... 1 ... IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO.116 of 2003 WITH FIRST APPEAL NO.120 of 2003 FIRST APPEAL NO.116 of 2003 1. Dy. Collector (L.A.) Margao, Goa. 2. The Executive Engineer, W.D.VI (R & B), P.W.D., Fatorda, Margao, Goa. … Appellants v e r s u s 1. Mr. Mariano Do Rosario Antonio de Quardros (expired), represented by Lrs. 1.a) Smt. Gracinda Quardros e Noronha, 1.b) Shri Olavo Noronha, Both r/o St. Joaquim road, Margao. 1.c) Shri Agostinho Jose Custodio de Quardros, r/o H. No.929, Vanxem, Loutolim, Goa. 1.d) Smt. Gaudalupe Alburquerque e Quardros, r/o H. No.518, Pequeno Pulvado, near Patrocinio Chapel, Benaulim, Goa. 1.e) Kum. Vera Tercia Quardros, r/o H. No.929, Vanxim, Loutulim, Goa. ... 2 ... 2. Mrs. Zita Fernandes e Quardros, major, r/o H.No.518, Pequeno Pulvado, near Patrocinio Chapel, Benaulim, Goa. ... Respondents Mr. G. Shirodkar, Government Advocate for the appellants. Mr. C. Mascarenhas Advocate for the respondents. *********** FIRST APPEAL NO.120 of 2003 1. Mrs. Zita Fernandes e Quardros, major of age, r/o H.No.929, Vanxim, Loutulim, Goa. 2. Smt. Gracinda Quardros e Noronha, major of age, r/o St. Joaquim road, Margao. 3. Shri Olavo Noronha, major of age, r/o St. Joaquim road, Margao. 4. Shri Agostinho Jose Custodio de Quardros, r/o H. No.929, Vanxem, Loutolim, Goa. 5. Smt. Gaudalupe Alburquerque e Quardros, r/o H. No.518, Pequeno Pulvado, near Patrocinio Chapel, Benaulim, Goa. 6. Kum. Vera Tercia Quardros, r/o H. No.929, Vanxim, Loutulim, Goa. … Appellants V e r s u s ... 3 ... 1. Dy. Collector (L.A.) Margao, Goa. 2. The Executive Engineer, W.D.VI (R & B), P.W.D., Fatorda, Margao, Goa. … Respondents Mr. C. Mascarenhas, Advocate for the appellants. Mr. G. Shirodkar, Government Advocate for the respondents. CORAM: Shri A. H. JOSHI DATE: 29th JULY, 2009. JUDGMENT: Both these appeals arise out of the judgment and order dated 28.10.1992 passed by the Deputy Collector (L.A.), Margao. 2. In First Appeal No.116 of 2003, the State Government is aggrieved by the award thereby enhancing the amount of compensation. In First Appeal No.120 of 2003 the landowners are aggrieved as they have not been awarded compensation to the extent claimed by them. 3. Heard Advocates. Perused the record. ... 4 ... 4. The land acquired is 325 sq.mtrs. from survey no.470/2 from village Loutolim. Admittedly part of land was already acquired in 1975. Possession of land now acquired was taken way back in 1975. The land acquisition proceedings were commenced much later and the Notification under section 4 of the Land Acquisition Act was published on 09/02/1989. 5. Land Acquisition Officer has passed award holding the market price to be @ Rs.49/0 per sq.mtr. 6. In the trial court, in order to prove the market price of the land, the land owner has placed reliance on sale deed dated 09.02.1988 which pertains to an area of 412 sq.mtrs., sold for Rs.130/- per sq.mtr. from survey no.468/3 which is abutting the land subject matter of the acquisition. According to the claimants, the price of the adjoining land have reached the height of Rs.600/- per sq.mtr. In 1996. ... 5 ... 7. The land owner has examined himself himself, vendor of sale deed dated 09.02.1988 and an Engineer who had certified the valuation in support of his claim. 8. The reference Court found that the land subject matter is in settlement zone. The price of comparable sale instance can be accepted by reducing the costs of developments and held that market price of the land shall be @ Rs.100/- per sq.mtr. 9. In present appeal, the land owner has claimed the market price at the rate of Rs.200/- per sq.mtr. However, during oral submissions the learned Advocate for the appellants restricts his claim to Rs.160/- per sq.mtr. 10. Additional compensation is claimed on the ground of: (a) Affection due to severance and; (b) interest at the rate of 12% per annum from the date of taking possession i.e. 17.09.1975 under section 23 (1A) of the ... 6 ... Land Acquisition Act, 1894. 11. For opposing the claimant's appeal and in support of own appeal by the state, learned Government Advocate urged as follows: 1) The compensation at the most could be by deducting one third development charges from the comparable sale instance i.e. Rs.87/- per sq.mtr. 2) Therefore Grant of Rs.100/- i.e. more than Rs.87/- is not reasonable. 3) Correct interpretation of section 23 (1-A) is to award interest on enhanced amount, from the date of award and not from the date of taking possession. 4) The area which has remained with the landowner is far larger and severance did not bring any diminishion in the value of the property which is left with the land owner. Moreover diminishion in value is a question of fact, and land owner did not bring any evidence to prove this plea. Hence nothing can be awarded under this head. ... 7 ... 12. Both the Advocates have placed reliance on the various judgments: (a) Judgments relied by learned Government Advocate Shri Shirodkar are as follows: 1. AIR 2001 Supreme Court 2951 Siddappa Vasappa Kuri and anr. v. Special Land Acquisition Officer and anr. 2. 