1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.309 OF 2005 1. Shri Waman Anant Prabhu Gaunkar, (since deceased) represented by LR's: a. Smt. Ratnabai Prabhu Gaonkar widow of late Waman Anant Prabhu Gaunkar, major, housewife. b. Shri Ulhas Vaman Prabhu Gaonkar, son of late Waman Anant Prabhu Gaunkar, major, occupation business. c. Smt. Sudha Ulhas Prabhu Gaonkar, daughter-in-law, major, housewife. d. Shri Anil Vaman Prabhu Gaonkar, son of late Waman Anant Prabhu Gaunkar, major, occupation service. e. Smt. Leela Anil Prabhu Gaonkar, daughter-in-law, major, occupation service. f. Shri Rajendra Vaman Prabhu Gaonkar, son of late Waman Anant Prabhu Gaunkar, major, occupation business. g. Smt. Sushma Rajendra Prabhu Gaonkar, daughter-in-law, major, housewife. All r/o. Mashem, Loliem, Canancoan, Goa. …. Appellants Versus 1. The Deputy Collector (L.A.), Margao, Goa. 2. The Executive Engineer, WD-XIV (NH-17), PWD, Fatorda, Margao. … Respondents 2 Mr. Sudesh Usgaonkar, Advocate for the Appellants. Mr. Guru Shirodkar, Government Advocate for the Respondents. CORAM : F.M. REIS, J. DATE : 14th FEBRUARY, 2011 JUDGMENT : The above appeal challenges the judgment and award dated 29/08/2005, passed by the learned Additional District Judge, South Goa at Margao in Land Acquisition Case No.79/2001. 2. By a notification issued under Section 4 of the Land Acquisition Act, 1894, herein after referred to as "the said Act", dated 31/01/1991, land was acquired for the construction of approach road to Talpona-Galgibag Bridge on National Highway – 17 (Realignment) (additional area) Part II. The area acquired was admeasuring 240 square metres from the property surveyed no.4/1 of village Loliem of Canacona Taluka. By an award passed under Section 11 of the said Act, dated 4/03/1993, the Land Acquisition Officer offered compensation for the land acquired at the rate of Rs.4/- per square metre besides the value of the trees and forest trees. Being dissatisfied with the said amount, the appellants preferred a reference under Section 18 of the said Act and claimed compensation for the land acquired at the rate of Rs.200/-per square metre besides value towards the coconut trees. By 3 judgment and award dated 29/08/2005, the learned Additional District Judge rejected the reference filed by the appellants. Being aggrieved by the said judgment, the appellants have preferred the present appeal. 3. Shri Sudesh Usgaonkar, learned Counsel appearing for the appellants has assailed the impugned judgment and submitted that the Reference Court has totally ignored the sale instances produced by the appellants which conclusively establish that the amount offered by the Land Acquisition Officer was in adequate. Learned Counsel further took me through the impugned judgment and pointed out that the said sale instances produced by the appellants were erroneously rejected by the Reference Court. The learned Counsel further pointed out that from the evidence on record it is obvious that the sale instances produced by the appellants were comparable to the land acquired. He further pointed out that First Appeal No.128/2004 which came to be disposed of on 3/09/2010 in respect of an area adjoining to the acquired land for the previous acquisition for the approach road to the same bridge. The learned Counsel further submitted that this Court had remanded the matter for the purpose of fresh adjudication of the reference proceedings wherein the same sale instances were sought to be relied upon. 4 The learned Counsel further submitted that the above appeal deserves to be allowed and the matter is to be remanded for fresh adjudication. 4. On the other hand, Shri G. Shirodkar, the learned Government advocate appearing for the respondents has supported the impugned judgment. He pointed out that there is no evidence adduced by the appellants to substantiate his claim for any enhancement of compensation. Learned Counsel further submitted that the appellants have failed to adduce any material on record to establish comparability of the land acquired vis-a-vis the sale deed instance. The learned Counsel further submitted that in case this Court remands the matter an opportunity may be given to the respondents to rebut any evidence which will be produced by the appellants. 5. Having heard the learned Counsel and on perusal of the records, the following point for determination arises in the present appeal: POINT FOR DETERMINATION : (i) Whether the Reference Court was justified to reject the reference filed by the appellants. 5 6. In support of their claim for enhancement, the appellants have examined AW1/Shri Rajendra Vaman Prabhu Gaonkar who has stated that the temple and the chapel are located within 100 metres from the acquired land and the fish market, restaurents, tea stalls,etc. are located at a distance of 300 metres from the acquired land. He has further stated that by a sale deed executed in respect of a property surveyed under no.111/1 the area was sold at the rate of Rs.200/- per square metre to Shri Domingos Antonio Jacinto Fernandes for a sum of Rs.17,000/-. He has further stated that the sale deed was executed on 7/03/1991 and the same came to be registered before the Sub-Registrar of Canacona. The said witness was cross-examined. He has admitted in the cross-examination that part of the same property was acquired in the earlier proceedings and the reference in respect of the said previous acquisition was also pending before the Reference Court. He has further stated that the previous acquisition was of the year 1988 and the width of the land which is the subject matter of the present proceedings was 5 to 7 metres. He has also produced the valuation report of the valuer who has stated that the market value of the acquired land is Rs.150/- per square metre as on the relevant date. The said expert was also examined as AW2 and has also been 6 cross-examined. The Reference Court while passing the impugned judgment has held that the sale deed dated 7/03/1991 which is at Exhibit 18 was in respect of land admeasuring 85 square metres and the same was two months thereafter. The learned Judge has further found that the land of the said vendor therein was acquired by the earlier notification and, as such, doubted authenticity of the said sale deed. 7. On perusal of the impugned judgment, I find that the Reference Court has rejected the reference taking into consideration that the earlier reference in respect of the same property which was subject matter of the earlier acquisition came to be rejected. The award passed in the said reference was the subject matter of the Land Acquisition Case No.246/1992 which came to be rejected by the Reference Court by judgment and award dated 29/01/2004. The appellants, herein had preferred an appeal before this Court being First Appeal No.128/2004 challenging the said judgment passed by the Reference Court. The subject matter of the acquisition in the present case and that in the said proceedings was part of the same property surveyed under no.4/1. By judgment passed by this Court dated 3/09/2010, the judgment and award dated 28/01/2004 passed in the said Land Acquisition 7 Case No.246/1992 was quashed and set aside and the matter was remanded to the Reference Court for deciding the said reference afresh. 8. Considering the facts and circumstances of the case, as the subject matter of the present acquisition and the land which was subject matter of the previous acquisition are pertaining to the same survey number, I find that in the interest of justice as valuable land is stated to have been lost in acquisition, the matter in the present proceedings should be remanded to the Reference Court for deciding the reference afresh, in accordance with law. In case appellants desire to produce any further evidence they shall do so only after filing an appropriate application to that effect and the learned Reference Court shall decide such application after hearing the respondents. As such, the impugned judgment deserves to be quashed and set aside and the matter is to be remanded to decide the reference afresh by the Reference Court. The point for determination is answered accordingly. 9. In view of the above, I pass the following order: O R D E R (i) The appeal is partly allowed. 8 (ii) The impugned judgment and award dated 29/08/2005 is quashed and set aside. (iii) The Land Acquisition Case No.79/2001 is restored to the file of the Reference Court. (iv) The Reference Court is directed to decide the reference afresh on its own merits after hearing both the parties in the light of the observations made herein above, in accordance with law. (v) The appeal stands disposed of accordingly with no order as to costs (vi) The parties are directed to appear before the Reference Court on 28/03/2011 at 10.00 a.m. F.M. REIS, J. NH/-