-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 95 OF 2007 WITH CROSS OBJECTION NO.21 OF 2007 FIRST APPEAL NO.95 OF 2007 1. Deputy Collector (Dev.) & Land Acquisition Officer, Panaji 2. The Chief Town Planner, Town & Country Planning Dept. Panaji. …... Appellants V e r s u s 1. Shri Agnelo Jose Augusto Pinto r/o. Opp. Canara Bank, St. Cruz, Ilhas Goa and Attorney of 2. Miss Luiza Augusta Pinto, 3. Dr. Carlos A. G. Pinto, 4. Mr. Francisco Xavier E. Lima (since Deceased) through LR's : 4.a) Master Agnelo Caetan Francisco Vaz e Lima 4.b) Miss Juvenilla Ruella Vaz e Lima 5. Mrs. Silva Francisco E. Pinto Vaz e Lima. …... Respondents Mr. G. Shirodkar, Government Advocate for the Appellants Mr. R. G. Ramani, Advocate for the Respondents -2- WITH CROSS OBJECTION NO.21 OF 2007 1. Shri Agnelo Jose Augusto Pinto r/o. Opp. Canara Bank, St. Cruz, Ilhas Goa. 2. Miss Luiza Augusta Pinto, r/o Dashya House, Porvorim, Bardez – Goa. 3. Dr. Carlos Alvito Gustavo Pinto, r/o. Opp. Canara Bank, St. Cruz, Ilhas Goa. 4. Mr. Francisco Xavier Vaz e. Lima (since Deceased) through LR's : 4.a) Master Agnelo Caetan Francisco Vaz e Lima 4.b) Miss Juvenilla Ruella Vaz e Lima 5. Mrs. Silva Francisca Pinto Vaz e Lima. All r/o Near Dr. Bhale Hospital State Bank Colony, Porvorim Bardez – Goa. …... Cross – Objectors/ Respondents V e r s u s 1. Deputy Collector (DEV.) & Land Acquisition Officer, Panaji Goa. 2. The Chief Town Planner, Town & Country Planning Dept. Panaji - Goa. …... Appellants Mr. R. G. Ramani, Advocate for the Cross – Objectors / Respondents Mr. G. Shirodkar, Government Advocate for the Appellants Coram :- A. S. OKA F. M. REIS, JJ. Judgment Reserved on : 2 nd August, 2010. Judgment Pronounced on : 12 th August, 2010. -3- JUDGMENT : (Per F. M. Reis, J.) The above Appeal challenges the Judgment and Award dated 26th May, 2003, passed by learned IInd District Judge, Panaji, in Land Acquisition Case no.37/93. The Respondents, who are the claimants, have also filed Cross Objection claiming a further enhancement of compensation as awarded in the impugned Judgment. 2. The land of the Respondents was sought to be acquired pursuant to a Notification under Section 4 of the Land Acquisition Act, published in the Official Gazette dated 19th February, 1982, by the Appellants for Parks, recreational and other development of the area at Miramar. The area intended to be acquired was admeasuring 11,812 square metres from the land surveyed under chalta no. 6 of P. T. Sheet no. 81, situated at Panaji. By Award dated 23rd February, 1987, the Land Acquisition Officer awarded compensation at the rate of Rs.200/- per square metre for the land acquired. Being dissatisfied with the said amount of compensation, the Respondents sought a reference under Section 18 of the Land Acquisition Act, 1894, (herein after referred to as ‘the said Act’), for enhancement of compensation and claimed that the market value of the acquired land was Rs.1,500/- per square metre and further a sum for 27 coconut trees @ of Rs. 2,500/- each per tree, Rs.3,000/- per bhendi tree for two such trees and Rs.600/- per tree for five firewood trees. They also claimed a sum of Rs.25,000/- plus interest for amount spent for raising the level of an area of 4000 square metres. -4- 3. After framing the issues and recording of evidence, the Reference Court by the impugned judgment and Award dated 26th May, 2003, fixed the market value of land at the rate of Rs.300/- per square metre together with statutory benefits and rejected the remaining claim of the Respondents. 4. Being aggrieved by the said Judgment and Award, the appellants have preferred the present Appeal while the Respondents have filed their cross objections claiming enhancement of compensation to the tune of Rs.500/- per square metre for the land acquired besides interest at the rate of 9 percent from the date of the Award i.e. 24th February, to 1987 to 10th November, 1990 for the delay in making payment of compensation. 5. The learned Government Advocate appearing for the Appellants has assailed the Judgment passed by the Reference Court and submitted that the Reference Court has not considered the evidence on record in a proper manner and as such came to an erroneous conclusion that the market value of land acquired was Rs.300/- per square metre. The learned Government Advocate further submitted that the Sale Deeds produced by the Respondents were not comparable to the acquired land and as such the question of awarding any compensation on the basis of such Sale Deeds would not arise at all. The learned Government Advocate further submitted that the land of the Respondents had no potential value and, a s such, the Reference Court was not justified to fix the compensation at the rate of Rs.300/- per square metre. He further submitted that -5- the land which was acquired in the same Notification and the subject matter of the settlement before the Lok Adalat is not comparable with the land acquired and, as such, the Reference Court was not justified in fixing the compensation at the rate of Rs.300/- per square metre. The learned Counsel further submitted that the question of awarding any interest from the date of the Award until the date of deposit in the court, does not arise at all as the Reference Court is not entitled to grant any interest besides the one as provided under Section 28 of the Land Acquisition Act. He as such submitted that the amount awarded by the Land Acquisition Officer is just and proper and no case is made out by the Respondents for any enhancement of compensation. He accordingly submitted that the Appeal deserves to be dismissed. 