2005 (2) ALL MR 371 Special Land Acquisition Officer and anr. v. Mariano Caetano Clarimundo Francisco. (b) Judgments relied by the learned Advocate Shri Mascarenhas for land owners are as follows: 1. AIR 1972 Supreme Court 1417 Smt. Tribeni Devi and ors. v. The Collector, Ranchi. 2. AIR 1995 Supreme Court 2492 Assistant Commissioner, Gadag Sub Division, Gadag v. Mathapathi Basavannewwa and ors. 3. AIR 2004 Supreme Court 1904 R. L. Jain DL by legal representatives v. DDA and ors. 4. 2006 AIR SCW 5813 Gurpreet Singh v. Union of India. ... 8 ... 13. Analysis of the facts of case on hand and reasons leading to fair market price is as follows: a) It has come in the evidence of Pw.2 that he has received Rs.130/- per sq.mtr. which land is at a shallow level while the land acquired is one metre above the road level. b) He has opined that the market price of the acquired land would be more than his land. c) While it is true that 33% deduction will have to be made whenever undeveloped property is acquired. d) The ratio of 33% is taken into account considering that around 28% on the land would be affected by roads and common amenities and some expenditure would be incurred for development. e) In the present case, it is proved that the land of the claimant would have fetched ... 9 ... better price and may not need same expenditure for development, as adjoining land having shallow level would have. f) The Trial Court could have actually reduced 33.33% from market price and could have arrived at the figure of Rs.87/- per sq. mtr. g) What Trial Court has awarded is Rs.100/- per sq.mtr. apparently because it may have been the market price considering various facets. This eloquence however is lacking as regards reasons for arriving at said figure of Rs.100/-. 14. The Trial Court could have, but has failed to go into the exercise of satisfying extra sum of Rs.13/- per sq.mtr. by straight away arriving at the figure as Rs.100/- per sq.mtr. as the fair market price. Therefore, the marginal difference of Rs.13/- per sq.mtr. is too meager to warrant interference. ... 10 ... 15. The demand for Rs.200/- or even Rs.160/- by the claimant is not supported by evidence relied upon by him. The award therefore, cannot be held to be either meager or too much higher when the market price assessed by the Trial Court is at the rate of Rs.100/- per sq.mtr. where the reference court has attempted to strike a golden mean. 16. The loss due to severance: This point is not very specifically urged in the memo of appeal. Loss due to severance is thus a possibly without any legal presumption. The land owner has failed to prove that the remaining property has suffered diminishion in value. In the result, the claimant is not entitled to received any amount of compensation on this ground. 17. This Court has perused the judgments relied upon by respective parties. Law of precedent on Section 23 (1A) which emerges therefrom is as follows: ... 11 ... a) Interpretation of section 23 (1A) is as laid down by the Hon'ble Apex Court in the case of Siddappa Vasappa Kuri and anr. v. Special Land Acquisition Officer AIR 2001 Supreme Court 2951. b) AIR 1995 Supreme Court 2492 Assistant Commissioner, Gadag Sub Division, Gadag v. Mathapathi Basavannewwa and ors. has been expressly over ruled. c) The interest payable under section 23 (1A) is from the date of publication of notice under section 4 and not from earlier date. 18. The contents of relevant paragraph of the judgment in Siddappa 's case (supra) can be usefully quoted as under: “5. It is, as we see it, clear from Section 23 (1-A) that the starting point for the purposes of calculating the amount to be awarded thereunder, at the rate of 12 per centum per annum on the market value, is the date of publication of the Section 4 Notification. The terminal point for ... 12 ... the purpose is either the date of the award or the date of taking possession, whichever is earlier. In the present case, possession of the land having been taken prior to the publication of the section 4 Notification, that terminal is not available. The only available terminal is the date of the award. The High Court, therefore, was in no error in holding that the appellants were entitled to the additional compensation under section 23 (1-A) for the period 8th March, 1991 to 6th February, 1993.” 19. On facts of the case before the Hon'ble Supreme Court i.e. Siddhappa (supra), the claimant land owner had claimed interest under section 23 (1A) on enhanced compensation from the date of taking possession which was 1st June 1977 till publication of the Notification under section 4, which was 8th March 1991 as in present land owner's appeal which the Hon'ble Supreme Court held to be not payable. 20. Moreover the Land Acquisition Officer has ... 13 ... awarded interest to the land owner and the compensation awarded by him from the date of taking possession. 21. In the result, both the appeals have no merits and are dismissed. A. H. JOSHI lh/.