-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 41 OF 2004 Shri Martinho Fernandes, 7 De Britto House, M. Gonsalves Road, St. Peter's Housing Colony, Bandra, Bombay – 400 050. …...Appellant V e r s u s 1. Deputy Collector and LAO, Quepem, Goa. 2. The Executive Engineer, W.D. XXV (NH) P.W.D. Borda, Margao, Goa. ….. Respondents Mr. Sudin Usgaonkar, Advocate for the Appellant Ms. Sapna Mordekar, Additional Government Advocate for the Respondents. CORAM: F. M. REIS, J. DATE : 3 rd September, 2010. ORAL JUDGMENT The above Appeal takes exception to the Judgment and Award passed by the learned District Judge, South Goa, Margao, in Land Acquisition Case no. 247/1992 dated 29.10.2003, whereby the reference filed by the Appellant came to be answered in the negative. 2. By a Notification dated 24.11.1988, issued under Section 4 of the Land Acquisition Act, 1894, (hereinafter referred to as the 'said Act'), a portion of the property belonging to the Appellant, admeasuring an area of 310 square -2- metres out of the property surveyed under no. 4/2 and 430 square metres out of the property surveyed under no. 5/11 totally admeasuring 740 square metres was acquired for construction of an approach road to Galgibaga bridge on National Highway - 17. By an Award passed by the Land Acquisition Officer under Section 11 of the said Act, the Appellant was awarded compensation at the rate of Rs.3/- per square metre for the land acquired and a sum of Rs.1,24,339/- on account of the structure besides a sum of Rs.22,496/- towards the trees existing in the said property. Being dissatisfied with the said Award, the Appellant preferred a reference under Section 18 of the said Act for enhancement of compensation and claimed a compensation for the land acquired at the rate of Rs.150/- per square metre besides a sum of Rs.37,800/- towards the plinth level construction existing in the said property and a sum of Rs.16,820/- towards the mud walls existing therein. Apart from the said claim, the Appellant also prayed for a compensation of a sum of Rs.84,450/- towards the Bar and Liquor shop existing in the acquired land and a sum of Rs.3,26,560/- towards the residential house existing therein. A further sum of Rs.59,669/- was claimed towards trees existing therein apart from a sum of Rs.1,50,000/- towards loss of business in respect of the Bar and Liquor Shop existing in the said property. The Reference Court, by the Judgment and Award dated 29.10.2003, has rejected the reference filed by the Appellant. 3. Being aggrieved by the said Judgment, the Appellant preferred the present appeal. -3- 4. The learned Counsel appearing for the Appellant has submitted that the Reference Court has totally misdirected himself in deciding the reference and failed to consider that there was a comparable sale instance produced by the Appellant, which was at exhibit Aw.1/B. He further submitted that the only ground on which the Reference Court has discarded the said sale instance is that there was no evidence on record to substantiate the value of the structure and the trees existing in the Sale Deed plot and the open land. The learned Counsel has taken me through the said sale instance and pointed out that the Sale Deed stipulates that the structure existing in the Sale Deed plot belonged to the purchaser and as such the question of the purchaser paying any amount on that count, could not arise at all. He further pointed out that the price which was fixed in the said Sale Deed plot was towards the open land. The learned Counsel has also submitted that, in any event, the land acquired also had coconut trees and, as such, even assuming that the price disclosed in the Sale Deed was inclusive of the trees, it can definitely be considered as a comparable sale instance to determine the market value of the land acquired. The learned Counsel thereafter took me through the evidence on record and tried to submit that there was sufficient evidence on record to substantiate the value of the structure as well as the compensation towards the Bar and Restaurant existing therein apart from the compensation for the trees, loss of business and the trees existing therein. The learned Counsel has as such submitted that the Reference Court has not at all applied its mind to the well settled principles in determining the market value of land -4- as on the date of Section 4 Notification. 5. On the other hand, the learned Addl. Government Advocate has supported the impugned Judgment. The learned Addl. Government Advocate has submitted that there is no infirmity committed by the Reference Court as far as the determination of the market value of land is concerned. The learned Addl. Government Advocate submitted that the Appellant has failed to establish by any type of evidence about the comparability of the sale instance with the acquired land. The learned Addl. Government Advocate has taken me through the evidence on record and pointed out that the Sale Deed was across the existing river which cannot be considered as a comparable sale instance. The learned Counsel has further submitted that as the Appellant has failed to discharge the burden cast on him to