1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 68 OF 2005 Smt. Carmelina Luiza D'Mello, aged about 59 years, resident of Foro Wado, St. Estavam, Tiswadi, Goa. ........ Appellant. V/s. 1. Deputy Collector and S.D.O. Ponda, Sub-Division, Ponda, Goa. 2. Block Development Officer, Ponda, Goa. 3. The Village Panchayat of Tivere, Orgao, Ilhas, Goa, Panaji, Goa. ......... Respondents. Mr. M. S. Joshi, Advocate for the appellant. Mr. M. Salkar, Addl. Govt. Advocate for the respondents. CORAM :- A.S. OKA & F.M. REIS, JJ. Date :- 16th June, 2010. 2 ORAL J U D G M E N T : (Per A.S. OKA, J.) The original claimant in a reference under Section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as “the said Act”) has preferred this appeal for challenging the Judgment and Award of the reference Court. 2. With a view to appreciate the submissions made by the learned Counsel appearing for the parties, it will be necessary to briefly refer to the facts of the case. Land admeasuring 12,672 sq. metres, surveyed under Survey No.59/10 situated at Village Orgao, Taluka Ponda was notified for acquisition by notification under Section 4 of the said Act, which was published on 22nd March, 1990. An award under Section 11 of the said Act was made by the Land Acquisition Officer on 13th May, 1993. Market value offered under the said award was at the rate of Rs.30/- per sq. metre. The appellant did not accept the said award and applied under Section 18 of the said Act. Claim made in the reference under Section 18 was at the rate of Rs.350/- per sq. metre. By the impugned Judgment and Award, the reference Court has fixed the market value of Rs. 45/- per sq. metre. 3 3. The learned Counsel appearing for the appellant has taken us through the notes of evidence and the impugned Judgment and Award. The appellant relied upon three sale instances in the form of sale deeds and the appellant relied upon the evidence of an expert valuer. The learned Counsel appearing for the appellant placed reliance on a Sale Deed dated 9th November, 1988 in respect of an area of 315 sq. metres. He submitted that it is a pre-notification sale. He submitted that the land subject matter of the sale deed was situated in a close proximity of the acquired land. He submitted that the market value reflected from the said sale deed is Rs.150/- per sq. metre. His submission is that on account of development charges maximum deduction of 33 % ought to have been made by the reference Court. But, in the present case, the reference Court has proceeded to make deduction of 3/4th towards development charges. He submitted that the purpose of acquisition was of making a play ground. He submitted that the learned trial Judge has applied excessive cost of development. The learned Addl. Govt. Advocate supported the impugned award by pointing out that in the year 1979 the appellant admittedly purchased the acquired land only at the rate of Rs.2/- per sq. metre. He submitted 4 that even if escalation at the rate of 10 % per annum is granted, what is awarded by the reference Court is much more than the market value arrived at on the basis of the appellant's own sale deed. His submission is that no interference is called for with the impugned Judgment and Award. 4. We have given careful consideration to the submissions. Even, according to the case of the appellant, as reflected from the evidence of his constituted attorney, the acquired land, on the relevant date, was a paddy field where various crops were taken. Apart from paddy cultivation in monsoon, certain trees such as jack fruit, mango, cashew have been planted in the acquired land. The constituted attorney of the appellant stated that the acquired land was purchased under a Sale Deed dated 13th February, 1979, and thereafter there has been gradual increase in the prices of the properties and there has been stiff increase after the year 1987 as construction of houses and buildings has come up in the vicinity of the acquired land. The constituted attorney of the appellant stated that all facilities such as school, temple, panchayat office, bank, hospital, post office, college, shops, commercial complex are available within a distance of 500 5 metres from the acquired land which touches Banastarim-Marcela road. The constituted attorney deposed that Ponda-Panaji highway is at a distance of 3 kms. from the acquired land. In the cross examination, a suggestion was put to the constituted attorney of the appellant that the acquired land does not have an approach to Marcela-Banastarim road. He denied the correctness of the said suggestion. The constituted attorney corrected himself by stating that the entire acquired land does not abut the road, but only a portion of 10 metres abuts the said road. 5. AW.4 Ana Silveira was examined to prove the sale deed at Exhibit-36. She is a purchaser under the sale deed dated 9th November, 1988 at the rate of Rs.150/- per sq. metre. She