 1962. But in 1986 Assam, Oil Division awarded Rs.38.60 per bush to Sewpur Tea Estate. The appellants being aggrieved, preferred an appeal under the provisions of section 147 of the Assam Land and Revenue Regulation before the Assam Board of Revenue being 5 IRA (Dib) 91. In the said appeal before the Board of Revenue, Oil India was also impleaded and notice was duly served on them. However, the Oil India did not appear before the Board. The Assam Board of Revenue after hearing the appellants and the Deputy Commissioner passed an award fixing compensation at the rate of Rs.33.80 per bush. The judgment was delivered on 31.10.91 in Case No.59RA (Dib) of 1991. Pursuant to the said judgment the Additional Deputy Commissioner requested the Oil India to pay the amount of Rs.4,93,604.80 towards satisfaction of the award given by the Assam Board of Revenue calculating compensation at the rate of Rs.33.80 per bush. On receipt of the said request, instead of paying the amount, the Oil India approached this Court filing the writ aplication (Civil Rule No.518 of 1992) challenging the validity of the judgment and order passed by the Assam Board of Revenue. The appellants appeared before this Court and contested the writ petition by filing affidavitinopposition and additional affidavitinopposition. The case was finally heard on 16.11.94. During the course of hearing appellants also submitted a written note in addition to the oral arguments of the counsel appearing on behalf of the appellants. Learned Single Judge after hearing the parties allowed the writ petition by his judgment and order dated 30.11.94 and quashed the judgment of the Assam Board of Revenue. Hence the present appeal.
3. Before the learned Single Judge the appellants raised preliminary objection that the petition itself was not maintainable inasmuch as the judgment of the Board being a judgment of default and/or consent on the part of the Oil India they were estopped from challenging the same; the judgment of the Board being on the question of fact, this Court in exercise of its power under Article 226 of the Constitution might not interfere with the decision of the Board, the learned Single Judge had no jurisdiction to uphold and rely on the Krishnamurthy Formula which was discarded by a Division Bench of this Court in Civil Rule No. 1400 of 19189. Awarding of compensation at the rate of Rs.33.80 per bush by the Board of Revenue not being erroneous as apparent on the face of the record, no interference was called for by a writ Court. The learned Single Judge, however, dispelled the arguments regarding maintainability. The learned Single Judge observed that awarding of compensation by the Board to give benefit of Rs.69,000/ was perverse as the notification (No.l/PL/62/PartV/3461 dated 8.8.88) became effective only from 5.7.88 and the case related to determination of compensation in the year 1986 and as that matter was not considered by the Board, its judgment could not sustain. According to the learned Single Judge there was no basis for the Board to reject the cost of plantation fixed at Rs.45,000 by the Government and that the Board erroneously came to the finding that the tea bushes were about 10 years old even though there was no evidence. This, according to the learned Single Judge, was based on conjecture. Learned Single Judge further held that the judgment of the Board suffered from infirmity inasmuch as the appeal was allowed by the Board without first coming to the conclusion that the decision of the Deputy Commissioner was erroneous on facts and on law. According to the learned Single Judge the Board also failed to apply its mind to the finding and reasoning of the Deputy Commissioner and decided the matter afresh by making an erroneous approach to the whole matter. The learned Single Judge also held that the compensation awarded was reasonable and the assessment made by the Board was only on surmises and conjecture.
