- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NOS. 256 of 2004 and 274 of 2004. FIRST APPEAL NO. 256 of 2004. Antonio Almeida( now deceased) through his legal representatives 1a. Mr. Alister Almeida 1b. Ms. Alison Almeida, both residing at H. No. 202, Borda, Margao, Goa. 2 Jose Almeida, 3 Francisco Almeida, 4 Manuel Almeida, Appellants 2 to 4, Marchom Building, 1st Floor, Margao Goa. .......... Appellants. Versus 1 Special Land Acquisition Officer, (SIP) I. D. Complex, Gogol, Margao, Goa. 2 Executive Engineer, Works Division IX Irrigation Department, Gogol, Margao Goa. .......... Respondents. Mr. M. B D'Costa, Senior Advocate with Mr. J. A. Lobo, Advocate for the for the Appellants. - 2 - Ms. S. Linhares, Additional Government Advocate for the Respondents. WITH FIRST APPEAL NO. 274 of 2005. 1 Special Land Acquisition Officer, (SIP) I. D. Complex, Gogol, Margao, Goa. 2 The Executive Engineer, Work – Div. IX Irrigation Department, Gogol, Margao Goa. .......... Appellants. Versus Shri Antonio Almeida ( expired) Represented thorugh his LRs. 1a. Mr. Alister Almeida, his son 1b. Ms. Alison Almeida, both major of age, r/o. H. No. 202, Borda, Margao, Goa. 2 Jose Almeida, 3 Francisco Almeida, 4 Manuel Almeida, All r/o. Marchon Building, 1st Floor, Margao Goa. .......... Respondents. - 3 - Ms. S. Linhares, Additional Government Advocate for the Appellants. Mr. M. B. D'Costa, Senior Advocate with Mr. J. A. Lobo, Advocate for the Respondents. CORAM:-F. M. REIS, J. DATE:-26 th November, 2010. ORAL JUDGMENT Both the above Appeals are taken together for disposal as both challenge the impugned Judgment and Award dated 5.8.2004 passed by the learned Additional District Judge, South Goa, Margao in Land Acquisition case no.199/1994. The parties shall be referred to in the same manner as they so appeared in the cause title of the impugned Judgment. 2. By a notification dated 8.7.1991 issued under section 4 of the Land Acquisition Act, 1894 ( hereinafter referred to as 'the said Act') and published in the Official Gazette dated 20.3.1992, several lands were acquired for the construction of the District D2 of Salaulim Irrigation Project at Margao City and Raia village. Amongst the lands which were acquired an area of 1295 square metres from the property surveyed under chalta no.1 of P.T. Sheet no.28 of Margao - 4 - City belonging to the applicants were also intended to be acquired. 3. By an Award passed by the Land Acquisition Officer under section 11 of the said Act dated 28.2.1994, the applicants were offered a sum of Rs.65/- per square metre for the land acquired. 4. Being dissatisfied with the said amount, the applicants sought a reference under section 18 of the said Act for enhancement of the compensation and claimed a sum of Rs. 450/- per square metre for the land acquired. 5. By Judgment and Award dated 5.8.2004, the learned Reference Court fixed the compensation for the land acquired at the rate of Rs.200/- per square metre and directed payment of an excess of Rs.135/- per square metre to the applicants. Being aggrieved by the said Judgment and Award, the applicants as well as the respondents have preferred the present appeal. 6. Shri M. B. D'Costa, learned Senior Counsel appearing for the applicants has assailed the impugned Judgment and submitted that the applicants have produced sale instances of plots which were - 5 - subject matter of the remaining portion of the said property where a plot was sold at Rs.360/- per square metre. He further submitted that the land of the applicants was situated in Margao City which is commercial capital of Goa wherein prices are increasing day by day, and there is a high demand for land and as such the Reference Court ought to have fixed a minimum sum of Rs. 360/- per square metre for the land acquired. He further submitted that the land acquired which was admeasuring 1295 square metres was by itself a plot and as such the question of any deduction towards the development charges would not arise. He further submitted that the Reference Court had effected a deduction of 45% on account of such charges which were exorbitant, considering the locality of the land acquired. Learned Counsel further submitted that the question of any deduction on account of road widening would not arise as land acquired could itself be considered as a developed plot as it was abutting the road and as such no deduction on such count would arise as far as the land acquired. Learned Counsel further submitted that deduction of 15% on account of proposed roads would not arise in the present case as the land acquired was adjoining the main highway and as such the applicants could fashion their development in such a way that no internal road would be required to sub divide the acquired land. - 6 - Learned Counsel further submitted that the possession of the land acquired was taken by the respondents about 2 years prior to the award and as such considering the provisions of section 23(1) (A) of the said Act which contemplates that compensation on such count is payable from section 4 notification up to the date of issuance of award or date of taking possession which ever is earlier the applicants have been deprived of any compensation for the said period from the date of taking possession up to the date of award which this Court should compensate. Learned Counsel further submitted that the Reference Court has misdirected itself in appreciating the evidence on record by not relying upon the expert report produced by the applicants and consequently came to an erroneous conclusion that the market value of the land acquired as on date of section 4 notification was Rs.200/- per square metre. In support of his