-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 260 OF 2006 Mr. Albert Fernandes, H. No. 38, Loutolim, Rassaim, Salcete, Goa. …... Appellant V e r s u s 1. Special Land Acquisition Officer, Goa, IDC, Midas Touch Bldg., 2nd Floor, Opp. El Dorado Plaza, Panaji, Goa. 2. The Managing Director Goa, IDC, Shree Saraswati Mandir Bldg., 18th June Road, Panaji, Goa. .... Respondents All the above addresses of the parties are their registered addresses. Mr. I. Agha, Advocate for the Appellants. Mr. G. Shirodkar, Government Advocate for the Respondent no.1. Mr. M. S. Sonak, Advocate for the Respondent no.2. Coram :- F. M. REIS, J Date : 20 th December, 2011. ORAL JUDGMENT Heard Shri I. Agha, learned Counsel appearing for the Appellants, Shri G. Shirodkar, Government Advocate for the Respondent no.1 and Shri M. S. Sonak, Advocate for the Respondent no.2. 2. The above Appeal challenges the Judgment and Award dated FA-260-06 -2- 01.09.2005 passed in Land Acquisition Case no,. 39/2004, whereby the reference filed by the Appellants under Section 18 of the Land Acquisition Act, 1894, (herein after referred to as the said 'Act') for enhancement of compensation came to be rejected. 3. Pursuant to a Notification under Section 4 of the said Act, bearing no. 22/43/2000-RD dated 13.11.2000 and published in the official gazette dated 23.11.2000, land was acquired for the expansion of the Industrial Estate Phase IV EPIP at Verna and Loutolim Villages of Salcete Taluka. Amongst the lands which were acquired, two portions of the property admeasuring 3500 square metres of the property surveyed under no.279/2 and an area of 2100 square metres of the property surveyed under no. 279/3 belonging to the Appellants were also acquired. By an Award passed under Section 11 of the said Act dated 29.09.2003, the Land Acquisition Officer offered compensation for the land acquired at the rate of Rs.10/- per square metre. Being dissatisfied with the said amount, the Appellants preferred a reference under Section 18 of the said Act for enhancement of compensation and claimed compensation for the land acquired at the rate of Rs.180/- per square metre. The Reference Court by impugned Judgment and Award dated 01.09.2005, rejected the reference filed by the Appellants. Being aggrieved by the said Judgment and Award, the Appellants have preferred the present Appeal. 4. Shri I. Agha, learned Counsel appearing for the Appellants, has pointed out that the Reference Court has refused the reference essentially on the ground that considering that the Appellants were agricultural tenants under the FA-260-06 -3- provisions of the Agricultural Tenancy Act, 1964 and of the Goa Land Use (Regulation) Act, 1991, the land acquired had no potentiality of being used for non- agricultural purpose. The learned Counsel further pointed out that the learned Judge has essentially refused the reference as the Appellant has failed to establish the agricultural value of the acquired land. The learned Counsel further pointed out that sale instance produced by the Appellants establish that the market value of the acquired land was much higher than the one offered by the Land Acquisition Officer. Learned Counsel further pointed out that the land acquired was for the purpose of Industrial Estate and that this Court had fixed the compensation in respect of lands acquired pursuant to the same Notification at the rate of Rs.70/- per square metre in First Appeal no. 24/2006 passed on 24.06.2011. The learned Counsel further pointed out that the Apex Court in the Judgment in the case of Goa Housing Board vs. Rameshchandra Govind Pawaskar & anr. passed on 11.10.2011 has held that considering that the market value of the adjoining property was fixed at a particular price on the basis that it had potentialities of being used for non-agricultural purpose the tenanted lands located adjoining said lands can be awarded compensation at 50 percent of market value. Learned Counsel further pointed out that considering the said Judgment passed by this Court in the case of Goa Housing Board vs. Rameshchandra Govind Pawaskar & anr.(supra) wherein the compensation was fixed at the rate of Rs.70/- per square metre, the Appellants are entitled for atleast a compensation of Rs.35/- per square metres. Learned Counsel has further taken me through the Judgment of the Apex Court and pointed out that in view of the findings rendered therein, the Appellants are entitled for enhancement of compensation based on the Judgment passed by this FA-260-06 -4- Court in First Appeal no. 24/2006. Learned Counsel further pointed out that the land acquired in the present case and the land which was subject matter of the said First Appeal were acquired by the same notification and for the same purpose and is located in the same Village having similar features. The learned Counsel as such submits that the impugned Judgment passed by the Reference Court deserves to be quashed and set aside. 