4. We heard both sides.
5. Mr. BK Das, learned counsel appearing on behalf of the appellants submitted before us that the learned Single Judge fell in error by holding that the writ petition was maintainable. Mr.Das also argued that in the appeal before the Board of Revenue, Oil India (respondent No. 1) chose not to appear and left the matter to the Deputy Commissioner meaning thereby that whatever step would be taken by the Deputy Commissioner would be just and proper. After the judgment of the Board of Revenue, the Deputy Commissioner accepted it. Thereafter, according to the learned counsel, respondent Oil India had no locus standi to challenge the said judgment. The judgment of the Board could be said to be a judgment by consent. If the said judgment was treated as a judgment by consent of Oil India, it could not have challenged the said judgment in a superior Court, more so, by invoking Article 226 of the Constitution. Learned counsel also argued that the Board of Revenue being the last authority of fact, the conclusion arrived at by the Board on fact could not have been challenged before a writ Court unless it was preverse. According to the learned counsel for the appellants there was no specific ground of perverse finding except there being a submission by Oil India that there was no evidence to show that the tea bushes were 10 years old. It was also submitted that the learned Single Judge erred in law apparent on the face of the record in holding that all the points urged at the time of argument had no basis and that the chart of calculate at had been mentioned was just handed over to the Court without furnishing copies thereof to respondent Nos.5 and 6 earlier enabling them to peruse and understand the chart, but the learned Single Judge relied on the said chart without considering the question of fair play, reasonable opportunity and natural justice in the context of such submission.
6. Mr. N. Dutta, learned counsel appearing on behalf of respondent Oil India, on the otherhand, supported the decision of the learned Single Judge. According to Mr. Dutta the principle of calculation of loss adopted by the Board was not sustainable. When replantation cost was granted, profitability for 50 years could not have been calculated. He also submitted before us that after entry under the provisions of Rule 189 of the Rules under the Assam Land and Revenue Regulations, the tea bushes were destroyed and sometime thereafter the respondent Oil India purchased the land and, therefore, there was no scope for calculating the cost of replantation. According to him, there was no evidence on record to show that the tea bushes were 10 years old and, as such, the judgment of the Board was perverse as not based on evidence and was liable to be set aside. Therefore, the learned Single Judge rightly set aside the said judgment of the Board and in the facts and circumstances of the case the appellate Bench might not interfere with the findings of the learned Single Judge. However, Mr. Dutta very fairly and candidly submitted before us that the learned Single Judge after setting aside the judgment of the Board ought to have made a further direction for proper assessment of the compensation. Mr. Dutta fairly submitted that with the setting aside of the judgment of the Board, the order passed by the Deputy Commissioner stood restored. The learned Single Judge did not consider the legality of the said order nor any direction was issued. This, according to Mr. Dutta, was not proper.
7. On the basis of the rival contentions of the parties it is now to be seen d whether the judgment and order dated 30,11.94 passed by the learned Single Judge in Civil Rule No.518 of 1992 can sustain in law.
8. To decide this following require determination (a) whether the Civil Rule filed by the respondents is maintainable in law, (b) whether in the facts and circumstances of the case judgment of the learned Single Judge setting aside the judgment of the Assam Board of Revenue is justified.
9. Mr. Das strenuously argued that against the order passed by the Deputy Commissioner assessing compensation, present appellants preferred an appeal before the Board of Revenue in which respondent Oil India was made party. However, they did not contest. Therefore, Mr.Das submitted before us that they had accepted the judgment and hence the Oil India could not have challenged the judgment before the learned Single Judge stating, inter alia, that this was a judgment by consent. We have given serious thought to this submission. In an appeal, one party may not appear and the appeal may proceed against that party exparte. That does not take away the right of that party to challenge the judgment passed in an appeal before a superior forum. In this case, indeed the respondents did not appear in the appeal before the Board of Revenue. It is true that they should have appeared before the Board of Revenue and contested the appeal before the Board. This would have helped the Board to come to a proper finding. Unfortunately this was not done. But in our opinion, absence of Oil India before the Board of Revenue cannot disentitle the respondent Oil India to challenge the verdict of the Board of Revenue before the learned Single Judge, Therefore, we are of opinion that writ petition was maintainable before the learned Single Judge. In view of the above, we find no force in the submission of Mr.Das. Accordingly the said objection is rejected.
