1 fa1109with x obj ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.1109 OF 1992 WITH CROSS OBJECTION ST.NO.14060 OF 1993 The State at the instance of the Special Land Acquisition Officer, Ratnagiri ...Appellant vs. Sadanand Naryan Peje ...Respondent Mr.A.R.Patil, A.G.P for the appellant Mr.S.M.Kamble for the respondent CORAM : A.S.OKA,J. DATE : JANUARY 18,2011 ORAL JUDGMENT : 1 The appellant-State of Maharashtra has taken an exception to the Judgment and Award dated 8 th April 1991 passed by the Civil Judge (Senior Division) in a reference under section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as the said Act). The acquisition relates to the land bearing survey no.93 situated at village Rahatagar, Taluka and District Ratnagiri. Notification under sub section 4 of section 126 of the Maharashtra Regional and Town Planning Act, 1966 r/w section 6 of the said Act was issued on 31 st October 1981. Award under section 11 was made on 31 st September 1986. As far as present respondent-claimant is concerned, he is claiming to be the proprietor of a business which was carried on in the structure on the land bearing survey no.93. He was carrying on the lodging business. By the Award under section 11 of the said Act, no compensation was offered to the respondent. Reference was made at the instance of the respondent claiming 2 fa1109with x obj compensation of Rs.32,000/-. He claimed a sum of Rs. 7,000/- as loss of business for six months, a sum of Rs. 5,000/- as shifting of business charges, Rs.10,000/- as loss of permanent furniture and fixtures and Rs.10,000/- on account of loss of goodwill. By the impugned Award, reference was partly allowed. The operative part of the impugned award reads thus: The claim of the claimant is partly allowed. It is hereby held that the claimant is entitled to receive enhance compensation of Rs. 15,000/- with 30% solatium with interest thereon at the rate of Rs.12.5%. Parties to bear their own costs. 2 The learned A.G.P for the appellant submitted that there was absolutely no evidence of any income received by the respondent from the alleged business. He submitted that no documentary evidence was produced by the respondent in support of any of the claims made in the reference under section 18 of the said Act. He therefore, submitted that there was no reason to grant any compensation. He pointed out that the respondent was not entitled to solatium as well as interest at the rate of 12.5% p.a. The learned counsel for the respondent supported the impugned Award. He pointed out that the evidence of the respondent had gone unchallenged and therefore, the entire compensation of Rs.32,000/- ought to have been granted. He submitted that the appeal may be dismissed and the cross objection may be allowed. 3 I have considered the submissions. I have perused the record. The respondent claims to be the proprietor of 3 fa1109with x obj Ganesh Lodge which was a business carried on by him in the premises on the land bearing survey no.93. The respondent stepped into witness box. He produced a licence under the Bombay Shops and Establishment Act,1948 which is at Exh.30. The licence has been issued in the year 1967 which was renewed from time to time. In the deposition of the respondent, the licence was admitted in the evidence and marked as exhibit. There is no suggestion in the cross examination that the respondent was not carrying on any such business in the premises on the acquired land. Therefore, the Court will have to proceed on the footing that the respondent was carrying on business in the name and style of Ganesh Lodge. In the examination-in-chief, the respondent stated that his yearly income was Rs.14,000/-. In the claim made under section 18 of the said Act, compensation of Rs.7,000/- has been claimed being the income for the period of six months. There is absolutely no cross examination made by the appellant on the aspect of income received. Therefore, there was every justification for granting the compensation on the ground of loss of business. 4 In the deposition, the respondent came out with a case that he has incurred expenses of Rs.3,000/- on cement flooring, a sum of Rs.6,000/- on making wooden partition and a sum of Rs.5,000/- on electric fittings. In the cross examination, he admitted that there was no documentary evidence to support the said claims. The respondent came out with a case that he suffered loss of goodwill to the extent of Rs.10,000/-. There is no basis for the said claim. But, the evidence of the claimant shows that the business had some good will. 5 Determination of market value under section 23 of the said Act by its very nature involves some element of 4 fa1109with x obj guess work. Looking to the aforesaid evidence, the learned Reference Court has fixed the compensation at Rs. 15,000/- which is just and proper and no interference is called for. 6 What has been granted to the respondent is reasonable and surely no case is made out for granting any enhancement in absence of any documentary evidence regarding improvements carried out in the premises. 7 What is granted by the Reference Court is not the market value but the compensation payable under clause fourthly of sub section 1 of section 23 of the said Act. Benefits under section 23 (1-A) and section 23(2) are payable only on the market value of the land covered by the clause firstly of sub section 1 of section 23. However, as the Award has been made after coming into force of the Amendment Act no.68 of 1984, the respondent will be entitled to interest in accordance with section 28 of the said Act. 8 Hence, I pass the following order : i) Impugned Award is modified by setting aside that part of the impugned Award by which the solatium at the rate of 30% and interest at the rate of 12.5% has been granted. ii)The respondent-claimant shall be entitled to interest in accordance with section 28 of the Land Acquisition Act,1894. iii)Rest of the Award is not disturbed. iv)Appeal is partly allowed on above terms with no order as to costs. v) Cross objection is dismissed with no order as to costs. 5 fa1109with x obj vi)Computation of the compensation payable in terms of the modified Award shall be made by the Reference Court within a period of three months from the date on which writ of judgment is received by the Reference Court. JUDGE