deposed that the acquired land of the appellant was at a distance of 500 metres from her plot. She stated that the acquired land was similar to her plot. In the cross examination, she stated that her plot was at a distance of 500 metres from Marcela market and the acquired land was at a distance of 500 metres from the said market. She stated that for going to the acquired land from her plot, one has to pass through the road passing through the market. She admitted that her plot was a developed plot 6 prior to the purchase and the acquired land was not a developed land. The learned reference Court has treated the sale instance at Exhibit 36 as a sale instance of the land which is comparable with the acquired land. Both, the acquired land and the land subject-matter of the said sale deed, are at a distance of 500 metres from the market. The distance between the two lands is stated to be around 1 km. Thus, the land subject matter of the sale instance is located in close proximity of the acquired land. More over, AW.4 who is the purchaser of the said land subject matter of the property described in Exhibit – 36 stated that the acquired land is similar to the land purchased by her. 6. On the other hand, the learned Addl. Govt. Advocate relied upon a sale deed of the year 1979 by which the appellant purchased the acquired land at the rate of Rs.2/- per sq. metre. There is a gap of 11 years between the land purchased by AW.4 and the relevant date in this case. The constituted attorney of the appellant has stated that there has been enormous increase of the prices of the immovable properties in the area from the year 1987 onwards. Therefore, the learned Addl. Govt. Advocate is not right when he submits that the market value will have to be fixed on the basis of the 7 sale instance of the year 1979. 7. Now the question which survives for consideration is what should be the market value of the acquired land on the basis of the Sale Deed at Exhibit-36. Considering that there is a gap between the sale deed and the notification under Section 4 of the said Act, escalation of 10 % per year has been granted by the learned reference Court and the price has been taken as Rs.180/- per sq. metre. A deduction of 75 % has been made on account of cost of development. Thus, after taking the market value on the relevant date at Rs.180/- per sq. metre, only 1/4th of the said market value being Rs.45/- per sq. metre has been granted. 8. In the present case, the property subject-matter of the sale instance admeasures 315 sq. metres. As against this, the acquired land admeasures 12,672 sq. metres. Moreover, the land subject matter of the sale instance is a sub-divided developed plot. The acquired land was admittedly a paddy land on the date on which notification under Section 4 of the said Act was published. Looking to the respective sizes of the lands and considering the user of the acquired land as an 8 agricultural land, appropriate deduction on account of development cost will have to be worked out. The Apex Court in the case of Subh Ram and others vs. State of Haryana and another, (2010) 1 SCC 444, held that the standard deduction on account of development charges will be 33 % . However, in paragraph 15 of the said decision, the Apex Court proceeded to hold thus : “15. Thus, if the valuation of a large extent of agricultural or undeveloped land is to be based on the sale price of a small developed plot in a private layout, then the standard deductions should be one-third (for roads, etc.) plus one-third (for expenditure of development), in all two-thirds (or 67%), as “development cost” from the value of small plot. The percentage of deduction may however vary between 20% to 75% depending on several circumstances (see Lal Chand v. Union of India, paras 8 and 9 for illustrations of such circumstances).” 9. Considering the facts of the present case, what is held by the Apex Court in paragraph 15 of the said decision will have to be applied and two-third amount will have to be deducted as development cost. The market value on the relevant date on the basis of the 9 document at Exhibit-36 has been taken by the trial Court at Rs.180/- per sq. metre. Following the decision of the Apex Court in Subh Ram and others (supra), two-third amount will have to be deducted from the sum of Rs.180/- per sq. metre. After deducting two-third on account of development cost, the market value comes to Rs.60/- per sq. metre. To that extent, the appeal must succeed and we pass the following order : (A) The impugned Judgment and Award is modified. The market value of the acquired land is fixed at the rate of Rs.60/- per sq. metre. (B) Rest of the Award is confirmed. (C) The appeal is partly allowed in the above terms, with no order as to costs. (D) Time of three months is granted to the respondents to pay or to deposit the additional compensation as per modified award. A.S. OKA, J. F.M. REIS, J. ssm.