contention he relied upon the Judgment of the Apex Court reported in 2009(11) SCC 75 in the case of C. R. Nagaraja Shetty Vs. Special Land Acquisition Officer and Estate Officer and another and the Judgment of the Single Judge of this Court passed in First Appeal no.172/2001 dated 17.9.2010 in the case of Shri Edgar Francisco Valles Vs. Deputy Collector and another. - 7 - 7. On the other hand Ms. S. Linhares, learned Additional Government Advocate appearing on behalf of the respondents has assailed the impugned Judgment and submitted that the land acquired was within road widening area and as such it had no potentiality of being used for non agricultural purpose. She further submitted that the land acquired was having an average width of about 4 metres and length of about 292 metres and as such the land acquired being a plot by itself would not arise. Learned Additional Government Advocate further submitted that the contention of learned Senior Counsel that no roads had to be constructed for the purpose of developing the land acquired cannot be accepted as admittedly said portion of the land which is surveyed under chalta no.1 of P. T. Sheet no.28 is admeasuring an area of about 12000 square metres and considering length to be approximately 300 metres, the width would be nearly 40 metres and as such in case of a plot of about 400 metres is to be made the size of such plot would be only 40 X 10 metres, consequently making such plot would be unrealistic. Learned Additional Government Advocate further submitted that the land acquired was not a developed land as compared to the sale deed plot which was a developed plot and as such substantial deduction have to be effected for the purpose of making the acquired land comparable with the sale - 8 - deed plot. Learned Counsel further submitted that as per the admission of AW1, himself that the plot which was subject matter of the sale instance produced by him had the benefit of having internal road which were constructed alongwith drains, apart from keeping statutory open space for the development of the lands. Learned Counsel further submitted that the plot owner of the sale instance were provided with motorable internal road as well as drainage system apart from the fact that they have the benefit of open space which was appurtenant the sale instance plot. Learned Additional Government Advocate as such submitted that the deduction effected by the Reference Court were justified but however pointed out that the Reference Court has failed in effecting any deductions on the ground that the land acquired was subjected to road widening area and consequently further deduction has to be effected for arriving at the market rate of the acquired land. As far as the contentions of learned Senior Counsel to the effect that the applicants has lost interest from the date of possession up to the award in terms of section 23(1)(A) of the said Act. Learned Additional Government Advocate submitted that as per the impugned Judgment and award interest under section 28 of the said Act has been awarded from the date of possession i.e. 12.11.1992 and as such the applicants have been duly compensated - 9 - with such interest at the rate of 9% per annum for the first year and at the rate of 15% per annum for the balance period on the market value as well as other statutory benefits as per law. Learned Counsel further submitted that in case the submission of learned Senior Counsel is to be accepted, the date of possession would have to be considered, as the date of the award and such interest under section 28 of said Act would have to be corrected thereby granting interest to the applicants from the date of the Award. Learned Counsel as such submitted that compensation awarded by the Reference Court deserve to be scaled down for fixing the market value of the land acquired. 8. Shri M. B. D'Costa, learned Senior Counsel in reply to the submission of the learned Additional Government Advocate has submitted that considering that the interest under section 28 of the said Act was paid from the said date i.e 12.11.1992 at the rate of 9% per annum for the first year and at the rate of 15% per annum for the balance period, the applicants was duly compensated with the said interest during the said period and as such he would not press for any modification of the amount payable under the provisions of Section 23(1) (A) of the said Act as submitted earlier. - 10 - 9. Having heard the learned Counsel for the applicants and the respondents and on perusal of the records, the following point for determination arise in the present appeal:- POINTS FOR DETERMINATION 1. Whether the Reference Court was justified to fix the market value of the acquired land as on date of section 4 notification at the rate of Rs.200/- per square metre? 10. On scanning of the evidence on record, I find that AW1 Shri Jose Almeida, who has been examined has stated that at the time of the acquisition there were facilities available such as water, telephone, transport etc to the acquired land. He further submitted that he had intention of starting/erecting constructions on the said land for which he had obtained necessary licence from the municipality. He has also produced the true copy of the letter which is at Exh. AW1/ B. He has also produced awards of different properties in the vicinity of the acquired land in support of his claim for enhancement of compensation. He has further stated that one plot was sold by sale deed dated 4.4.1990 for a price of Rs.330/- which is at Exh. AW1/H. He has further produced another sale deed at Exh. AW1/I which is a - 11 - plot wherein the price fixed is at the rate of Rs.330/- per square