- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 224 OF 2004 with CROSS OBJECTON NO. 3 OF 2005 1 Land Acquisition Officer, PWD(Cell), Altinho, Panaji. 2 The Executive Engineer, Works Division-XXV(R), PWD, Fatorda, Margao. ........ Appellants. Versus Smt. Anandibai P. Prabhudessai R/o. H.No.96, Opposite N.V. Kamat, Behind Pandva Chapel, Aquem, Alto, Margao, Goa. Since deceased through legal heirs, 1(a) Shri Sandesh Narcinva Hedge Dessai, 43 years of age, service, R/o. Quepem, Goa. 1(b) Smt. Swati Sandesh Hegde Dessai, 38 years of age, housewife, R/o. Quepem, Goa. 1(c) Smt. Suranga Porob Dessai alias Sheela Datta - 2 - Kamat, 66 years of age, housewife, R/o. Curchorem, Goa. 1(d) Shri Data Crisna Kamat, 73 years of age, businessman, R/o. Curchorem, Goa. 1(e) Shri Crisna Puruxotoma Porobo Dessai alias Shri Krishna Purushottam Prabhu Desai, 62 years of age, R/o. Loliem, Canacona, Goa. 1(f) Smt. Shamala Crisna Dessai alias Smt. Shamal Krishna Prabhu Desai, 58 years of age, housewife, r/o. Loliem, Canacona, Goa. 1(g) Shri Datta Puruxotoma Porobo Dessai alias Shri Datta Purushottam Prabhu Desai, 60 years of age, R/o. Loliem, Canacona, Goa. 1(h) Smt. Saroja Datta Porobo Dessai alias Smt. Saroj Datta Prabhu Dessai, 60 years of age, R/o. Kazoker, Loliem, Canacona, Goa. ......... Respondents. Ms. S. Linhares, Additional Government Advocate for the Appellants. Mr. Sudesh Usgaonkar, Advocate for the Respondents. - 3 - CORAM :-F. M. REIS, J. DATE:-10th DECEMBER, 2010. JUDGMENT : The above appeal challenges the Judgment and Award dated 25.5.2004 passed by the learned Additional District Judge, South Goa, Margao in Land Acquisition case no.126/2001. 2. By notification issued under Section 4 of the Land Acquisition Act, 1894,( hereinafter referred to as the 'said Act' ), the appellants acquired portion of the property admeasuring 245 square metres from the property surveyed under no. 116/2 and 800 square metres from the property surveyed under survey no.116/4 from village Loliem of Canacona Taluka for the purpose of construction of a road from Shri Shankarsha Temple to NH-17 at Daptamol. The said notification was dated 14.10.1996 and published in the Official Gazette dated 20.2.1997. 3. By an award passed under section 11 of the said Act dated 5.1.2000, the Land Acquisition Officer offered compensation at - 4 - the rate of Rs.6/- per square metre for the land acquired. Being dissatisfied with the said amount the respondents preferred a reference under Section 18 for enhancement of compensation and claimed an amount of Rs.150/- per square metre for the land acquired. 4. The Reference Court by the impugned Judgment and award dated 25.5.2004, fixed the compensation in respect of the land surveyed under no. 116/2 at the rate of Rs.16/- per square metre and in respect of the property surveyed under no. 116/4 at the rate of Rs.42/- per square metre. Being aggrieved by the said Judgment and Award, the Appellants have preferred the present appeal. Respondents after service of notice of the appeal memo have filed the above cross objection and claimed enhancement of the compensation awarded to the tune of Rs. 150/- per square metre. 5. Ms. S. Linhares, learned Additional Government Advocate appearing for the Appellants has assailed the impugned judgment and submitted that the Reference Court failed to consider that the land acquired was a narrow strip of land which was not abutting the national highway and as such had no potentiality of being used for non agricultural purpose. Learned Counsel further submitted - 5 - that there is no evidence on record to substantiate the claim of the respondents for any enhancement of compensation. Learned Counsel further submitted that the land acquired was in the interior area and had no accessibility and as such the same could not be used for any other purpose other than for agriculture. Learned Counsel took me through the evidence on record and pointed out that the Reference Court has totally overlooked the fact that the sale deeds produced by the respondents are not comparable with the land acquired. She further submitted that the respondents have failed to discharge the burden cast on them to establish that the amount offered by the Land Acquisition Officer was inadequate. She as such submitted that the impugned judgment and award deserve to be quashed and set aside as the amount offered by the Land Acquisition Officer was just and proper. Learned Counsel further submitted that the property surveyed under no. 116/2, is totally inferior to the land acquired which is surveyed under no. 116/4 and as such there is no question of any enhancement of the said compensation. 