10. As per Rule 189 of the Rules made under Assam Land and Revenue Regulation (for short, the Rules), a licensee can enter into a land under occupation of any person other than the licensee covered by petroleum licence for exploration only with the consent of the occupier. If the consent is not given by the occupier, the licensee can enter into the land only with the written authority of the Deputy Commissioner. The Deputy Commissioner shall not grant authority unless he is satisfied that the right conferred by the licence cannot be exercised except by the grant of such authority. Licensee shall also not in anyway injure any tree, standing crops, buildings, huts, structures etc belonging to the occupier of the land or of any other person except with the consent of such occupier or other personor in case of his refusal, without the written authority of the Deputy Commissioner. If the Deputy Commissioner decides to grant authority, he shall immediately publish at his office and on the land concerned a notice that such authority has been applied for. The Deputy Commissioner may also assess or cause to be assessed any damage or injury which may be done by the licensee to the property of the occupier of the land or other person and may pay the amount so assessed to such occupier or other person.
From reading of this Rule it is clear that it is the statutory obligation of the Deputy Commissioner while granting authority to assess the damage and award compensation by way of damages.
11. The next question is what type of damages the occupier or other person occupying the land is entitled to get for causing loss to the property. In assessing the damages common law principle for assessment of damages should apply. Such actions are usually founded upon a tort or may be founded upon a breach of contract. It is also applicable when damage is caused by a person under an authority given by a statute. Whatever the basis of the action, the principle on which damages are assessed is more or less the same. It is stated by Viscount Dunedin in the following words :
"... the common law says that the damages due either for breach of contract or for tort are damages which, so far as money can compensate, will give the injured party reparation for the wrongful act...."
Viscount Dunedin expressed the same principle in the following passage from Admiralty Commissioner vs. SS Valeria, (1922) 2 AC 242 at 248 :
"... in calculating damages you are to consider what is the pecuniary sum which will make good to the sufferer, so far as money can do, the loss which he has suffered as the natural result of the wrong done to him...."
This view was cited with approval by Lord Morris in West vs. Shephard, (1964) Appeal Cases 326 at 346. The same view was expressed by Lord Blackburn in Livingstone vs. Rawyards Coal Compamy, (1980) 5 Appeal Cases 25. This apppeal was an appeal from Scotland, but the principle was equally applied in England. In the said appeal it was observed thus :
"I do not think there is any difference of opinion as to its being a general rule that, where any injury is to be compensated by damages, hi settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation."
Award for monetary compensation can be calculated so as to make good a financial loss as held by Lord Morris in West vs. Shephard (supra). But difficulty arises in the case of heads of damages which cannot be calculated in terms of money. Earl of Halsbury LC said in The Mediana, (1900) Appeal Cases 113 as follows :
"Your very often cannot even lay down any principle upon which you can give damages... Take the most familiar and ordinary cases : how is anybody to measure pain and suffering in moneys counted ? Nobody can suggest that you can by an arithmetical calculation establish what is the exact sum of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident... But nevertheless the law recognises that as a topic upon which damages may be given."
Following the above principles the Courts have found it convenient to consider various heads of damage caused to the person through the injuries caused on his person or to his property. As mentioned above, there is no difference in general principle for awarding compensation by way of damages in case of breach of contract or tort as well as on the statutory obligation under any statute. When an injury is caused whereby the loss is sustained by a person he is entitled to get compensation in terms of money to put him back in almost in the similar position as if there was no such damage. However, in certain matters the loss cannot be measured by way of money on the ground that it cannot be brought back to the original position. Say for instance in case of loss of a part of body of a person or his property which cannot be replaced under any circumstances. In such cases the compensation cannot be awarded with mathematical precision. However, it will be the duty of the Court to see haw much damages may rehabilitate the person by way of money to the nearness of the rehabilitation.