metre. The next sale instance wherein a plot of 525 square metres was sold at the rate of Rs.360/- per square metre by sale deed dated 28.11.1991 which is at Exh. AW1/K. In his cross examination he has stated that for the purpose of development 15% of the area is kept as open area. He has further stated that the sale instances which he has produced are of developed plots and all these plots are closer to the Don Bosco Institute at Fatorda. He has further stated that the plot nos. 2 and 3 are close to the Don Bosco Institute and the others are on the southern side. He has further admitted that while developing these properties which were subject matter of the sale deed he had kept open space and the road. He has further stated that tarring of the road was done by the municipality. He has further stated that he could not complete the development on account of financial difficulty. He has further stated that construction was not in the acquired land. The next witness examined is Shri Caetan Lowrence Faleiro, who has confirmed the contents of the award wherein the land belonging to him was acquired. The applicants have also examined Mr. Manguesh Suktankar, who is an approved valuer. He has stated that on the western side of the bye pass road the area is full of residential houses and that the area is surrounded mostly by the residential areas and it - 12 - was well suited for development. He has further stated that he had discounted only 15% for open space and nothing on account of road as the acquired land was adjoining the eastern bye pass. The next witness examined is Mr. Ernesto Moniz who is also an expert. He has admitted in his cross examination that unacquired land which remained can be used for construction. He has further stated that in the year 1986 he cannot say what was the set back to be left while doing a construction from the centre of said bye pass road which proceeds from Arlem to Gogol. He further stated that presently the set back is 20 mts from the centre of the road. He has further stated that he cannot confirm whether the acquired land was falling within the stretch covered by the set back from the centre of the road. In his affidavit said witness has stated that the land of the applicants is bifurcated into two parts and the land acquired which is surveyed under chalta no. 1 of P. T. Sheet no. 28 is on one side of the road forming a independent property and other portion is surveyed under chalata no. 1 of P.T. Sheet no. 30 of Margao city. He has further stated that for the purpose of sub division an area of 15% is to be kept as open space besides this, the area is to be reserved for road also, actual expenses towards the construction of the road, gutter are to be considered. He has further stated that the land acquired was a portion - 13 - abutting the road and as such the question of effecting any deductions on such count would not arise. The respondents have examined RW1 Raghobha Dessai, who has stated that the width of the acquired land is about 4 metres and the length is about 292 metres. He has further stated that the acquired land runs from South to North direction along the eastern bye pass road. He has further stated that the acquired land is at a low level and that there was no construction or foundation of any nature in the acquired land. In the cross examination he has stated that the petrol pump, school and telephone services are within the radius of 500 metres from the acquired land. He has further admitted that the Arlem Factory and Gold Spot have telephone and electricity facilities. He has further stated that whenever the road widening area is gifted to the municipality or any land is gifted to the municipality the owner will get benefit of FAR but however as the land is acquired no such benefit, is available. The learned Reference Court after examining the evidence on record has come to the conclusion that the sale deed plot in respect of said land was fetching a price of Rs.360/- which was developed plot and after deducting 45% on account of development charges fixed the market value of the acquired land at Rs.200/- per square metre. - 14 - 11. On perusal of the record, I find that the there is no dispute that the sale instances produced by the applicants are of developed plots which are in respect of the bigger property and which originally belonged to the applicants. The evidence further discloses that the sale deed plots are located towards the western side of the road while the acquired land is located on the eastern side. No sale deed plot in respect of the portion which is now surveyed under chalta no.1 of P.T. Sheet no. 28 has been produced by the applicants. The sale deeds which are produced are in respect of the land which is surveyed under chalta no. 1 of P.T. Sheet no. 30. The present acquisition is admittedly the portion of the land which is surveyed under chalta no.1 of P. T. Sheet no. 28. The evidence further discloses that the sale deed plot was sold at Rs.360/- per square metre. AW1 in his deposition himself has admitted that the developed plots which have been sold by him have been provided with the benefits of open spaces to the extent of 15% besides an area on account of road. The Reference Court while passing the impugned Judgment has effected deduction on account of development charges at 15% due to open space. Besides that another 15% on account of an area reserved for roads, gutter etc. On that count, I find that there is no infirmity committed by the Reference Court. Apart from that the Reference - 15 - Court has further deducted 15% on account of expenses incurred for construction of such roads and gutter, etc. It cannot be disputed that for