1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.35 OF 2005 1. Shri Sawaivir Sadassiva Rajendra Bassavaling Raje Wadilyar (since deceased, through Legal Heir) Smt. Anagha Raje Mavanuri, major, married, housewife, resident of IInd Main, IInd stage, Plot No.24, Laxmi Savatri Sadan, 'C' Block, Hanuman Nagar, Belgaum. 2. Smt. Umadevi Raje Wadiyar 3. Shri Bassavaling Sadashiva Rajendra Wadiyar Raja (since deceased through Legal Representatives) 3(i) Kum. Malavika Raje Waqdiyar (minor) 3(ii) Kum. Sagarika Raje Wadiyar (minor) Through their next friend their mother, the appellant no.4. 4. Smt. Vasundhara Raje Wadiyar 5. Shri Madhuling Nagesh Rajendra Wadiyar All r/o. Shivtirtha Palace, Bandra, Ponda, Goa. Through their duly constituted attorney Shri Venkatesh Keshav Sawkar, R/o. Tishem, Borim, Ponda-Goa. …. Appellants V/s 1. The Executive Engineer, WD XXV(NH), P.W.D., Borda, Margao-Goa. 2 2. The State of Goa, through Deputy Collector & S.D.O., Land Acquisition Officer, Quepem, Goa. …. Respondents Mr. R.G. Ramani, Advocate for the Appellants. Mr. Guru Shirodkar, Government Advocate for the Respondents. CORAM : F.M. REIS, J. DATE : 11th MARCH, 2011 JUDGMENT : The above appeal challenges the judgment and award passed by the Reference Court dated 23/02/2004 in Land Acquisition Case No.119/1993. 2. By a notification issued under Section 4 of the Land Acquisition Act, 1894, herein after referred to as 'the said Act', dated 24/11/1988, published in the Official Gazette dated 19/01/1989, the respondent sought to acquire the land belonging to the appellants for the approach road to Galgibag bridge on National Highway - 17 (realignment). The land which was the subject matter of the said acquisition was having an area of 300 square metres from the property surveyed under no.171/1 and an area of 630 square metres from the property surveyed under no.173/1(part) and a structure existing therein admeasuring 40 square metres. By 3 an award passed by the Land Acquisition Officer under Section 11 of the said Act, a sum of Rs.3/- per square metre was offered for the land acquired, besides compensation for the structure and the trees existing therein. Being dissatisfied with the said amount, the appellants sought a reference under Section 18 of the said Act for enhancement of the compensation and claimed a sum of Rs.75/- per square metre for the land acquired, besides enhancement of compensation for the structure as well as the trees and the rubble stone wall. By judgment and award dated 23/02/2004, the Reference Court answered the reference in the negative. Being aggrieved by the said judgment, the appellants have preferred the present appeal. 3. Shri R.G. Ramani, the learned Counsel appearing for the appellants has assailed the impugned judgment and pointed out that there is no reason for the Reference Court to reject the reference when there was appreciable evidence on record to substantiate the claim of the appellants that they were entitled for enhancement of compensation. The learned Counsel took me through the evidence on record and pointed out that the appellants have adduced sale instances in the vicinity of the acquired land which establishes that the market value of the land as on the relevant date was at 4 minimum rate of Rs.50/- per square metre. The learned Counsel further pointed out that the Division Bench of this Court in First Appeal No.267/2007 wherein a portion of the same property was acquired for the approach road to Talpona - Galjibag bridge, had fixed the compensation for the land acquired therein at the rate of Rs.33.34 per square metre. The learned Counsel further submitted that notification in the said case was issued on 7/07/1988 whereas in the present case the notification was issued in November, 1988 which is in proximity with the land subject matter of the present proceedings. The learned Counsel has further stated that the land acquired in the present case and in the said proceedings was part and parcel of the same property and there is no justification not to rely upon the said award passed by this Court, as the basis for fixing the market value of the acquired land. Learned Counsel further submitted that there is an error committed by the Reference Court in the impugned judgment in stating that the subject matter of the acquisition was only in respect of an area of 300 square metres in respect of the property surveyed under no.171/1 and the structure existing in the property surveyed under no.173/1, when the subject matter of the acquisition was an area of 300 square metres from the property under survey no.171/1 and an area of 630 square metres from the property surveyed under no.173/1 besides 5 the structure existing therein. 