12. The principle governing the measure of damages falls under four heads. First, there is the general overriding principle of restitutio in integrum. Secondly, there are more specific but still general principles governing tort and contract respectively. Thirdly, there are applications of these principles to particular wrongs or to particular circumstances. Which have hardened into subsidiary principles. Fourthly, if a novel head of damage is to be considered, public or social policy may be invoked in determining whether damages can be recovered under that head. The doctrine of remoteness of damage may be regarded as the corollary to the principle governing the measure of damages. When damage is regarded as too remote, damages are not recoverable, because it is not, in view of the law, caused by the wrong, or otherwise fails to satisfy the criteria referred to above. The general rule is that of restitutio in integrum : so far as money can do it, the injured person should be put in the same position as he would have been in if he had not sustained the wrong.
Where chattels have been damaged or destroyed, the measure of damages depends on the general principles. The basis rule is that the measure of damages in case of damage to a chattel is the cost of repair. In Halsbury''s Laws of England (Volume 12, Fourth Edition) at page 456 refers to damages for the chattels which runs thus :
"... The basic rule is that the measure of damages in the case of damage to a chattel is the cost of repair, but if it is unreasonable from a business point of view to repair the article, or if the article is damaged beyond repair, then the basic measure is the cost of replacement in an available market. If there is no available market and it is reasonable to take steps to have a substitute made, the cost of the substitute may provide the measure of damages; if there is no market and the making of a substitute is unreasonable, it would seem that the measure of damages is the value to the plaintiff at the time of the loss." In case of loss of use of profitearning chattel in the same volume it has been observed thus:
"Where a profitearning chattel, that is a chattel used by the plaintiff in the course of his business, is damaged or destroyed, the plaintiff is entitled to loss of profits during a reasonable period of repair, and in the case of destruction he is entitled to loss of profits during the period which is reasonably required to replace the lost article in the market. The cost of a substitute, reasonably hired, may provide the measure of damages."
This principle is, in our opinion, is applicable in case of destruction of tea bushes belonging to the garden of the appellant company also.
13. In the present case, authority in writing was given by the Deputy Commissioner to carry on exploration of land on the basis of a licence granted to the Oil India for petroleum exploration. The admitted fact is, while making exploration, Oil India caused extensive damage including destruction of 16,160 tea bushes for which the Deputy Commissioner was under statutory obligation to assess the damages for the loss sustained. There is no dispute between the parties that the appellants sustained loss due to damage caused. But the important question is what should be the quantum of compensation for such damage, tea bushes are valuable. Huge expenditure is necessary to make a tea sappling into a grown up tea bush. When a tea bush is grown up it will have its value. Besides, this tea bush will also earn profit. This amount has to be calculated. If such tea bushes are destroyed, the owner not only loses the valuable tree but also the future earning. In order to be adequately compensated the owner is not only entitled to the price of the tea bushes but also the future earning. Therefore, it was the duty of the Deputy Commissioner to make the assessment taking all these into consideration. The Deputy Commissioner, in the instant case, made the assessment for damage of the tea bushes following the Krishnamurthy Formula fixing a rate of Rs.3.25 per tea bush. This was challenged in a writ petition (Civil Rule No. 1400 of 1989) before this Court. This Court also found it to be inadequate. Therefore, this Court gave direction to make assessment giving appropriate quantum of damages for such damage. A Division Bench of this Court disposed of the said writ petition directing the Deputy Commissioner to reopen the assessment matter to determine the damages for the damage of the tea bushes, giving opportunity to the parties to adduce evidence and for hearing. While disposing of the said writ petition the Division Bench of this Court further observed that the Krishnamurthy Formula was an obsolete one. This formula N did not reflect the true and correct position. We quote a portion of the judgment:
"The Deputy Commissioner shall not make the ''Krishnamurthy Formula'' applicable in this case which is of the year 198/89. The formula was applicable in the year 197274, but by now value of the tea bushes have gone up highly...."
