: 1 : IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 285 OF 2003 1. Sonoba Vishnu Gaunkar 2. Mahadev Vishnu Gaunkar 3. Shiva Vishnu Gaunkar 4. Shankar Guno Gaunkar ( Since deceased ) through his legal representatives a) Smt. Rukmini Shankar Gaunkar b) Shri Guno Shankar Gaunkar c) Kum. Gandhali Shankar Gaunkar d) Shri Pradip Shankar Gaunkar e) Kum. Nita Shankar Gaunkar All of full age, residing at Nandran, Mandrem, Sanguem Goa. 5. Bhisso Guno Gaunkar 6 Uttam Guno Gaunkar 7. Krishna Guno Gaunkar 8. Laxman Raghoba Gaunkar 9. Govind Raghoba Gaunkar 10.Gopika Tolio Gaunkar 11. Ragoba Tolio Gaunkar 12. Suresh Tolio Gaunkar 13. Rohidas Tolio Gaunkar 14. Appa Gablo Gaunkar 15. Kamal Tolio Gaunkar 16. Sangeeta G. Gaunkar, All of full age, residing at Nandran, Mollem, Sanguem Goa. ... Appellants V e r s u s 1. The Land Acquisition Officer, Forest Settlement Officer, Government of Goa, Panaji Goa. 2. The Director of Wild Life and Eco Tourism Forest Department, Panaji. : 2 : 3. Shanti Dilip Gaunkar resident of Kodar, Post Khandeparkar Ponda Goa. 4. Tulshi alias Subhadra Atma Gaunkar Karemol, Surla, Sanguem Goa. 5. Vithe alias Shobavati Krishnanath Gaunkar resident of Taldem, Surla, Sanguem Goa. ... Respondents Mr. M. B. Da Costa, Senior Advocate with Mr. J. A. Lobo, Advocate for the Appellants. Mr. M. Salkar, Additional Government Advocate for the Respondent Nos. 1 and 2. CORAM:- S. J. VAZIFDAR & U.D. SALVI, JJ. Dated:- 5th April, 2010. JUDGMENT (Per S. J. VAZIFDAR,J ) 1. This is a First Appeal against the order and judgment of the Reference Court dated 31.7.2003 2. By the impugned judgment and order the learned Judge has held that the acquired land being agricultural land the land and the trees cannot be valued separately. It was noted that though the land was valued at Rs.2/- per square metre, considering the valuation placed on the trees and : 3 : the structures, the Appellants had in fact been granted compensation in excess of Rs.15/- per square metre. Even the Appellants' valuer had valued the land at Rs.10/- per square metre The learned Judge therefore rightly rejected the application for enhancement of the value of the property. The learned Judge upheld the application for additional compensation at 12% per annum on the market value of the land from the date of the Notification till the date of the award in terms of Section 23 (1A) of the Land Acquisition Act. The State has not challenged the award. We are in any event in agreement with the learned Judge in this regard as well. Mr. Da Costa, the learned Senior Counsel appearing on behalf of the Appellants did not seriously press the Appeal in so far as the learned Judge refused to enhance the compensation by increasing the value of the land. 3. The judgment cannot be faulted for any reason. It must be upheld for the grounds it has dealt with. Mr. Da Costa, the learned Senior Counsel appearing on behalf of the Appellants raised a new point before us. It was not taken before the learned Judge. The Reference Court cannot be faulted for not having dealt with it. However as the claim refers to a statutory benefit viz. interest under Section 28, we permitted him to raise the same before this Court. 4. He submitted that the Appellants are entitled to interest under Section 28 of the Land Acquisition Act on the relief obtained by them under : 4 : Section 23(1A) of the said Act. He based his submission on the ground that the amounts under Section 23(1A) ought to have been paid on the date of the award and the Respondents having failed to do so were liable to pay interest under Section 28 from the date on which possession of the land was taken. It is necessary to state the facts only briefly in this regard. 5. The land in question is forest land. The provisions of the Wild Life (Protection) Act, 1972 are applicable. By a Notification dated 27.9.1982 issued by the Administrator of Goa, Daman and Diu in exercise of powers confirmed by Section 18 of the Wild Life (Protection ) Act, the lands mentioned therein were declared to be a sanctuary for the purpose of the Act. Considering the area to be of ecological, faunal, floral, geomorphological, natural or zoological significance for the purpose of protecting, propagating or developing wild life and its environment, the said Notification dated 27.9.1982 was issued. The schedule included an area comprising of forest of various villages including Collem wherein the Appellants' lands are situated. The area specified in the schedule to the Notification had been declared as a game sanctuary under Section 18 of the Wild Animals and Wild Birds Protection Act, 1965 under a Notification dated 20.12.1967. Under the Wild Life ( Protection ) Act, the provisions of the Land Acquisition Act have been made applicable in respect of acquisition of such lands and the payment of compensation for the same. : 5 : 6. It appears that an area of 1,87,000 square metres had been acquired earlier pursuant to the Notification dated 27.9.1982. The possession had actually been taken on 18.12.1987. We are however not concerned with the same in this Appeal. An award was made in respect of the said 1,87,000 square metres on 12.12.1987. The Appellants challenged the same by filing Writ Petition No.155/2000. The Writ Petition was disposed of by an order and judgment of a Division Bench of this Court dated 13.7.2000. 