JUDGMENT - T.D. SUGLA, J.:---The appellants in these appeals are Mr. Cawasji Nasarwanji Dinshaw, Mrs. Alloo Persi Kama and Mrs. M.R. Patel, brother and sisters respectively. They are the original claimants. They owned certain lands at Lonawala. The lands were acquired by the State Government for constructing an approach road to the railway crossing. The suit lands were out of two survey numbers. Hence there were two notifications for the purpose published in the Official Gazette in October, 1970. The claimants had equal shares in the suit lands. Each of them filed two claims each i.e. one in respect of land under one survey number and the second in respect of the other. This explains why there are six Land Acquisition References and six appeals though the judgment of the trial Court is common. 2. One of the contentions raised by Shri Rane, the learned Counsel for the claimants is that in view of the amendment of section 28 of the Act with effect from September, 1984 the claimants are entitled to a higher rate of interest on the enhanced amount of compensation if any from the date of the claim application upto the date of the payment. Fairly admitting that no specific ground in this regard was taken in the appeal memos, Shri Rane pointed out that after the appeals were filed in the year 1979 section 28 of the Act was amended to provide for higher rate of interest. Such a ground could not have been taken then. The section was amended by the Act No. 65 of 1984 with effect from September 24, 1984 whereas these appeals were filed in the year 1979. Shri Rane submitted that the claimants should, therefore, be allowed to raise such a ground by amending the grounds. The amendment being the cause of grievance, the claimants, he submitted be allowed to amend the grounds. 3. On merits, Shri Rane argued that section 28 provided that the Court might direct payment of interest on the amount of compensation awarded in excess of the sum. The Collector has awarded interest at the rate of 9% p.a. from the date on which the possession was taken to the date of payment of such excess amount into the Court. This Court was, he pointed out, passing order in appeal after the amendment and therefore the claimants were entitled to interest in terms of the amended provisions. The Collector has awarded interest at the rate of 9% p.a. from the date on which the possession was taken to the date of payment of such excess amount into the Court. This Court was, he pointed out, passing order in appeal after the amendment and therefore the claimants were entitled to interest in terms of the amended provisions. Referring then to the provisions of section 30(2) of the Amending Act, Shri Rane pointed out that by the Amending Act the benefit given to the persons whose lands were acquired by the Statue was extended from April 30, 1982 the date on which the amending bill was Piloted instead of the date on which the amending bill became the Amending Act. According to Shri Rane, the provisions, thus clearly contemplated that if the Collector or the Court passed any award under the Act during the period from April 30, 1982 to September 24, 1984 or if any order was passed by the High Court or the Supreme Court in appeal against any such Award, the claimants would be entitled to the enhanced rate of interest. 4. Shri Page, the learned Government Pleader, relied on the Supreme Court decision in the case of (Union of India and another v. Prithpal Singh and others)1, 1989 (S.C.) 1933. The issue raised by Shri Rane, it was pointed out, was covered by that decision in favour of the Government and against the claimants. The attention of this Court was invited in particular to paragraphs 31 and onwards of the judgment to show that the Supreme Court on consideration of the effect of the provisions of section 30(2) of the Amending Act, had held that purport and scope of the amending provisions was that the enhanced rate of interest as well as the enhanced rate of solatium under sections 28 and 23 of the Act respectively was available in cases where Awards were passed by the Collector or the trial Court between April 30, 1982 and September 24th 1984. Reliance in this behalf was also placed by Shri Page on this Court's judgment in (Hiraji Budho Dhake v. State of Maharashtra)2, A.I.R. 1986 Bom. 390 where again it was held that the new rights contemplated in sections 23(1-A), 23(2) and 28 were, though made applicable retrospectively, the perimeters of retrospectivity were marked and the retrospectivity did not travel beyond 30th April, 1982. 390 where again it was held that the new rights contemplated in sections 23(1-A), 23(2) and 28 were, though made applicable retrospectively, the perimeters of retrospectivity were marked and the retrospectivity did not travel beyond 30th April, 1982. In other words provisions applied to Awards passed on and after April, 30, 1982 only. Shri Rane aruged that sub-section (2) of section 30 and other sub-sections of the Amending Act were enabling provisions. The purpose of enabling provisions was to extend the benefit of the amended provisions to a period prior to the date on which the Amending Act came into force. Therefore, the provisions in the Amending Act could not dilute the provisions of the Amending Act. If what is argued by Shri Page was accepted, the purpose of the amendment of section 28 itself, it was argued will be diluted. The plain meaning of the amending provision was stated to be that whenever the Court passed an order as a result of which enhanced compensation was granted and if such an order was passed after the amendment of section 28, the Court was empowered to direct the Collector to award interest at the enhanced rate at least from the date of the amendment. 