:1: IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 225 OF 2006 1. Shri Pundalik Govind Narulkar, ( since deceased ) through his legal heirs, 1(a) Smt. Savitri Pundalika Narulkar, Major, w/o late Shri Pundalik Narulkar, 1(b) Shri Nandkishor P. Narulkar, 1(c) Shri Dilip Pundalik Narulkar, both major, sons of late Shri Pundalik Narulkar, All appellants residing at Baman Tarval, Hankhan, Ibrampur, Pernem Goa. The appellant Nos. 1(a) and 1(b) represented herein by the Appellant No.1(c) as their constituted attorney … Appellants V e r s u s 1. Special Land Acquisition Officer (North), Goa Tillari Irrigation Development Corporation, Government Office Complex, Morod, Mapusa Goa. 2. The Executive Engineer, W.D. VII, GTIDC, Colvale, Bardez Goa. … Respondents Shri J. P. Mulgaonkar, Advocate for the appellants. Shri S. Vahidulla, Government Advocate for the respondents. CORAM : F. M. REIS, J DATE : 29 th JULY, 2011 . ORAL JUDGMENT The above appeal challenges the judgment and :2: award dated 29.04.2006 passed by the learned Additional District Judge, North Goa, Panaji, in Land Acquisition Case No. 51 of 2001. 2. Pursuant to a notification under Section 4 of the Land Acquisition Act, 1894 ( hereinafter referred to as the “the said Act”) dated 25.09.1991, the land was acquired admeasuring an area of 17,010 square metres from the property surveyed under Nos.62/6, 62/8, 62/7, 62/9, 79/1 and 79/8 located in the Village of Chandel in Pernem Taluka for the construction of right bank main canal of Tillari Irrigation Project from 7,540 kms to 8,070 kms. By an award passed by the Land Acquisition Officer under Section 11 of the said Act, a sum of Rs.8/- per square metre was offered for the paddy land and Rs.6/- per square metre for bharad land ( dry crop ). Being dissatisfied with the said amount, the appellants sought a reference under Section 18 of the said Act for enhancement of compensation and claimed a sum of Rs.50/- per square metre for the land acquired besides a sum of Rs.1 lakh towards the loss from stone quarry in survey Nos.79/1 and 79/8. By the impugned judgment and award dated 29.04.2006, the learned Reference Court rejected the reference filed by the appellant. Being aggrieved by the said :3: judgment, the appellants preferred the present appeal. 3. Shri J. Mulgaonkar, learned Counsel for the appellants has assailed the impugned judgment and pointed out that the Reference Court has totally misdirected itself in appreciating the evidence on record and as such came to an erroneous conclusion that the appellants have failed to establish that they are entitled for the enhancement of compensation. The learned Counsel further submitted that even assuming the land acquired was tenanted land, the appellants would be entitled for the agricultural value of the land in respect of land acquired. The learned Counsel further submitted that even though most of the sale instances produced by the appellants cannot be considered as land therein was sold for non agricultural purpose, nevertheless the award passed in the Land Acquisition Case No. 1/1997 at Exhibit 26 is on the basis of agricultural value of the land as the land acquired therein was a paddy field and also bharad land. The learned Counsel further submitted that even the land which was the subject matter of the said land acquired belonged to the appellants and though the distance between two properties is more than five kilometers nevertheless for the purpose of determining the compensation on the basis of :4: agricultural value such factors are not at all relevant. The learned Counsel further submitted that for the purpose of fixing the market value what is essential is to consider the yield of the property and the irrigation and other facilities available to the land acquired in the vicinity so as to determine the value of the land acquired. The learned Counsel further submitted that the infrastructure for the purpose of agricultural use was already installed by the appellants as admittedly there was a well in the acquired portion of the land for the purpose of irrigation. The learned Counsel has taken me through the evidence of AW1 and pointed out that the fact that such irrigation facilities were available in the acquired land has been stated by the said witness. The learned Counsel further submitted that the appeal preferred by the respondents challenging the judgment at Exhibit 26 came to be dismissed by this Court by judgment dated 23.06.2011 in First Appeal No. 126/2001. The learned Counsel further submitted that the value shown in the said award can be the basis for the purpose of fixing the market value of the land. The learned Counsel as such pointed out that even assuming the evidence adduced by the appellants is insufficient they should be given an opportunity to lead further evidence in support of their claim with regard to the yield in respect of the :5: acquired land considering the judgment passed by this Court dated 23.06.2011. The learned Counsel as such submitted that the impugned judgment deserves to be quashed and set aside. 