4. On the other hand, Shri Guru Shirokdar, the learned Government Advocate appearing for respondents has pointed out that there is no dispute with regard to the contention of the learned Counsel Shri Ramani that the subject matter of the acquisition in the present case consists of an area of 300 square metres from the property under survey no.171/1 and an area of 630 square metres from the property surveyed under no.173/1 besides the structure existing therein. The learned Government Advocate further pointed out that there is no infirmity committed by the Reference Court in rejecting the reference filed by the appellants. The learned Counsel further did not dispute that the subject matter of the land in First Appeal No.267/2007 and the subject matter of the land acquired in the present proceedings are part and parcel of the same property. Learned Counsel further submitted that there is no reason for this Court to rely upon the judgment passed in the said First Appeal for the purpose of determining the market value in the present case. 5. Having heard the learned Counsel and on perusal of records, the following point for determination arises in the present appeal: 6 POINT FOR DETERMINATION : (i) Whether the Reference Court was justified to reject the reference filed by the appellants. 6. In support of the claim for enhancement of compensation, the appellants have examined AW1/Venkatesh Saukar. He has stated that the land acquired was having an area of 300 square metres from the property under survey no.171/1 and an area of 630 square metres from the property surveyed under no.173/1. He has further stated that the property under survey no.173/1 was divided into plots and sold to tenants and mundkars. He has produced the plan showing the acquired portion of the land. He has further stated that there are no tenants in the acquired portion of the land. He has produced the sale deed dated 16/08/1988, which is at Exhibit AW1/C, wherein the subject matter of the said sale deed was part of the same property which has been acquired. The property has different survey number and is at a distance of 100 metres from the acquired land. An area of 600 square metres of the property was sold at the rate of Rs.50/- per square metre by the sale deed. In the cross-examination by the respondents, he has denied the suggestion that the area sold to various persons mentioned in Exhibit AW1/B is much less than Rs.18/- per square metre. He has 7 further admitted that the land sold pursuant to sale deed at Exhibit AW1/C had a house and coconut trees and the price of coconut trees is not mentioned separately as also of the house. The next witness examined is Shri Vikas Dessai, who has stated that the acquired land is situated at Poinguinim and it falls in the settlement zone where the construction of houses is possible. He has further stated that the acquired land lies on both sides of the existing road going from Galgibag to Talpona. He has further stated that the plot was sold pursuant to sale deed dated 24/11/1988 admeasuring an area of 616 square metres at the rate of Rs.50/- per square metre. He has further stated that the said land is at a distance of about 200 metres from the acquired land and the sale deed plot is part of the same property Galgibag which is surveyed under different survey number. In the cross-examination, he has admitted that the acquired portion was coming within the set back area and no construction was permissible. He has further stated that in the sale deed dated 24/11/1988, there was a house which was belonging to the purchaser. He has further admitted that he had no qualifications to value agricultural lands. He has also produced the report. The next witness examined is Pralhad Naik. He is one of the purchaser of the said sale deed Exhibit AW1/C and was the mundkar of the said land. He has further stated that the house 8 existing in the said plot belonged to him and he has paid Rs.50/- per square metre for the land purchased thereto. He has further stated that the land acquired was more favourable than the sale deed plot. In the cross-examination, he has denied that he was not shown as a mundkar. He has further stated that there is only a pathway up to his plot but four wheeler also can come to the said mundkarial house. 7. The Reference Court while passing the impugned judgment has considered the evidence on record and rejected the sale deed as the same was in respect of the land sold to the mundkar. The Reference Court has also examined the valuation report and found that the acquired land was coming within the set back area and came to the conclusion that the appellants had failed to establish that they are entitled for any enhancement of compensation. The Reference Court has also refused for enhancement of compensation towards the structure or the trees existing therein. 