1 IN THE HIGH COURT OF BOMBAY AT GOA First Appeal No. 12 of 2007 Benjamin Pereira, Major, married, Agriculturist, Resident of Mushir, Colvale, Bardez-Goa. ...... Appellant V e r s u s 1.The Special Land Acquisition Officer Goa-IDC, Midas Touch Building, 2nd floor, Opposite El-Dorado Complex, Panaji-Goa. 2. The Mangaing Director, Goa-IDC, Shree Saraswati Mandir, 2nd Floor, 18trh June Road, Panaji-Goa. ..... Respondents. Shri A.F. Diniz, Advocate for the Appellant. Shri Guru Shirodkar, Government Advocate for Respondent no1. Shri M.S. Sonak, Advocate for Respondent No.2. Coram: A.S. Oka & F. M. Reis, JJ. Date: 10th June, 2010. Oral Judgment (Per A.S. Oka,J): 1. We have heard the learned Counsel appearing for the Appellants. We have heard the learned Counsel appearing for the second Respondent and also the Government Advocate appearing for the first Respondent in support of the impugned judgment and award. 2. This appeal takes exception to the Judgment and 2 Award dated 17th November 2006 passed by the Learned District Judge by which a reference under Section 18 of the Land Acquisition Act of the said Act of 1894 (hereinafter referred to as “the said Act”) made at the instance of the Appellant has been dismissed. 3. The acquisition relates to land bearing survey no. 220/1 of village Colvale. The area of the acquired land is 2,18,820 square meter. Notification under Section 4 of the said Act of 1894 was published on 6th December 1996. An award was made on 12th July, 2001 under Section 11 of the said Act of 1894. By the award under Section 11, the market value at the rate of Rs.19/- per sq. meter was offered. 4. In the reference application it was contended that the area of the acquired land was 2,13,877 square meter and not 2,12,820 square meter. It was contended that the market value of the acquired land was not less than 300 per square meter. 5. Evidence was adduced by the appellant. The appellant examined his son who was his Constituted Attorney. The appellant has also examined other witnesses including one Mr. Menezes, an expert valuer ,who is a retired Government servant. Reliance was placed by the appellant on Sale Deed dated 22th August 1997 3 (Exhibit 30) in respect of a plot of land having an area of 190 square meter situated at the same village, by which the land was sold at the rate of Rs.184/- per square meter. Reliance was also placed on another sale deed dated 27th March, 1992(Exhibit 31) relating to land admeasuring 1950 square meter situated in the same village. The said land was sold at the rate of Rs.77/- per square meter. 6. The Learned District Judge rejected the reference on the ground that the appellant had not discharged the burden of proving that the compensation offered under the award under section 11 of the said Act was inadequate. 7. The Learned Counsel appearing for the appellant has placed reliance on a decision of the Division Bench of this Court dated 26th September 2008 in First Appeal no.101 of 2003. He submitted that the said case was of land admeasuring 9513 square meter forming part of survey no. 102 /1 of the same village which was required for public purpose of construction of Rest House and Staff Quarters of Tillari Irrigation Project. The notification under section 4 of the Act in respect of the said land was published on 26th August, 1991. The Reference Court fixed rate of Rs.140/- per square meter. He pointed out that the said rate had been 4 confirmed by this Court. He submitted that the land subject matter of the said appeal before this Court was comparable in all respect with the acquired land which is subject matter of the present appeal . He submitted that reliance cannot be placed on Section 2 of the Goa Land Use (Regulations) Act 1991 (hereinafter referred to as "the said Act of 1991), in view of exemption provided under Section 3 of the said Act of 1991. He submitted that once the land is put to acquisition, the embargo of sub-section 2 of the said 1991 will have no application. Relying upon the decision of Nelson Fernandes and others Vs. Special Land Acquisition Officer,South Goa and others (2007)9 Supreme Court Cases 447, he submitted that the purpose of acquisition has to be taken into consideration while fixing the market value. He invited our attention to the purpose of acquisition in the present case which was for expansion of Colvale Industrial Estate. He submitted that the very fact that the land was acquired for expansion of the industrial unit shows that the lands in the vicinity of the village were already put to industrial use on the relevant date. Lastly, without prejudice to the aforesaid submissions, he invited our attention to Judgment and order dated 14thDecember 2004 passed by a Division Bench of this Court in First Appeal No.6 of 2001. He submitted that a part of the 5 land bearing the same survey no.220/1 along with two other lands owned by the appellant were notified for acquisition by notification under Section 4 of the said Act dated 16th August,1994. He submitted that the acquisition of the said land was for the same purpose of starting industrial project. He pointed that in the said case, market value of Rs.15/- per square meter offered by the L.A.O was confirmed by the Reference Court. He submitted that under the order passed by this Court on the basis of the consent terms filed by the parties, it was agreed to enhance the market value by Rs.3/- per square meter and the market value of the part of the same land as on 16th August, 1994 was fixed at Rs.18/- per square meter. He, therefore, submitted that looking to the overall industrial