selling developed plot statutory regulation contemplates maintaining the open spaces as well as providing internal roads for each sub divided plot. Naturally when one sells a developed plot, the seller would have to incur such expenditure and reserve land for the benefit of the plot purchased in order to meet the statutory requirements. In such circumstances one has to ascertain the value of an undeveloped land out of which the developed plot has been carved out. The price of the developed plot would obviously include the costs of such expenditure and value of the land reserved so as to meet the statutory requirements. In the circumstances, I find that there is no infirmity committed by the Reference Court in effecting such deduction as enumerated above to arrive at the market value of the acquired land. 12. The contention of learned Senior Counsel to that effect that no deduction has to be effected on account of internal roads, as the acquired land was by itself a sub divided plot cannot be accepted. The area which has been acquired is admeasuring 1295 square metres and it is an admitted fact that the average width of the land acquired is - 16 - about 4 metres and length is about 292 running metres. Considering the shape of the such land it cannot be accepted that the land acquired by itself could constitute a developed plot. 13. The next contention of learned Senior Counsel that for developing the land surveyed under chalta no.1 of P. T. Sheet no.28, the applicants would not have to construct any internal road also cannot be accepted. The Reference Court in fact has considered this aspect and found that it cannot be said that no internal road would have to be constructed considering the typography of the land surveyed under chalta no. 1 of P. T. Sheet no. 28. I find that the learned Additional Government Advocate is justified to contend that in case a plot of 400 square metres is to be made in such sub division, considering that the depth of the land is about 40 metres size of developed plot would be 40 X 10 metres which would have a shape of a rectangle and totally unpracticable for putting up a construction therein. As such the Reference Court was justified to come to the conclusion that deduction on that count has to be effected. The factor to be considered is to effect deduction on account of development charges, considering that the comparable sale instance relied upon by the applicants is a developed plot to arrive at the value of the - 17 - undeveloped land. The land acquired is not developed and in such circumstances when comparable sale instance is produced as the basis to fix the market value of the acquired land all the dissimilar factors would have to be taken care of for the purpose of fixing the market value of the land acquired. Considering the aforesaid dissimilar factors of the acquired land, I find that the Reference Court was justified to make deduction of 45% to fix the market value of the undeveloped acquired land at the rate of Rs.200/- per square metre. 14. The Apex Court in the Judgment in the case of CESC Ltd. v. Sandhya Rani Barik, 2008(17) SCC 436, has held at paras 19 and 20 thus:- 19. The armchair assessment of land value has to proceed with common sense and circumspection. One should attempt to find out the just and reasonable compensation without attempting any mathematical precision in that regard. For the purpose of assessing compensation, the efforts should be to find out the price fixed for the similar land in the vicinity. 20. The difference in the land acquired and the land - 18 - sold might take on various aspects. One plot of land might be larger, another small, one plot of land might have a large frontage and another might have none. There might be differences in land development and location. There might be special features which have to be taken note of and reasonably considered in the matter of assessing compensation. 15. In another judgment of the Apex Court in the case of Attar Singh Vs. Union of India, 2009(9) SCC 289 at paras 7, 8 and 9 has held thus:- 7. It is now a well-settled principle of law that determination of the market value of the land acquired indisputably would depend upon a large number of factors including the nature and quality thereof. The norms which are required to be applied for determination of the market value of the agricultural land and homestead land are different. In given cases location of land and in particular, closeness thereof from any road or - 19 - highway would play an important role for determination of the market value wherefor belting system may in appropriate cases may be resorted to. The position of the land, particularly in rainy season, existence of any building, etc. also plays an important role. A host of other factors including development in and around the acquired land and/ or the potentiality of development will also have a bearing on determination of the fair market value of the land. 8. Determination of the market value of the land may also depend upon the facts and circumstances of each case, amongst them would be the amount of consideration mentioned in a deed of sale executed in respect of similarly situated land nearabout the date of issuance of notification in terms of Section 4(1) of the Act; in the absence of any such exemplars, the market value can be determined on yield basis or in case of an orchard on the basis of number of fruit-bearing trees. 9. It is also well settled that for the purpose of - 20 - determination of price of acquired land, the courts would be well advised to consider the positive and negative factors, as has been laid down by this Court in Viluben Jhalejar Contractor v. State of