1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.280 OF 2003. 1. State of Goa, through the Land Acquisition Officer, P.W.D. (Cell) Altinho, Panaji, Goa. 2. The Executive Engineer, Works Division XIII(R) P.W.D. Mapusa, Goa. .. Appellants Versus 1. Mr. Coleto Simoes, 2. Mrs. Saluzetta Simoes, 3. Mrs. Jacinta Simoes, 4. Mr. Anthony Mascarenhas, 5. Mr. Amancio Simoes 6. Mrs. Gliceria Simoes 7. Mr. Cursino Simoes (since deceased) 7(a) Mrs. Saheeda Gonsalves e Simoes, daughter 7(b) Mr. Clifford Gonsalves, son-in-law, both r/o Cuijira Annexim, Santa Cruz, Ilhas, Goa. 7(c) Mrs. Natasha Rodrigues e Simoes, daughter 7(d) Mr. Charles Rodrigues, son-in-law, both r/o Baga, Davorlim, Salcete, Goa. 7(e) Mr. Ryan Simoes, son of Resp.no.7, unmarried, major r/o. Above, Thally's Hospital, Santa Cruz, Ilhas, Segundo, Bairro, 2 Goa. 8. Mrs. Leticia Simoes, all r/o Danderim, Nerul, Bardez, Goa. .. Respondents. Mr. V. Rodrigues, Additional Government Advocate for the Appellants. Mr. N. Sardessai, Advocate for respondent nos. 1 and 2. None for the other respondents. CORAM :- A. P. LAVANDE, J. DATE : 22 nd October, 2010. ORAL JUDGMENT : Heard learned Counsel for the parties. 2. By this appeal, the appellants take exception to the judgment and award dated 5th August, 2003 passed by the Ist Additional District Judge, Panaji in Land Acquisition Case No.65/2001 partly allowing the reference under Section 18 of the Land Acquisition Act ('The Act' for short). 3. Vide notification issued dated 24th June, 1998 issued under Section 4(1) of the Act which was published in Official Gazette on 14th July, 1998, the Government of Goa acquired lands of several persons for public purpose namely construction of road at Danadi in Nerul village of Bardez 3 Taluka. An area admeasuring 1650 square meters bearing survey no.104/1 of Nerul village belonging to the respondents was part of the acquired land. The respondents claimed compensation at the rate of Rs.1,200/- per square meter. The Land Acquisition Officer ('The LAO' for short) made his award on 9th January, 2001 and fixed the market rate of the acquired land at Rs.19/- per square meter. Dissatisfied with the award, the respondents sought reference under Section 18 and claimed compensation at the rate of Rs. 1,200/- per square meter and also claimed compensation towards coconut, mango and jack-fruit trees. 4. In Land Acquisition Case no.65/2001, the respondents examined two witnesses namely Coleto Simoes- AW1- respondent no.1, S. N. Bhobe- Architect and Government Valuer- AW2 and Prabhakar Navelkar- AW3. The appellants herein examined one witness i.e. Sadanand Arolkar, Assistant Engineer of P.W.D.-RW1. The respondents relied upon the sale deed dated 28th November, 1997 (exhibit 11), sale deed dated 22nd January, 1996 (exhibit 12), sale deed dated 24th December, 1981(exhibit 13) and sale deed dated 10th September, 2001 (exhibit 14) and award of the LAO (exhibit 15). The respondents also relied upon the 4 reports of Mr.S. N. Bhobe and Prabhakar Navelkar-AW3. The report of Mr. Navelkar was in relation to valuation of trees. 5. The Reference Court placed reliance upon the sale deed dated 28th November, 1997 by which the plot of land admeasuring 207 square meters was sold at the rate of Rs.251/- per square meter. The said plot was at the distance of 500 meters from the acquired land and was in respect of similar land except that it was developed plot. The Reference Court after placing reliance upon said sale deed, granted escalation of 10 % p.a. and held that as on the date of publication of Section 4 notification, the value of the said sale deed plot would be 262/- per square meter. Thereafter, the Reference Court deducted 50 % and fixed the market rate of the acquired land at the rate of Rs.131/- per square meter. 6. Mr. Rodrigues, learned Additional Government Advocate for the appellant submitted that the Reference Court ought to have relied upon the sale deed dated 24th December, 1981 (exhibit 13) since considering the area of the sale deed plot, it was more comparable with the acquired land. He further submitted that even if the plot in the sale 5 deed (exhibit 11) could be relied upon, the Reference Court could not have simply deducted 50%, but ought to have made appropriate deductions towards (i) development charges (ii) largeness (iii) for not having access (iv) existence of mundkarial houses in the remaining portion (v) the fact that the purchaser of the sale deed dated 28th November, 1997 was having his house adjoining to the plot in sale deed. 7. Per contra, Mr. Sardessai, learned Counsel for the respondent nos. 1 and 2 submitted that the Reference Court was justified in placing reliance upon the sale deed (exhibit 11) for fixing the market rate of the acquired land since the same was proximate in time and location. He further submitted that the sale deed dated 24th December, 1981 could not have been relied upon since it was executed about 17 years before the publication of Section 4 notification and as such, could not be considered as proximate in time. Mr. Sardessai further submitted that the Reference Court having exercised the discretion after considering the materials on record has fixed the market rate of the acquired land at the rate of Rs.131/- per square meter and as such, this Court sitting in appeal ought not to interfere with the award unless the discretion exercised by 6 the Reference Court is perverse. He, therefore, submitted that no interference is warranted with the impugned judgment and award. 