7. It appears further that the Respondents did not permit the Appellants to develop the balance land available with them. They therefore filed Writ Petition No.155/2000 in this Court. The Writ Petition was disposed of by an order and judgment of a Division Bench of this Court dated 13.7.2000. Paragraph 5 of the order reads as under :- “Respondents have filed their Affidavit-in-Reply. It is their contention that they propose to acquire the land. Funds have to come from the Union of India. It is in these circumstances that the land has not been acquired. Considering the material on record, in our view, the Petition can be disposed of by issuing the following directions :- The respondents shall acquire the entire balance area of 510600 square metres owned by the Petitioners ( 14 families) from the survey No.60/2 of village Nandran. The respondent shall : 6 : pass the award in respect of the same under the Land Acquisition Act, and in accordance with the provisions of the said Act on or before 31.3.2001. However, the respondents shall not take possession of the said acquired land before the expiry of 31.3.2002. ........“ 8. The Respondents acquired the lands which are the subject matter of the present Appeal admeasuring 5,10,600 square metres pursuant to the said order and judgment dated 13.7.2000. In respect of the said lands an award dated 29.3.2001 was made and published. In paragraph 21 of the award, it was specifically provided that the acquiring department shall comply with the directives of this Court and accordingly shall not take possession of the said lands before 31.3.2002. 9. Both the learned Counsel agreed and invited us to proceed on the basis that the acquisition even of lands admeasuring 5,10,600 square metres is with effect from 27.9.1982. Indeed, this is also clear from the award itself. Item No.6 of paragraph 18 of the award grants benefit under Section 23(1A) in respect of the land with effect from 27.9.1982 to 29.3.2001. 10. As stated earlier, the Reference Court by the impugned order and judgment granted the benefit of 12% additional compensation per annum under Section 23(1A) of the Land Acquisition Act additionally in respect of the forest trees, fruit bearing trees and the houses and structures which had : 7 : been denied to the Appellants in the award. 11. The question before us is whether the Appellants are entitled to interest on the amounts that constitute the value of the forest trees, fruit bearing trees and the houses and structures. We have come to the conclusion that the Appellants are entitled to the same. 12. As stated above, the award was made on 29.3.2001. The Land Acquisition Officer wrongly refused to grant the benefit under Section 23(1A) of the Land Acquisition Act with respect to forest trees, fruit bearing trees, houses and structures and granted the same in respect of the land. The Appellants made an application for reference under Section 18 of the Land Acquisition Act on 10.5.2001. The same was registered as Land Acquisition Case No. 39/01 which was disposed of by the impugned order and judgment dated 31.7.2003. 13. Sections 23 and 28 of the Land Acquisition Act read as under :- “23. Matters to be considered in determining compensation.—(1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration— first, the market-value of the land at the date of the publication of the 1[notification under Section 4, sub-section (1)]; secondly, the damage sustained by the person interested, by reason of the taking of any standing : 8 : crops or trees which may be on the land at the time of the Collector’s taking possession thereof; thirdly,the damage (if any) sustained by the person interested, at the time of the Collector’s taking possession of the land, by reason of severing such land from his other land; fourthly, the damage (if any) sustained by the person interested, at the time of the Collector’s taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings; fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and sixthly, the damage (if any) bona fide resulting from the diminution of the profits of the land between the time of the publication of the declaration under Section 6 and the time of the Collector’s taking possession of the land. [(1-A) In addition to the market-value of the land, as above provided, the Court shall in every case award an amount calculated at the rate of twelve per centum per annum on such market-value for the period commencing on and from the date of the publication of the notification under Section 4, sub- section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. Explanation.