1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.242 OF 2004 & CROSS-OBJECTION NO.6/2005 FIRST APPEAL NO.242 OF 2004 1. Special Land Acquisition Officer South Goa KRCL, Amey Guest House, Davorlim Road, P.O. Navelim, Salcete-Goa 2. The Chief Engineer, Konkan Railway Corporation Ltd., Rawanfond, Margao, Goa. .. Appellants Versus 1. Roque Antonio Lourenco das Dores da Silva, (since deceased) Through his Lrs. 1(a) Mr. Savio da Silva Major, Son of the deceased; 1(b) Mr. Movin Da Silva, Major, Son of the deceased Both resident of Casa Peral, Borda, Margao- Goa 1(c) Mr. Ivan D'Silva R/o Casa Peral No.364, Borda, Margao, Goa. 2. Fr. Victor Minguel Heliadoriao P. D'Silva (expired) Both r/o Casa Peral, Borda, Margao-Goa .. Respondents Mr. A. D. Bhobe, Advocate for the appellants. 2 Mr. R. Menezes, Advocate for respondent nos.1(a) to 1(c). WITH CROSS-OBJECTION NO.6/2005 IN FIRST APPEAL NO.242 OF 2004 Roque Antonio Lourenco das Dores da Silva, (deceased) Resident of Casa Peral, Borda, Margao, Goa Represented by Lrs. 1) Mervyn D'Silva 2) Mr.Ivan D'Silva 3) Mr. Savio D'Silva R/o Casa Peral No.364, .. Applicants Borda, Margao, Goa (Original respondent) Versus 1. Special Land Acquisition Officer South Goa KRCL, Amey Guest House, Davorlim Road, P.O. :Navelim, Salcete-Goa; and 2. The Chief Engineer, Konkan Railway Corporation Ltd., Rawanfond, Margao, .. Respondents Goa. (Original appellants) Mr. R. Menezes, Advocate for the applicants. Mr. A. D. Bhobe , Advocate for the respondents. 3 CORAM :- A. P. LAVANDE, J. DATE : 18 th November, 2011. ORAL JUDGMENT : Heard Mr. Bhobe, learned Counsel for the appellants in F.A. No.242/2004 / respondents in Cross- Objection No.6/2005 and Mr. R. Menezes, learned Counsel for respondent nos.1(a) to 1(c)/ the applicants in Cross- Objection No.6/2005. 2. By this appeal, the appellants take exception to the judgment and award dated 24th June, 2004 passed by the IIIrd Additional District Judge, South Goa, Margao in Land Acquisition Case No.280/1995 partly allowing the reference under Section 18 of the Land Acquisition Act ('The Act' for short). 3. By Notification issued under Section 4 of The Act dated 18th June, 1991 which was published in the official gazette dated 27th June, 1991, the Government of Goa acquired the lands of several persons for public purpose i.e. for construction of new B.G. Line for Konkan Railway. An area admeasuring 3420 square metres of P.T. Sheet No.144 4 at Mungul in Margao city belonging to the original applicant before the Reference Court, was part of the acquired land. The respondents claimed compensation at the rate of Rs.400/- per square metre and also claimed compensation in respect of trees existing in the acquired land. The Land Acquisition Officer fixed the compensation at the rate of Rs.65/- per square metre and awarded Rs.24,478/- for trees existing therein. 4. Aggrieved by the inadequacy of the compensation granted, the respondents sought reference under Section 18 of The Act and claimed Rs.400/- per square metre and also higher compensation in respect of the trees and further claimed severance charges in respect of un-acquired portion of the land. 5. In Land Acquisition Case No.280/1995 before the IIIrd Additional District Judge, South Goa, Margao, the respondents examined AW1- Victor Minguel H. P. D'Silva and AW2- Ernesto Moniz- the valuer. The appellants herein did not examine any witness in support of their case. In the course of his evidence AW1-Victor D'Silva produced sale deed dated 17thJune,1988-exh.AW1/C by which an area of 866 5 square metres was sold at the rate of Rs.138/- per square metre; sale deed dated 16th June, 1993-exh. AW1/D by which the plot was sold at the rate of Rs.500/- per square metre; sale deed dated 28th November,1990- exhibit AW1/F by which another plot was sold at the rate of Rs.550/- per square metre; sale deed dated 25thSeptember,1989- exh.AW1/E by which the plot was sold at the rate of Rs.300/- per sq. metre; award in Land Acquisition Case No.27/1994 dated 9th May, 2003 and award dated 15th March, 1997 passed by the District Judge,South Goa,Margao in Land Acquisition Case No.100/1992 by which compensation was awarded at the rate of Rs.200/- per square metre. In the cross-examination of AW1-Victor-the respondent no.2 herein produced sale deed dated 11th December,1985 by which the respondents herein had sold an area admeasuring 1716.92 square metres to two persons, who claimed to be mundkars in respect of the portions of unacquired land belonging to the respondents. The said plot of land was sold at the rate of Rs.26/- per square metre. Insofar as the sale deed dated 11th December, 1985 relied upon by the respondents herein is concerned, the Reference Court held that the same could not be relied upon since the sale deed was executed on 11th December,1985 i.e. about six years prior to the publication