1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.199 of 2006 1. The Dy. Collector (L.A.) Margao-Goa 2. The Dy. Conservator of Forest, South Goa Division, Margao, Goa .. Appellants. Versus Shri Yasin Tajdin Mavany, for self and Attorney of Anwar Tajdin Mavany, r/o Nanu House, Margao, Goa .. Respondent. Mr. S. S. Kantak, Advocate General with Mr. A. Kamat, Additional Government Advocate for the appellants. CORAM :- A. S. OKA & F. M. REIS, JJ. Date : - 23 rd June, 2010. ORAL JUDGMENT : (Per A. S. OKA, J) We have heard the learned Advocate General in support of the appeal. When the appeal was called out yesterday for final hearing, none appeared for the respondent. After hearing the learned Advocate General, we had adjourned the hearing of the appeal till today to enable the respondent to appear and contest the appeal. However, none appears when the appeal is called out today. 2 2. The appellants have taken exception to the judgment and award dated 31st August, 2005 passed by the District Court in reference under Section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as ' the said Act of 1894') made at the instance of the respondent. The acquisition relates to the land bearing Chalta No.38 of P.T. Sheet No.206 of Margao city. The area of acquired land is 4105 square meters. The notification under Section 4 of the Land Acquisition Act, 1894 was published on 19th March, 1998 and the award under Section 11 of the said Act of 1894 was made on 1st January, 2001 by which compensation was offered at the rate of Rs.71/- per square meter. Compensation of Rs.40,757 was awarded for the trees situated in the acquired land. A claim made in reference under Section 18 of the said Act of 1894 was at the rate of Rs 3500/- per square meter. Evidence was adduced by the respondent by examining himself and by examining a Civil Engineer as a witness. There were three witnesses examined by the appellants. 3. The learned Advocate General has invited our attention to the findings recorded by the District Court. He 3 pointed out that the respondent had placed reliance on two sale instances. The first is at Exh.18 and the other is at Exh.19. The learned Advocate General pointed out that only one sale instance namely the sale instance of sale deed dated 17th October, 1996 at Exh.18 was accepted and relied upon by the Reference Court. He submitted that the sale deed was not of a comparable land for the reason that the acquired land was falling in recreational zone. He submitted that evidence adduced on that behalf has been erroneously rejected by the learned Judge. He pointed out that apart from the fact that the acquired land falls in recreational zone, there were negative factors as regards the acquired land. He pointed out that even according to the second witness examined by the respondent, the land subject matter of the said sale deed was in level with the abutting road. The acquired land was about 5 meters below the level. He pointed out that some deduction ought to have been made on account of this negative factor. He pointed out that deduction was required to be made on account of cost of development. Lastly, he submitted that escalation at the rate of 15 % in the market value adopted by the Reference Court is completely erroneous and at the most escalation at the rate of 10 % 4 ought to have been granted by the Reference Court. 4. We have given careful consideration to the submissions and we have perused the record. The respondent examined his Constituted Attorney as a witness by filing affidavit of examination-in-chief. In the examination- in-chief, it is stated that in the acquired property, there is a mineral water spring known as Ana-Fonte and the acquisition was for the purpose of development and beautification of the spring. The witness deposed about the two comparable sale instances. As far as document at Exh.18 is concerned, in paragraph 27 of the affidavit of examination-in-chief, the witness stated that the land subject matter of the said sale deed is adjacent to the acquired land on its southern side. He pointed out that the area of the said land was 3238 square meters. The witness was cross-examined. In the cross-examination, the witness admitted that the development permission which was granted in favour of the respondent, which was produced at Exh.20 was later on revoked. However, no reason for revocation was mentioned in the said order. He denied the correctness of the suggestion that the acquired land was within the recreational zone on the date of the notification. A suggestion was given 5 that the level of the acquired land is below 10 meters from the road level. He denied the correctness of the suggestion and stated that the acquired land is at about 5 meters below the road level. Thus, this is an admitted position as reflected from the evidence of the Constituted Attorney of the respondent. 5. The respondent examined one Mahendra S. Kakule, Consulting Civil Engineer and Government registered valuer. He deposed about the advantageous location of the acquired land. He also referred to permission granted on 23rd December, 1994 by the Development Authority for construction of a building on the acquired land. The witness was cross-examined by the State. The valuer stated that the plot situated in Central Commercial Zone will fetch higher price as compared to plot in the settlement zone. The witness admitted that he has not verified the classification of the land in Outline Development Plan. He pleaded ignorance as to whether the acquired land was situated in the recreational zone. 6. On the aspect of recreational zone, the appellants examined one Mr. Paul Gomes and one Anthony Diniz. The 6 witness Paul Gomes was allowed to be examined by the Reference Court only for the purpose of production of a true copy of Outline Development Plan. The witness Anthony Diniz was working as a Custodian of Margao Planning and Development Authority. He stated that in the Outline Development Plan of the city, which was prepared in the year 1987-1988, Chalta No.38 of P.T. Sheet No.206 was falling in the recreational zone. He stated that