: 1 : IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 219 OF 2002 WITH STAMP NUMBER NO. 188 OF 2003 (CROSS OBJECTION) The General Manager ( L.A.), Goa, Daman & Diu, Industrial Development Corporation, Shree Saraswati Mandir Bldg., 2nd Floor, 18th June Road, P.B. 316, Panaji Goa. … Appellant V e r s u s 1. Shri Govind G. Dessai, 202, Kedar Apartments, Bhandar Lane, Off. L.J. Road, Mahim, Mumbai – 400 016. 2. Deputy Collector (L.A.), Margao Goa. .. Respondents Mr. M. S. Sonak with Mr. J. Supekar, Advocates for the Appellant. Mr. F. E. Noronha, Advocate for the Respondent No.1. CORAM:- A. S. OKA, J Dated:- 9th July, 2010. ORAL JUDGMENT This Appeal arises out of an award made in a reference under Section 18 of the Land Acquisition Act, 1894 ( hereinafter : 2 : referred to as the said Act ). 2. The land subject matter of the acquisition is surveyed under survey No. 85/1 admeasuring 14100 square metres situated at Village of Cacora, Quepem Taluka. The acquisition was for the purpose of expansion of industrial estate at Cacora. A Notification under Section 4(1) of the said Act was published on 26th August, 1993. The compensation was offered by the Land Acquisition Officer at the rate of Rs.20/- per square metre. The claim made in a reference at the instance of the first Respondent was at the rate of Rs.100/- per square metre. The Appellant is the acquiring body and the second Respondent is the Dy. Collector. By the impugned judgment and award, the market value was fixed at the rate of Rs.77/- per square metre and the other statutory benefits were also granted. The Appellant acquiring body being aggrieved by the said award has preferred this Appeal. There is a cross objection filed by the first Respondent claiming enhancement in the market value. The claim made in the cross objection is for the market value at the rate of Rs.140/- per square metre. : 3 : 3. The learned Counsel appearing for the Appellant has invited my attention to the oral and documentary evidence on record. He pointed out that none of the sale instances produced by the first Respondent were in respect of lands comparable to the acquired land. He invited my attention to the finding recorded by the Reference Court in paragraph 17 that the argument that the Court should take judicial notice of the increase in the price of the land cannot be accepted. He pointed out that the Reference Court has relied upon the sale instances of two sale deeds at Exhibit AW1/B and Exhibit AW1/D which were in respect of very small areas of 250 and 500 square metres respectively. He submitted that considering the large area of the acquired land, the two sale deeds were not in respect of comparable lands. Even assuming that the sale instances were of comparable lands, the deduction made of only 33% is extremely on the lower side considering the nature of the acquired land on the relevant date. He pointed out that the learned trial Judge rejected the report and opinion of the valuer. He submitted that the entire approach of the Reference Court is erroneous and this is a case where the first Respondent did not discharge the burden of proving that the market value offered by the Land Acquisition Officer is inadequate. : 4 : 4. The learned Counsel appearing for the first Respondent opposed the submissions of the learned Counsel appearing for the Appellant. He pointed out that the sale instances relied upon by the Reference Court were in respect of comparable lands and in fact after finding that the market value of the acquired land was more than Rs.116/- per square metre, the Reference Court purported to fix the market value at the rate of Rs.77/- per square metre. He submitted that a portion of the acquired land was notified under Section 4 of the said Act on 16th March, 1979 and the market value offered was Rs.10/- per square metre in 1979. He pointed out that the relevant date in the present case is 26th August, 1993 and there was more than sufficient evidence on record to show that during the span of nearly 14 years the value of the lands in the vicinity of the acquired land is increased by more than 10 times. He, therefore, submitted that the compensation awarded is inadequate and that the cross objection deserves to be allowed. 