of Notification under 6 Section 4 of The Act. The Reference Court also chose not to rely upon the said sale deed on the ground that the sale was to mundkar, who had structures on the land and held that the price mentioned in the sale deed did not represent the market rate of the acquired land. The Reference Court further held that the sale deed dated 17th June, 1988 by which the plot of 866 square metres was sold at the rate of Rs.138/- per square metre, was comparable sale instance since the nature of the acquired land and that of the sale deed plot was same. The Reference Court also held that the said plot was situated at a distance of about 10 metres across the railway track and being in the proximity could be the basis for fixation of the market rate of the acquired land. Thereafter, the Reference Court granted increase of 10 % p.a. on compounding basis on the basis of the judgment of the Apex Court in the case of Salgaonkar and brothers Vs. Union of India. 1995(2) SCC 302 and arrived at the figure of Rs.180/- per square metre in respect of the sale deed plot. The Reference Court thereafter deducted 50 % i.e. 10 % each on the following factors : (i) The acquired land was bigger as compared to the sale deed plot. 7 (ii) The acquired land was used as an access by the respondents. (iii) There were electricity poles in the acquired land. (iv) The acquired land was adjacent to railway track. (v) The acquired land was narrow strip of land. Thus, after deducting 50 %, the Reference Court fixed the market rate of the acquired land at the rate of Rs.90/- per square metre. 6. Mr. Bhobe, learned Counsel appearing for the appellants submitted that the Reference Court ought not to have relied upon the sale deed dated 17th June, 1988 and ought to have relied upon the sale deed dated 11th December, 1985 by which the portion of the unacquired land belonging to the respondents was sold at the rate of Rs.26/- per square metre in the year 1985 and ought to have fixed the market rate on the basis of the said sale deed. Placing reliance upon the judgment of the Apex Court in the case of Shakuntalabai (Smt) and others Vs. State of Maharashtra; (1996)2 SCC 152, learned Counsel submitted that when the market rate of the acquired land is available, the market value of the adjacent land cannot be taken into consideration. In the alternative, 8 Mr. Bhobe submitted that having regard to the negative factors of the acquired land vis-a-vis the sale deed plot dated 17th June, 1988, the Reference Court ought to have made higher deductions at least to the extent of 60 % and to that extent the Reference Court has erred. Learned Counsel, therefore, submitted that the appeal filed by the appellants is liable to be allowed and the cross-objection filed on behalf of the respondents is liable to be dismissed. 7. Mr. Menezes, learned Counsel appearing for the respondents, who have filed the cross-objection claiming compensation at the rate of Rs.120/- per square metre, submitted that the Reference Court ought to have fixed the market rate of the acquired land at the rate of Rs.120/- per square metre after considering the award dated 15th March, 1997 passed by the District Court, Margao in Land Acquisition Case No.100/1992 in respect of which the market rate of the land, which was situated in Margao city near Civil and Criminal Court, Margoa, was fixed at Rs.200/- per square metre. According to Mr. Menezes, in the said case Notification under Section 4 of The Act was issued on 16th October, 1986 and considering the yearly increase on compounding basis, the Reference Court ought to have fixed 9 the market rate of the acquired land at least at the rate of Rs.120/- per square metre. Learned Counsel further submitted that the finding of the Reference Court that electricity poles were situated in the acquired land is contrary to the record inasmuch as the evidence of AW1- Victor discloses that the electricity poles were situated by the side of the acquired land and not in the acquired land. Learned Counsel further submitted that the Reference Court could not have deducted 10 % on the ground that the acquired land was strip of land inasmuch as the said land could have been used for the purpose of FAR in respect of the remaining portion of the respondents' land. Mr. Menezes further submitted that the Reference Court erred in not granting compensation towards severance charges inasmuch as the evidence led by the respondents squarely discloses that on account of acquisition, the rest of the remaining portion of the respondents' land was rendered useless. Mr. Menezes further submitted that deduction of 50 % is on higher side and as such, the appeal filed by the appellants deserves to be dismissed and the cross-objection filed by the respondents deserves to be allowed. 