development growth in the area, the said rate of Rs.18/- per square meter fixed on 16th August,1994 can be taken as the basis for arriving at the market value as on 6th December, 1996 by giving escalation by at least 15% per year. 8. The Learned Counsel appearing for the second respondent submitted that no reliance can be placed on the decision of this Court in F.A. 101 of 2003 dated on 26th September, 2008 in as much as in the facts of the case, the Division Bench did not consider the effect of the statutory restrictions imposed by the 6 section 2 of the said Act of 1991. He submitted that in the present case, the appellant is a deemed purchaser of the acquired land which is an agricultural land and therefore, in view of Section 2 of the said Act of 1991 there is a complete prohibition against using the acquired land for any purpose other than the agriculture. He submitted that the issue is covered by the decision of this Court as in F.A. No.138 of 2003 which is decided on 14th October, 2008. He submitted that as the contention of the Appellant based on Section 3 of the said Act of 1991, has been already decided by this Court by judgment and order dated 9th February,2005 in F.A. No. 221/2003. Inviting our attention to paragraph 8 of the said order dated 14th December, 2008 in F.A. no.6/2001 , he submitted that the Division Bench has made it very clear that the market value was enhanced by Rs.3/- per square meter on the basis of the consent terms signed the third respondent and therefore, the order shall not be treated as a precedent. He, therefore, submitted that there is no merit in the appeal. 9. We have given careful consideration to the submissions advanced. It is not in dispute that the appellant being the tenant is a deemed purchaser of the acquired land which is an agricultural land. The land vests in the appellant under the 7 provisions of the Section 18 A of the Goa, Daman and Diu Agricultural Tenancy Act, 1964 (hereinafter referred to as “the said Act of 1964”). The section 2 of the said Act of 1991 provides that no land which is vested in a tenant under the provision of the said Act of 1964 shall be used or allowed to be used for any purpose other than agriculture. 10. The submission of the Learned Counsel appearing for the Appellant is based on Section 3 of the said Act of 1991 . Section 3 of the said Act of 1991 reads thus: “3. Exemption- The provision of this Act shall not apply to acquisition of any land vested in a tenant under the Goa, Daman and Diu Agricultural Tenancy Act, 1964 (Act 7 of 1964) by the State for a public purpose under the provisions of the Land Acquisition Act, 1894 (Central Act 1 of 1894). 11. We find that what is provided in the Section 3 is that if a land vested in a tenant under the said Act of 1964 is acquired under the said Act by the State for a public purpose, the 8 embargo of Section 2 will not come in the way of the State using the acquired land for any purpose other than agriculture. The implication of section 3 is that the prohibition imposed by the section 2 will not prevent non-agricultural user of the said land by the state or by the acquiring body after its acquisition under the said Act. As pointed out by the Learned Counsel appearing for the second respondent, in F.A no.223 of 2003, the same submission was canvassed before this Court. This Court for reasons recorded rejected the said submission. This Court observed that Section 3 only permits the State to use an agricultural tenanted land for any purpose other than agriculture if the land is acquired under the said Act for any such purpose. This Court relied upon Section 2 of the said Act of 1991 and rejected the submission based on Section 3. 12. When comparison method is adopted to determine the market value of the acquired land, the test is what a willing genuine and bona fide buyer will offer as price for the acquired land on the date of publication of a notification under section 4 of the said Act. In view of section 2 of the said Act of 1991, a genuine buyer will offer a price which is payable only in respect of an agricultural land. He will not offer the price on the basis of 9 the potential for non-agricultural use in as much as in view of section 2 of the said Act of 1991, no use except agricultural use will be ever permitted. Therefore, we reject the submission based on Section 3 of the said Act of 1991.Therefore, for the purposes of the determination of the market value of the acquired land, a sale instance of a developed land or a sale distance of a land having potential for non-agricultural use will not be relevant. 13. A reliance was placed by the appellant on Sale Deed dated 22th August, 1997 in respect of an area of 190 sq.mtrs. The reason given by the trial Judge for rejecting the sale deed is that it relates to a small area of 190 square meter. The second reason is that the land was sold along with a structure standing thereon which fetched an amount of Rs.35,000/-. The Sale Deed at Exhibit 31 dated 27th March,1992 is relating to an area 1950 sq.mtrs. The trial Judge found that the land was sold along with a house in a dilapidated condiiton . Moreover, the land subject matter of the sale deed was a developed land having permission from the North Goa Planning Development Authority. Thus, both the sale deeds relied upon are not of agricultural lands in possession of a tenant purchaser. The Appellant examined one of the vendors under the said sale deed dated 22nd August 1997 as 10 his fourth witness. She stated that the land subject matter of the said sale deed was purchased by the purchasers