1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 115 OF 2005 Mr. Jose Cruz Dias, Resident of H. No.6-A, Murida Pequeno, Nuvem, Salcete-Goa. ... Appellant versus 1. Dy. Collector(L.A.), South Goa, Margao. 2. The Executive Engineer, Works Division-VI(Roads), Fatorda, Margao-Goa. ... Respondents Shri M. B. Da Costa, Senior Advocate with Shri J. A. Lobo, Advocate for the Appellant. Shri S. Vahidulla, Additional Government Advocate for the Respondents. CORAM : N. A. BRITTO, J. DATE : 15TH OCTOBER, 2010. ORAL JUDGMENT Heard the learned Senior Counsel and the learned Additional Government Advocate on behalf of both parties. 2. This appeal is directed against Judgment dated 23-12-2004 2 of the learned reference Court in L.A.C. No.37 of 2003, by which the learned reference Court rejected the reference made by the applicant i.e. the appellant herein. 3. Amongst others, there are two properties surveyed under Nos.119/4 and 119/12 adjoining one another in village Nuvem. By sale deed dated 10-3-2000, one Pacheco sold a plot of land admeasuring 943.23 sq. meters of survey No.119/12 at the rate of `500/- per sq. meter. This plot of the sale deed was bounded towards the west and north by a public road. 4. By notification issued under Section 4(1) of the Land Acquisition Act, 1894, the Government acquired an area of 325 sq. meters of the applicant's land surveyed under No.119/4 of Nuvem village for the construction of the road from Duncolim to Murida-Pequeno under Village Panchayat of Seraulim and Nuvem. By award dated 30-8-2002, the Land Acquisition Officer was pleased to award compensation to the applicant at the rate of ` 5/- per sq. meter. The applicant got a reference made, and sought for enhancement at the rate of 3 ` 500/- per sq. meter. The applicant relied upon the said sale deed dated 10-3-2000 for the purpose of enhancement. 4. As can be seen from the applicant's evidence, the acquired property was a flat land which was fit for the construction of houses. The applicant had also stated that the area was in the settlement zone and full of residential houses, and that major amenities were available at Nuvem junction which was at a distance of 500 meters from the acquired land. The major amenities available at the Nuvem junction were the church, school, college, grocery shops, fish market, etc. 5. The learned reference Court took note of the said sale deed dated 10-3-2000 and considered that the plot of the said sale deed was on the east of the acquired property. However, the learned reference Court came to the conclusion that there was already a road which was existing prior to the acquisition, and, therefore the acquired land was not comparable to the plot of the sale deed. The learned reference Court also noted that the acquired property was a narrow strip which was already being used as a footpath and also by two wheelers. The learned reference Court also took note of the fact that the applicant was awarded 4 `15,245/- for trees but overlooked the fact that the said compensation had to be excluded under clause secondly of sub-section(1) of Section 23 of the Land Acquisition Act. The learned reference Court rejected not only the claim for enhancement of the value of the trees but also the market value of the acquired land. 6. Shri M. B. Da Costa, learned Senior Counsel appearing on behalf of the applicant submits that the learned reference Court ought to have enhanced the compensation payable based on a Judgment of this Court in the case of State of Goa and another v. Antonio Almeida and others(Judgment dated 23-6-2004 of the Division Bench in First Appeal No.176 of 2000). In the said Division Bench Judgment of this Court it was stated thus:- “As stated before, what has been acquired in this case is the nominal or naked right of ownership of the respondents in the said road, which was subsequently asphalted by the Government. In our opinion, in such a case, the market value to be given to such a land ought to be 20% of the value fetched by the owners to the surrounding or adjacent land and that being the position, once the price fetched for sale deed dated 5 16-6-1986, Exh.AW1/K was taken into consideration, the said market value works out to Rs.66/- per sq. meter which, in our opinion, would be the correct market value payable to the respondents on account of the acquisition of their right of ownership in and upon the said road”. 7. In my view, the said Judgment of the Division Bench can be followed in this case for assessing the compensation payable to the applicant. The applicant could not have been denied the compensation only because there was an existing footpath used by the people of the locality and two wheelers as well. On the basis of the sale deed dated 10-3-2000 and following the principle laid down by the said Judgment of the Division Bench compensation payable to the applicant would work out to `100/- per sq. meter which the applicant would be entitled to with all consequential statutory benefits. 8. Accordingly, the appeal is allowed. The Judgment of the learned reference Court dated 23-12-2004 is hereby set aside and the applicant is held entitled to compensation at the rate of `100/- per sq. meter with all consequential statutory benefits. `15,423/- paid for the 6 value of the trees under clause secondly of sub-section(1) of Section 23 of the Act shall not be deducted from the compensation ordered to be paid herein. N. A. BRITTO, J. RD