There was no further appeal against the said judgment. Therefore, the finding of the Division Bench was final and binding. The matter was sent back to the Deputy Commissioner with the above observation. The Krishnamurthy Formula was directed not to be applied. The Deputy Commissioner, thereafter, reassessed. the compensation and came to the finding that Rs.6/ per tea bush would be adequate compensation. He also found that it would be uneconomic for the appellant garden if that amount was awarded. Another sum of Rs.4/ per tea bush was added and thus fixed compensation at Rs.10/ per tea bush. On what basis the amount of Rs.4/ was added had not been explained. Principle for awarding compensation for loss of property is well established. It is on the basis of ''Restitutio in integrum'' i.e. the compensation should be granted so that the person can be restored to his previous condition. Therefore, approach ought to have been to find out what was the loss sustained by the parties including the loss of the tea bushes and future earning. This was not done. The appellants preferred an appeal before the Assam Board of Revenue against the compensation awarded by the ADC. The Board of Revenue after hearing the parties considered what should be the appropriate compensation for the damage caused to 16,160 tea bushes belonging to the appellant tea estate. According to the Board the loss consisted of (i) the initial or capital expenditure to be incurred on replantation and (ii) the annual net profit supposed to be earned out of the yield from the uprooted tea bushes multiplied by the remaining productive age in terms of year of the tea bushes. A reference was made before the Board regarding the compensation given to Sewpoor Tea Estate. The Board held that the compensation made in the said case of Sewpoor Tea Estate failed to take into account the cost of production of mature tea and accordingly the Board did not agree with the compensation granted. The Board also brushed aside the theory suggested by the appellant (in the said case) i.e. Oil India for linking the consumers'' price index for industrial labour for the purpose of assessing the price of the tea bushes on the ground that it would not be scientific. The Board proceeded to observe that the methodology of costing the consumers'' price index was calculated for the limited purpose of determining the rise in price level of consumers'' items and its applicability in the instant case could not enable the Board to make objective assessment. Taking into consideration the letter dated 22.10.88 written by the Managing Director of the appellant tea estate requesting the Additional Deputy Commissioner, Dibrugarh to calculate compensation for plantation at Rs.69,000/ hectare as notified by the Tea Board, the Board observed that amount of plantation cost per hectare was quite reasonable. The Board found that the Government by circular dated 22.11.89 fixed the cost of plantation per hectare at Rs.59,000/. However, the Board was inclined to grant the benefit of the higher official valuation viz Rs.69,000/ per hectare. By the said circular letter the Government of Assam fixed the net annual profitability at Rs. 10,000/ per hecture of the ground area. The Board found that such fixation was quite reasonable. According to the Board in case the rate of profitability was higher than the amount of Rs. 10,000/ per hectare, it was incumbent on the part of the appellant to adduce evidence to that effect and as there was no material on that point, the Board adopted the nrm of net annual profitability of Rs. 10,000/ per hectare of tea growing area for the purpose of assessment in this case. According to the Board there was no evidence to show the age of the tea bushes. But the tea "bushes, according to the Board, was 10 years old at the relevant time and those bushes were likely to be maintaining the same level of net profitability for another 50 years from then. Accordingly the Board granted Rs.66,240/ towards the cost of plantation for 0.96 hectares and capitalised net profit of Rs. 10,000/ for the next 50 years i.e. Rs.4,80,000/. The total assessment for 16,160 tea bushes was made at Rs.5,46,240/ and accordingly the cost of each tea bush was calculated at Rs.33.80 and awarded the amount.
14. In the writ petition the learned Single Judge set aside the judgment and order of the Board of Revenue on the following grounds :
That the aforesaid notification dated 8.8.88 was effective from 5.7.88 and the question for determination of comepensation arose in the year 1986. Therefore, the notification was not applicable. Learned Single Judge also found fault with the judgment of the Board on the ground that the Board itself found that the materials on record could not lead to an objective assessment of the appellants'' claim. Thereafter accepting Rs.69,000/ per hectare as notified by the Tea Board to be reasonable was absolutely a perverse finding. According to the learned Single Judge, there was no basis for the Board to reject the cost of plantation fixed at Rs.45,000/ by the Assam Government by their circular dated 22.11.89 and to give the benefit of higher official valuation in the case as Rs.69,000/ per hectare and accordingly set aside the order of the Board.