8. The evidence led by Mr. Colato Simoes-AW1, S. N. Bhobe-AW2 and Shri Sadanand Arolkar-RW1, who has been examined on behalf of the appellants herein discloses that the acquired land was a bharad land with some trees therein and there were mundkarial houses existing in the remaining portion of the land. The evidence also discloses that the acquired land was not accessible by road and that is the reason the land was acquired in the present case. Perusal of the sale deed (exhibit 11) discloses that the purchaser had his own house adjoining the plot in sale deed. 9. In view of the above factual position, the question which arises for consideration is whether the Reference Court was justified in fixing the market rate of the acquired land at the rate of Rs. 131/- per square meter. 10. In order to fix the market rate of the acquired land, the Reference Court has relied upon the sale deed dated 28th November, 1997, which was executed about 8 7 months prior to publication of notification under Section 4 of the Act. No doubt, the plot sold by the said sale deed was a developed plot, but in all other respects, it was similar in nature to the acquired land. 11. In view of this position, appropriate deductions have to be made in fixing the market rate of the acquired land on the basis of plot in sale deed (exhibit 11). I am unable to accept the submission of Mr. Sardessai that the Reference Court having exercised discretion on the basis of materials on record, this Court ought not to interfere with the impugned award. In land acquisition matters, the Reference Court as well as this Court in all appeal has to fix the market rate of the acquired land on the basis of the principles laid down by the Apex Court in several judgments. There is no question of absolute discretion left in the Reference Court or for that matter this Court while passing the award. No doubt, the Apex Court in number of judgments has held that the market rate of the acquired land cannot be fixed with mathematical formula and it involves some amount of guess work. But this principle cannot be stretched to the extent to hold that it is the discretion of the Reference Court to fix the market rate of the acquired land. 8 The judgment of the Reference Court will have to be tested on the touchstone of principles laid down by the Apex Court dealing with the valuation of the land acquired under the Act. 12. As stated above, the evidence laid down by the respondents and the appellants herein discloses the following : (i) The acquired land was not developed whereas the plot in sale deed (exhibit 11) was developed. (ii) The sale deed plot had an area of 207 square meters whereas the acquired land was 1650 square meters, which is comparatively larger area. (iii) Sale deed plot had frontage of road whereas the acquired land had no such advantage. (iv) There were no mundkars in the sale deed plot whereas there were mundkars in the remaining portions of the land belonging to the respondents. (v) The purchaser of the plot in sale deed (exhibit 11) had his house adjoining the plot. 13. In the light of the principles laid down by the Apex Court in the case of Chimanlal Hargovinddas Vs. Special Land Acquisition Officer; AIR 1988 SC 1652, comparative advantages and disadvantages of the acquired land vis-a-vis the sale deed plot will have to be taken into 9 consideration. In my opinion, the following deductions would be appropriate on the basis of the plot in sale deed (exhibit 11): (i) Towards development -33% ii) For largeness -10% iii) For not having frontage of road -10% iv) Existence of mundkarial houses and that the purchaser of the plot in sale deed had his house adjoining the plot in the sale deed -12 %. Therefore, the total appropriate deductions would be 65%. Thus, the market rate of the acquired land as on the date of publication of Section 4 notification comes to 92/- per square meter. The respondents are, therefore, entitled to compensation at the rate of Rs.92/- per square meter. 14. The Reference Court has rejected the reference in so far as the claim for compensation towards trees is concerned and there is no appeal preferred against the same by the respondents. 15. In view of the above, the appeal is partly allowed. The market rate of the acquired land is fixed at the rate of Rs.92/- per square meter. Needless to mention that the 10 respondents are entitled to all the statutory benefits under the Act. The parties to bear their own costs. A. P. LAVANDE, J. SMA