6. On the other hand Mr. Sudesh Usgaonkar, learned Counsel appearing for the respondents has pointed out that the Reference Court has totally misdirected itself in fixing the market - 6 - value of the acquired land. Learned Counsel pointed out that the sale instances at exhibit 15 and 16 are comparable to the land acquired and as such deduction made by the Reference Court are totally erroneous. Learned Counsel further submitted that the dissimilar features could be accounted for by effecting deduction but however the Reference Court has granted higher deductions which are not at all tenable. Learned Counsel further submitted that on perusal of the plan produced by the respondents the property surveyed under no. 116/4 is adjoining the road and as such the same was accessible for construction purpose. Learned Counsel further submitted that the said sale instance produced by the respondents are across the existing NH- 17 and very close to the acquired land. Learned Counsel further submitted that the question of effecting deduction to the extent of 75% as done by the Reference Court is totally erroneous and cannot be sustain in law. Learned Counsel further submitted that even the property surveyed under no.116/2 is concerned the same is comparable to the sale instances produced by the respondents and as such the question of differentiating in the fixation of the compensation to said two lands would not arise. Learned Counsel further submitted that on the basis of the evidence on record the minimum compensation to be fixed as far as the acquired land is concerned is at - 7 - the rate of Rs.100/- per square metre and as such it is submitted that the cross objection deserves to be allowed. 7. Upon hearing the learned Counsel and on perusal of the record, the following point for determination arise in the present appeal:- POINT FOR DETERMINATION Whether the Reference Court was justified to fix the market value of the acquired land surveyed under no. 116/4 at the rate of Rs.42/- per square metre and the land surveyed under no. 116/2 at the rate of Rs.16/- per square metre? 8. In support of the claim for enhancement, the respondents have examined their power of attorney holder Shri Krishna Purshottam Prabhudesai. He has stated in his affidavit that the land belonging to the respondents was acquired for the construction of the road from Shri Shankarsha temple to the NH-17. He has further stated that the land which is acquired is belonging to the respondents which is surveyed under no. 116/2 and 116/4 admeasures an area of 275 square metres and 800 square metres respectively. He has further stated that the acquired land is at a distance of 300 metres from the - 8 - main road leading from Canacona to Karwar. He has further stated that the land surveyed under no. 116/14(part) and 116/15 are abutting the national highway and towards its eastern side the land surveyed under no. 116/2 is located. He has further stated that the property surveyed under no. 116/14(part) and 116/2 together forms one single property and that the property surveyed under no. 116/16 and 116/4 together forms another single property. He has further stated that the area is basically settlement area. He has produced the sale instances and amongst the sale deed produced by him is one dated 27.9.1995 which is at exhibit 15 which is executed between Ratnabai Venkatesh Varik and others and Mr. Pateleao Silveiro Dias whereby a part of the property surveyed under no.356/10 from village Loliem admeasuring an area 3640 square metres was sold for total consideration of Rs.4,71,000/- out of which an area of 1500 square metres was sold at Rs.100/- per square metre in view of the agreement for sale which was subsisting and balance area of 2140square metres was sold at Rs.150/- per square metre. He has also produced another sale instance which is also dated 27.9.1995 whereby an area of 425 square metres was sold at the rate of Rs. 150/- per square metre from the property surveyed under no. 356/10 of village Loliem. He has further stated that said lands are at a distance of 500 metres from the acquired land. In his - 9 - cross examination he has admitted that the acquired portion of the property surveyed under no. 116/2 and 116/14 are not abutting the national highway. He has denied the suggestion that the property surveyed under no. 116/14 and 116/2 are not belonging to one single party. He has further admitted that the land purchased pursuant to the sale deed at exhibit 16 was for the construction purpose. He has also admitted that the bungalow is located in the property which is subject matter of the sale instance at exhibit 16. The next witness examined by the respondents is Mr. Vikas Dessai, who is a registered valuer. He has stated on affidavit that the acquired land is at a distance of about 300 metres from the road leading from Canacona to Karwar. He has further stated that the acquired land falls in the settlement zone and that there are houses