:1: IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 142 OF 2007 1. Jacinto Barreto Miranda, Indian National, resident of House No. 345, A.C. Pacheco Road, Margao Goa. ... Appellant V e r s u s 1. Special Land Acquisition Officer, Selaulim Irrigation Project, Water Resources Department, Gogol, Margao Goa. 2. Chief Officer, Margao Municipal Council, Margao, Salcete Goa. 3. Collector of South Goa, Margao Goa. 4. State of Goa, through the Chief Secretary, Government of Goa, Secretariat, Panaji Goa. ... Respondents Mr. M. B. da Costa, Senior Advocate with Mr. J. A. Lobo, Advocate for the Appellant. Mr. S. D. Padiyar, Advocate for the Respondent No.2. Mr. M. Salkar, Additional Government Advocate for the Respondent Nos. 1, 3 and 4. :2: CORAM : A. S. OKA & F. M. REIS, JJ. DATE ON WHICH SUBMISSIONS ARE HEARD : 15th JULY, 2010. DATE ON WHICH JUDGMENT IS PRONOUNCED: 16thAUGUST, 2010. JUDGMENT ( Per A. S. OKA, J ) The Appellant has taken an exception to the judgment and award dated 9th March, 2007 passed by the learned District Judge in a reference under Section 18 of the Land Acquisition Act, 1894 ( for short the said Act ). The reference is made at the instance of the Appellant has been rejected by the impugned judgment and award. 2. The acquisition relates to lands under Chalta No. 376 P.T. Sheet No. 254 admeasuring 12 square metres, Chalta No. 348 P.T. Sheet No. 254 admeasuring 365 square metres and Chalta No. 96 P.T. Sheet No. 259 admeasuring 362 square metres situated at Margaon. The acquisition is for construction of road starting from Roque Correira road, Khareband to Sirvodem at Margao, in Salcete Taluka. The notification under Section 4(1) of the said Act was published in Official Gazette on 20th June, 2002. By an award under Section 11 of the said Act, the market value was offered at the rate of Rs.71/- per square metre. In the reference under Section 18 of the :3: said Act, the Appellant claimed compensation at the rate of Rs.3000/- per square metre for the acquired land. It is pointed out that the possession was taken over of the acquired land in the year 1984 before Notification under Section 4(1) of the said Act was issued. The Appellant claimed the compensation and damages on that count. The Appellant claimed the compensation at the rate of Rs.5000/- per coconut tree. 3. The Appellant examined himself and no other witness was examined by both the parties. The Appellant produced the documentary evidence apart from his deposition. 4. The learned Senior Counsel appearing for the Appellant has taken us through the notes of evidence and relevant documents on record. He invited our attention to the document at Exhibits 18 to 21 and 40 and 41. He submitted that the acquired land is situated either in S-1 zone or C-2 zone. He submitted that, therefore, every part of the acquired land is either settlement area or commercial area. The learned Senior Counsel pointed out that the possession of the acquired land was taken over in the year 1984 long before the Notification under Section 4(1) of the said Act was published. He invited our :4: attention to the decision of the Apex Court in the case of Special Land Acquisition Officer V/s Karigowda and others {(2010) 5 SCC 708 }. He pointed out that the Appellant was deprived of the possession of the land in the year 1984 and as compensation was not paid immediately after taking over the possession, the Appellant is entitled to the interest on the said amount of compensation till the date of payment as held by the Apex Court. He also relied upon a decision of the Apex Court in the case of Madishetti Bala Ramul ( Dead) by Lrs. V/s Land Acquisition Officer {(2007) 9 SCC 650}. He submitted that following the said decision, the Appellant is entitled to the interest at the rate of 15% per annum on compensation amount from the date on which the Appellant was dispossessed. The learned Senior Counsel appearing for the Appellant invited our attention to the evidence of the Appellant. He pointed out that the acquired land was in the city of Margao within radius of 200 metres from the centre of Margao city. He invited our attention to the sale deed dated 3rd February, 1999 ( Exhibit 18 ) in respect of a land admeasuring 1012 square metres situated in the city of Margao. He pointed out that the said land was situated at a distance of 1.5 Km from the acquired land and 1 Km from the Municipality and centre of Margao city. He pointed out that the acquired land was far better than the sale deed :5: land as sale deed land was hilly and it was not abutting a road. He pointed out that even in respect of such a land as of February, 1999, the market value at the rate of Rs.1,976.28 per square metre was paid. He invited attention of the Court to the sale deed dated 15th March, 1999 (Exhibit 19) in respect of a land admeasuring 1421 square metres situated in the city of Margao. He stated that the land was sold along with a dilapidated structure which is valued at Rs. 10 lakhs and the market value of the land reflected from the said transaction is Rs. 5,629.84 per square metres. He stated that the sale deed land was comparable to the acquired land and was situated within a radius of 500 metres from the acquired land. He relied upon a sale deed dated 6th March, 2002(exhibit 20) in respect of the land admeasuring 316 square metres bearing Chalta No. 11 of P.T. Sheet No. 276 of Margao City. He pointed out that the consideration reflected from the said document is at the rate of Rs.1000/- per square metre. He pointed out that after deducting the amount paid to the developer, the market value of undeveloped land reflected from the said document is Rs. 858.69 per square metre. He stated that the said land subject matter of the sale deed was also comparable to the acquired land. He relied upon a sale deed dated 12th February, 2001 ( Exhibit 21 ) in respect of 1/3rd share in the property under Chalta Nos. 81, 82, 83 and 84 of P.T. :6: Sheet No. 254 admeasuring 285 square metres. He relied upon the said sale deed which shows the market value of Rs.3105.26 per square metre. Lastly, he relied upon the agreement for sale at Exhibit 40 and an award in Land Acquisition Case No.77/03(exhibit 41) which according to him are in respect of comparable lands. 