5. Section 28 of the Land Acquisition Act reads thus : "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 cetum from the date on which he took possession of the land to the date of payment of such excess into Court." The words "nine per centum" were substituted for the words "six per sentum" by Act 68 of 1984 with effect from September 24, 1984. Ordinarily the increased rate of interest should apply to the Awards passed after the said date. However, taking the view that the Bill had taken unusually long time to become the Act, the benefit of the amendment was extended to the date on which the Bill was introduced, i.e. 30th April, 1982. Ordinarily the increased rate of interest should apply to the Awards passed after the said date. However, taking the view that the Bill had taken unusually long time to become the Act, the benefit of the amendment was extended to the date on which the Bill was introduced, i.e. 30th April, 1982. This is what has been stated in this regard in section 30(2) of the Amending Act i.e., Act 68 of 1984 : "(2) The provisions of sub-section (2) of section 23 and section 28 of the Principal Act, as amended by Clause (b) of section 15 and section 18 of this Act respectively, shall apply, and shall be deemed to have applied, also to, and in relation to, any award made by the Collector or Court or to any order passed by the High Court in appeal against any such award under the provisions of the principal Act after the 30th day of April, 1982 the date of introduction of the Land Acquisition (Amendment) Bill, 1982, in the House of the People and before the commencement of this Act." It is on the basis of the aforesaid provisions that Shri Rane argued that the claimants were entitled to increased rate of interest even though the Awards by the Land Acquisition Officer as well as the references by the trial Court were decided before 30th day of April, 1982. 6. In my judgment, as rightly pointed out by Shri Page the learned Government Pleader, this issue is covered by the Supreme Court decision in A.I.R. 1989 (S.C.) 1933 (Supra). The facts in that case were similar if not identical. Notification under section 4 of the Act was issued on November 13, 1959. The Award with regard to the compensation was made by the Collector on March 30, 1963. Reference under section 18 was disposed by the Additional District Judge on June 10, 1963. The First Appeal against the judgment of the Additional District Judge was disposed by the High Court on December 6, 1984 i.e. after the provision for allowing increased rate of interest was inserted in section 28 and had become effective. On the basis of the amendment the High Court had held that the claimant was entitled to an increased rate of interest as well as larger sum by way of solatium. On the basis of the amendment the High Court had held that the claimant was entitled to an increased rate of interest as well as larger sum by way of solatium. The Supreme Court reversed the decision and held that the increased rate of interest and/or increased amount by way of solatium was available only in those cases where the Award by the Collector or the Reference by the trial Court was disposed of after 30th day of April, 1982. Since both the award and the reference were decided long before April 30, 1982, it was held that the claimants were not entitled to the increased rate of interest or the increased amount of solatium. Accordingly it is held that the claimants are not entitled to the increased rate of interest as claimed by Shri Rane. In view of the Supreme Court decision (supra) it is not open to this Court to consider whether section 30(2) of the Amending Act was merely an enabling provision so that it could not dilute the provisions of section 28 particularly when the High Court or the Supreme Court were passing order in appeal against the award passed by the Collector or the judgment in reference by the trial Court after September 24, 1984. 