6. On the other hand, Shri R. G. Ramani, the learned Counsel appearing for the Respondents has also assailed the impugned Judgment and submitted that the Respondents are entitled for higher compensation. He submitted that the Respondents were entitled for interest at the rate of 9 percent per annum from the date of the Award up to the date of payment of compensation as it was the duty of the Land Acquisition Officer to deposit the money immediately after the Award is passed. He further submitted that the Respondents have suffered substantial loss on that count in view of the failure of the Land Acquisition Officer depositing the amount immediately after the Award was passed. The learned Counsel has taken us through the provisions of Section 28 as well as Section 34 of the Act and submitted that the Reference Court is entitled to award such interest on account of delay in paying the compensation. He further submitted that the Reference Court was not justified to rely upon the Award before the Lok Adalat as the land of the -6- Respondents was not comparable to the land which was subject matter of the said proceedings. He further submitted that the market value of the land acquired is minimum at the rate of s.500/- per square metre considering its potentialities. He further submitted that the said land is located in Panaji City which is the capital of Goa and, as such the land had good potentialities for development purposes. He further submitted that the land was close to Mandovi River besides being close to Miramar Beach and Panaji City which factors enhances the value of the acquired land. He further submitted that the Reference Court did not assess the market value in the proper prospective and, as such, the Respondents are in fact entitled for compensation of a minimum rate of Rs.500/- per square metre for the land acquired. He accordingly submitted that the Cross Objection filed by the Respondents are to be allowed and the compensation be enhanced and the Appeal of the Appellants be dismissed. 7. Having heard the learned Counsel and on perusal of the evidence on record, the following points arise for determination : POINTS FOR DETERMINATION 1. Whether the Reference Court was justified to fix the compensation at the rate of Rs.300/- per square metre ? 2. Whether the Respondents were entitled to interest at the rate of 9 percent on the compensation awarded from the date of the Award up to the date of payment/deposit of compensation ? -7- 8. Dealing with the first point for determination, Aw.1, Agnelo Pinto, who is the co-owner of the said property, in support of his claim, has stated that the last date of publication of Section 4 Notification is 20th March, 1982. The possession of the land was taken on 11th October, 1990 and the possession Certificate was issued with that date. He has further stated that the land fell in Municipal area and was part of Panaji City. He further stated that part of the land admeasuring 4000 square metres was a coconut grove having the same level of the road. He has also produced the Government Gazette wherein the land was converted for non- agricultural use, exhibit Aw.1/H. He further deposed that his land is touching the Panaji-Miramar road. He further stated that Kala Academy was right in front of his property and that Goa Medical College, Panaji, Panaji Municipality was at a distance of one and half kilometer away from the property. In support of his claim, he has produced an Agreement dated 15th April, 1983, which is at exhibit Aw.1/J by virtue of which an area of 504 square metres was agreed to be sold at the rate of Rs.800/- per square metre. The said plot was at a distance of about half a kilometer from the acquired land and it was partly developed land. He has also produced the Award in Land acquisition Case no. 72/1990, in respect of the land located at Caranzalem slope. The said land is located at a distance of two kilometers from the acquired land. Infrastructure facilities like water, electricity were available however, in ODP it was shown as developed area. He has also produced another Order before Lok Adalat, wherein the Appellant has paid Rs.300/- per square metre in First Appeal no. 304/1997. The said Award was exhibited as Aw.1/M. The said land was adjoining the land acquired and the nature of the land was almost similar and all the