8. On perusal of the judgment passed by this Court in First Appeal No.267/2007, wherein a potion of the same property was sought to be acquired for the approach road to Talpona-Galjibag bridge, Karward side, Phase – II, pursuant to a notification under 9 Section 4 of the said Act, published in the Official Gazette on 7/07/1988, I find that the portion of land acquired in the present case and the land acquired for the construction of approach road to Talpona - Galgibag bridge were part of the same property. There is no dispute to that effect between the parties. On perusal of the said judgment passed by this Court, it was the case of the appellants therein, who are also appellants in the present appeal that the land acquired therein was part and parcel of the property Galjibag situated in Poinguinim village and that the said property was a vast property consisting of paddy fields, coconut trees and other fruit bearing trees. While passing the said judgment, this Court has relied upon another judgment passed by the Division Bench of this Court in First Appeal No.154/2005 dated 16/11/2009 wherein the market value of the land acquired therein was fixed on the basis of the same sale deed at Exhibit AW1/C dated 16/08/1988. While disposing of the said First Appeal No.267/2007, the Division Bench of this Court has also relied upon the said sale deed and after effecting the deduction on account of dissimilarities has fixed the market value of the acquired land therein at the rate of Rs.33.34 per square metre. As stated above, there is no dispute that while fixing the market value of the acquired land, the Division Bench of this Court has relied upon the said sale instance at Exhibit AW1/C. 10 It is also to be noted that the land acquired in the present case and the land which was subject matter of the said proceedings is part and parcel of the same property. The said sale deed plot is stated to be at a distance of 100 metres from the acquired land as stated by AW1. As such, there is no reason why the appellants herein should not be awarded the same compensation as the one awarded by the Division Bench of this Court in the said judgment dated 29/07/2010. The appellants in both the appeals are the same and both the lands are part and parcel of the same property. 9. As such, for the reasons stated in the said judgment dated 29/07/2010, I find that the market value of the acquired land in respect of the land has to be fixed at the rate of Rs.33/- per square metre. The Reference Court was not justified in rejecting the said sale instance at Exhibit AW1/C merely on the ground that the said sale instance was inclusive of a mundkarial house. On the basis of the said sale instance, the compensation of another two portions of the land which were acquired belong to the appellants have been determined. In such circumstances, the Reference Court ought to have relied upon the sale deed at Exhibit AW1/C as the basis for determining the market value of the acquired land. As such, the market value of the land acquired is fixed at Rs.33/- per square 11 metre for the land acquired. 10. With regard to the other claims put forward by the appellants for the purpose of enhancement of compensation in respect of the structure as well as trees existing in the acquired land, I find that there is no infirmity committed by the Reference Court to come to the conclusion that the appellants have failed to establish by any evidence that they are entitled for such enhancement of compensation. Shri R.G. Ramani, learned Counsel appearing for the appellants was unable to point out any piece of evidence, which was not considered by the Reference Court to come to such finding. There is no evidence on record to substantiate their claim for any enhancement of the compensation for the structure and the trees existing therein. To that extent, there is no infirmity committed by the Reference Court in refusing such compensation for enhancement of compensation for the structure as well as the trees in the acquired land. The point for determination is answered accordingly. 11. In view of the above, I pass the following order. O R D E R (i) The appeal is partly allowed. 12 (ii) The impugned judgment and award dated 23/02/2004 is quashed and set aside. (ii) The Reference filed by the appellants is partly allowed and the appellants are entitled for the compensation for the land acquired at the rate of Rs.33/- per square metre. (iii) Needless to say, the appellants would be entitled for statutory benefits under the provisions of Section 23(1-A), Section 23(2) and Section 28 of the said Act, in accordance with law. (iv) The Reference Court is directed to determine the compensation payable by the respondents within three months from the date of receipt of this order. (v) The appeal stands disposed of accordingly with no order as to costs. F.M. REIS, J. NH/-