within 15 metres distance from the acquired land. He has further stated that the infrastructure for development is available in the vicinity of the acquired land. He has further stated that the plot which is subject matter of the sale instance dated 27.9.1995 is at a distance of 500 metres from the acquired land. He has further stated that the said lands were purchased for the purpose of development pursuant to the said sale instance. He has also filed valuation report. In the cross examination he has stated that in the property at exhibit 15 and 16 there exists no houses. He has admitted - 10 - that the land which is subject matter in the sale instances at exhibit 15 and 16 was purchased to construct the houses. 9. The Reference Court while passing the impugned Judgment has come to the conclusion that the appellants have not disputed the genuineness of the sale instances at exhibit 15 and 16. Learned Judge further held that the expert evidence indicates that the nature of the sale deed plot is similar to the acquired land and as such the said sale instance can form the basis for determining the market value of the acquired land. Learned Judge further held that the acquired land was forming the eastern portion of the property surveyed under no. 116/4. Learned Judge held that there were disadvantageous factor with regard to the acquired land as it did not have a frontage and the sane was sloppy and hilly, effected deduction of 75% and arrived at a figure at Rs.38/- for the property surveyed under no. 116/4. Considering that there was a gap of one year between the sale deed plot and the land acquired after giving an escalation of 10% the compensation was fixed at the rate of Rs.42/- per square mere. As far as the property surveyed under no. 116/2 is concerned the Reference Court effected deduction of 90% as the said portion of the property was very narrow strip of land and in view of - 11 - the shape and size the said portion of the property was not suitable for the construction purpose. The Reference Court as such fixed the compensation of the property surveyed under no. 116/2 at the rate of Rs.16/- per square metre. The Reference Court also worked out the compensation on the basis of the award at exhibit 21 and after over all appreciating of the evidence on record has fixed the market value of the property surveyed under no. 116/4 at the rate of Rs.42/- per square metre and that of the property surveyed under no. 116/2 at the rate of Rs.16/- per square metre. 10. On perusal of the evidence on record and material produced by the respondents, I find that the Reference Court was justified to consider the sale instances at exhibit 15 and 16 as comparable to the land acquired. But however, the property which was the subject matter of the said sale instance were abutting the high way from Margao to Karwar and had a large frontage. Apart from that the land which is surveyed under no. 116/4 is concerned had no frontage to the main road. Though it was the contention of learned Counsel appearing for the respondents that the entire property surveyed under no. 116/4 is bounded on one side by said Margao Karwar high way, nevertheless, it is an admitted fact that the portion - 12 - of the said land acquired admeasuring 800 square metres from the property surveyed under no. 116/4 was by itself not accessible to the road. As such, for the purpose of providing any access to the acquired portion of the land, substantial expenditure would have to be incurred considering the distance from existing road to the acquired portion of the land. Apart from that the evidence on record suggest that there was a gradient in the said portion of the property surveyed under no. 116/4 is concerned. As the land subject matter of the sale instances at exhibit 15 and 16 had a large frontage to the main road, it had a better advantage as it had more demand as compared to the land which is located in the interior. The Reference Court has effected deduction of 75% on all such count on account of dissimilarity. 11. In 2009 (14) SCC 367 in the case of Mohd. Raofuddin v. Land Acquisition Officer, the Apex Court has held at paras 13 and 14 thus: 13. Yet again in Viluben Jhalejar Contractor v. State of Gujarat, making reference to a number of cases on the point, it was observed as follows: “18. One of the principles for determination of the amount of compensation for acquisition of land would be the willingness of an informed buyer to offer the price therefor. It is beyond any cavil that the price of the land which a willing and informed buyer would offer would be different in the cases where the owner is in possession and enjoyment of the property and in the - 13 - cases where he is not. 19. Market value is ordinarily the price the property may fetch in the open market if sold by a willing seller unaffected by the special needs of a particular purchase. Where definite material is not forthcoming either in the shape of sales of similar lands in the neighbourhood at or about the date of notification under Section 4(1) or otherwise, other sale instances as well as other evidences have to be considered. 