for putting up a factory. She stated that prior to the execution of the sale deed, she along with her husband had entered into an agreement in respect of the said property for construction of the house. She stated that they did not construct any house. However, she stated that the said land was a plain land having 18 coconut saplings. She stated that the said land had approach roads on both the sides and that there were houses adjoining the said land. Thus, apart from being a very small plot of land, the land subject matter of the said sale deed was not an agricultural land and that it was suitable for construction of a house. In fact the witness stated that the purchaser has constructed a factory on the said land. The Appellant also examined as a witness who was the constituted attorney of the vendors under the said deed dated 27th March 1992. The said witness deposed that there was a very old house situated on the land subject matter of the said sale deed. The witness stated that the land was a plain and leveled land. The witness further deposed that there was a school at a distance of hundred meters from the said land. Thus , both the sale instances were in respect of very small land as compared to the acquired 11 land which was having an area of more than two lakh square meters. Moreover, both the instances were in respect of lands which were not agricultural lands. Considering the embargo on the use of the land imposed by the section 2 of the said Act of 1991 , the acquired land could not have been used for non- agricultural use either by the Appellant or by any prudent buyer on the date on which the notification under section 4 of the said Act was published. The trial Judge was justified in coming to the conclusion that the said sale instances were not in respect of comparable lands. The opinion of the expert based on the said sale instances is therefore not relevant. 14. That takes us to the submissions based on the decision of this Court in F.A. No.6 of 2001. Perusal of the judgment and order in the said appeal shows that a part of the same survey no.220/1 along with survey nos.218/3 and 218/5 and 220/1 totally admeasuring 1,10,415 sq.meter owned by the present appellant was put to acquisition under the notification dated 16th August, 1994. The market value offered under the Award under Section 11 of the said Act was Rs.15/- per square meter. The purpose of acquisition was for industrial development/industrial 12 project. Thus, in the year 1994 itself, another part of the land subject matter of the present appeal was notified for acquisition for industrial use. The purpose of the present acquisition is for extension of industrial estate which shows that lands around the vicinity of the acquired land were already put to industrial use. Therefore, the market value of similarly placed land as on 16th August 1994 can be safely taken as Rs.15/- per square meter. The market value was enhanced to Rs.18/- per square meter under the orders of this Court based on the settlement between the appellant and the Respondent no.3. The said Respondent in the said appeal was the company, for whose benefit the said land was acquired. However, neither the state government nor the acquiring body in the present case consented to grant of enhancement. This Court enhanced the market value to Rs.18/-per square meter only on the basis of concession of the third Respondent. There is no finding recorded on merits by this Court that the market value of the acquired land was Rs 18/- per square meter. The Respondents herein are not bound by the concession of the third Respondent in the said appeal. Therefore, it cannot be said that this Court has recorded a finding in the said appeal that the market value of the land on 16th August 1994 was Rs.18/- per square meter. 13 Therefore, the submission based on the order passed by this Court in the said appeal cannot be accepted. However, as stated earlier, the market value of the acquired land subject matter of the present appeal, as on 16th August 1994, can be certainly taken as Rs.15/- per square meter. 15. Before we determine the compensation on the basis of the said market value, the argument of Learned Counsel appearing for the appellant on the basis of the decision of this Court in F.A. No.101 of 2003 has to be considered .This was a case where an award under Section 18 of the said Act was subjected to challenge by the Land Acquisition Officer before this Court. The acquisition related to land bearing Survey no. 102/1 situated in the same village which was notified for acquisition by a notification under section 4 of the said Act published on 26th August 1991. In the said case, rate of Rs. 15/- per square meter was offered under an award made under section 11 of the said Act. The Reference Court enhanced the market value to Rs.140/-per square meter. The submission of the learned counsel appearing for Appellant is that the land subject matter of the said appeal was comparable to the acquired land in all respects. At the time of hearing of the said appeal, it appears that a submission was made 14 on the basis of a ground in the amended memorandum of appeal that in view of section 2 of the said Act of 1991, the acquired land being an agricultural land vesting in the appellant on the basis of the provisions of the said Act of 1964, the same cannot be used for any purpose other than the agriculture. Perusal of the judgment of this Court shows that this was a case where no such plea or an issue was raised before the reference Court. This Court observed that by allowing the state government to