1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.158 OF 2005 1. The Executive Engineer, Works Division XXV (NH) PWD, Fatorda, Margao, Goa. 2. Special Land Acquisition Officer (SIP) IP Complex, Gogal, Margao, Goa. …. Appellants V/s Sara Gracious resident of Calata, Majorda, Salcete, Goa. …. Respondent Mr. G. Shirodkar, Government Advocate for the Appellants. Mr. C.A. Coutinho, Advocate for the Respondent. CORAM : N. A. BRITTO, J. DATE : 26th NOVEMBER, 2010 JUDGMENT : Challenge in this appeal is to the judgment/award of the learned Reference Court dated 6/01/2005 in Land Acquisition Case No.37/1994 by which the respondent (applicant, for short) has been awarded additional compensation of `78,000/- with interest at the rate of 6% in terms of clause fourthly of sub-section (1) of Section 23 of Land Acquisition Act, 1894 (the Act, for short). 2. Briefly stated, the Government acquired a strip of 10 metres 2 width admeasuring about 935 square metres of Survey No.255/2 of Raia village belonging to the applicant by virtue of notification under Section 4(1) of the Act published on Gazette dated 30/01/1986 and by award dated 30/09/1988 the Land Acquisition Officer awarded compensation at the rate of `25/- per square metre. 3. The said strip of land was acquired to set up a pipeline for 160 MLD of the Selaulim Water Supply Project and for service road. The applicant dissatisfied with the said award of the Land Acquisition Officer sought enhancement of compensation at the rate of `250/- per square metre which has been declined to the applicant by virtue of the impugned award dated 6/01/2005 regarding which there is no dispute, but the learned Reference Court has awarded to the applicant the compensation of `78,000/- with interest at the rate of 6%, being the costs which would be required by the applicant to build a culvert (an over bridge?) to connect the western portion with the eastern portion of the applicant's property surveyed under no.255/2. 4. The applicant in her application for reference had clearly stated that the property was acquired in such a way that the 3 property was fragmented in two portions and that the Special Land Acquisition Officer ought to have considered the fact that the service road constructed by the Government through the property of the applicant was not available as an access to the property of the applicant for the purpose of sub-division and as such the utility of the property was diminished. 5. There is no dispute, and as can be seen from the plan of sub- division produced by the applicant at Exhibit AW1/B that by the present acquisition the applicant's property got divided in two parcels namely the western parcel and the eastern parcel. The said property as a whole was abutting Raia-Arlem Panchayat road on its western side. After the acquisition of the said strip of 10 metres width from the applicant's property from north to south direction, the property of the applicant got bifurcated in two portions. After the said acquisition, the applicant filed an application to the Southern Planning and Development Authority for the development of the said property and in the plan for development showed the portion acquired by the Government as a public road of 10 metres width and the SPDA by their letter dated 12/12/2008 was pleased to approve the said plan of division subject to certain conditions including a condition that the SPDA had no 4 responsibility in case the PWD road was blocked or obstructed or used only as a service road for the maintenance of the said Selaulim water supply scheme. 6. Although the learned Reference Court has not awarded any enhancement of compensation to the applicant, the learned Reference Court has awarded a sum of `78,000/- being the costs of building a culvert (an overbridge?) over the said 10 metres service road. This has been done by the learned Reference court on the basis of very evidence produced by the respondents (the appellants herein). The respondents' engineer had admitted that due to the acquisition of the strip of land from Survey No.255/2, the access to the eastern part was cut off and to have an access the applicant had to incur the expenditure for building a culvert (an overbridge) over the acquired land (presently over the pipeline and the said service road). The said amount has been fixed by the learned Reference Court again on the estimate given by the said engineer who had stated that costs of constructing such a culvert would have been about `60,000/-, a year prior to his deposition, and the costs of which would have been increased by another 30% which the learned trial Court worked out to `78,000/-. 5 7. Shri Shirodkar, the learned Government Advocate submits that the learned Reference Court has awarded the said additional compensation of `78,000/- without there having been any issue framed. Learned Counsel further submits that the applicant had not claimed any severance charges and that the applicant had claimed something which was not contemplated by Section 23(1) of the Act. Shri Shirodkar further submits that the applicant had produced no evidence of loss of earnings. It is also submitted by Shri Shirodkar that the applicant's land was accessible from its western side at the time of acquisition and that the development permission from SPDA was sought by the applicant after the acquisition. Shri Shirodkar learned Counsel appearing on behalf of the appellant has placed reliance in support of his submissions on two judgments. 