8. I have considered the rival submissions, perused 10 the record and the judgment relied upon. 9. In view of the submissions made, the following point arises for determination in the appeal : “Whether the Reference Court was justified in fixing the market rate of the acquired land at the rate of Rs.90/- per square metre ? If not, what was the market rate of the acquired land as on the date of publication of Section 4 Notification ?” 10. As stated above, the Reference Court has refused to place reliance upon the sale deed dated 11th December, 1985 by which an area admeasuring 1716.92 square metres was sold by the respondents to the mundkar on the ground that the consideration mentioned in the said sale deed did not represent the market rate of the acquired land. At this stage, it is pertinent to note that the respondents herein did not choose to place on record a copy of the said sale deed in the course of their evidence which was expected of them. It was expected of the respondents to place on record a copy of the sale deed and tender appropriate evidence to justify the circumstances in which the respondents were compelled to 11 sell the said plot of land to the mundkar. Be that as it may, the fact remains that by the said sale deed, plot was sold to mundkar and as such, to that extent, the Reference Court is right in holding that the consideration mentioned in the sale deed did not represent the market rate of the acquired land. In the case of Shakuntalabai (supra), the Apex Court has held that where the owner himself had purchased the land few years prior to acquisition, the same would be the best evidence to determine the market rate of the acquired land. However, in the present case, as stated above, the sale was to a mundkar and as such, the consideration mentioned in the sale deed did not represent the market rate of the acquired land. Therefore, in my considered opinion, the Reference Court was justified in placing reliance upon the sale deed dated 17th June, 1988 by which the plot of 866 square metres which was situated across the acquired land and similar in nature, was sold at the rate of Rs.138/- per square metre. Insofar as the deductions are concerned, the Reference Court was justified in making deductions on account of first three factors. Insofar as the finding given by the Reference Court that electricity poles were situated in the property is concerned, no doubt the same is not factually correct. The evidence led by the respondents discloses that 12 the electricity poles and fittings were situated across the acquired land. Therefore, in my view, this would be negative factor to be considered while fixing the market rate of the acquired land. Insofar as the finding of the Reference Court that 10 % deduction was warranted since the acquired land was a narrow strip of land is concerned, I find merit in the submission of Mr. Menezes that this could not be the ground for holding against the respondents when admittedly, the respondents had land adjoining the acquired land. If the respondents did not have any land adjoining the acquired land, probably the Reference Court would have been justified in making appropriate deduction on the ground that the acquired land was a strip of land. However, I am of the opinion that in respect of largeness of the acquired land, the appropriate deduction would be 20 % instead of 10 % as has been held by the Reference Court. Therefore, on the first four grounds, the appropriate deduction would be 50 %. Therefore, in my considered opinion, the market rate of the acquired land as on the date of publication of Section 4 Notification works out to Rs.90/- per square metre, though for different reasons. The Reference Court is justified in adjusting Rs.24,478/- (Rs. Twenty Four Thousand Four Hundred Seventy Eight only) awarded by the Land 13 Acquisition Officer for the trees against the compensation payable to the respondents in respect of the acquired land. 11. Insofar as the submission made by Mr. Menezes that the Reference Court ought to have placed reliance upon the award dated 15th March, 1997 passed in Land Acquisition Case No.100/1992 is concerned, I find no merit inasmuch as having regard to the location of the land involved in the said case, the Reference Court was perfectly justified in not placing reliance upon the said award. The land involved in the said award was situated in the heart of Margao city which is near Civil and Criminal Court whereas the land in the present case, is situated quite away from the land in the said award and, therefore, the Reference Court was justified in placing reliance upon the sale deed dated 17th June, 1988 and fixing the market rate of the acquired land. 12. In the result, therefore, I do not find any merit in the appeal as well as in the cross-objection. Consequently, the appeal and cross-objection are dismissed. Parties to bear their own costs. A. P. LAVANDE, J. SMA