- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 241 OF 2004. Our Lady of Perpetual Succour, through its Attorney, resident of Maxem, Canacona- Goa. .......... Appellant. Versus 1 Communidade of Loliem, Canacona-Goa. 2 Rosario Felicia D'Souza, resident of Maxem, Canacona-Goa. .......... Respondents. Mr. D. Pangam, Advocate for the Appellant. Mr. D. Zaveri, Advocate for the Respondents. Coram:-F. M. REIS, J. Date:-28th OCTOBER, 2010. ORAL JUDGMENT The above appeal challenges the Judgment and Award dated 30.6.2004 passed by the learned District Judge, South Goa, Margao in Land Acquisition Case No. 216/1994. 2. The Government acquired land for the construction of Maxem Bridge and its approach on the national highway 17. The notification was issued for the said acquisition under section 4 of the - 2 - Land Acquisition Act, 1894 ( hereinafter referred to as the 'said Act') on 15.10.1990 which was published in the Official Gazette on 8.11.1990. The Award under section 11 of the said Act was passed by the Land Acquisition Officer dated 15.6.1993. By the said notification an area of 4300 square metres comprising of a plot bearing survey no. 351/1 of village Loliem of Canacona Taluka was also intended to acquire and in view of a dispute between the Appellant and the Respondents with regards to payment of the compensation awarded the Land Acquisition Officer referred the dispute for adjudication under section 30 of the said Act to learned District Judge. After recording of the evidence and hearing the parties, the Reference Court passed the impugned judgment dated 30.6.2004 and directed that the Respondent no.1/party no. 1 in the said proceedings is entitled to receive the entire compensation together with interest accrued thereon. Appellant/party no. 3 was held to be not entitled to receive any compensation. 3. Being aggrieved by the said Judgment, the Appellant has preferred the present appeal. 4. Mr. D. Pangam, learned Counsel appearing for the - 3 - Appellant has assailed the impugned Judgment and submitted that the Appellant were occupying a substantial portion of the acquired land and as such they were entitled to the compensation to the extent of land in which they were in possession. Learned Counsel further submitted that in the statement of claim filed by the Respondent no. 1, there is clear admission that substantial area of the acquired land was in occupation and possession of the Appellant. Learned Counsel further submitted that as the Appellant were admittedly occupying substantial portion of the land, the compensation to that extent was to be paid to the Appellant. Learned Counsel took me thorough the evidence on record and pointed out that merely because there was no legal grant in favour of the Appellant, the very fact that the Appellant were occupying the said portion of the land for a considerable point of time itself entitles the Appellant to apportioned a part of the compensation in favour of the Appellant. Learned Counsel further submitted that the Reference Court has totally misdirected itself in appreciating the evidence on record and as such came to a erroneous conclusion that the Respondent no.1 was entitled for the entire compensation awarded by the Land Acquisition Officer. Learned Counsel as such submitted that as the Appellant were occupying 1068.36 square metres of the land acquired they were entitled to - 4 - receive compensation to that extent. 5. On the other hand Mr. D. Zaveri, learned Counsel appearing for Respondent no.1 has supported the impugned Judgment. He submitted that no ownership right has been conferred in favour of Appellant and as such the question of receiving any compensation would not arise. He submitted that Appellant has failed to produce any grant in their favour to entitle them for any apportionment of the compensation in their favour. Learned Counsel further submitted that even assuming the contention of the Appellant is to be accepted, they will be entitled only to 1/4th share in the compensation as awarded by the Land Acquisition Officer, considering the claim of possession in their favour. 6. Having heard learned Counsel for the Appellant and the Respondent no.1 and on perusal of the record the following point for determination arise in the present case. POINT FOR DETERMINATION Whether the Reference Court was justified to refuse the apportionment of compensation in favour of the Appellant/party no.3 before the - 5 - Reference Court? 7. Before considering the rival contention it would be appropriate to peruse the written statement filed by the party no.1/Respondent no.1 herein dated 13.4.1998. At para 4 of the said written statement the Respondent no.1 has stated that the Respondent no.1 allotted to the Appellant/party no. 3 a plot admeasuring an area of 4000 square metres for their religious purpose. In the written statement filed by the Appellant they have stated that they are in possession and enjoyment of the landed plot of the property which is inscribed in matriz record under no. 897(whole) and surveyed in the records of right under no.351/1 of Loliem Village in respect of an area admeasuring 4000 square metres approximately. It is further their case that they have acquired right in view of the grant of lease by the Respondent no.1 in their favour. The Appellant accordingly prayed that compensation for an area of 1068.36 square metres which has been acquired be allotted to them. In additional written statement filed by the Appellant dated 3.2.2003 they