- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 77 OF 2004. with STAMP NO. 1410 OF 2004 (CROSS OBJECTION) 1 Dy. Collector and S.D.O. Margao, Goa. 2 The Executive Engineer, WD VI, PWD, Fatorda, Margao-Goa. ........ Appellants. Versus Dr. Fernando Fernandes, Aquem Alto, behind Pandva Chapel, Margao Goa. ........ Respondent. Mr. Amey Kakodkar, Additional Government Advocate for the Appellants. Mr. Valmiki Menezes, Advocate for the Respondent. Coram:-F. M. REIS, J. Date:- 3rd September, 2010. ORAL JUDGMENT The above Appeal challenges the Judgment and Award dated 31st December, 2003 passed by the learned - 2 - Additional District Judge, South Goa, Margao in the Land Acquisition case no. 66/2002. 2. By notification bearing no. 22/231/91-RD dated 8th May, 1996 published in the Official Gazette dated 15th May, 1996, the Appellants intended to acquire an area of 565 square metres from the survey no. 1/20 of village Sernabatim for the construction of the road from St. Joao Moll via Tolloi, Vanelim, Chinchmorod in Villge Pachayat of Colva in Salcete Taluka under section 4 of the Land Acquisition Act( hereinafter referred to as 'the said Act'). 3. The Land Acquisition Officer by an Award passed under section 11 of the said Act dated 10th March, 1999, awarded compensation at the rate of Rs. 32/- per square metre. Being dissatisfied with the said amount the Respondent has preferred a reference for enhancement of the compensation under section 18 of the Act and a claimed compensation at the rate of Rs.500/- per square metre for the land acquired. - 3 - 4. By the Judgment and Award dated 31st December, 2003, the Reference Court awarded the compensation at the rate of Rs.150/- per square metre for the acquired land. 5. Being aggrieved by the said Judgment and Award, the Appellants have preferred the present appeal. The Respondent has preferred cross objection, and claimed a sum of Rs.200/- per square metre for the land acquired. 6. Mr. Amey Kakodkar, Additional Government Advocate, appearing for the Appellants has assailed the impugned Judgment and submitted that the Reference Court has totally erred in awarding compensation at the rate of Rs.150/- per square metre. He further submitted that the Reference Court has totally erred in relying upon the sale deed at Exh. 13 and 14. as no evidence was produced to show any similarity with the land acquired. Learned counsel has further submitted that both the said sale instances are developed plot as compared to the land in acquisition and therefore the same - 4 - cannot be considered as comparable with sale instances for determining the compensation of the land acquired. He further pointed out that the sale instance at Exh. 14 cannot be relied upon as it was post notification. Learned Counsel further submitted that the Respondent has failed to discharge the burden to establish that the price offered by the Land Acquisition Officer was inadequate and as such the reference ought to be dismissed. 7. On the other hand the learned Counsel Mr. Valmiki Menezes appearing for the Respondent has submitted that the Reference Court has determined the market value of the land acquired much less than the one which is prevailing in the vicinity of the acquired land. Learned Counsel further submitted that the Reference Court has committed an error in rejecting the award at Exh. 18 and 19 in respect of Land Acquisition Case nos. 217/1993 and 218/1993 on the ground that the same has no attained finality. The learned Counsel has further submitted that the Reference Court erred in rejecting the - 5 - sale deed dated 26.7.1982 at Exh.15 and further pointed out that the market value of the land acquired as on the relevant date was between Rs. 250 to Rs. 300/- per square metre. Learned Counsel further submitted that the deduction effected by the Reference Court are exorbitant and that the Respondent was entitle for enhancement of compensation to a minimum rate of Rs. 200/- per square metre. 8. Having heard the learned Counsels and on perusal of the records, the following point for determination arise in the present appeal:- POINT FOR DETERMINATION Whether the Reference Court was justified to fix a compensation at the rate of Rs.150/- per square metre for the land acquired? 9. AW1 Dr. Fernando Fernandes in his affidavit has stated that the total area surveyed under no. 1/20 is 4400 square metres out of which an area of 3650 square metres is classified - 6 - as garden land and an area of 750 square metres is classified as uncultivable class(a) and that the acquired land admeasures 565 square metres is from the area classified as garden land which is located in settlement zone. He further stated that the property was accessible by a motorable access from Colva Sernabatim road at a distance of about 40 metres and that Colva Church is at a distance of ½ km and Sernabatim beach is situated at a distance of 1 km from the acquired land. He further stated that the Margao city is situated at a distance of 4 to 5 kms from the acquired land. He