facilities were the same. He has further stated that the land acquired in the said case was 8238 square metres and the land -8- was covered by the same Notification. In his cross examination, the said aspect with regard to the similarity of the land acquired and the land subject matter before the Lok Adalat was not disputed. He has also admitted in cross examination that after obtaining NOC in the year 1974, the Respondents had not carried out any construction in the said property. He has also admitted that the land acquired was a coconut grove as on the date of Section 4 Notification. He denied the suggestion that the land acquired was not of the same nature which was the subject matter of the Award at exhibit Aw.1/H. 9. The next witness, Aw.2, has deposed that there was an Agreement between his firm and one Vepari and his wife for the purpose of development of land for construction. The said Agreement was exhibit Aw.1/J. He further deposed that the price was fixed at the rate of Rs.800/- per square metre. 10. Aw.3, Shri Dilip Jose Cotta, has deposed that for the land acquired pursuant to the Award dated 14th November, 1994, at exhibit Aw.1/K, the Court had enhanced the compensation for the land acquired at the rate of Rs.230/- per square metre. He further stated that his land was situated in the Green Belt area. 11. Aw.4, Domnic Savio Coutinho, has stated that land belonging to his mother was also acquired for the same purpose under same Notification and that the market value of the land was fixed at Rs.313.50 per square metre. In the cross examination, he denied the suggestion that nature of his land is not similar with the land acquired. Aw5, is the valuer, who has been examined and has stated that the -9- market value of the land acquired is at the rate of Rs.300/- per square metre. He denied the suggestion that Agreement of sale cannot be considered for determining the price. 12. The Reference Court whilst passing the impugned Judgment has observed that on the basis of the evidence on record, the acquired land had already been converted for non- agricultural uses and was partly developed and had infrastructure facilities like electricity, water supply, telephone, transport, etc. 13. The Reference Court whilst considering the Agreement and the Sale Deed produced by the Respondents, at exhibit Aw.1/A, has held that the said plot was located in a fully developed La Campala residential colony and was ready- made for direct construction of building as against the acquired land which was not fully developed. The Reference Court also considered that there was disparity in the area as the said plot was 504 square metres while the acquired land was 11812 square metres. The Agreement was also a post Notification sale instance. The Reference Court as such deducted 15% as the agreement was one year subsequent to the Section 4 Notification. There is no dispute that the land acquired was more than 11000 square metres and the subject matter of the sale instance was only 504 square metres. The Reference Court found that the acquired land was slightly superior to the land in the sale instance and as such deducted 55% on account of development charges. 14. With regard to the deductions on account of development charges, the Apex Court in the Judgment reported in 2010 (1) S.C.C. 444 in the case of -10- Subh Ram & Ors. vs. State of Haryana and anr. has held at paras 12, 13, 14 and 15 as under : “12. In a standard layout with plots measuring say 2500 sq ft (50' x 50') each, to provide road access to each plot, it will be necessary to provide a road after every two rows of plots. If the depth of each plot is 50', and if the road width is 25 ft, then for every two strips of plots, there will have to be a strip of road of 25 ft. This means a minimum of 25% of the total land area will be utilized for roads. A typical layout will also have cross-roads, and areas earmarked for park, and/or community areas. Consequently non-saleable area (area which cannot be sold as plots) would be around 30% to 40% of the total area. 13. Therefore, in the hypothetical layout method of determination of market value, as a first step, the areas that will be used up for roads, drains, parks/playgrounds and community areas, will have to be excluded from the total extent of the acquired land. The standard deduction in this behalf is one-third (33%). 