5. I have carefully considered the submissions. The relevant date for determination of compensation is 26th August, 1993. The area of the acquired land is 14,100 square metres. It : 5 : will be necessary to consider the evidence adduced by the parties. The first Respondent examined his nephew who is his Constituted Attorney. The constituted attorney of the first Respondent referred to the compromise arrived at in a reference under Section 30 of the said Act and it was agreed that the entire compensation in respect of the land was payable to the first Respondent. He stated that a part of the same property was acquired for the industrial estate at Cacora in the year 1979. He stated that there was a housing colony across the road going from Curchorem to Sanguem consisting of more than 100 houses. He stated that Curchorem town is just 2½ kms away from the acquired land. He stated that the acquired land had all the facilities such as electricity, water, telecommunication etc. He relied upon the sale deed dated 18th September, 1991 ( Exhibit AW1/B) and stated that the land subject matter of the said sale deed was at a distance less than ½ km away from the acquired land. He stated that the sale deed plot was identical to the acquired land. He relied upon another sale deed dated 14th February, 1992 ( Exhibit AW1/C) and stated that the sale deed plot was at a distance of about 1.5 km away from the acquired land and the rate reflected from the said sale deed is Rs.200/- per square metre. He stated that the sale deed plot is : 6 : similar to the acquired land. He himself stated that the plot was out of a developed sub-divided property. Lastly, he relied upon the sale deed dated 25th October, 1991 ( Exhibit AW1/D) and stated that the sale deed plot was located at a distance of about ½ km away from the acquired land and the sale deed plot was a bharad land which was identical to the acquired land. 6. The witness was cross examined by the Appellant. In the cross examination, the constituted attorney of the first Respondent has stated that the first Respondent had even applied for the conversion of the land. He stated that as far as part of the same land which was acquired in 1979 is concerned, the market rate of Rs.10/- per square metre was fixed by the District Court and no appeal was preferred by the first Respondent. He stated that the acquired land subject matter of the present reference was superior and by the year 1993 a large development had taken place in the vicinity. He stated that all the infrastructure was available to the acquired land. However, he admitted that there is no electricity available to the acquired land but it is available by the side of the road. He admitted that there is no water pipe line and telephone in the acquired land. He stated that very close to : 7 : the sale deed plot of the sale deed at Exhibit AW1/B, there is a residential colony. He stated that the residential colony was at a distance of about ½ km away from the acquired land. In the cross examination, he stated that he had seen the plot of sale deed at Exhibit AW1/B which was a small plot having road frontage. He stated that the plot was not a developed plot. However, he admitted that it is a sub-divided plot. He admitted that the sale deed plot lies in the industrial zone and there is no need of conversion. As far as plot subject matter of sale deed at Exhibit AW1/C is concerned, the constituted attorney of the first Respondent stated that it was a sub-divided plot which was already converted into a non-agricultural land. As regards the plot subject matter of the sale deed at Exhibit AW1/D, he stated that the plot had a road frontage. 7. The learned Counsel appearing for the Appellant has made a grievance that though the constituted attorney of the first Respondent admitted that there were plans annexed to the three sale deeds, in the copies of the said sale deeds produced before the Court, the same have not been annexed. Perusal of the record shows that the said submission appears to be correct. : 8 : 8. The learned Counsel appearing for the first Respondent has relied upon the acquisition of a part of the same property by showing that the Notification 4 of the said Act is dated 16th March, 1979. He pointed out that the market value of Rs.10/- per square metre was fixed by the Reference Court in respect of the said portion and submitted that during the span of 14 years there has been price escalation by 10 times in respect of the lands in vicinity of the acquired land. It is necessary to examine the said contention in the light of the evidence on record. 