—In computing the period referred to in this sub-section, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any court shall be excluded.] : 9 : (2) In addition to the market-value of the land, as above provided, the Court shall in every case award a sum of [thirty per centum] on such market- value, in consideration of the compulsory nature of the acquisition. 28. Collector may be directed to pay interest on excess compensation.—If the sum which, in the opinion of the Court, the Collector ought to have awarded as compensation is in excess of the sum which the Collector did award as compensation, the award of the Court may direct that the Collector shall pay interest on such excess at the rate of [nine per centum] per annum from the date on which he took possession of the land to the date of payment of such excess into Court.] [Provided that the award of the Court may also direct that where such excess or any part thereof is paid into Court after the date of expiry of a period of one year from the date on which possession is taken, interest at the rate of’ fifteen per centum per annum, shall be payable from the date of expiry of the said period of one year on the amount of such excess or part thereof which has not been paid into Court before the date of such expiry.]” 14. Section 23 pertains to “ Matters to be considered in determining compensation”. Sub-section (1) of Section 23 deals with the determination of the amount of compensation to be awarded for the land acquired under the Act and the factors to be taken into consideration while determining the same. Sub-sections (1A) and (2) make it clear that the amount to be awarded thereunder are : “In addition to the market value of the land”. Thus while the market value of the land is a component of compensation, the term compensation is of wider import. : 10 : 15. Once it is established that the benefit under sub-section (1A) of Section 23 constitutes compensation an application under Section 18 is maintainable in respect of the denial thereof. Section 18 reads as follows :- “18. Reference to Court.- (1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. (2) The application shall state the grounds on which objection to the award is taken: Provided that every such application shall be made,- (a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award; (b) in other cases, within six weeks of the receipt of the notice from the Collector under section 12, sub-section (2), or within six months from the date of the Collector's award, whichever period shall first expire.” Section 18 on a plain reading includes within its ambit objections regarding “ the amount of compensation”. Thus the benefit under Section 23(1A) falls within the ambit of the expression “the amount of compensation” within the meaning of that expression in Section 18. : 11 : 16. That the Court is bound to grant the interest on the additional amounts payable under Section 23(1A) is established by the judgment of the Supreme Court in the case of Patel Joitaram Kalidas and others V/s Spl. Land Acquisition Officer and another, 2007(2) SCC 341. Para 17 of the judgment reads as under :- “17. Having regard to the submissions urged on behalf of the respondents we could have remitted the matter to the High Court to give an opportunity to the claimants to make a claim of interest before the High Court. That however, would only be a formality because having regard to the law laid down in Sunder, the High Court is bound to award the interest on the additional amount payable under Section 23(1A) and solatium payable under Section 23(2) of the Act. Moreover, grant of interest on these amounts is consequential and automatic and involves only arithmetical calculation and not application of judicial mind or exercise of judicial discretion. It is no doubt true that the appellants ought to have made such a claim before the High Court, even in the appeals preferred by the State. But in fairness to the appellants it must be conceded that during the pendency of the appeals before the High Court the law as laid down in Prem Nath Kapur held the field and, therefore, it would have been futile for them to claim