4. On the other hand, Shri Vahidulla, learned Government Advocate appearing for respondents has supported the impugned judgment. The learned Counsel pointed out that there is no evidence on record to substantiate the claim of the appellants that there was any yield which accrued to the appellants from the acquired portion of the land. The learned Counsel further submitted that the land acquired in the judgment dated 23.06.2011 cannot be compared to the land acquired herein considering that the land which was the subject matter of the said acquisition was irrigation land which is not the case in respect of the land in the present proceedings. The learned Government Advocate further pointed out that the learned Judge has rightly appreciated the evidence on record and has come to the conclusion that the sale instances produced by the appellants are not comparable lands with the acquired land and as such the appellants have failed to establish that the amount offered by the Land Acquisition Officer was :6: inadequate. The learned Counsel has taken me through the evidence on record and pointed out that there is no evidence at all adduced by the appellants to substantiate their claim for enhancement of compensation on the basis of yield which accrued to the appellants from the acquired land. The learned Counsel further submitted that the whole exercise of the appellants was to claim the compensation on the basis that it had potentiality of being used for non agricultural purpose which is forbidden under Goa Land Use Act. The learned Counsel further submitted that there is no case for interference in the impugned judgment and as such the appeal deserves to be rejected. 5. Having heard the learned Counsel for the parties and on perusal of the records, the following point arises for my determination :- POINT FOR DETERMINATION Whether the Reference Court was justified to dismiss the claim put forward by the appellants ? 6. In support of the claim of enhancement of compensation, the appellants have examined Shri Deelip Pundalik Narulkar as AW1. In his affidavit he has stated that :7: his father used to cultivate the paddy field in the property bearing survey Nos.62/6, 62/7, 62/8, 62/9 and 62/12 during monsoon season and used to raise pulses after the harvest of the paddy field. He has further stated that the property surveyed under Nos.79/1 and 79/8 is a dry crop land and that the acquired land is ideal for development/construction of residential houses. He has further stated that for the purpose or irrigating the crop his father constructed an irrigation well in the portion of the said property. He has further stated that his father used to obtain 15 khandis of paddy in monsoon and 2 khandis of beans besides vegetables in off season from the acquired land. He has further stated that the rate of paddy per khandi at the relevant time was Rs.400/- per khandi and the rate of beans was Rs.2400/- per khandi. He has further stated that the income of his father was Rs.11,000/- per year. He has further stated that the land acquired was adjoining the main road Chandel to Mapusa and Chandel to Patradevi road. He has also stated that there are several houses in Village Chandel along the main road Chandel – Mapusa and the closest cluster of houses of main village of Chandel are hardly at a distance of about 250 to 300 metres from the acquired land. He has further stated that all the infrastructures facilities were available in the vicinity. He has also stated :8: that there was a stretch of basalt ( black stone ) and stone quarries existing in the property surveyed under Nos.79/1 and 79/8. He has further stated that the appellants also have an agricultural property which is situated at Hassapur, Allorna, Pernem Taluka. The said property is located at about 7 kms from the acquired land and located in interior part having no proper access from the main road. He has further stated that a part of the said property was acquired for Tillari Irrigation Project and there the compensation was fixed for the land acquired was Rs.18/- per square metre. He has further stated that the said land was not even suitable for development purpose. In the cross examination he has admitted that the acquired land was a paddy field as well as bharad land. He has further admitted that there were no tenants in the acquired portion of the land and that the owner of the land was Shri Dessai. He has further admitted that the sale deeds at Exhibit 30 and 31 are in respect of two plots. He has further denied the suggestion that the acquired land and the land which is the subject matter of the Land Acquisition Case No. 1/97 is one kilometer. 7. Next witness which was examined is Shri Ratan Yeshwant Gawas who has stated in his affidavit that his father :9: and mother by a sale deed dated 18.2.1992 sold the portion of the property admeasuring 123 square metres to Shri Jose Dias for a price of Rs.5000/- and that the said land is located at 3 kms from the acquired land. He has further stated that the appellants were using the acquired land for cultivating the paddy and used to raise pulses. He has further stated that there are many houses in the vicinity of the acquired land. He has further stated that all the amenities are available in the proximity of the acquired land. In his cross examination, he has stated that he is an agriculturist by profession. He has further stated that his house is at a distance of about half kilometer from the acquired land. 8. Next witness examined is Shri Mahadev Tuenkar who has stated that he was engaged for the purpose of valuation of the property and the area of the acquired land is 17,010 square metres and is partly double crop paddy field and party dry crop bharad land. In the cross examination, he has stated that he has inspected the site on 15.5.1992 and he has papered the report only in November,1994. He has further stated that he has seen the survey records of the :10: property and the property was originally owned by Shri Dessai. He has denied the suggestion that the market value of the acquired land according to him is Rs.140/- per square metre is not proper. Next witness examined is Shri Krishna Rupaji Naik. He has confirmed the sale deed at Exhibit 29 dated 14.04.1991. 