have stated that an area of 1068.36 square metres has been acquired by the Government which was in their possession wherein they had a chapel of the Holy Cross for more than 200 years and they have been performing the religious services without any interference from any person. From the said - 6 - pleadings of the parties it is evident that the Respondent no.1 has admitted that an area admeasuring 4000 square metres have been in occupation of the Appellant. In the written statement of Respondent no.1 at para 5 they have also admitted that an area admeasuring 1068.36 square metres which were in possession was the subject matter of the land acquisition. As such there is no dispute that as far as an area of 1068.36 square metres is concerned, the same was in possession of the Appellant herein. Even in the affidavit filed by the attorney of the Respondent no.1 at para 6 there of he has admitted that an area of 4000 square metres which was part of their property under survey no. 351/1 was applied by the Appellant to the respondent no.1 to be granted to them which is not yet completed. He has also admitted the existence of a chapel in the portion of the said property. He has also admitted the existence of the compound wall constructed by the Appellant along the said portion of the property. In the cross examination he has admitted that he knows that some portion of the land belonging to the Respondent no.1 has been leased during the tenure of one Varik from the time of liberation by executing a document in their favour. He has also further admitted that the existence of a cross in the eastern portion of the property surveyed under no.351/1. He has also admitted that the said chapel and the - 7 - cross is surrounded by the stone wall. The Appellant in their deposition on affidavit has stated that an area of 4000 square metres was granted by the Respondent no.1 for the purpose of conducting religious services. He has further stated that an unanimous resolution to that effect was passed by the Respondent no.1. In support of their claim of grant they have produced a certificate at Exh.34. Learned Judge while passing the impugned Judgment has come to the conclusion that there was no written document produced by the Appellant to substantiate their claim of the grant by the Communidade nor any document produced to disclose that the possession was handed over to the Appellant. Learned Judge as such come to the conclusion that the Appellant were not entitle for any compensation awarded by the Land Acquisition Officer. 8. From the foregoing evidence adduced by the parties, I find that the learned Judge failed to consider that the Respondent no.1 has admitted that the Appellant were in possession of a specific portion of the acquired land. Learned Judge further failed to consider that the process of grant of lease in favour of the Appellant was in fact initiated as can be found from Exh.34 produced by the Appellant . In any event no authenticated document of any grant was produce by the - 8 - Appellant to substantiate their claim of ownership over the acquired land. Nevertheless under the provisions of the said Act, the definition of a 'person interested' includes all persons claiming an interest in the compensation to be made on account of the acquisition of land under the Act, and a person shall be deemed to be interested in the land if he is interested in an easement affecting the land. The said definition clearly stipulates that compensation can be paid not only to the owner of the land acquired but even to a person who is claiming interest in the compensation awarded by the Land Acquisition Officer on any Count. 9. In the present case considering the admission of the Respondent no.1 that the Appellant were in possession of the specific area of 1068.36 square metres of the portion of the land acquired naturally in view of the intended acquisition the Appellant would be deprived of such possession which was being used for religious service. As such the Appellant can be considered to be person interested in the compensation awarded by the Land Acquisition Officer as the total land acquired was admeasuring 4000 square metres out of which an area of 1068.36 square metres approximately was in possession of the Appellant. The proportion as such works out - 9 - to 3:1. The learned Counsel appearing for the Respondent no.1 has fairly conceded that in any event the Appellant would be entitled to a maximum 1/4th share in the compensation awarded by the Land Acquisition Officer. The Reference Court was not justified in awarding the entire compensation to the Respondent no. 1 by overlooking the evidence on record that the Appellant were in settled possession of a specific portion of land which has been acquired. I accordingly find that the Appellant would be entitled to 1/4th share in the compensation and the Respondent no.1 is entitled to the remaining 3/4th portion of the compensation together with accrued interest. Point for determination is answered accordingly. 10. In view of above, I pass the following:- O R D E R i. The Appeal is partly allowed. ii. The Impugned Judgment and Award dated 30.6.2004 is hereby modified and compensation awarded by the Land Acquisition Officer is apportioned between the Appellant and Respondent no.1 in the proportion of 1:3 alongwith respective - 10 - accrued interest there on. iii. The appeal stands disposed of accordingly with no order as to costs. iv. Decree to be drawn accordingly. F. M. REIS, J. vn*