therefore, Survey No.206/38 continues to be in recreational zone as per the zoning plan/ ODP available in his office. In the cross- examination, he stated that on the part of the ODP produced in the Court, no survey numbers are mentioned. He stated that ODP is drawn in the scale of 1:5000 whereas the survey plan of P.T. Sheet is in the scale of 1:500. The witness had deposed about the location of the existing roads on the plan. He admitted in the cross-examination that on ODP produced on record, there is no difference in showing the existing roads as well as the proposed roads and from ODP in itself, one cannot know which is the proposed road and which is the existing road. He stated that he was personally aware of the alignment of the Padre Miranda Road and the permanent landmarks and, therefore, he could easily identify the road on ODP. He admitted that no landmarks are specifically 7 mentioned in ODP of the alignment of the existing road. He also admitted that in the development permission at Exhibit 20 which relates to the acquired land, the zone of the acquired land is mentioned as a commercial zone. 7. The submission canvassed by the learned Advocate General that the acquired land was falling in recreational zone, was considered by the Reference Court with reference to the evidence of the witnesses examined by the appellants. The Reference Court found that the plan at Exh.35 does not mention survey numbers and hence, it cannot be certainly said just by looking at the plan as to which part falls in recreational zone. The learned Judge found that except main road like Padre Miranda, the names of existing roads are not mentioned on the plan. Thus, finding, recorded by the Reference Court is that the appellants have not discharged the burden of proving that the acquired land was falling in recreational zone. We find no fault with the said finding in as much as the plan at Exh.35 does not refer to any survey number and even roads shown on the plan are not identified with reference to their names. 8 8. As far as the land subject matter of sale deed Exh.18 is concerned, the Constituted Attorney of the respondent deposed that the same was adjacent to the acquired land on its southern side. There is no challenge to the factual statement. The area of the said land is 3238 per square meters. So, there is no much difference in the area of the acquired land and the area of the said adjacent land forming part of sale deed at Exh.18. The only negative factor which is pointed out and which is of substance is that the land subject matter of Exh.18 was in level with the padre Miranda road and the acquired land was below the level of the road by 5 meters. The Reference Court observed that this cannot be a negative factor as advantage can be taken of the said situation by making a basement. The learned Judge relied upon the opinion of the expert valuer. 9. In our view, the road level of the acquired land was certainly a negative factor. Even if the said negative factor enables the owner to construct a basement, cost is required to be incurred on the RCC work of basement. Therefore, some deduction will have to be made on the said count as a result of increase in cost of development. The appropriate deduction will be 10 % of the market value. 9 10. The learned Advocate General criticised the escalation of 15 % granted by the Reference Court. The market value disclosed from the said sale deed at Exh.18 was Rs.617.66 per square meter as on 17th October, 1996. 15 % per escalation is considered for determining the market value on the relevant date i.e. 19th March 1998. Here, we are dealing with acquisition of a land situated within the municipal limits of city of Margao. Evidence on record shows that there is all around development of the lands in the vicinity of the acquired land. If the location of the acquired land is taken into consideration, we cannot find any fault with escalation at the rate of 15 % granted by the Reference Court. In the case of ONGC Ltd. Versus Rameshbhai Vijanbhai Patel (2008) 14 SCC 745, the Apex Court noted the fact that in nineties, there was increase in the market value in Urban/Semi Urban areas by 10 % to 15 % per annum. However, the only modification which is required to be made in the impugned award is that the market value of Rs.710/- fixed by the Reference Court will have to be reduced by 10 % on account of the negative factor. Therefore, the market value of the acquired land on the relevant date will have to be treated as 639/- per square meter. 10 11. Under the award under Section 11, the market value was offered at the rate of Rs.71/- per square meter and a sum of Rs.40,757/- was awarded towards the trees. The Reference Court has not granted any enhancement in the market value of the trees. Therefore, after deducting Rs.71/- per square meter, the market value of the land will come to Rs.568/- per square meter. Thus, we will have to hold that over and above the market value at the rate of Rs.71/- per square meter granted under the Award under section 11, for the land, additional market value at the rate of Rs.568/- per square meter will have to be granted by way of enhancement. We make it clear that apart from the market value at the rate of Rs.639/- per square meter, the respondent is entitled to a sum of Rs.40,757/- towards the value of trees, which is already granted under the award under Section 11. 12. Hence, we pass the following order : (i) The impugned judgment and award is modified. (ii) We direct that the respondent shall be entitled to excess market value of the land at the rate of Rs.568/- per square meter. Rest of the operative part of the 11 impugned judgment and award is maintained. (iii) The Registrar will determine the amount payable to the respondent on the basis of the modified award. (iv) The Registrar will permit the respondent to withdraw the said amount along with interest accrued thereon. (v) Rest of the amount together with the interest shall be permitted to be withdrawn by the appellants. (vi) Appeal is partly allowed with above terms with no order as to cost. A. S. OKA, J F. M. REIS, J. SMA