-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 65 OF 2004 Mr. Govind G. Poy Raiturkar, son of Gopal Govind Poy Raiturkar, aged 72 years, married, residing at Rua de Abade Faria, Post Box 23, Margao, Goa, and presently residing at St. Joaquim Road, Borda, Margao, Goa. …... Appellant. V e r s u s 1. The Land Acquisition Officer, Deputy Collector, Sub-Division, Margao, Goa; and 2. The Executive Engineer, Works Div. VI, Public Works Department, Fatorda, Margao, Goa. ….. Respondents Mr. S. S. Kakodkar, Advocate for the Appellant. Mr. V. Rodrigues, Additional Government Advocate for the Respondents. CORAM: F. M. REIS, J. DATE : 17 th SEPTEMBER, 2010. ORAL JUDGMENT The above Appeal challenges the Judgment and Award dated 29th December, 2003, passed by the learned Additional District Judge, South Goa, at Margao, in Land Acquisition Case no.145/1993. -2- 2. Vide Notification under Section 4 of the Land Acquisition Act, 1894, (hereinafter referred to as the 'said Act'), dated 16.08.1988, published in the Official Gazette on 16th January, 1989, an area of 625 square metres of the property surveyed under No.280/0 Part and an area of 175 square metres out of survey no.289/0 Part situated at Curtorim village was intended to be acquired for the construction of the Mugal road in Village Panchayat of Curtorim. By an Award passed under Section 11 of the said Act dated 29th November, 1991, the Land Acquisition Officer awarded compensation at the rate of Rs.12/- per square metre for the land acquired. Being dissatisfied with the said amount, the Appellant sought a reference under Section 18 of the said Act for enhancement of compensation and claimed an amount of Rs.70/- per square metre for the land acquired. By Judgment and Award dated 29th December, 2003, the learned Additional District Judge, South Goa, at Margao, answered the said reference in the negative. 3. Being aggrieved by the said Judgment and Award, the Appellant has preferred the present appeal. 4. Mr. S. S. Kakodkar, the learned Counsel appearing for the Appellant has assailed the impugned judgment and submitted that the Reference Court has failed to apply the well settled principles as provided under section 23 of the said Act for determining the market value of the land acquired. He further submitted that the Appellant has produced a comparable sale instance which is at Exhibit 26 being a sale deed dated 26th -3- April,1989 wherein the property surveyed under no.280/0 was sold at the rate of Rs.53/- per square metre. He further submitted that the land which was subject matter of the said sale deed is part of the land acquired in the present acquisition and as such there is no justification for the Reference Court not to rely upon the said sale instance for the purpose of determining the market value of the acquired land. He further submitted that the Respondents have failed to dispute the merits of the said sale deed and as such it was not open for the Reference Court to discard the said sale instance. The learned Counsel further submitted that the said sale deed is comparable to the land acquired and as such the Appellant was entitled for enhancement of compensation as claimed by him in the reference proceedings. The learned Counsel has further submitted that the Reference Court has thus erroneously appreciated the evidence on record and has come to an erroneous conclusion that the Appellant was not entitled for any enhancement in the compensation for the land acquired. The learned Counsel further submitted that the Appellant has produced two sale instances in the same village, one is a sale deed dated 14th March,1985 and the other one is dated 17th July, 1986 which are located in the vicinity of the acquired land wherein the prices of the land sold are at the rate of Rs.30/- per square metre and Rs.40/- per square metre respectively. He further pointed out that these sale deeds are more than three years from the date of Section 4 notification and considering the escalation in the price in the vicinity, the Appellant was entitled for the compensation as claimed by them in the reference. The learned Counsel further submitted that as valuable land has been lost in acquisition, the matter -4- may be remanded to the Reference Court for reconsideration as the Appellant would be in a position to lead evidence as far as the comparability of the land acquired with the said sale deed which have now been allowed to be relied on by the Appellant. 5. On the other hand, Shri V. Rodrigues, the learned Additional Government Advocate appearing for the Respondents has submitted that the Appellant has failed to adduce any evidence to substantiate his claim for enhancement of compensation. He pointed out that sale instance at Exhibit 26 cannot be relied upon for determining the market value of the land acquired as the said sale instance is a transaction executed with a company and the Appellant wherein he is a share holder. He further pointed out that the price mentioned therein cannot be said to be a price which a willing purchaser would offer for the land acquired. The learned Counsel has further submitted that as far as the two sale deeds sought to be produced by the Appellant are concerned, the same are not comparable with the land acquired. He further submitted that the Respondents desire to adduce evidence to demonstrate that the land subject matter of the said sale deeds are not comparable to the land acquired. He further pointed out that in case the matter is remanded, the Respondents should be allowed to cross-examine the persons examined by the Appellant and lead further evidence in rebuttal to disapprove the said documents. 