7. Next pertinent question is about the fair market value of the land acquired. Section 23 of the Act provides that the Court has to take six circumstances into consideration while determining the amount of compensation to be awarded for the land acquired under the Act. The market value of the land is to be determined with reference to the date of the publication of the notification under section 4(1) of the Act. The acquisition of the land being out of two survey numbers Notifications under section 4(1) were respectively published on October 15, 1970 and October 23, 1970. For the purpose of determining the market value of the lands acquired these dates are material. It is common ground that the land out of Survey No. 208 part acquired admeasures 3450/9 sq. yards and that the land acquired out of Survey No. 232-A admeasures 19067/9 sq. yards. It is also common ground that as a result of acquisition the land out of Survey No. 208 part stands divided into two parts. The main part consists of a bungalow and admeasures 5239.70 sq. yards. yards and that the land acquired out of Survey No. 232-A admeasures 19067/9 sq. yards. It is also common ground that as a result of acquisition the land out of Survey No. 208 part stands divided into two parts. The main part consists of a bungalow and admeasures 5239.70 sq. yards. The other part i.e., the separated part admeasures 901.12 sq. yards. In between is the land acquired for approach road. In the case of acquired land out of Survey No. 232-A, the remaining land admeasures 3113.33 sq. yards. It is one side of land acquired and there is no division of the land as such. 8. The claimants claimed compensation for the land acquired out of Survey No. 208 part at the rate of Rs. 30 per sq. yard. For land acquired out of Survey No. 232-A the claim for compensation was made at the rate of Rs. 20 per sq. yard. In support of the claim as many as five sale instances were given. Sale-deeds were produced and some persons were also examined as witnesses for the purpose of proving the sales. Valuation report of one Shri. B.I. Talim. Retired Director of Town Planning was produced. Shri Talim was also examined as witness. Shri Cama, the husband of one of the claimants was also examined on behalf of the claimants. Another material evidence was of one Mishirimal Oswal who was working as Engineer in Lonawala Municipality from 1967 to 1973 and again from 1977 till his evidence was recorded. On going through these and other material on record the trial Court held for reasons given in paragraphs 13 to 18 of the judgment that on the basis of their evidence including the sale instances cited by them, fair market value of the land acquired could not be determined. The trial Court discussed the evidence of Mishirimal Oswal in paragraph 19 in its judgment. Taking note of the fact that about 1210 sq. yards of land along Mahatma Gandhi Road from the level crossing to the market was purchased by Lonawala Municipal Council at Rs. 16 per sq. yards on April 22, 1969 for road widening, that the land under acquisition was within the same Zone i.e. 10. Taking note of the fact that about 1210 sq. yards of land along Mahatma Gandhi Road from the level crossing to the market was purchased by Lonawala Municipal Council at Rs. 16 per sq. yards on April 22, 1969 for road widening, that the land under acquisition was within the same Zone i.e. 10. R and that the distance between the said land and the land under acquisition was 4 to 4½ furlongs, the trial Court held that the said sale instance was quite relevant if not really comparative with the land acquired in this case. Taking further note of the fact that the land in that case was out of Gavthan where a different F.S.I. was available, the trial Court held that it would be reasonable to estimate the fair market value of the acquired land out of Survey No. 208 part at Rs. 13/- per sq. yard as against Rs. 30/- per sq. yard claimed by the claimants. Observing then that the land acquired out of Survey No. 232-A was admittedly inferior to that of the land acquired out of Survey No. 208-A part, the trial Court considered it reasonable to take the fair market value of that land at the rate of Rs. 10 per sq. yard. 9. According to Shri Rane, there was no justification whatsoever in trial Court taking the fair market value of the acquired land out of Survey No. 208 part at below rate of Rs. 20 per sq. yard and the acquired land out of Survey No. 232-A at the rate below Rs. 15 per sq. yard. Shri Rane strongly relied on the evidence of Shri Mishrimal Oswal and of the expert Shri B.T. Talim who was examined. In particular Shri Rane emphasized three aspects, namely, in hilly places like Lonawala there is nothing like Gaonthan People go there for peace and tranquility. The place cannot be compared with any town. Secondly, the land acquired out of Survey No. 208 part and the land purchased by Lonawala Municipal Council from Railways were situated in the same 10-R Zone. There was, thus, no justification for treating the two parts of the same land differently. Thirdly, sale in that case was not between the two independent persons. That was a sale by a Government body to another government body. The sale price, thus, need not necessarily represent fair market value of the land. There was, thus, no justification for treating the two parts of the same land differently. Thirdly, sale in that case was not between the two independent persons. That was a sale by a Government body to another government body. The sale price, thus, need not necessarily represent fair market value of the land. As regards the sake instance discussed by the trial Court in paragraph 18 of its judgment, Shri Rane argued that instance was wrongly discarded by the trial Court. In