-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 344 OF 2003 1. Deputy Collector (L.A.), Margao. 2. The Executive Engineer, Works Division, VIII, (Bldgs), PWD, Fatorda, Margao, Goa. …. Appellants V e r s u s Smt. Paulina Fernandes, C/o. J.M. Fernandes, Housing Board, H.No.M/8, Near Municipal Stadium, Ponda, Goa, (since deceased), Represented by legal representatives: 1(a) Jose Manuel Fernandes, son (deceased) having following legal heirs: 1(a)(i) Mrs. Olinda Fernandes, (widow of deceased son), 1(a)(ii) Media Fernandes, daughter, 1(a)(iii) Grace Fernandes, daughter, 1(a)(iv) Judas Fernandes, son, 1(a)(v) Anthony Fernandes, son. …. Respondents Mr. Amey Kakodkar, Additional Government Advocate for the Appellants. Coram :- F. M. REIS, J Date : 6 th September, 2011. ORAL JUDGMENT The above Appeal challenges the Judgment and Award dated -2- 03.09.2003, passed by the learned Addl. District Judge, South Goa, at Margao, in Land Acquisition Case no. 136/2001. The Government acquired land belonging to the Respondents admeasuring an area of 295 square metres of the property surveyed under no. 31/2 and 225 square metres from the property surveyed under no. 31/10 for the purpose of constructing office building at Chaudi Village of Canacona Taluka. Notification under Section 4 of the Land Acquisition Act, 1894, (herein after referred to as the said 'Act'), was published in Official Gazette dated 09.09.1993. The Land Acquisition Officer, whilst passing the Award dated 14.08.1996 under Section 11 of the said Act, offered a compensation for the land acquired at the rate of Rs.6/- per square metre. Being dissatisfied with the said amount, the Respondents herein, sought a reference under Section 18 of the said Act and claimed compensation at the rate of Rs.1000/- per square metre for the land acquired. 2. By the impugned Judgment and Award, the Reference Court partly allowed the said reference and fixed the compensation for the land acquired at the rate of Rs.100/- per square metre. Being aggrieved with the said Judgment, the Appellants have preferred the present Appeal. 3. Shri A. Kakodkar, learned Addl. Government Advocate has assailed the impugned Judgment and pointed out that the Reference Court has totally misdirected himself in fixing the compensation for the land acquired at the rate of Rs.100/- per square metre. The learned Addl. Government Advocate further pointed out that the previous Award relied upon by the Reference Court is not at all comparable to the land acquired and, as such, the question of relying on such -3- previous instance for fixing the market value of the acquired land is not at all justified. The learned Counsel pointed out that there is no evidence on record to substantiate the finding of the Reference Court to grant appreciation at the rate of 10 percent per annum considering that the land was acquired in the year 1990 in a Village area where there was no escallation to that extent at the relevant time. Learned Addl. Government Advocate further pointed out that in the Village area where no such evidence has been adduced, the escallation has to be fixed between 5 percent and 7.5 percent per annum in view of the Judgment of the Apex Court reported in 2008 (14) SCC 745 in the case of General Manager, Oil and Natural Gas Corporation Limited vs. Rameshbhai Jivanbhai Patel. The learned Counsel as such pointed out that the Appeal deserves to be allowed and the impugned Judgment be quashed and set aside. 4. The Respondents though served, failed to remain present on the date of the hearing of the above Appeal. 5. In support of her claim for enhancement of compensation, the Respondents have examined her Power of Attorney holder Shri Orlando Dias. He has stated in his deposition that by Notification bearing no. 22/112/83-RD, the Appellants acquired an area of 480 and 313 square metres from the property surveyed under no. 31/2 and 31/10 and in respect of the same land, an Award was passed by the Reference Court. He has further stated that by second acquisition by Notification dated 01.03.1993, the Appellants acquired remaining portion of the land admeasuring 295 square metres from the property surveyed under no. 31/2 and 225 square metres from the property surveyed under no.31/10. He has further -4- stated that the land surveyed under no. 31/2 and 31/10 are at the distance of 30 metres from the National Highway 17. He has further stated that the land is located in the prime area. He has produced Sale Deeds dated 27.09.1984, dated 25.09.1985, dated 10.11.1988 as well as certified copy of the Award passed in Land Acquisition Case no. 32/1990 and a valuation report in support of his claim for enhancement. The valuation report is marked as exhibit 24 and the said Judgment is marked at exhibit 25. In the cross examination, there was no substantial challenge to the comparability of the land acquired with the land which was the subject matter of the earlier acquisition. 6. The learned Judge whilst passing the impugned Judgment has found that the Respondents have not established the comparability of the land acquired with the land which was subject matter of the sale instances at exhibit 19, 22 and 23 and as such the said sale instances were not considered for the purpose of fixing the market value of the acquired land. The learned Judge has noted the Judgment at exhibit 25, which was a previous Award where the land acquired was of the same property. The learned Judge has also taken note of the fact that the compensation was enhanced to Rs.50/- per square metre and the same Award was accepted by the Appellants. The learned Judge as such found that the Award can form the basis for fixing the market value of the acquired land. The learned Judge has also noted the fact that the acquisition in the said Award was in the year 1983 whereas in the present case, the acquisition was in the year 1993 and, on account of the gap of ten years, the amount was appreciated at the rate of 10 percent per annum and the compensation was fixed at the rate of Rs.100/- per square metre. -5- 7. Considering that the Award at exhibit 25 is in respect of the same land and there is no material on record to disclose any dissimilarity with the land acquired and the land subject matter of the said Award, I find that the Reference Court was justified to fix the compensation for the land acquired on the basis of the Award at exhibit 25. But, however, whilst producing the documents on record, the Respondents have also produced a valuation report of a valuer Shri Vikas Dessai, who has otherwise not been examined in the proceedings. On perusal of the said valuation report which is part of the records, I find that the valuer had fixed the market value of the acquired land at the rate of Rs.85/- per square metre. The Reference Court has failed to take note of the said fact whilst passing the impugned Judgment. Taking note of the contention of the learned Addl. Government Advocate to the effect that there was no material on record to disclose that the appreciation of the land in the vicinity of the acquired land was at the rate of 10 percent thereof, I find that the Reference Court was not justified to fix the compensation for the land acquired at the rate of Rs.100/- per square metre. In view of the valuation report which has been produced by the Respondents themselves which discloses that the market value of the acquired land according to the valuer was Rs.85/- per square metre in the year 1993. Even assuming the escallation is fixed at 7.5 percent per annum, the compensation at the rate of Rs.85/- per square metre cannot be said to be unjust or exorbitant. To that extent, I find that the impugned Judgment deserves to be modified. In view of the above, the compensation for the land acquired is fixed at the rate of Rs.85/- per square metre. -6- 8. 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 3/09/2003 is modified and the compensation for the land acquired is fixed at the rate of Rs.85/- per square metre. (iii) Needless to state the respondents would be entitled for statutory benefits in accordance with law. (iv) The appeal stands disposed of accordingly with no order as to costs. F .M. REIS, J. arp/*