5. On the other hand, Shri Sonak, the learned Counsel appearing for the Respondent no.2 has supported the impugned Judgment. Learned Counsel further pointed out that though the Apex Court has held that atleast 50 percent has to be deducted from the compensation fixed in respect of the adjoining land having potentiality of being used for non agricultural purpose, nevertheless, considering the nature of the land acquired, the deduction should be much higher. The learned Counsel has taken me through the evidence of Aw.1 and pointed out that the land acquired was a paddy field and, as such, dissimilar to the land which was subject matter of the said First Appeal. The learned Counsel further pointed out that the land acquired in the said case admeasures 4000 square metres and the land acquired in the present Appeal was about 6600 square metres and considering the nature of the land, deduction on that count can also be taken into consideration. Learned Counsel has further pointed out that the land subject matter of the First Appeal was a bharad land and as such had better features than the land acquired in the present Appeal. Learned Counsel has further taken me through the evidence on record and pointed out that the Reference Court has rightly rejected the reference and, as such, considering the offer made by the Land Acquisition Officer, FA-260-06 -5- there is no case made out by the Appellants for any interference in the impugned Judgment and Award. As such, learned Counsel submitted that the Appeal be rejected. 6. Shri Shirodkar, learned Government Advocate appearing for the Respondent no.1 supports the impugned Judgment passed by the Reference Court and the submissions of the learned Counsel appearing for the Respondent no.2. 7. Having hearing the learned Counsel and on perusal of the record, the following point for determination arises in the present Appeal : POINT FOR DETERMINATION 1. Whether the Reference Court was justified to reject the reference solely on the ground that the land acquired was a tenanted land occupied by the Appellants ? 8. Before going into the merits of the rival contentions, at the request of Shri Agha, learned Counsel appearing for the Appellants, by consent, the copy of the Judgment passed by this Court dated 24.06.2011 in First Appeal no. 24/2006, is taken on record. The objections of Shri Sonak, learned Counsel appearing for the Respondent no.2, to the effect that the land acquired was dissimilar with the land which was subject matter of the said Appeal are the matters to be dealt whilst deciding the rival contentions on merits. The said Judgment is accordingly taken FA-260-06 -6- on record. 9. On perusal of the impugned Judgment passed by the Apex Court, it cannot be disputed that the reference preferred by the Appellants came to be rejected essentially on the ground that the land acquired was a tenanted land and had no potentiality of being used for non agricultural purpose in view of the provisions of the Goa Land Use (Regulation) Act 1991. The Reference Court further found that there was no evidence adduced by the Appellants to substantiate the agricultural income of the land and accordingly refused the reference. 10. The undisputed fact which curl out from the evidence on record is that an area of 5600 square metres belonging to the Communidade of Loutolim, came to be acquired wherein the Appellant was declared a tenant from the property surveyed under no. 279/2 and 279/3 from Loutolim Village. There is also no dispute that the Appellant has obtained a Sanad within the provisions of Goa Agricultural Tenancy Act, 1964. As such, it cannot be disputed that the Appellant became the deemed owner of the acquired land within the provisions of Goa Agricultural Tenancy Act, 1964, and, on the basis of the provisions of the Goa Land Use Act, it cannot be disputed that the land which has been vested under the Goa Agricultural Tenancy Act, cannot be used for any other purpose other than agricultural. Considering the restrictions imposed with regards to the such land, the Apex Court in the said Judgment of Goa Housing Board vs. Rameshchandra Govind Pawaskar & anr.(supra) has come to the conclusion that such land has no potentiality of being used for non agricultural purpose. As such, the compensation FA-260-06 -7- fixed for non agricultural land cannot be accepted and cannot form the basis of the market value of the land. But, however, the Apex Court in the said Judgment in the case of Goa Housing Board vs. Rameshchandra Govind Pawaskar & anr. (supra) has held at paras 12, 16, 17, 18 and 19 thus : “12. The question is whether such prohibition will affect the market value of the land. The respondent submitted that this court had repeatedly held that all lands situated in the same area and acquired by the same notification, should be awarded the same compensation. He relied upon the judgment in K. Periasami v. Sub-Tehsildar (Land Acquisition) [1994 (4) SCC 180] and Delhi Development Authority v. Bali Ram Sharma [2004 (6) SCC 533]. There can be no doubt that similarly situated land in the same area, having the same advantages and acquired under the same notification should be awarded the same compensation. But the question is when one land is a freehold land not subject to any restrictions in regard to user and the adjoining land though similarly situated is subject to a permanent restriction regarding user requiring it to be used only for agricultural purposes, the question is whether the two lands can be termed