9. The learned Judge whilst passing the impugned judgment on appreciating the evidence on record found that the Goa Land Use Act, 1991 which is deemed to have come into force w.e.f. 2.11.1990 provides that the land which is vested in a tenant under the provisions of the Goa, Daman and Diu Agricultural Tenancy Act, 1964 shall not be used or allowed to be used for any purpose other than agriculture. The learned Judge further held that the appellant could not have sold the said land other than for the purpose of agricultural purpose. The learned Judge relying upon the judgment of this Court has held that the agricultural tenanted land cannot be considered to have building potentiality. Considering the admission of AW1 that the land was tenanted land, the learned Judge has come to the conclusion that the land acquired had no potentiality of being used for any purpose. Hence, the sale deeds at Exhibit 29, 30 and 31 :11: relied upon by the appellants in support of enhancement of compensation were discarded as they were not comparable sale instances for the purpose of determining the market value. The learned Judge has refused to rely upon the award at Exhibit 26 on the ground that there was no cogent evidence on record to establish the yield produced from the property. 10. On perusal of award at Exhibit 26, it is an admitted position that the compensation was fixed on the basis of the agricultural income of the acquired land therein. Though it is the contention of the appellants that the distance of the acquired land from the said property is about 7 kms nevertheless a suggestion has been put to the respondents that the distance is about 1 km. The agricultural value of the land is to be assessed on the basis of the yield and on considering the facility of irrigation etc. available in the vicinity of the acquired land. The appellant AW1 in his evidence has stated the quantity of the yield of paddy and beans from the acquired land. He has also stated the income derived by his late father. There is no serious challenge to the said statements in the cross examination of the said witness. But however for the purpose of fixing the market value of the land acquired on the basis of agricultural income a definite :12: finding has to be adduced disclosing the gross income as well as the expenditure incurred for such agricultural activities and the net income derived from such agricultural activities. Such cogent evidence is not found on record. There is no dispute that the appeal challenging the said judgment at Exhibit 26 came to be dismissed by this Court by oral judgment dated 23.6.2011. It is well settled that such instances can form the basis for the purpose of determining the market value of the land though comparability with both the lands has to be established. In the present case though it is not disputed that both the lands are agricultural lands and have some irrigation facilities but however there is no definite evidence to establish the actual yield from the land acquired. Considering that substantial portion of the land has been lost in acquisition, I find it appropriate in the interest of justice that the appellants should be given an opportunity to lead further evidence with regard to the yield derived from the acquired portion. 11. The Apex Court in the case of Special Land Acquisition Officer V/s Karigowda and others, reported in (2010) 5 SCC 708 has held at paras 29, 45, 46, 50, 75 and 85 thus : “29. It is a settled principle of law that the onus to prove entitlement to receive higher :13: compensation is upon the claimants. In Basant Kumar v. Union of India this Court held that the claimants are expected to lead cogent and proper evidence in support of their claim. Onus primarily is on the claimants, which they can discharge while placing and proving on record sale instances and/or such other evidences as they deem proper, keeping in mind the method of computation for awarding of compensation which they rely upon. In this very case, this Court stated the principles of awarding compensation and placed the matter beyond ambiguity, while also capsulating the factors regulating the discretion of the Court while awarding the compensation. This principle was reiterated by this Court even in Gafar v. Moradabad Development Authority and the Court held as under: (SCC p. 620, para 12) “12. As held by this Court in various decisions, the burden is on the claimants to establish that the amounts awarded to them by the Land Acquisition Officer are inadequate and that they are entitled to more. That burden had to be discharged by the claimants and only if the initial burden in that behalf was discharged, the burden shifted to the State to justify the :14: award.” Thus, the onus being primarily upon the claimants, they are expected to lead evidence to revert the same, if they so desire. In other words, it cannot be said that there is no onus whatsoever upon the State in such reference proceedings. The court cannot lose sight of the facts and clear position of documents, that obligation to pay fair compensation is on the State in its absolute terms. Every case has to be examined on its own facts and the courts are expected to scrutinise the evidence led by the parties in such proceedings. 