has further stated that by sale deed dated 26.2.1996 a property which is located at a distance of 500 metres from the acquired land and surveyed under no. 74/3 an area of 380 square metres of mundkar house was sold at 40/- per square metre and the remaining land of 600 square metres was sold for Rs. 300/- per square metre. He has further stated that the land which was sold was an independent unit and not a sub divided plot. The sale deed is at Exh. 13. Another sale deed produced by the said witness is dated 14.8.1997 which is marked as Exh.14 wherein he has sold - 7 - property to Menino Fernandes situated 500 metre away from the acquired land being part of the property surveyed under no.74/3 of Sernabatim village for the price of Rs.200/- per square metre. He has further stated that Sub Registrar found that the price mentioned therein was under valued. The Collector had fixed the price at Rs.250/- per square metre as fair market value for the purpose of paying stamp duty. He has further produced the sale deed of the year 1982 at the rate of Rs.70/- per square metre. The said sale deed is at Exh. 15. In the cross examination, he has stated that the property in the sale deeds at Exh. 13 and 14 are also towards the southern side of the acquired land. He has further stated that the sale deed at Exh. 13 and 14 are not sub divided plot and that he is in possession of remaining portion of the property. He has denied the suggestion that the acquired land was at the lower level. He has also denied the suggestion that the land which is subject matter of the Land Acquisition Case nos. 217/1993 and 21.8.1993 are not similar in nature. He has also produced the report of the expert. The said expert has stated that the property - 8 - of the subject matter of the sale deed dated 14.8.1997 is at a distance of 500 metres from the acquired land. The reference Court while passing the impugned Judgment after appreciation of the evidence on record did not relied upon the Award at Exh. 17 and 18 as they did not become final. The learned Judge has found that the sale deed at Exh. 13 was executed few months prior to the date of notification and as such it was proximate in time to the date of section 4 notification. The learned Judge found that the location of the said plot was shown in Exh. 16. The learned Judge on the basis of the evidence came to the conclusion that the nature of the sale deed plot and the acquired land was identical and as such it could be relied upon for the purpose of fixing the market value of the land acquired. On perusal of the said sale instance I find that the transaction was with regards to sale of land to a mundkar, being part of the property surveyed under no. 74/2, the munkarial area was sold at Rs.40/- per square metre and the remaining land admeasuring 600 square metres was sold at Rs.300/- per square metres. Sale deed at Exh. 14 is dated 14.8.1997 and is in - 9 - respect of same property surveyed under no.74/3. It discloses that an area of 1085 square metres was sold for a sum of Rs.200/- per square metre. However the Collector had fixed the market value of the land at Rs.250/- per square metre for paying the stamp duty. The said sale instance was a post notification transaction and was executed 14 months after the date of publication of section 4 notification. On perusal of the evidence on record I find that the learned Judge was justified to come to the conclusion that the land which was subject matter of the sale instance at Exh. 13 and 14 were comparable to the land acquired. Learned Counsel for the respondent Shri V. Menezes is not justified to contend that the price of Rs.250/- per square metre which was assessed for the purpose of paying the stamp duty should be considered to be the market value of the acquired land. The price fixed by the Collector is for the purpose of paying the stamp duty and as there is no evidence on record to disclose whether such valuation was done on the basis of any expert opinion. - 10 - 10. The Apex Court in the Judgment reported in 2009(15) SCC 769 in Lal Chand versus Union of India and another has held at para 41 and 46 as under:- 41. It should however be noted that as contrasted from the assessment of market value contained in non-statutory basic valuation registers, the position may be different, where the guideline market values are determined by Expert Committees constituted under the State stamp law, by following the detailed procedure laid down under the relevant Rules, and are published in the State Gazette. Such State Stamp Acts and the Rules thereunder, provide for scientific and methodical assessment of market value in different areas by Expert Committees. 46. In the instant case, there is nothing to show that the circle rates have been determined by any statutorily appointed committee by adopting scientific basis. Hence, the principle in Jawajee Nagnatham4 will apply and they will not be of any assistance - 11 - for determining the market value. Further, they do not purport to be the market value for lands in rural areas on the outskirts of Delhi, nor the market values relating to Rithala Village. The circle rates relate to urban/city areas in Delhi and are wholly irrelevant. 