that case the land was purchased under an agreement in the year 1965 which was registered in the year 1966 at the rate of Rs. 15 per sq. yard for the purpose of constructing Janta Hotel. The area of the land was more than 2000 sq. yards. The land was not very far from the present land. If the sale price in that case is taken as the basis and the fact that the land herein is acquired in the year 1970 i.e. after five years of that sale is taken into account, the fair market value of the land at Rs. 20 sq. yard could be more than justified. Which was incidentally also the value suggested by witness Talim. As against this Shri Page strongly relied upon the judgment and order of the trial Court. He pointed out that other four sale instances were rightly distinguished by the trial Court and Shri Rane had not seriously disputed that conclusion. As regards the two sale instances, namely, the purchase of land for Janta Hotel in the year 1965 and the purchase of land by Lonawala Municipal Council from Railways in the year 1965, Shri Page emphasized the distinction between the situation of those lands and the lands under acquisition noted by the trial Court in the impugned order. In particular Shri Page laid great emphasis on the fact that no evidence was laid by the claimants to show that the land price had in fact gone up between the years 1965 and 1970. 10. I have gone through the evidence on record, sale-deeds and the report of Shri Talim on record carefully. I am in agreement with the trial Court that the sale instances other than two sale instances of 1965 and 1966 to which reference will be made hereinafter are distinguishable. 10. I have gone through the evidence on record, sale-deeds and the report of Shri Talim on record carefully. I am in agreement with the trial Court that the sale instances other than two sale instances of 1965 and 1966 to which reference will be made hereinafter are distinguishable. As regards the two sale instances it is to be noted that the plot of land purchased for Janta Hotel in the year 1965 admeasured 2138 sq. yards. The said plot of land was admittedly about 4½ furlongs away from the land under acquisition. When the land was purchased for Janta Hotel, there was no other hotel. In fact Janta Hotel is the first hotel in that locality. The place is at about 10 minutes walking distance from the road and it was of course a free sale. Mere fact that the acquired land was in a different locality and the plot of land purchased by Janta Hotel was a Government plot, in my view does not justify the discarding of that sale instances as not comparable. The other sale instance was that of the land admeasuring 1210 sq. yards along Mahatma Gandhi Road from the level crossing to the market. That land was purchased by Lonawala Municipal Council from the Railways at Rs. 10 per sq. yard on April 22, 1969 for road widening. This sale instance was also, in my view, wrongly discarded by the trial court as not comparable. Facts of two sale instances can never be identical in that sense. What is required to be seen is whether the material facts are similar. Once that is so, disadvantageous and/or advantageous circumstances, like situation, the period of sale instances and of the land acquired etc. can be taken into account to arrive at the fair market value of the suit land. Having done so, I am inclined to hold that it would be reasonable to take the fair market value of the land acquired out of Survey No. 208 part at Rs. 16 per sq. yard. The admitted position being that the land acquired out of Survey No. 232-A is of inferior quality, I further hold that the fair market value of the land acquired out of that survey number be taken as Rs. 12 per sq. yard. 11. 16 per sq. yard. The admitted position being that the land acquired out of Survey No. 232-A is of inferior quality, I further hold that the fair market value of the land acquired out of that survey number be taken as Rs. 12 per sq. yard. 11. Next question that requires consideration is whether damage for serverance allowed by the trial Court at the rate of 75% of the fair market value for the separated land remaining with the claimants, admeasuring 901.12 sq. yards out of Survey No. 208 part is reasonable. On the basis of the report of Shri Talim and his evidence the claim is that the separated land had become landlocked and was of no use to the claimants. Under clause 'Thirdly' of section 23(1) the claimants, it was argued, were entitled to 100% damage on account of severance. The trial Court inspected the spot. It appreciated that the access to the separated portion from the approach road had become difficult. But it observed that part of the plot of land was even otherwise not suitable for any purpose as under the regulations of Municipal Council for the same Zone (i.e. R Zone), no construction could be made on the land which remained with the claimants assuming there was access. Taking into account these and other aspects in paragraph 24 of the judgment, the trial Court held that it would be reasonable to allow damage for severance in respect of the separated land at 75% of its market value. 