15. Notification dated 8.8.88 showing the rate of loan at Rs.69,000/ per hectare for undertaking extension, replantation and/or replacement planning was made effective from 5.7.88. The learned Single Judge refused to take it into consideration on the ground that the question of determination of compensation arose in the year 1986. The learned Single Judge also observed that there was no basis for the Board to reject the cost of plantation fixed at Rs.45,000/ by the Assam Government by circular dated 22.11.89 and to give the benefit of higher official valuation at Rs.69,000/ per hectare. Learned Single Judge also wondered how the notification of the Tea Board fixing the valuation at Rs.69,000/ could be deemed to be a higher official valuation. According to the learned Single Judge, Government of Assam circular dated 22.11.89 was an official document, but that was not considered by the Board. Learned Single Judge refused to accept the notification dated 8.8.88 on the ground that it was effective from 5.7.88 on the ground that the question for determination of compensation arose in the year 1986 i.e. two years earlier to the effective date of the notification but, at the same time, the learned Single Judge was inclined to accept the circular dated 22.11.89 and set aside the judgment of the Board.
16. While calculating the quantum of compensation for the loss of tea bushes it is not always possible to give a mathematical precision. The Court''s duty is to decide with reasonable certainty the rate for awarding compensation. The notification dated 8.8.88 effective from 5.7.88 was definitely later than the date on which the compensation was to be calculated. But that was the nearest in point of time and it would not be unreasonable to assess compensation on the basis of that notification. The learned Single Judge was inclined to accept the circular which was effective with effect from 1.4.89. Besides, the Board of Revenue is the last Court of facts and in exercising the writ jurisdiction the Court should always be cautious and very slow in disturbing the finding of fact unless it is apparent on the face of the record that the finding is perverse and based on no material. It is an established principle of law that while awarding compensation merely because there is lack of evidence the Court should not dismiss a petition. In the instant case there is at least some evidence to show the cost of production from the Tea Board notification, maybe it is later to the date of loss. The learned Single Judge found fault in the Board''s judgment in calculating the age of the tea bushes as 10 years old as there was no evidence on record. But there is evidence that the tea bushes were mature. Normally it takes 3/4 years for a tea bush to mature as from the third year of plantation a tea bush starts yielding. We have already indicated that it is not always possible to supply data with mathematical precision. Therefore, we are of opinion that the tea bushes were 10 years old and the Board''s finding to that effect cannot be said to be without any basis. Therefore, we respectfully disagree with the conclusion arrived at by the learned Single Judge in this case. The Board had taken into consideration the cost of replantation while calculating the compensation for the damage. Mr. Dutta had strenuously argued on this point that as the land was ultimately sold to the respondent Oil India question of replantation did not arise. We find sufficient force in the submission of Mr. Dutta on this point. Evidence indicate that the land was sold after the respondent entered into the said land and destruction of the tea bushes. Therefore, question of replantation did not arise. At the time of destruction the tea bushes were there which definitely had certain value. The market value of the said tea bushes can be equated with the price of replantation. Therefore, instead of cost of replantation the appellants were entitled to get the price of the tea bushes standing on the land and the cost of plantation definitely indicates the price of tea bushes. Therefore, the Board ought to have awarded the amount as the value of the tea bushes and not as the cost of replantation. Therefore, we agree with the submission of Mr. Dutta that there was no scope for replantation. But at the same time the appellants were entitled to cost. We also do not agree with the view expressed by the Board and accordingly modify the judgmenf to the extent that the amount awarded towards the cost of replantation would be the price of the tea bushes and the appellants are entitled to the same and the future earning of the tea bushes.
17. In view of the above, we set aside the order of the learned Single Judge and restore the judgment of the Board with the modification indicated above.
