1 IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 217/2004. 1. Special Land Acquisition Officer, S.I.P., Gogol, Margao, Goa. 2. The Executive Engineer, Works Division, I.D., PWD, Pajemol, Sanguem, Goa. … Appellants. V/s Rev. Fr. Auxemio Monteiro, Chaplain of Sacred Heart of Jesus Chapel, Vaddem, Sanguem, Goa. … Respondent. Ms. Susan Linhares, Addl. Government Advocate for the Appellants. CORAM : F. M. REIS , J. DATE : 8 th October 2010 . ORAL JUDGMENT The above appeal challenges the judgment and award dated 15.5.2004, passed by the learned Addl. District Judge, FTC- II, South Goa, Margao in LAC No. 20/1998. 2 2. The land belonging to the respondent was acquired by the appellants pursuant to the notification under Section 4 of the Land Acquisition Act (hereinafter referred to as 'the said Act') dated 17.11.1971 published in the Official Gazette dated 2.12.1971. Among the properties which were acquired plot No. 359 belonging to the respondent admeasuring an area of 72,975 sq. metres was also intended to be acquired. By the award passed by Land Acquisition Officer the total compensation payable for the said land was fixed as Rs. 24,288.57 and in view of rival claims dispute was referred to the learned District Judge for adjudication. By judgment and decree dated 09.12.1977 passed in Civil Suit No. 20/1969 by the Civil Judge, Sr. Division, Quepem the value of the structures, trees and other plantations existing in the said land was agreed to be exclusively belonging to the Chapel of Sacred Heart of Jesus while the land which was acquired was held to be belonging equally to Shree Ramnath Devasthan and the Chapel of Sacred Heart of Jesus. The Reference was accordingly disposed of. 3. The respondent filed an application under Section 28-A of the said Act for redetermining of the compensation in respect of the said land acquired, in view of the award dated 12.10.1990 passed by 3 the learned District Judge in LAC No. 387/1981, wherein an application moved under Section 18 of the said Act for enhancement of compensation by Shri Narendra A. Nadkarni was partly allowed and the learned District Judge fixed the compensation for the bharad land and coconut land at Rs. 1/- per sq. metre and paddy lands at Rs. 4/- per sq. metre, besides enhancing compensation therein for different trees existing therein. 4. The said application filed by the respondent was rejected by the LAO by an award dated 29.3.1996 on the ground that the enhancement claimed by the respondent is for the structures and the same is not covered by the said award dated 12.10.1990. Thereafter, the respondent filed an application for referring the matter to the learned District Judge which came to be disposed by judgment and award dated 15.5.2004 whereby the compensation in respect of 13,500 sq. metres of coconut land and 25,450 sq. metres of bharad land was enhanced from 60 paise and 20 paise to Re. 1/- per sq. metre and the respondent were held to be entitled for half of the amount so determined, besides statutory benefits. By corrigendum dated 19.01.2005 the Reference Court held that the respondent is not entitled to additional compensation of 12% per annum on the said 4 market value as per Section 23 (1-A) of the Act, as the award of the LAO in the case was passed prior to 30.4.1982. Being aggrieved by the said judgment, the appellants have preferred the present appeal. 5. The learned Addl. Government Advocate has assailed the impugned judgment and submitted that there is no evidence adduced by the respondent with regard to the comparability of the acquired land and the land which is subject matter of the award in LAC No. 387/1981 of Shri Narendra A. Nadkarni. She further submitted that the respondent failed to adduce any evidence with regard to comparability the applicant for re-determination filed by the Respondent deserves to be rejected. She further submitted that the respondent were not entitled for the additional compensation of 12% per annum as provided under Section 23 (1-A) of the said Act as the award was passed prior to 30.4.1982. She as such submitted that the award deserves to be quashed and set aside. 6. The respondent failed to remain present for the hearing nor they were represented by any Counsel. 7. In support of their claim for re-determination of the 5 compensation, the respondent have examined AW1, Fr. Auxemio Monteiro who has stated that the land of the respondent was acquired pursuant to the notification dated 17.11.1971 and that by an award dated 29.12.1976 the amount payable to the respondent came to be determined. He has further stated that one Narendra A. Nadkarni had referred the matter under Section 18 of the said Act for enhancement of compensation in respect of his land acquired wherein by an award was passed in LAC No. 387/1981 and the amount of compensation came to be enhanced. He further stated that based on the said award, the respondent are entitled for re-determination of the compensation payable to the respondent. He has further stated that another award came to be passed pursuant to the judgment in Spl. Leave Petition Nos. 507-211/1994 filed by the appellants before the Hon'ble Apex Court by award dated 23.2.1996. He further stated that the claim of the respondent came to be rejected on the ground that the respondent were claiming compensation for the structures. He has further stated that the land which was acquired was partly bharad and partly waste land and partly land with structures. He has further stated that by award dated 8.3.1978, the Reference Court held that the amount deposited by the LAO be apportioned by sharing equally the compensation by both the claimants. The said deponent has as such 6 claimed that he is entitled for half of the share in the property admeasuring 72,975 sq. metres in view of the said award passed by the Reference Court under Section 30 of the said Act. 8. From the evidence on record it reveals that the plot no. 359 belonging also to the respondent admeasuring an area of 72,975 sq. metres came to be acquired pursuant to the notification under section 4 of the said Act bearing no. RD/LQN/176/71 dated 17.11.1971 published in the Official Gazette dated 2.12.1971. In Land Acquisition Case no. 387/1981 one Narendra A. Nadkarni has preferred a reference under section 18 of the said Act for enhancement of compensation wherein compensation came to be enhanced as follows:- Bharad land or coconut land Rs. 1/- per square metre. Paddy land Rs. 4/- per square metre. 9. Nature of the land acquired belonging to the respondent bearing plot no. 359 consisted of coconut land admeasuring 13,500 square metres, waste land 33,800 square metres, Cemetery land 225 square metres and bharad land 25,450 square metres which in aggregate works up to 72,975 square metres. On perusal of the said 7 award passed by the learned District Judge in case of Shri Nadkarni no compensation has been enhanced in respect of waste land or cemetery land. Hence the Reference Court was justified in refusing any enhancement in respect of waste land and cemetery land located in the said plot no. 359. There is no dispute that the land which was subject matter of the acquisition in the said reference application which has been disposed of by the learned District Judge and land which was subject matter of the acquisition belonging to the respondent is covered by same notification referred to above under section 4 of the said Act. The respondent as such would be entitled for enhancement of compensation only with regards to the land which was in respect of coconut land and bharad land and not in respect of remaining portion of the land which was the subject matter of the acquisition. The learned Counsel appearing for the appellants was unable to point out any dissimilarity with the land acquired in the present case with the land which was subject matter of the said Land Acquisition Case no. 387/1981 of Shri Nadkarni. The Reference Court after perusing the evidence on record has rightly come to the conclusion that the respondent were entitled for enhancement of compensation in respect of part of the acquired land admeasuring an area of 13500 square metres of coconut land and 25,450 square metres 8 of bharad land at the rate of Rs.1/- per square metre as that awarded in said Land Acquisition Case No. 387/1981. I find no infirmity in the said findings arrived at by the Reference Court. With regards to contention of learned Additional Government Advocate to the effect that the respondent are not entitled for compensation of 12% under the provision of 23(1A) of the said Act, I find that the Reference Court has issued a corrigendum to that effect, and as such the said contention does not survive. 10. In view of the above, I find no merit in the present appeal and as such the appeal stands dismissed with no order as to costs. F. M. REIS, J. MF/VN