12. Shri Rane reiterated that because of the severance there was no access to the separated land and in any event to construction could be made on the land as under the existing regulations of the Municipal Council Construction cannot be made on a piece of land admeasuring less than 1000 sq. yards. Accordingly, relying on the expert's evidence he stated that the claim on account of severance should be granted at 100% of the market value of the severed portion. Shri Page, on the other hand, fairly admitted that the approach to the separated portion had become difficult and that no construction could be made according to the existing regulations. He, however, stated that the land could always be approached by having a stair case if necessary to the approach road for which the land is acquired. Shri Page, on the other hand, fairly admitted that the approach to the separated portion had become difficult and that no construction could be made according to the existing regulations. He, however, stated that the land could always be approached by having a stair case if necessary to the approach road for which the land is acquired. In any event, the said land can certainly be used for other purposes such as growing trees, garden or as open space. His submission is that the Government having not come in appeal or filed cross-objections, he could only say that the relief granted by the trial Court on account of severance was more than reasonable. 13. In my judgment, the appreciation of evidence in this regard by the trial Court is quite reasonable. The trial Court had inspected the spot and found that the access to the separated portion of land under Survey No. 208 part had become difficult. It may not necessarily mean that here was no approach at all. In any event, when there is a public road, may be an approach road, by the side plot or land it was impossible to conceive of a situation where there will not be any approach at all. The approach may be difficult but certainly not impossible. There can certainly be some approach to the severed land being admittedly a plot of land abutting on the approach road. Moreover, as per the existing regulations of the Municipal Council no further construction could be made on that plot of land even otherwise though that may not mean that the land is absolutely useless to the claimants. The land can certainly be used for other purposes such as open space, growing fruit trees, or cultivation. In that view of the matter, the compensation for damage on account of severance at the rate of 75% of the market value is quite justifiable. 14. Last ground in these appeals is that because of acquisition of land the main portion of the land under Survey No. 208 part which has remained with the claimants is itself damaged to an extent that the claimants are entitled to a sum of Rs. 60,000/- by way of compensation under Clause 'Forthly' of section 23(1) of the Act. 14. Last ground in these appeals is that because of acquisition of land the main portion of the land under Survey No. 208 part which has remained with the claimants is itself damaged to an extent that the claimants are entitled to a sum of Rs. 60,000/- by way of compensation under Clause 'Forthly' of section 23(1) of the Act. This claim was made as under : 15% of the market value of the land was claimed on account of disturbance of peace and tranquility of the occupants residing in the bungalow which resulted due to the acquisition of land for approach road. The approach road was likely to be a busy road and the traffic thereon was likely to disturb peace and tranquility in the bungalow. Secondly, the remaining portion of land was stated to have suffered in value because of a portion of land going out of it. The separated portion, it was pointed out, contained well, out-houses, garage and in the absence of these amenities a willing purchaser was not likely to pay for the bungalow the same amount which he would have otherwise paid. This claim was made at the rate of 20% of the market value on account of damages of the nature as stated above. Further claim was made of Rs. 39,250/- on the ground that because of the acquisition of the portion of the land it had become necessary to construct a new compound wall and S.W. drain etc. which was likely to cost about Rs. 39,250/-. Though all these claims were worked out to more than Rs. 80,000/-, the claim was restricted only to Rs. 60,000/-. The trial Court allowed nothing on this count. 