disclose that the amount of compensation awarded by the Land Acquisition Officer was inadequate, the question of granting any enhancement towards the land acquired would not arise at all. The learned Addl. Government Advocate has taken me through the evidence on record and pointed out that the Appellant has failed by any type of evidence to substantiate his claim that the Appellant was entitled for any compensation towards the structure existing therein or for the compensation for the Bar and Restaurant, loss of business, the trees and the residential house existing therein. The learned Addl. Government Advocate as such submitted that there is no infirmity committed by the Reference Court whilst disposing of the reference filed by the Appellant, and as such the above appeal deserves to be dismissed. -5- 6. Having heard the learned Counsel and on the perusal of the record, the following point for determination arises in the present Appeal : POINT FOR DETERMINATION 1. Whether the Reference Court was justified to reject the reference filed by the Appellant under Section 18 of the said Act ? 7. Dealing with the claim of the Appellant with regard to the compensation towards the masonry structure and the mud walls existing in the property surveyed under no. 4/2, the Reference Court was justified to come to the conclusion that there was absolutely no evidence on record to show how the Appellant calculated the figure of 16,820 and the basis for the same. The learned Judge has further found that the expert failed to disclose the basis on which such calculation can be arrived at. The Reference Court has further found that the expert examined by the Appellant as Aw.3 had failed to state as to how he had arrived at the figure of Rs.500/- for calculating the value of the mud walls. In fact, on perusal of the evidence of Aw.3, I find no infirmity in the said finding of the Reference Court, nor did the learned counsel for the Appellant point out any error committed by the Reference Court on that count. 8. With regard to the next claim of the Appellant for compensation in respect of the structure of Bar and Liquor Shop and the residential house, -6- the Reference Court on minute examination of the evidence on record has found that since the expert Aw.3 has not disclosed the details regarding the measurements of the residential house and the timber used therein as well as the type of structure material, it was difficult to accept the valuation as done by the said expert witness. The said expert has also admitted that he was not given the measurements or the specifications which were existing in the said house. The evidence of the said expert further demonstrates that only on an inquiry, the source of which has not been disclosed, the valuation has been carried out by Aw.3. The Reference Court has also considered that the particulars as to how the valuation was arrived at by the said expert were not furnished by him in his evidence. In fact, the learned Counsel appearing for the Appellant was unable to show any infirmity in the said finding of the Reference Court on that count. On perusal of the evidence of Aw. 3, I find that the Reference Court was justified to come to the conclusion that the Appellant was unable to substantiate his claim for compensation towards the said structure as well as the residential house. 9. With regard to the claim of the Appellant towards the trees existing in the property surveyed under no. 4/2 and 5/1, the Reference Court has found that Aw.4 was examined to assess such value and had failed to give the particulars in the report about the trees and the valuation thereof. The learned Counsel has submitted that in the examination in chief, such particulars were given. When the Appellant was seeking to rely upon the report of the said valuer, the question of the valuer giving any extraneous -7- reasons in support of such valuation in the examination in chief would not arise at all. The expert would be entitled to lead evidence in support of the findings as arrived at in the report. The Reference Court as such was justified to discard the evidence of Aw.4 with regard to the claim of the Appellant towards the trees existing therein. In any event, once the Appellant is claiming compensation for the land, it is well settled that the value of the land includes the value of the trees existing therein. There can be no separate valuation for the trees and land. In 2006 (2) Mah. L. J. 436 in the case of Ramgonda Layappa Birajdar & ors vs. Special Land Acquisition Officer & ors., the division bench of this court held at Para 13 thus: 13. In addition to above, the Land Acquisition Officer has also awarded the compensation to the tune of Rs. 91,27,851/- towards the value of trees. It is not clarified as to whether these are the forest trees or also include fruit bearing trees. The Apex Court in (State of Haryana v. Gurcharan Singh and Anr.)6, reported in A.I.R. 1996 S.C. 106 had clearly ruled that compensation is the value of the acquired land and under no circumstances, the court should allow the compensation on the basis of nature of the land as well as fruit bearing trees. In other words the