9. The first Respondent examined Kusum Devidas who was the vendor of the sale deed at Exhibit AW1/D dated 25th October, 1991. In the cross examination, she stated that the plot subject matter of the sale deed was levelled. She admitted that she had not applied for the conversion of the plot subject matter of the sale deed. She, however, stated that she has not seen the acquired land. One Jaywant Sarsolkar was examined by the first Respondent who is the purchaser of the one of the lands vide sale deed at Exhibit AW1/B dated 18th September, 1991. He stated that the distance between the sale deed plot and acquired land is about 150 metres. In the cross examination, he stated that there were : 9 : mud roads on the north and east of the plot purchased by him. He stated that the main road which is Quepem-Sanguem road was at a distance of about 50 metres from his plot. He stated that he had seen the acquired land which was a vast land as compared to his land. He stated that when he purchased the land under the sale deed, it was a hilly land and the acquired land was plain at the time of acquisition. He denied the correctness of the suggestion that there were trees in the plot purchased by him. He stated that there were only bushes. He stated that there is no electricity available to the plot purchased by him. However, he admitted that his plot is of a rectangular shape. He stated that there were no residential houses nearby. In the cross examination, a suggestion was made to the said witness that the acquired land is at a distance of more than 50 metres from his plot. He denied the correctness of the said suggestion. 10. The first Respondent also examined one Mr. Subash C. Narayan Bhobe, the valuer. His evidence is rightly discarded on the ground that he had visited the acquired land in April, 1998 nearly five years after the relevant date. : 10 : 11. The learned trial Judge has kept sale deed at Exhibit AW1/C out of consideration for the reasons recorded. It must be stated here that the constituted attorney of the first Respondent in his deposition admitted that the plot subject matter of the said sale deed was out of a sub-divided property. Apart from that, the witness has admitted that said plot subject matter of the sale deed had road frontage towards northern side and that the plot was already converted into non-agricultural land. What has been held as comparable by the District Judge are the sale instances at Exhibits AW1/B and AW1/D. The date of sale deed at Exhibit AW1/ B is 18th September, 1991. In the examination in chief, the constituted attorney of the first Respondent has stated that the land subject matter of the said sale deed is at a distance of about ½ km from the acquired land. He stated that the sale deed plot was identical to the acquired land. It must be stated here that the perusal of the sale deed shows that it is in respect of area 225 square metres which forms part of a bigger plot No.15. As far as the sale deed at Exhibit AW1/D is concerned, the land subject matter thereof appears to be at a distance of about 500 metres from the acquired land. There is a statement in examination in chief of the constituted attorney of the first Respondent that the : 11 : said land was a bharad land and there does not appear to be a specific challenge to the said statement in the cross examination. The area of the said land is 500 square metres and the date of the said sale deed is 25th October, 1991. It is true that the aforesaid sale deeds clearly show that there were plans annexed to the sale deeds which are not produced on record. The sale deed at Exhibit AW1/B reflects the market value as on 18th September, 1991 of Rs.133/- per square metre and the sale deed at Exhibit AW1/D shows that as on 25th October, 1991, the market value at the rate of Rs.100/- per square metre. The learned trial Judge has taken average of both which appears to be 116.5 per square metre. The said approach may not be correct. The sale deed at Exhibit AW1/B was in respect of a very small area of 225 square metres. Moreover, it was a sub divided plot. Hence, it cannot be said to be comparable. However, the sale deed dated 25th October, 1991 could have been certainly basis for determination of market value as on 26th August, 1993 as the land subject matter of the sale deed is comparable to the acquired land. If escalation at the rate of 10% per year on cumulative basis is considered, the market value will be Rs.119/- per square metre if escalation for 22 months is considered. Even if a reasonable deduction is made at 35% as the : 12 : area of the sale deed plot is only 500 square metres, the market value will be about Rs.77/- per square metre. 12. The determination of the market value under Section 23 of the said Act always involves element of guess work. Therefore, the market value at the rate of Rs.77/- per square metre fixed by the Reference Court cannot be faulted with. At the same time, no case is made out for grant of enhancement in the market value fixed by the Reference Court. Hence, the Appeal and the cross objection must fail and I pass the following order :- O R D E R The Appeal is dismissed with no order as to costs. Cross objection is dismissed with no order as to costs. The Registrar will permit the first Respondent to withdraw the amount deposited by the Appellant with interest accrued thereon. However, the withdrawal will be permitted only after expiry of a period of 60 days from today. A. S. OKA, J at*