45. The next question which is of some importance arises out as a corollary to the above discussion. Should there be direct nexus between the potentiality of the acquired land as on the date of the notification or can any matter which may be consequential or remotely connected with the agricultural activity be the basis for determining the market value of the land? Does the scheme of the Act, particularly with reference to Sections 23 and 24 of the Act permit such an approach? This question has to be answered in the negative. What is required to be assessed is the land and its existing :15: potentiality alone as on the date of acquisition. Moreover, the potentiality has to be directly relatable to the capacity of the acquired land to produce agricultural products or, its market value relatable to the known methods of computation of compensation which we shall shortly proceed to discuss. 46. The second circumstance specified in Section 23(1) to be considered by the court in determining compensation is the damage sustained by the person on account of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof. Even from a reasonable practicable view it has to be understood that the compensation which is payable to the claimants is in relation to the acquired land, the standing crops or trees and what they earn from the agricultural crops or fruits or trees on the agricultural land. To extend the benefit for the purposes of compensation, considering that the fruits grown on the agricultural land would be converted into jam or any other eatable products will not be a relevant consideration within the scheme of the Act. The purpose is not to connect the :16: acquisition to remote factors which may have some bearing or some connection with the agricultural activity being carried on, on the land in question. Such an approach by the court is neither permissible nor prudent, as it would be opposed to the legislative intent contained under the provisions of Sections 23 and 24 of the Act. 50. On proper analysis of the abovestated principles and the relevant provisions of law, we have no hesitation in coming to the conclusion that consequential or remote benefits occurring from an agricultural activity is not a relevant consideration for determination of the fair market value on the date of the notification issued under Section 4(1) of the Act. It is only the direct agricultural crop produced by the agriculturist from the acquired land or its price in market at best, which is a relevant consideration to be kept in mind by the court while applying any of the known and accepted method of computation of compensation or the fair market value of the acquired land. 75. It is a settled principle of law that lands of adjacent villages can be made the basis :17: for determining the fair market value of the acquired land. This principle of law is qualified by clear dictum of this Court itself that whenever direct evidence i.e. instances of the same villages are available, then it is most desirable that the court should consider that evidence. But where such evidence is not available court can safely rely upon the sales statistics of adjoining lands provided the instances are comparable and the potentiality and location of the land is somewhat similar. The evidence tendered in relation to the land of the adjacent villages would be a relevant piece of evidence for such determination. Once it is shown that situation and potential of the land in two different villages are the same then they could be awarded similar compensation or such other compensation as would be just and fair. 85. Besides this increasing trend and the fact that all these villages are adjacent villages to each other, the highest price fetched was for the sale instance executed on 26-6-2001 where 17½ guntas of garden land was sold in Village Vaddara Halli (Kasaba Hobli) for a sum of Rs 37,000. The notification under Section 4 was issued on :18: 4-4-2002, that means that all the sale instances of the adjacent comparable lands are in proximity of time to the date of notification under Section 4 of the Act. The average of sale statistical instances referred above comes out to be Rs 1,57,500 for sale of 1 acre 29½ guntas i.e. Rs 90,647.48 per acre. Since the sale instances relied upon are nearly around 1 to 2½ years prior to the date of notification, they are relevant considerations and, therefore, the claimants are entitled to an increase at the rate of 15% per annum compounded.” 12. Considering all these factors, it would be appropriate that the impugned judgment and award passed by the Reference Court be quashed and set aside and matter be remanded to the Reference Court to decide the reference afresh after giving an opportunity to the appellants to lead further evidence to substantiate the contention about the agricultural income derived from the acquired land. No doubt the respondents would be entitled to lead evidence in rebuttal, if they so desired. It would be incumbent upon the appellants to show comparison between the acquired land and the land in the instance at Exhibit 26 and to substantiate the claim for enhancement of compensation. The point for :19: determination is answered accordingly. 13. In view of the above, I pass the following : O R D E R (i) The appeal is partly allowed. (ii) The impugned judgment and award is quashed and set aside. (iii) Land Acquisition Case No. 51 of 2001 is restored to the file of the Reference Court. (iv) The Reference Court is directed to decide the reference afresh in the light of the observations made after hearing both the parties in accordance with law. (v) All the contentions raised by the parties are left open. (vi) The appeal stands disposed of with no order as to costs. (vii) The parties are directed to appear before the Reference Court on 12.09.2011 at 10.00 a.m. F. M. REIS, J at*