14. But merely deducting the areas required for roads, drains, parks and community areas, will not convert a large tract of agricultural or undeveloped land into a developed residential layout. For that, considerable financial outlay has to be made. The land will have to be levelled. The land will have to be converted from agricultural use to non- agricultural residential use by paying necessary fees/fine to the Revenue/development authorities. Then the roads will have to be asphalted or concreted. Drains will have to be dug and lined with reinforced cement concrete or stone, for -11- drainage of rainwater. Electricity, water, and sewage lines will have to be laid. Deposits will have to be made to the authorities dealing with electricity, water and sewage removal. The development will also involve the service of surveyors, engineers and developers. All these involve considerable expenditure. Further, as there will be a time gap between the expenditure for development and the actual sale of plots, the cost of development will also have an element of interest on investment. The developer who undertakes the development and invests the monies for development would also expect a reasonable profit when the plots are sold. All these expenditure and factors are standardised into another one-third (33%) deduction towards expenses of development. 15. Thus, if the valuation of a large extent of agricultural or undeveloped land is to be based on the sale price of a small developed plot in a private layout, then the standard deductions should be one-third (for roads, etc.) plus one- third (for expenditure of development), in all two-thirds (or 67%), as “development cost” from the value of small plot. The percentage of deduction may however vary between 20% to 75% depending on several circumstances (see Lal Chand v. Union of India, paras 8 and 9 for illustrations of such circumstances).” 15. There is no dispute that the Sale Deed plot was a developed plot and the land acquired was more than 11,000 square metres. Considering that the Sale Deed was in the residential locality while the land acquired was partially a coconut grove at the time of Section 4 Notification, we find that the deductions on account of development charges, as determined by the Reference Court is just and proper. -12- The acquired land was undeveloped land and considering the said Judgment of the Apex Court, the deduction on account of development ought to have been 67 percent but however as the conversion was already stated to have been obtained, the deduction of 55 percent as effected by the Reference Court cannot be faulted. In the Lok Adalat, settlement at exhibit A.w.1/M, the compensation for the land admeasuring about 8000 square metres was fixed at Rs.300/- per square metre. The said land is subject matter of the same Notification which has resulted in the acquisition in the present case. Both the lands are similar in nature. Aw.1, in his deposition has clearly admitted that the nature of the land and the facilities available are similar to the land which is the subject matter of the land before the Lok Adalat. It is not now open to the Respondents to contend that their land was superior in nature. As such, we find that the Reference Court has not committed any error in fixing the compensation at the rate of Rs.300/- per square metre for the land acquired. The Respondents have failed to adduce any evidence to substantiate their case for any further enhancement to the compensation as awarded by the Respondents. The Respondents were unable to substantiate any further enhancement to the compensation as awarded by the Reference Court. Hence, the point for determination is answered accordingly. 16. Dealing with the next point for determination, Section 28 of the Act provides as under : “28. Collector may be directed to pay interest on excess compensation.- If the sum which, in the opinion of the Court, the Collector ought to have awarded as compensation is in excess of the sum which the Collector did award as compensation, the -13- award of the Court may direct that the Collector shall pay interest on such excess at the rate of nine per centum per annum from the date on which he took possession of the land to the date of payment of such excess into Court: Provided that the award of the Court may also direct that where such excess or any part thereof is paid into Court after the date of expiry of a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date of expiry of the said period of one year on the amount of such excess or part thereof which has not been paid into Court before the date of such expiry.” 17. Reading the said provision of the said Act, we find that in a reference under Section 18 of the Act, the Respondents are not entitled to claim any interest from the date of the Award up to the date the amount was deposited. Such claim, if any, will have to be made by the Respondents in appropriate proceedings if so advised, and such contention will have to be decided on its own merits in such proceedings. This court while deciding the reference under Section 18 of the Act and whilst deciding the Appeal challenging the Award of compensation under Section 18 of the Act, has no powers to grant any interest from the date of Award up to the date of compensation was paid or deposited. As such, second point for determination is answered accordingly. 18. In view of the above, we pass the following : -14- ORDER (i) The Appeal stands dismissed. (ii) The Cross Objection also stands dismissed. (iii) There shall be no Orders as to costs. A. S. OKA, J. F. M. REIS, J. arp/*