market value of the land is to be determined on the basis of the value of land but the value of fruit bearing trees can not be added thereto. Needless to say that in case of trees yielding forest produce are to be valued in addition to the value of the land. However, in the case in hand it is not clear whether the amount of Rs. 91,27,851/- relates in entirety to the forest trees or also include fruit bearing trees. -8- Once the Apex Court has laid down the law to the effect that the Land Acquisition Officer cannot take into consideration value of fruit bearing trees while determining compensation on the basis of the value of the land in question, the Land Acquisition Officer has clearly acted in contravention with the law laid down by the Apex Court while awarding compensation of Rs. 91,27,851/- in addition to the value of the land to the tune of Rs. 3,05,95,405/-. For the reasons stated above, therefore, it is apparent that the act of the Land Acquisition Officer in the matter of fixation of award clearly disclose an abuse of powers which warrants interference by this court in the writ jurisdiction. Hence I find that the Appellant failed to establish their claim for the value of the trees in the acquired land. 10. With regard to the claim of the Appellant towards the loss of business, the Reference Court was justified to come to the conclusion that no evidence has been adduced to substantiate the claim of the Appellant that any business activity was being carried out in the said structure. In fact, on perusal of the records, I find that no such evidence was before the Reference Court. As such, the Reference Court was justified to disallow the said claim of the Appellant. 11. Now, the only point for consideration is to whether there is any evidence on record to the value of the land acquired. The Appellant has relied -9- upon a Sale Deed at exhibit Aw.1/B. On perusal of the said Sale Deed, I find that the land which was subject matter of the said sale instance was sold at the rate of Rs.92/- per square metre. The recital therein as well as the schedule states that the structure which was existing in the said property was belonging to the purchaser. As such, the learned Counsel appearing for the Appellant was justified to contend that the price paid by the purchaser in the said Sale Deed was on account of the open land along with the trees existing therein. There is no dispute that in the land acquired, there were trees for which compensation was awarded by the Land Acquisition Officer. Even considering that the trees were existing in the sale instance land, this by itself cannot be a ground to reject the price as mentioned in the sale instance. The Reference Court has erroneously come to the conclusion that as there is no separate price shown with regard to the structure existing in the sale instance, the said Sale Deed at exhibit Aw.1/B cannot form a basis for determining the market value of the land acquired. I find that as the Appellant did not produce any other material and considering that the evidence on record discloses that the land acquired is at a distance of about 350 metres from the land in the sale instance though it is contended that a river is separating the land acquired land, all these factors will have to be considered for determining the market value of the land acquired. The contention of the learned Counsel appearing for the Appellant that the land acquired is superior to the sale instance land, will also have to be considered for determining the market value of land. The contention of the learned Addl. Government Advocate for the Respondents to the effect that the Sale Deed plot is not comparable to the land acquired as -10- well as the fact that the land subject matter of the sale instance is superior to the land acquired, will also be required to be considered for the purpose of determining the market value of the land. On perusal of the impugned Judgment, I find that the Reference Court has not considered the comparability of the sale instance land with the land acquired on the aforesaid aspects. For this purpose, in the interest of justice, I find that it would be appropriate that the matter be remanded to the Reference Court to decide the reference filed by the Appellant afresh only with regard to the value of the land acquired. The point for determination is answered accordingly. 11. In view of the above, I pass the following : ORDER (i) The impugned Judgment and Award with regard to the fixing of the market value of the land acquired is quashed and set aside. The remaining part of the Award is confirmed. (ii) The Reference filed by the Appellants is restored to the file of the Reference Court. (iii) The Reference Court is directed to decide the reference afresh with regard to the market value of the acquired land in the light of the observations made hereinabove on the basis of the evidence which is already on record, after hearing both the parties in accordance with law. -11- (iv)The Appeal stands disposed of with no orders as to costs. (v) The parties are directed to appear before the Reference Court on 22nd November, 2010 at 10.00 a.m. F. M. REIS, J. arp/*