8. On the other hand, Shri C.A. Coutinho pointing out to the application dated 26/05/1989 for reference, to which I have already made a reference, submits that the applicant had claimed additional compensation under clause fourthly of Section 23(1) of the Act. Shri Coutinho has further submitted that ideally the respondents (appellants, herein) ought to have constructed the culvert (an overbridge?) connecting both the portions of the land of the 6 applicant now separated by the said 10 metres service road. Learned Counsel, therefore, submits that there is no merit in this appeal and the same is liable to be dismissed. 9. There is practically no dispute as to the facts. The evidence given by the attorney of the applicant appears to be in tandem with the evidence given by the respondents' engineer. Whether the sub- division plan was got subsequently approved after the notification under Section 4(1) of the Act or not is not of much significance because with the present acquisition the applicant's property came to be divided in two parts, namely the western part which remained connected to the said Raia-Arlem Panchayat road while the eastern part which remains without any access and in which the applicant sought approval of making five plots which collectively admeasure an area of 2,475 square metres, the balance area of 2413 square metres having been left as open space, shown as natural reserve zone as per the regional plan. 10. The applicant's attorney had clearly stated that the five plots were lying on the eastern side of the acquired land. He had also stated that the respondents besides laying the pipeline had also constructed the service road which they could not use as a result of 7 which the eastern plots nos.1 to 5 had remained undeveloped. He had also deposed that the PWD had informed him that the applicant would have to deposit `60,000/- or more so that the PWD could build a culvert (an over bridge?) over the acquired land to provide an access to the severed portion to their property. The applicant's attorney had also stated that the applicant had constructed roads in the portion of their property lying on the western side of the acquired strip which roads joined the acquired strip at two points where PWD had dug trenches at the points where their partition road met the acquired strip so as to deprive them of access to go to the portion of their property lying towards the eastern side of the acquired strip. The applicant had also stated that he was personally informed by the PWD engineer that a pipeline passed through the western edge of the acquired strip and as such no vehicles are permitted to go over the said pipeline. 11. The respondents' engineer had also admitted that plot nos.1 to 5 as per plan Exhibit AW1/B could not be approached as the acquired strip of land lay on the west of the said plots and the applicant would have to build a culvert (an overbridge?) at her cost to go from the applicant's land towards the west over the acquired land to provide an access to the plots nos.1 to 5 and the costs of the 8 culvert (an over bridge?) would be around `60,000/- which was the estimate prepared a year back and presently the rates had been increased at 30%. He had also stated that the PWD would build a culvert (an over bridge?) when the amount was deposited by the applicant and in case the land was not acquired by the present acquisition from Survey No.252/2, the applicant was not required to incur the said expenditure. He had also admitted that the acquired land was lying in the settlement zone and before the acquisition there were some houses in the unaquired land. 12. Section 23(1) provides that in determining the amount of compensation to be awarded for land acquired under the Act, the Court shall take into consideration firstly, … secondly, … 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, … 9 sixthly, … 13. In Balammal & Ors. V/s. State of Madras & Ors. (AIR 1968 SC 1425) on which reliance is placed by Shri Shirodkar, the Apex Court with reference to clauses thirdly or fourthly or sixthly of Section 23(1) of the Land Acquisition Act, has observed that the damage sustained by the person interested by reason of severing such land from his other land, or by reason of the acquisition injuriously affecting his other property movable or immovable in any other manner, or his earnings, or the damage bona fide resulting from 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 may be awarded to the owners. However, the Apex Court held that there is no evidence on record to which their attention was invited which supported the case of the appellants to compensation under any of the clauses. The observations of the Apex Court are of no assistance to the case of the appellant. 14. Shri Shirodkar has also placed reliance on the case of Arvind Bhaskar Limaye V/s. State of Maharashtra (2006 (1) Bom. C.R. 185) wherein the Division Bench of this Court has held that 10 Section 23 deals with the damage sustained by the claimant which has the effect of affecting his other property in any other manner or affecting his earnings in respect of the said piece of land which was severed on account of acquisition of the land at the time of taking possession thereof. In that case the Division Bench also came to the conclusion that there was no evidence which was brought on record to establish that the claimant had sustained any damage as a result of severance of property or that it had affected his earnings or had affected his property in any other manner. In the absence of such an evidence, learned Division Bench held, that it was not possible to award damages for severance of the property to the claimant. In the circumstances, therefore, this case also is of no assistance to the appellant. 