11. It has been further held in the said judgment at paras 79 and 80 as under:- 79. There is no legal basis to proceed on a general assumption that parties, without exception, fail to reflect the true consideration in the sale deeds, that there is always undervaluation or suppression of the true price and that consequently, all sale deeds reflect a depressed value and not the real market value and therefore, some percentage should be added to arrive at the real value. Such a course also amounts to branding all vendors and purchasers as dishonest persons without any evidence and without hearing them. It ignores the fact that the Government has fixed minimum - 12 - guideline values and whenever a registering authority is of the view that a sale deed is undervalued, proceedings are initiated for determination of the true market value. It also ignores the fact that a large number of sale deeds are accepted by the registering authorities as disclosing the current market value. Be that as it may. Whether valuation by the High Court is proper? 80. The existence of several other sale deeds showing a much higher value and the fact that the Land Acquisition Collector chose to award a higher rate in regard to some of the acquired lands, leads to an inevitable inference that Exts. R-3 to R-7 were either undervalued or were distress sales. Whatever be the reason, they are liable to be excluded from consideration. 12. Hence the sale instance at Exh. 14 cannot form the basis to determine the market value of the acquired land and the contention of the learned counsel Shri Menezes to that effect - 13 - deserves to be rejected. 13. The property which is the subject matter of the sale deed at Exh. 13 is bounded on the east and south by PWD road and a reserved 3 metres access on the other side. The expert has also admitted that the accessibility of the sale deed plot is more advantageously located as comparable to the acquired land. This is one of the dissimilarity of the land acquired with the said sale instance. The Reference Court was also justified to conclude that the land which was adjoining the mundkarial house would have special advantage to the purchaser to induce him to pay higher rate for the such land. The sale deed at Exh. 13 is part of the bigger property under survey no. 74/3. As stated above the sale deed plot is bounded by the main road as well as reserved road. The acquired land is stated to be at a distance of 50 metres from the main road. On account of such dissimilarity deduction of 25% would be just and proper. Apart from that the sale deed plot at Exh. 13 was with regards to sale of land to a mundkar which has always an element - 14 - whereby higher price may be offered for an area purchased in excess to the dwelling house occupied by him. The expert has admitted that the accessibility to the sale deed plot is more advantageous than the land acquired. The sale deed plot has a frontage from the main road which would have more commercial value which is not the case with the acquired land. On such count further deduction of 25% would be just and proper. The total deduction as such would be 50% from the said amount of Rs.300/- as mentioned in the sale deed at Exh. 13. The amount works out to Rs.150/- per square metre for the land acquired. The Reference Court was as such justified to fix the market value of the acquired land at the rate of Rs. 150/- per square metre. 14. The question of relying upon the sale deed of the year 1982 as well as in the said Award produced by the respondent in support of their claim for enhancement would not arise as when sale instance in the proximity of time of the notification is available the question of relying upon the sale - 15 - instance beyond the period of 3 years from the relevant date does not arise. Apart from that it is an admitted position that the Awards are not final as they have been challenged in appeal. The Reference Court was as such justified in refusing to rely upon the said sale deed as well as the said awards. 15. There is no substance in the submission of learned Counsel appearing for the appellant that the respondent has fail to established that the amount offered by the Land Acquisition Officer was inadequate, on the contrary the evidence discloses that the market value of the acquired land as on dated of section 4 notification was Rs.150/- per square metre. There is no substance in the contention of the learned counsel appearing for the respondent that the market valued of the acquired land ought to have been minimum sum of Rs.200/- per square metre. The points of determination is answered accordingly. 16. In view of the above, there is no merits in the appeal as well as in the cross objection and hence the Appeal and cross - 16 - objection stand dismissed with no order as to costs. F. M. REIS, J. vn*