as comparable lands which should be subjected to the same compensation. We may give a few examples to illustrate the position: (i) A person constructs two identical houses adjoining each other. He lets out one of them and keeps the other vacant. After some years he sells both FA-260-06 -8- the properties. The house sold with vacant possession will fetch a better price than the adjoining premises which is in occupation of a tenant and therefore sold without possession. The fact that both properties are situated adjoining each other and have the same area of construction and face the same road will not mean that the price they will fetch will be the same. (ii) There are two adjoining properties belonging to the same owner. One falls under area earmarked as commercial and the other falls under area earmarked as residential. Though they are similarly situated, the land which is capable of commercial use is likely to fetch a higher price than a land earmarked for residential use. (iii) An agricultural land with no development potential sold to another agriculturalist for agricultural purposes will fetch a price which will be lower than the price fetched by an agricultural land with potential of development into residential or commercial plots sold for development into a layout of plots. (iv) A small plot measures 10' x 20' and is suitable for construction of a shop. If it is to be sold, it will fetch a good price at par with prevailing market value. But if the said plot is subject to an easementary right of passage in favour of the owner of the property to the rear of the said plot and also subject to easementary rights of light and air in favour of the owners of plots on either side, the plot cannot be used for construction at all and will have to be kept as a vacant plot. Necessarily its market value will be far less than the FA-260-06 -9- value of such a plot which is not subject to such easements. 13. … 14. … 15. ... 16. While section 23 of the Land Acquisition Act enumerates the matters to be considered in determining compensation, section 24 enumerates the matters to be neglected in determining compensation. It provides : "But the court shall not take into consideration-- x x x x x fifthly, any increase to the value of the land acquired likely to accrue from the use to which it till be put when acquired; x x x x eighthly, any increase to the value of the land on account of its being put to any use which is forbidden by law or opposed to public policy." It is thus clear that if there is a prohibition regarding use of the land for purposes other than agriculture, the value of such land on account of the same being put to commercial, residential or industrial use cannot form the basis of determining the market value. 17. Where an acquired land is subject to a statutory covenant that it can be used only for agriculture and cannot be used for any other purpose necessarily it will have to be sold as agricultural land as the land owner cannot sell it for any purpose other than agriculture and the purchaser cannot sell it for any purpose other than agriculture. As a consequence, the price fetched for such land will be low even if it is situated near any urban area. But if the same land is not FA-260-06 -10- subject to any prohibition or restrictive covenant regarding use and has the potential of being developed either as a residential layout or put to commercial or industrial use, the land will fetch a much higher price; and the market value of such other land with development potential can be determined with reference to the sale price of nearby residential plots by making appropriate deduction for development. On the other hand if the land is to be used only for agricultural purposes, it may not be possible to arrive at the market value thereof with reference to the market value of nearby residential plots. Therefore we are of the considered view that in regard to the land in question, in view of the permanent restriction regarding user, that is it should only be used for agricultural purposes, and the bar in regard to any non-agricultural use, it will have to be valued only as an agricultural land and cannot be valued with reference to sales statistics of other nearby lands which have the potential of being used for urban development. 18. We may also look at the matter from a slightly different perspective. A vacant land has a particular value. If such land is in the occupation of a long term lessee, and the owner wants to sell it without possession, he will only get a far lesser price that what he would get as price for the same land if vacant possession can be given to the purchaser. If such land in the occupation of a long term lessee is acquired, as the lessee's rights are also taken over, FA-260-06 -11- the compensation awarded for the land will be the full value as awarded for any neighbouring property which is not subject to any tenancy. But the entire compensation will not be received by the land owner/landlord. The landlord will have to share the compensation with the long term lessee. In other words, the landlord will not get the entire value as compensation but will only get a part of the market value and the tenant will get the balance. In