5. The learned Senior Counsel appearing for the Appellant pointed out that the purpose of acquisition is for construction of a road. He relied upon a decision of the Apex Court in the case of Nelson Fernandes and others V/s Special Land Acquisition Officer {(2007) 9 SCC 447 } and submitted that for determining the market value of the acquired land even the purpose of acquisition will have to be considered. Inviting our attention to the findings recorded by the reference Court. He submitted that the learned Reference Court has committed an error by putting the burden on the Appellant to prove that there was no road outlined in the outline development plan in the Appellant's land. He submitted that this was a case where the burden was discharged by the Appellant to show that the market value offered by the Land Acquisition Officer was inadequate. He submitted that the Respondents have led no evidence. He submitted that the sale deed dated 12th February, 2001(exhibit 20) was the best :7: piece of evidence produced by the Appellant. He pointed out that the award at Exhibit 41 was also in respect of a comparable land in the city of Margao and in respect of the said land, the market value of Rs. 71/- per square metre was offered by the Special Land Acquisition Officer which was enhanced to Rs.2866/- per square metre. He, therefore, submitted that the Appellant is entitled to the substantial enhancement in the market value. 6. The learned Counsel appearing for the second Respondent (the acquiring body ) pointed out that none of the sale instances are in respect of any comparable land. He invited attention of the Court to the various findings recorded by the Reference Court. He pointed out that the fact that there were mundcarial houses, tenanted houses as well as a fair price shop, a bakery and a timber depot in the remaining property of the Appellant. He pointed out that the acquired land was situated in red light area. He submitted that the acquired land was being used by people as a road for approaching the fair price shop which was existing from 1972. He pointed out that the road through the acquired land was constructed in the year 1989-90. He pointed out that considering the aforesaid aspects, no willing buyer would have purchased the acquired land. He pointed :8: out that a part of the acquired land was in road widening area and it had no building potential. He submitted that the sale instances produced by the Appellant were in respect of the lands having building potential. He pointed out that most of the civic amenities such as Police Station, post office, municipal building, banks, schools, Government offices, petrol pumps, etc. are on the northern side of the railway line and acquired land was on the southern side of the railway line. He submitted that the sale deed lands in respect of Exhibits 18, 19 and 21 were on the northern side of the railway line and hence were not comparable. He pointed out that the sale deed at Exhibit 20 was in respect of a developed plot admeasuring 316 square metres and therefore, the same was hardly comparable. He pointed out that the Appellant was not aware about the features of the land subject matter of the award Exhibit 41. He relied upon a decision of the Apex Court in the case of P. Ram Reddy and others V/s Land Acquisition Officer, Hyderabad and others {(1995) 2 SCC 305}. He submitted that the burden on the Appellant/claimant has not been discharged to prove that the market value offered by the award under Section 11 of the said Act was inadequate. He, therefore, submitted that no interference is called for. The learned Additional Government Advocate supported the impugned judgment and award. :9: 7. We have given careful consideration to the submissions made by the learned Counsel appearing for the parties. We have perused the record of the case. Before dealing with the issue of market value of the acquired land on the date of the Notification under Section 4(1) of the said Act, the claim for compensation made by the Appellant on the basis of an act of taking possession of the acquired land in the year 1984 will have to be considered. The present Appeal is a continuation of a reference under Section 18 of the said Act. The factors which are required to be considered by the Collector and the Court are set out in Section 23 of the said Act. As per the said provision, the market value of the acquired land on the date of publication of Notification under Section 4(1) has to be considered. In a case where the possession of the acquired land is taken over before the publication of the Notification under Section 4(1) of the said Act, Section 23 does not provide for grant of any compensation or interest. Apart from the compensation incorporated in sub-section (1) of Section 23 of the said Act, the claimant is entitled to the statutory benefits of interest under Section 23(1-A) of the said Act and the solatium of 30% under Section 23(2) of the said Act on the market value of the acquired land on the date of publication of notification