15. Shri Rane pointed out that clause 'Forthly' of sub-section (1) of section 23 of the Act clearly contemplated awarding of compensation on account of injurious affect on the remaining property by reason of acquisition. Unless, therefore, there was any dispute about the claim made by his clients as to the disturbance of peace and tranquility, the disadvantages suffered on account of severance of land by reason of acquisition and necessity to construct a boundary wall and drainage etc., the trial Court was not justified is not awarding any compensation on account thereof. As to the merits of the claim. Shri Rane referred to and relied upon the report of the expert Shri Talim who was examined. As to the merits of the claim. Shri Rane referred to and relied upon the report of the expert Shri Talim who was examined. Shri Page, the learned Govt. Pleader, on the other hand, stated that the very fact that the claims were granted to the extent to 75% of the market value of the separated land out of Survey No. 208 part showed that the loss or damage or damage suffered or likely to be suffered by the claimants was taken into account by the trial Court. He also pointed out that the injurious affect to the other property contemplated in Clause 'Forthly' should be by reason of acquisition and not on account of after effects. In other words his submission is that the traffic if at all on the approach road was going to be after the approach road was constructed and not immediately on the acquisition of the land. As regards the construction of boundary wall or drainage he pointed that there was no drainage or boundary wall earlier and therefore if there was any necessity to construct a wall and/or drainage, it would not be due to the acquisition of the land. If the claimants voluntarily wanted to construct anything on their land, the acquiring body is certainly not responsible for that. It was also pointed out that the land acquired was for the approach road. The land itself is a strip of land. At one corner it is about 22 above the ground level. That itself might as well be a boundary wall in a place like Lonawala. 16. Clause 'Forthly' of section 23(1) on which strong reliance was placed by Shri Rane reads as under : "12(1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration : First, .......................................................................................................... Secondly,.................................................................................................... thirdly,.............................................................................................................. 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, moveable or immoveable, in any other manner, or his earning; ....." It is evident that the amount of compensation to be awarded under section 23(1) is for the land acquired under this act and not under any other Act. While awarding or determining the amount of compensation, the Court has to keep in mind certain aspects which are indicated in sub-section. One such aspect is clause 'forthly' quoted above. The clause, in my view, provides that the Court must determine the injurious affect on the remaining property of the claimants by reason of acquisition. This clause is separate from clause 'thirdly' which requires taking into account the aspect of division or severance of the property. So far as injurious affect to the remaining property is concerned at best one can reasonably say that because of the approach road some kind of traffic will be there by the side of the bungalow of the claimants on the land remaining with them. All the same, the magnitude of the disturbance will depend upon how close are the bungalow or the bed-rooms to the approach road and the nature of the traffic on the road. Unfortunately, no material has been brought on record to indicate the nature and magnitude of the injurious affect. That apart, the injurious affect if any would be on the bungalow only and not on the land. It is also not shown what is the constructed a new of the bungalow. The claim for severance could be made under clause 'thirdly' and for that the claim has already been allowed. In the circumstances, it is not possible to entertain the same claim in respect of the remaining portion. As regards the boundary wall and drainage the admitted position is that there was no boundary wall nor any drainage prior to the acquisition. Under the circumstances, I do not think, the claimants are entitled to any amount by way of compensation on account thereof. In the result, the appeals are partly allowed. Additional amount of compensation is to be computed by taking the fair market rate at the rate of Rs. 16/- per sq. yard in respect of land acquired out of Survey No. 208 part and at the rate of Rs. 12/- per sq. yard in respect of the land acquired out of survey No. 232-A instead of Rs. 13/- and Rs. 10/- per sq. yard respectively. Thus, in each of the Appeal Nos. 1061, 1063 and 1066 of 1979, the claimants shall be entitled to an additional sum of Rs. 12/- per sq. yard in respect of the land acquired out of survey No. 232-A instead of Rs. 13/- and Rs. 10/- per sq. yard respectively. Thus, in each of the Appeal Nos. 1061, 1063 and 1066 of 1979, the claimants shall be entitled to an additional sum of Rs. 4,677.05 by way of increase in the amount of compensation and corresponding increase in the amount of solatiums with interest @ 4% per annum on the aforesaid amount from the date of possession to the date of payment. In each of the appeal Nos. 1062, 1064 and 1065 of 1979, the claimants shall be likewise entitled to an additional sum of Rs. 3,018.33. The amounts along with interest are to be deposited in the trial Court within three months from the date of the signing of the decree. No order as to costs. Order accordingly. -----