interest. The claimants could have filed such an application before the High Court if the judgment in Sunder was pronounced when the appeals were pending before the High Court. Unfortunately, they could not do so because the judgment in Sunder and the impugned judgment in the appeals preferred by the State before the High Court were pronounced on the same day. Having regard to these facts, peculiar to this case, we are persuaded to allow the appeals preferred by the appellants as a special case in the interest of justice. Accordingly, we hold that the appellants are entitled to interest on the : 12 : amounts payable to them under Section 23(1A) and Section 23(2) of the Land Acquisition Act. We direct the Collector to calculate the interest payable and pay the same to the appellants without further delay. These appeals are accordingly allowed. No order as to costs”. 17. Mr. Salkar, the learned Counsel appearing on behalf of the Respondents contended that the interest on the amount under Section 23(1A) is not payable under Section 28 as the same cannot be said to be an amount “in excess of the sum which the Collector did award as compensation”. 18. We do not agree. Firstly the submission is answered by the judgment of the Supreme Court. 19. Even on principle the submission is not well founded. Mr. Salkar based this submission on the contention that there is no excess sum that is awarded by the Reference Court as the amount is fixed at 12% per annum. The submission mistakes the rate for the amount fixed. The amount is to be fixed at the rate of 12% under Section 23(1A). Thus the amount not having been fixed by the Collector and having been fixed/awarded by the Reference Court it must be held that the amount granted by the Reference Court is as per the provisions of Section 28 - “in excess of the sum which the Collector did award as compensation”. This would be so even in cases : 13 : where such relief is awarded by the Collector but is increased by the Reference Court. Section 28 applies whenever the Court orders payment of compensation of an amount in excess of the sum which the Collector awarded as compensation. The section is not restricted to any particular aspect of compensation. The moment the Reference Court finds that the compensation in any form which ought to have been granted is in excess of the sum awarded the provisions of Section 28 apply. 20. The next question is the date on which the possession of the land was taken as that is the date from which the interest is payable under Section 28. 21. We sent for the file containing the records of the acquisition proceedings. The panchanama for taking possession is not available in the file. Evidence was not available as to when the possession was taken. It is clear however that the possession was not taken atleast till 31.3.2002 in view of the order dated 13.7.2000 by which the Respondents were directed not to take the possession of the land before 31.3.2002. The payment was admittedly made on 25.6.2004. Thus no interest would be payable after the date of payment. 22. The reliance upon paragraph 4 of the affidavit dated 28.4.2008 in Writ Petition No.232/08 is not well founded. The mere fact that the officer : 14 : made allegations regarding some of the land owners illegally cutting trees on the land would not establish that the possession has not been taken. There is nothing to indicate that the possession was not taken. 23. Thus till 31.3.2002 the possession remained with the owners/Appellants. Considering the nature of the matter and considering the situation of the Appellants in this case, it would be unfair to remand the matter making them incur expenses all over again. The Respondents are in possession of the best evidence in this regard. The evidence is however for some reason not available. We will presume therefore that the possession was taken within about three months from 31.3.2002 say by 25.6.2002. 24. In the circumstances, the impugned judgment and order is upheld in all respects. In addition to the relief granted by the Reference Court we hold that the Appellants are entitled to interest at 9% per annum in respect of the amounts awarded for forest trees, fruit bearing trees and the houses and structures under Section 28 at the rate of 9% per annum from 25.6.2002 to 25.6.2003 and thereafter and till 25.6.2004 under Section 34 at 15% per annum. The same shall be paid on or before 30.6.2010 failing which the Respondents shall pay interest thereon at the rate of 15% per annum till payment and/or realisation. : 15 : In the facts and circumstances of the case, there shall be no order as to costs. The Appeal is accordingly disposed of. S. J. VAZIFDAR, J. U.D. SALVI, J. at*