under section 4(1). In a reference under Section 18 of the said Act, if a case for grant of enhancement is :10: made out, the Reference Court has to grant interest under Section 28 under the said Act. The said interest is payable only on the compensation payable under Section 23 of the said Act. It must be stated here that under no provision of the said Act, the prayer made by the Appellant in the reference under section 18 for grant of additional compensation and damages on account of taking possession of the land in the year 1984 can be considered. Reliance was placed by the learned Senior Counsel appearing for the Appellant on the decision of the Apex Court in the case of Madishetti Bala Ramul ( supra ). This was a case where the first Notification under Section 4(1) of the said Act lapsed and subsequently a second notification under the same provision was issued. The possession was taken over under the first notification. The compensation was claimed on account of the fact that the claimant was dispossessed on the basis of the first notification. The learned Senior Counsel appearing for the Appellant relied upon what is observed by the Apex court in paragraph 20 of the decision which reads thus :- “20. In the peculiar facts and circumstances of the case, although the proper course for us would have to remand the matter back to the Collector to determine the amount of compensation to which the Appellants would be entitled for being remained out of possession :11: since 1979, we are of the opinion that the interest of justice would be met if this appeal is disposed of with a direction that additional interest @ 15% per annum on the amount awarded in terms of award dated 2-1-1999 for the period 16-3-1979 till 22-12-1991, should be granted, which, in our opinion, would meet the ends of justice”. On a plain reading of what is held by the Apex Court in paragraph 20 of the judgment, it is apparent that the Apex Court has exercised powers under Article 142 of the Constitution of India and, therefore, the said decision will not help the Appellant. Another decision relied upon by the learned Senior Counsel appearing for the Appellant in that behalf was in the case of Special Land Acquisition Officer V/s Karigowda and others ([2010] 5 Supreme Court Cases 708). The Apex Court has considered its earlier decisions on this aspect and followed its earlier decision of the larger Bench in the case of R. L Jain V/s Delhi Development Authority {(2004) 4 SCC 79. The Apex Court considered the remedies available in the case where the possession of the acquired land is taken over prior to issuance of Section 4 Notification. In paragraphs 100 and 101, it was held thus :- “100. We are bound by the decision of the larger Bench in R. L. Jain case which had considered Satinder Singh, on which reliance has even been placed by the :12: claimants in the present appeal. The larger Bench after detailed discussion on the subject rejected the claim for payment of interest claimed by the respondents in those cases prior to the date of issuance of the notification under Section 4 of the Act. 101. As is evident from the above dictum of the Court, despite dispossession, the title continues to vest in the landowners and it is open for the landowners to take action in accordance with law. Once notification under Section 4(1) of the Act has been issued and the acquisition proceedings culminated into an award in terms of Section 11, then alone the land vests in the State free of any encumbrance or restriction in terms of provisions of Section 16 of the Act. The Court, in situations where possessions have been taken prior to issuance of notification under Section 4(1) of the Act, can direct the Collector to examine the extent of rent or damage that the owners of land would be entitled to, the provisions of Section 48 of the Act would come to aid and the Court would also be justified in issuing appropriate direction. This was the unequivocal view expressed by the Court in R. L. Jain case as well. This legal question is no more open to controversy and stands settled by this Court. We would follow the view taken and accept the contention of the appellant State that the Reference Court as well as the High Court could not have granted any interest under the provisions of the Act, for a date anterior to the issuance of notification under Section 4 of the Act. However, following the dictum of the :13: Bench in R. L. Jain case, we direct the Collector to examine the question of payment of rent/damages to the claimants, from the period when their respective lands were submerged under the backwater of the river, till the date of issuance of the notification under Section 4(1) of the Act, from which date, they would be entitled to the statutory benefits on the enhanced compensation.” Thus, in view of what is held by the Apex Court, the Reference Court could not have granted any interest under the provisions of the said Act for a period anterior to the issuance of Notification under Section 4(1) of the said Act. However, remedy of the claimant of making a claim of payment of rent/damages as observed by the Apex Court in paragraph 101 of the aforesaid decision always remain open. Therefore, the said claim made in the reference by the Appellant could not have been granted by the Reference Court and to that extent, the Reference Court has correctly decided the matter. 