6. Having heard the learned Counsel for the Appellant and the Respondents and on perusal of the records, the following point for -5- determination arise in the present appeal. POINT FOR DETERMINATION Whether the Reference Court was justified to reject the reference filed by the appellant? 7. On perusal of the impugned judgment, I find that the Reference Court has come to the conclusion that the sale instance at Exhibit 26 is not comparable with the land acquired. The learned Judge has further found that the purchaser in the said sale instance M/s. Marmagoa Steel Limited wherein the Appellant is a Director and also one of the vendors. The learned Judge further came to the conclusion that the sale instance was executed when the Appellant had knowledge about the impending acquisition in the present case. On perusal of the said sale instance, I find that the Appellant was one of the vendors to the said sale deed and there is no dispute that he is also a Director of the purchaser to the said sale deed. Considering the said aspects, I find that the Reference Court is justified to come to the conclusion that said sale instance cannot be relied upon for the purpose of determining the market value of the land acquitted. The price mentioned therein cannot be considered to be an amount which a willing purchaser would offer for the acquired land. As such, the Reference Court was right in discarding the said sale instance. 8. With regard to the two sale deeds sought to be produced by the Appellant, I find that the learned Additional Government Advocate is justified to -6- contend that there is no material on record to establish the comparability of the sale deed land with the land acquired. The Apex Court in the judgment reported in 2009 (9) SCC 289 in the case of Attar Singh v. Union of India, has held at paras 9 and 10 thus: (10,24,25) “9. It is also well settled that for the purpose of 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 Gujarat i.e.: (SCC p.797, para 20) “positive factors Negative factors (i) Smallness of size (i) Largeness of area (ii) Proximity of a road (ii) Situation in the interior at a distance from the road (iii) frontage on a road (iii) narrow strip of land with very small frontage compared to depth (iv) nearness to developed area (iv) lower level requiring the depressed portion to be filled up (v) regular shape (v) remoteness from developed locality (vi) level vis-a-vis land under acquisition (vi) some special disadvantageous factors which would deter a purchaser (vii) Special value for an -7- owner of an adjoining property to whom it may have some very special advantage.” 10. This Court in Union of India v. Pramod Gupta on the question of determination of market value opined: (SCC p.21, paras 24-26) “24. While determining the amount of compensation payable in respect of the lands acquired by the State, the market value therefor indisputably has to be ascertained. There exist different modes therefor. 25. The best method, as is well known, would be the amount which a willing purchaser would pay to the owner of the land. In absence of any direct evidence, the court, however, may take recourse to various other known methods. Evidences admissible therefor inter alia would be judgments and awards passed in respect of acquisitions of lands made in the same village and/or neighbouring villages. Such a judgment and award, in the absence of any other evidence like the deed of sale, report of the expert and other relevant evidence would have only evidentiary value........” 9. Considering the said judgment of the Apex Court, I find that the Appellant will have to adduce evidence to show the comparability of the land acquired with the sale instances. After such evidence is adduced the positive factors as well as negative factors of the land acquired with the sale instances will have to be considered by the Reference Court for determining the market value of the land acquired. For such exercise I find that in the interest of justice, the matter is to be remanded so as to enable the Appellant to lead further evidence to establish his contention that the sale deed lands are -8- comparable with the land acquired. The Respondents would be entitled to rebut the evidence so adduced by the Appellant. The point for determination is answered accordingly. 10. In view of the above, I pass the following : O R D E R (i) The appeal is partly allowed. (ii) The impugned judgment and award dated 29th December, 2003 is quashed and set aside. (iii) Land Acquisition Case No. 145/1993 is restored to the file of the Reference Court. (iv) The Appellant is permitted to produce the said two sale deeds dated 14th March,1985 and 17th July, 1986 and examine witnesses to record the evidence in the light of the observations made herein above in accordance with law. The Respondents shall be entitled to lead rebuttal evidence, if any, thereafter. (v) The Reference Court shall decide the reference filed by the Appellant afresh after giving opportunity to both the parties of being heard after taking into account the evidence which has already been adduced and the evidence which shall be adduced by the parties here after in accordance -9- with law. (vi) Appeal stands disposed off accordingly with no order as to costs. (vii) The parties are directed to appear before the Reference Court on 22/12/2010 at 10.00 a.m. and abide by its further directions. F. M. REIS, J. at*