raise the said plea for the first time in appeal, prejudice will be caused to the respondent- Claimant as he had no opportunity to deal with this aspect before the reference Court. Therefore, in the said appeal, this Court declined to consider the submission on the basis of section 2 of the said Act of 1991. In the present case, the said contention was specifically raised before the reference Court. In fact a specific finding has been recorded by the reference Court that in view of the said provision of the said Act of 1991, the acquired land could not have been converted for non-agricultural use .In the present case, the fact that such contention has been raised is clear from the judgment of the learned trial Judge and especially paragraph 9 thereof. In the decision in F.A. no.101 of 2003, this Court did not consider the effect of the restrictions imposed by section 2 of the 15 said Act of 1991. In the present case, there is no dispute that the appellant is the tenant purchaser under the provisions of the said Act of 1964. In the said other decision, this Court has not treated the land subject matter of the appeal before it as a land purchased by the claimant as a tenant thereof under the provisions of the said Act of 1964. Therefore the argument of the learned counsel appearing for the Appellant in that behalf will have to be rejected. 16. The learned counsel appearing for the Appellant Relied upon a the decision of the Apex Court in the case of Nelson Fer- nandes (supra) by contending that the purposes of acquisition of in- dustrial use will have to be considered for fixing the market value. In paragraphs 29 and 30 of the said decision, the Apex Court ob- served thus: “Both the Special Land Acquisition Officer, the District Judge and of the High Court have failed to notice that the purpose of ac- quisition is for Railways and that the purpose is a relevant factor to be taken into consideration for fixing the compensation. In this context, we may usefully refer the judgment of this Court in Viluben Jhalejar Contractor v. State of Gujarat3. This Court held that the purpose for which the land is acquired must also be taken into consideration in fixing the market value and the deduction of development charges. In the above case, the lands were acquired because they were submerged under water of a dam. Owners claimed compensation of Rs 40 per sq ft. LAO awarded compensation ranging from Rs 35 to Rs 60 per sq m. Reference Court fixed the market value of the land at Rs 200 per sq m and after deduction of development charges, determined the com- pensation @ Rs 134 per sq m. In arriving at the compensation, 16 Reference Court placed reliance on the comparative sale of a piece of land measuring 46.30 sq m @ Rs 270 per sq m. On appeal, the High Court awarded compensation of Rs 180 per sq m in respect of large plots and Rs 200 per sq m in respect of smaller plots. On further appeal, this Court held that since the lands were ac- quired for being submerged in water of dam and had no potential value and the sale instance relied was a small plot measuring 46.30 sq m whereas the acquisition in the present case was in respect of large area, interest of justice would be subserved by awarding com- pensation of Rs 160 per sq m in respect of larger plots and Rs 175 per sq m for smaller plots. In Basavva v. Spl. Land Ac- quisition Officer4 this Court held that the purpose for which ac- quisition is made is also a relevant factor for determining the mar- ket value. 30. We are not, however, oblivious of the fact that normally 1/3rd deduction of further amount of compensation has been directed in some cases. However, the purpose for which the land is acquired must also be taken into consideration.” (emphasis added) In a subsequent decision of the Apex Court in the Case of Subh Ram versus State of Haryana ([2010]1 Supreme Court Cases 444), submissions were made on the basis of the aforesaid two earlier de- cisions. In paragraph 10 of the said decision, the Apex Court noted that : “10. The appellants contend that as the acquisition was for con- struction of a jail, there will be no need to set apart any part of the land for formation of roads, drains, parks, etc. nor spend any amount for development of the land into a layout. They submitted that the observation of this Court in Viluben Jhalejar Contract- or v. State of Gujarat1 and Nelson Fernandes v. Special Land Acquisition Officer2 that the purpose for which acquisition is made is also a relevant factor for deciding the compensation lends support to their contention. The contention of the appel- lants proceeds on a misunderstanding and misconstruction of the legal position relating to deductions.” The Apex Court in subsequent paragraphs dealt with the said submission as under: 17 “17. It is no doubt true that this Court in some decisions has observed that purpose of acquisition will also be relevant. But it is made in a different context. The Land Acquisition Collectors in some cases adopt belting methods for valuation of land, with ref- erence to a focal point, that is, either with reference to the distance from the main road, or distance from a developed area. Lands that adjoin a developed area or a main road are given a higher value than a land farther away from the road or the developed area. The Land Acquisition Collectors also award different compensation de- pending upon whether the acquired land is a dry land or wet/irrig- ated land. 18. When different categories of lands (or lands with different situational advantages) are acquired for the same purpose, say for forming of