8. For determining the market value of the acquired land, it will be necessary to scan the evidence on record as regards the nature and location of the acquired land. As stated earlier, parts of Chalta No. 376 and 348 of P.T. Sheet No. 254 and a part of the land bearing :14: Chalta No. 96 of P.T. Sheet No. 259 are the subject matter of the acquisition in the present case. The Appellant is the owner of the remaining parts of land under Chalta Nos. 376 and 348 of P.T. Sheet No. 254 and Chalta No. 96 of P.T. Sheet No. 259. Apart from the said lands, the Appellant is the owner of the structures on the larger property. The Appellant himself has produced a plan of the acquired land at Exhibit 16. The said plan shows existence of various structures on larger property. The plan shows that the portions of only three or four structures are affected by the acquisition and the substantial part of the acquired land does not have structures. In the award under Section 11, it is stated that the land under acquisition is partly bharad, coconut and mixed garden land. Award records that Chalta Nos. 376 and 348 of P.T. Sheet No. 254 are earmarked for commercial C-2 zone in the outline development plan (for short O.D.P.). The Chalta No. 96 of P.T. Sheet No. 259 appears to have been earmarked for settlement S-1 zone in the O.D.P. It is stated that the acquired land has facility of tar road, electricity and water. It must be stated here that the award does not take into consideration that the possession of the acquired land was taken over prior to Notification under Section 4(1) of the said Act. :15: 9. In the examination-in-chief, the Appellant stated that the first Notification under Section 4(1) of the said Act was published in 1984 and the possession of the acquired land was taken over as far as back in the year 1989. The Appellant stated that the acquired land abuts Margao-Banaulim-Varca road. He stated that all the amenities such as water, electricity and telephone were available in the property much prior to the publication of Notification under Section 4(1). The transport was available and there were shops, hotels, lodging houses, temple, Chapel, restaurants, commercial buildings, clinics, residential houses within a radius of 100 metres from the acquired land. The buildings of college, municipality, old bus stand, post office, schools, Health Centre and market are within 30 metres radius of acquired land. There is extensive cross examination about the acquired land made by the learned Counsel appearing for the acquiring body. In the cross examination he has admitted that he had granted N.O.C for construction of the road on the acquired land subject to acquisition. He pointed out that the buildings under Chalta Nos.370 and 376 of P.T. Sheet No.254 were in his property in which there are six tenaments. He had admitted that south of his structure there are two structures forming part of P.T. Sheet No.254. The witness admitted that in structures bearing Chalta No. 359 of P.T. Sheet No. 254 there :16: was a bakery in existence for last 40 years. He pleaded ignorance about the statement that it was a famous bakery at Margao. He stated that to the south of Chalta No. 359, there is a well in existence. He admitted that his tenants were using the said well. He stated that there were two structures towards the south of the well under Chalta No. 349 of P.T. Sheet No.254. He admitted that there were tenanted structures in Chalta No. 351 to 358 of P.T. Sheet No. 254 and under Chalta No.1 to 10 of P.T. Sheet No.259. He admitted that from the year 1989, there is a fair price shop in the structure in Chalta No. 10 of P.T. Sheet No. 259. He admitted that it is possible that the residents of the locality were drawing their ration of the commodities from the said fair price shop. He admitted that two structures under Chalta No.133 of P.T. Sheet No.259 belong to his mundkars who have been residing there since Portuguese time. He admitted that there is a timber depot in land bearing Chalta No. 348 of P.T. Sheet No. 254. A suggestion was given to the Appellant that surroundings of Khareband locality are dirty. He denied the correctness of the said suggestion. In fact it was tried to be suggested in the cross examination that the acquired land is situated in an area which is known for flesh trade. The Appellant did not accept the correctness of the said suggestion. In short what has been established in the cross :17: examination of the Appellant is that there were various structures on larger property held by the Appellant. The said structures include the structures in possession of the mundkars and tenants and there was a bakery and fair price shop in the said structures. Thus, what has been established is that the acquired land may have been used by the members of public for approaching the said structures and the well. However, it is not established that any right of way was created over the acquired land in favour of the members of public. The fact that the acquired land was being used by the members of the public and especially the occupants of the structures on the property of the Appellant will be a factor to be considered. However, the same would not have affected the use of FAR of the acquired land while carrying on construction on the remaining land of the Appellant. It must be also noted that a part of the acquired land falls in commercial C-2 zone and part in settlement S-1 zone and, therefore, there was no restriction on the development. Even assuming that a part of the acquired land was shown reserved for road, the remaining land was available for utilizing FAR of the acquired land. 10. That takes us to the consideration of the sale instances relied upon by the Appellant. The first sale instance is of sale deed :18: dated 3rd February, 1999 ( Exhibit 18 ). Even according to the case of the Appellant, the sale deed plot was situated about