1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 141 OF 2006 Shri Antonio Martins(dec.) through legal heirs(son) Jose Martins, residing at Cardozwaddo, Taleigao, Tiswadi-Goa. ... Appellant versus 1. Smt. Fanny Lydia D'Silva residing at Silva Bakery Sao Paulo, Taleigao Market, Taleigao, Goa. 2. Smt. Lourentina Rodrigues, residing at Cardozwaddo, Traleigao, Tiswadi, Goa. ... Respondents Shri M. B. D'Costa, Senior Advocate with Shri J. A. Lobo, Advocate for the Appellant. Shri P. A. Kholkar, Advocate for the Respondents. CORAM : F. M. REIS, J. DATE : 24TH JUNE, 2011. ORAL JUDGMENT Heard Shri M. B. D'Costa, learned Senior Counsel for the Appellant and Shri P. A. Kholkar, learned Counsel for the Respondents. 2 2. The main grievance raised by Shri M. B. D'Costa, learned Senior Counsel for the Appellant is that though Respondent Nos.1 and 2 were occupying structures in the acquired portion of the land, for business purpose, the Reference Court was not justified to apportion the compensation to 3/4th as far as Respondent Nos.1 and 2 are concerned and the remaining 1/4th to the Appellant. Learned Senior Counsel further submitted that the owners are entitled for the whole compensation awarded and according to him Respondent Nos.1 and 2 were mere licensees and not entitled to any compensation as Respondent No.1 was running a bakery in the acquired portion of the land and Respondent No.2 was running a bar in the same portion. Shri M. B. D'Costa, learned Senior Counsel further submitted that the Reference Court without any justification awarded 3/4th compensation in favour of the said Respondents. Learned Senior Counsel also submitted that the contention of the Respondents that they were owners has not been established by any evidence on record. Learned Senior Counsel has taken me through the impugned Judgment and pointed out that there is no legal reasons given by the Reference Court to come to the conclusion that the Respondents were entitled to 3/4th compensation. Learned Senior 3 Counsel as such pointed out that the impugned Judgment deserves to be quashed and set aside. 3. Shri P. A. Kholkar, learned Counsel for the Respondents has supported the impugned Judgment. Learned Counsel has submitted that the Reference Court was justified to come to the conclusion that the Respondents were entitled to 3/4ths of the compensation as such compensation was on account of business activities carried out by the Respondents herein. Learned Counsel further pointed out that the compensation on account of loss of business cannot be claimed by the Appellant who was the owner of the land and as such no interference is called for in the impugned Judgment. 4. Having heard the learned Counsel and on perusal of the record, the following point for determination arises. Whether the Reference Court was justified to apportion the compensation as done in the impugned Judgment? 4 5. Before adverting to the correctness or otherwise of the said apportionment ordered by the Reference Court, it would be appropriate to clarify the disputed amount of compensation between the parties herein. The records reveal that the total land acquired and the total compensation which has been awarded in the present proceedings is Rs.2,33,805/-, in aggregate. Out of the said amount, a sum of Rs.90,560/- was awarded on account of the structure wherein the bakery run by Respondent No.1 was located and a further sum of Rs.19,100/- towards the value of the structure wherein the bar was run by Respondent No.2. As such, considering the contention of Shri M. B. D'Costa, learned Senior Counsel and the operative part of the impugned Judgment, Shri Kholkar concedes that the amount in dispute is the said sum of Rs.90,560/- awarded on account of the structure where the said bakery was functioning and the sum of Rs.19,010/- is in respect of the structure where the said bar was located. Shri Kholkar fairly states that Respondent Nos.1 and 2 have no claim as far as the remaining compensation which is to be paid to the Appellant herein. 6. As far as the said disputed claim of the respective parties is concerned with regard to the compensation fixed on account of the value 5 of the structure where the bakery was run of Rs.90,560/- and the sum of Rs.19,100/- towards the structure where the bar was located, the Reference Court on the basis of the evidence on record has come to the conclusion that 3/4th compensation be awarded to the Respondents and the remaining 1/4th to the Appellant. The contention of Shri Kholkar that such compensation has been awarded on account of loss of business cannot be borne from the records. On perusal of the award passed, and as observed by the Reference Court in the impugned Judgment, the compensation of Rs.90,560/- was towards the value of the structure where the bakery was located and the sum of Rs.19,100/- was towards the structure where the bar was being run. As such it cannot be accepted that the said compensation was with regards to the loss suffered by the Respondents on account of the loss of income on account of the closure of the said business activities. As such, on the basis of the material on record, I find that the said compensation was towards the respective structures which were located in the acquired portion of the land. 7. On going through the cross-examination of Respondent No.1, he has clearly admitted that the structure belonged to the Appellant herein but, however, there is no dispute that the structure was in 6 occupation of Respondent Nos.1 and 2. As such, I find that the Respondents would be entitled for some compensation considering that they would be deprived of the occupation of the respective structures which were admittedly in their occupation for some passage of time prior to the acquisition. As such, as the structures belong to the Appellant which were not in his occupation, I find that 50% only is to be paid to the Appellant, and the remaining 50% is to be paid to Respondent No.1 with regard to the compensation fixed in respect of the structure where the bakery was run, in the facts and circumstances of the present case. So also as far as the compensation fixed with regard to the structure where the bar was run the amount shall be apportioned in similar manner i.e. 50% to the Appellant and 50% to Respondent No.2. To that extent, the impugned Judgment deserves to be modified. The learned Judge was not justified to direct the payment of 3/4ths compensation to the Respondent as there was no evidence adduced by the Respondents that they had any right to the structure. The Respondents were only occupying the respective structures to carry on their business activities. The point for consideration is answered accordingly. 7 8. In view of the above, I pass the following Order. ORDER 1. The impugned Judgment and Award dated 10-3-2006 is modified and the amount of compensation of Rs.90,560/- awarded with regard to the structure where the bakery was located shall be apportioned 50% to the Appellant and the remaining 50% to Respondent No.1. The amount of compensation where the bar was located to the extent of Rs.19,100/- shall be apportioned 50% to the Appellant and the remaining 50% to Respondent No.2 herein. 2. The remaining amount awarded shall be paid to the Appellant. 3. All the aforesaid amounts shall be paid to the respective parties with accrued interest, if any. 4. The appeal stands disposed of accordingly with no orders as to costs. F. M. REIS, J. RD 8