that sense even if the market value of the land without any restrictive covenants is considered to be Rs.110 per sq.m., having regard to the fact that the land is incapable of being used for purposes other than agriculture and the price of Rs.110 is arrived at with reference to a land which can be used for all purposes, an appropriate percentage will have to be deducted from the value of Rs.110 per sq.m. to arrive at the land subject to the statutory restriction regarding use. 19. On the facts and circumstances, having regard to the prohibition regarding use of land for any purpose other than agriculture, the land will have to be treated and valued as agriculture land without any development potential for being used as residential/commercial/industrial plots. We are of the view that at least 50% will have to be deducted from the market value of freehold land with development potential to arrive at the market value of such land which can be used only for agricultural purposes. As we have already determined the market value of neighbouring FA-260-06 -12- land (which is not subject to the prohibition under Land Use Act) as Rs.110/- per sq.m. We are of the view that an appropriate compensation for the acquired land should be 50% thereof, that is Rs.55 per sq.m.” 11. Considering the ratio of the said Judgment of the Apex Court, I find that the value of land which is tenanted and subject to restrictions under the Goa Land Use (Regulations) Act, can be evaluated also on the basis of the compensation fixed with regard to adjoining lands having the same features and having the potentiality of being used for non-agricultural purpose after effecting appropriate deductions. In the said Judgment, the Apex Court has found that the adjoining property which was subject matter of the same notification, the compensation fixed by the Apex Court was at the rate of Rs.110/- per square metre, such land was free hold land whereas the land acquired which was subject matter of the Goa Housing Board vs. Rameshchandra Govind Pawaskar & anr.(supra), was a tenanted land having no potentiality of being used for non-agricultural purpose. On the basis of the compensation fixed for the adjoining land, the Apex Court held that atleast 50 percent would be a just compensation for the land which was subject to restrictions under the Goa Land Use (Regulations) Act, 1991. 12. In the present case, taking into account the Judgment of the Apex Court in the case of Goa Housing Board vs. Rameshchandra Govind Pawaskar & anr. (supra), as the land acquired in the present case cannot be used for non- agricultural purpose a deduction of 50 percent would have to be effected on that count. Apart from that, there are other dissimilar features in respect of the land FA-260-06 -13- acquired in the present case and the land subject matter in the said First Appeal no. 24/2006. Shri Sonak, the learned Counsel appearing for the Respondent no.2 is justified to contend that there are two dissimilar features with regard to the land acquired in the present case and the land which is the subject matter in the said First Appeal. The total land acquired pursuant to Notification under Section 4 of the said Act, admeasured more than three lakhs square metres. The land which was subject matter in the said First Appeal no. 24/2006 cannot be said to be adjoining to the land acquired in the present case though the land is acquired by the same Notification. There appears to be considerable distance between the two lands acquired. Apart from that, the land acquired in the present Appeal admeasures 5600 square metres whereas the land which was subject matter of the said First Appeal admeasuring 2500 square metres and this is another dissimilarity as to the largeness of the land acquired in the present Appeal. The Reference Court was as such not justified to reject the reference merely on the ground that the land had no potentiality for being used for non agricultural purpose. On account of said two dissimilarities, I find that a further deduction of 15 percent is just and proper. Hence, the total deduction to determine the market value for the land acquired on the basis of the Judgment passed in the First Appeal, would be 65 percent. After such deduction of 65 percent, the market value of the land acquired would come to around Rs.25/- per square metre. The point for determination is answered accordingly. 11. In view of the above, I pass the following : FA-260-06 -14- ORDER (i) The Appeal is partly allowed. (ii) The impugned Judgment and Award dated 01.09.2005 is quashed and set aside. The Appellants are entitled for compensation for the land acquired at the rate of Rs.25/- per square metre. (iii) Needless to state, the Appellant will also be entitled to statutory benefits under Section 23(1-A), 23(2) and 28 of the Land Acquisition Act, 1894, in accordance with law. (iv) The Reference Court is directed to determine the amount of compensation payable to the Appellant within three months from receipt of the Order. The Respondents shall within two months thereafter deposit the amount so determined by the Reference Court. (v) The Appeal stands disposed of in the above terms with no orders as to costs. F .M. REIS, J. arp/* FA-260-06