20. The amount of compensation cannot be ascertained with mathematical accuracy. A comparable instance has to be identified having regard to the proximity from time angle as well as proximity from situation angle. For determining the market value of the land under acquisition, suitable adjustment has to be made having regard to various positive and negative factors vis-à-vis the land under acquisition by placing the two in juxtaposition. The positive and negative factors are as under: Positive factors Negative factors (i) smallness of size (i) largeness of area (ii) proximity to a road (ii) situation in the interior at a distance from the road (iii) frontage on a road (iii) narrow strip of land with very small frontage compared to depth (iv) nearness to developed area (iv) lower level requiring the depressed portion to be filled up (v) regular shape (v) remoteness from developed locality (vi) level vis-à-vis land under acquisition (vi) some special disadvantageous factors which would deter a purchaser (vii) special value for an owner of an adjoining - 14 - property to whom it may have some very special advantage. 14. Thus, comparable sale instances of similar lands in the neighbourhood at or about the date of notification under Section 4(1) of the Act are the best guide for determination of the market value of the land to arrive at a fair estimate of the amount of compensation payable to a landowner. Nevertheless, while ascertaining compensation, it is the duty of the Court to see that the compensation so determined is just and fair not merely to the individual whose property has been acquired but also to the public which is to pay for it. In 2008 (17) SCC 436 in the case of CESC Limited V/s. Sandhya Rani Barik & Ors., the Apex Court has held at para 16 and 21 thus: 16. The case of the appellant was that the plot which was acquired for their use was wholly landlocked. This forms a very important factual issue which is important while determining the compensation. 21. Where a very large plot of land has been acquired and the comparison is sought to be made with a comparatively smaller piece of land which has been sold or otherwise dealt with, then in that event, a percentage of the price is to be knocked off because of the largeness itself of the acquired land. Accordingly, the High Court made the deductions. The High Court also dealt with the question of land locking and held that it was a special feature which had to be taken note of. 12. Considering the said judgments of the Apex Court, I find - 15 - that the deduction is on the higher side. Taking into account the dissimilar factors referred to above, I find that the deduction of 60% would be just and appropriate. The amount as such works out to Rs. 60/- per square metre. After giving an escalation of 8% per annum, considering that the land was located in a rural area, the amount works out to Rs.65/- per square metre. 13. With regard to the property surveyed under No.116/2, I find that the said portion of the land is not adjoining any road and it is totally land locked. The said portion of the property appears to be a narrow strip of land as seen from the plan produced on record. In view of the said dissimilarity, a further deduction would have to be effected for the purpose of determing the market value of the said portion of the land acquired. The Reference Court has effected a deduction of 90% while fixing the comepsnation payable for the said portion of the land acquired. Considering the said dissimilarity, I find that the deduction of 80% would be just and appropriate. The comepsation, as such, works out to Rs.30/- per square metre and after escalation the amout is rounded up to Rs.32/- for the land acquired in respect of the property surveyed under no.116/2 of Loliem Village. To that extent, the impugned judgment and award deserves to be - 16 - modified. 14. In view of the above, I pass the following order: O R D E R (i) The appeal is dismissed and the cross objections are partly allowed. (ii) The impugned judgment and award is modified and the compensation in respect of the land acquired from the property surveyed under no.116/4 is fixed at Rs.65/- per square metre and that in respect of land under survey No.116/2 is fixed at Rs.32/- per square metre for the land acquired. Remaining part of the award granting statutory benefits stands confirmed. (iii) The appeal and cross objections stand disposed of accordingly with no order as to costs. F. M. REIS, J. vn*/NH