15. It is true that no issue was framed by the learned Reference Court regarding additional compensation claimed by the claimant by virtue of the applicant's property having been fragmented in two portions and thereby the utility of the five plots on the eastern portion have been diminished. It is well settled that failure to frame an issue is not fatal if the parties lead evidence being conscious of the point in controversy. Here, both parties have gone to trial fully knowing the rival cases and have led evidence in 11 support of their respective cases. Both the parties have led evidence on the claim made, and in fact as already, stated the evidence of both the witnesses examined on behalf of the applicant as well as on behalf of the respondent is in tandem which shows that the eastern portion admeasuring about 2475 square metres comprising of plots nos.1 to 5 and open space of 3461 square metres have been rendered inaccessible and which in the opinion of respondents' engineer would now require an over bridge, by way of access, from the western portion to the eastern portion, the costs of which, would in the opinion of the said engineer, be `78,000/-. But that was in the year 2004. Basically, there can be no dispute that the applicant was required to be compensated for diminution of value of eastern portion, particularly of plots nos.1 to 5. But on what basis? 16. Whether the compensation for damage was to be paid under clause thirdly or fourthly is only of academic interest. The learned Reference Court has proceeded to grant the said compensation in terms of clause fourthly of sub-section (1) of Section 23 of the Act though it would have been more appropriate to award the same under clause thirdly. That must have been because of the statement of the applicant's attorney that in the application for reference he 12 had not sought any amount towards severance of their land. The facts of the case suggest that the case is covered by clause thirdly and not clause fourthly because damage sustained by the applicant is on account of severance of the eastern part from the western part because of the acquisition and not on account of other property of the applicant being injuriously affected as contemplated by clause fourthly. When the same property is severed, it is clause thirdly which would be applicable and not clause fourthly. 17. The learned Reference Court has awarded `78,000/- with 6% interest by way of compensation, being the cost of the over bridge which would be required to be built to connect both the portions, now severed by the acquisition of 10 metres wide strip. In other words, the compensation awarded is equivalent to the cost of construction of the bridge. Would the Government allow the construction of such an overbridge only because their executive engineer says so? One does not know. The estimated cost was `60,000/- in the year 2003. It was Rs.78,000/- in the year 2004. Clause first of Section 23(1) of the Act stipulates that the market value is to be determined with reference to the date of notification under Section 4(1) of the Act. Clause thirdly stipulates damage to be ascertained at the time of Collector taking possession. By 13 implication any compensation to be awarded for such damage has got to be with reference to the date of taking possession and not on the dates when evidence is given by the parties before the reference Court or when the reference is decided. If we subtract 30% backwards, the applicant may not get any compensation under clause thirdly, at all. Both the values or estimates given by Government's engineer therefore cannot be accepted. 18. To repeat, there can be no two opinions that the respondent/applicant was required to be compensated under clause thirdly of Section 23(1) of the Act which envisages that the damage, if any, sustained by the person interested, at the time of the Collector taking possession of the land by reason of severing such land from his other land is required to be determined as compensation. 19. In the case of Dr. Caetano Jose Filomena V/s. Deputy Collector & Anr. (2005 (1) ALL MR 797) the Division Bench of this Court awarded market value at the rate of Rs.105/- in respect of 5250 square metres of acquired land but when it came to severance charges awarded `5/- per square metre for balance area of 18500 square metres. The damage suffered by the 14 respondent/applicant as already stated cannot go uncompensated. In my view, considering the facts of the case, it would be in the interest of justice, if 25% of the value is given to the respondent/applicant by way of severance charges in respect of the said five plots lying on the eastern side of the acquired land which works out to `15,468.75 (25÷4 x 2475) rounded to `15,469/- only. In fact, one fails to understand as to how respondent/applicant got an approval for the said five plots which were otherwise not accessible by any road. 20. Considering the facts of the case, therefore, I am inclined to allow the appeal and modify the impugned award. The applicant would be entitled to the said additional compensation of `15,469/- and needless to say with all consequential statutory benefits, under clause thirdly of Section 23(1) of the Act. Considering the facts, there shall be no order as to costs. N.A. BRITTO, J. NH/-