-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 141 OF 2005 1. Deputy Collector (LAO) Panaji – Goa. 2. The Director of Tourism, Panaji – Goa. .....Appellants V e r s u s 1. Shri Agnelo J. A. Pinto 2. Dr. Carlos A. G. Pinto, Both r/o Opp. Canara Bank, St. Cruz, Ilhas, Goa. …...Respondents Mr. G. Shirodkar, Government Advocate for the Appellant. Mr. R. G. Ramani, Advocate for Respondent no.1and 2. CORAM : A. S. OKA F. M. REIS, JJ. Judgment Reserved on : 15 th June, 2010. Judgment Pronounced on : 12 th August, 2010. JUDGMENT : (Per F. M. Reis, J.) The Appeal challenges the Judgment and Award dated 30th December, 2004, passed by the learned Adhoc Addl. District Judge, North Goa, at Panaji, in Land Acquisition Case no. 112/1998, whereby the compensation has been fixed for the land acquired in a reference under Section 18 of the Land Acquisition Act, 1894, at the rate of Rs.1,434/- per square metre for an area of 4267 square metres. 2. By notification under Section 4 of the Land Acquisition Act, 1894, (herein after referred to as 'the said Act'), published in the Official Gazette dated 6th -2- January, 1994, the land belonging to the Respondents was sought to be acquired for tented accommodation for tourists at Miramar, Panaji. The land of the Respondents was surveyed in the City Survey Records being part of Chalta no.1 of P. T. Sheet no. 117 having an area of 4217 square metres and Chalta no. 2 of P. T. Sheet no. 117 having an area of 50 square metres, both situated at Miramar, Panaji. 3. By an award dated 22nd April, 1996, the Land Acquisition Officer offered compensation at the rate of Rs.210/- per square metres to the Respondents. Being dissatisfied with the said compensation, the Respondents sought a reference under Section 18 of the said Act, claiming a compensation at the rate of Rs.5000/- per square metre for the land acquired. 4. After recording of evidence and hearing the parties, the Reference Court by impugned Judgment and Award dated 30th December, 2004, fixed the compensation at the rate of Rs.1,434/- per square metre for the land acquired. 5. Being aggrieved by the said Award, the Appellants have preferred the present Appeal. The learned Government Advocate appearing for the Appellants has submitted that the Reference Court totally erred in arriving at the conclusion that the market value of the land acquired was at the rate of Rs.1,434/- per square metre. The learned Counsel submitted that the Reference Court has not at all considered the well settled principles of law in determining the compensation as provided under Section 23 of the said Act and as such, erroneously came to the conclusion that the Respondents were entitled for enhancement of compensation. -3- The learned Counsel has taken us through the evidence on record and demonstrated the inconsistencies in the evidence of the parties which lead to inference that the witnesses cannot be believed. The learned Government Advocate has further submitted that the land of the Respondents has no potentiality as the same comes within the restrictions as provided under CRZ Regulations. The learned Government Advocate has taken us through the evidence and submitted that there is no structure located towards the westward side of the land acquired and, as such, the question of awarding the compensation disregarding the CRZ Regulations does not arise at all. The learned Government Advocate has further taken us to the Sale Deeds produced by the Respondents in support of their claim and submitted that such Sale Deeds cannot be comparable to the land acquired as the Sale Deeds are pertaining to developed plots and the land acquired had no development potentialities. The learned Government Advocate has further submitted that the land acquired cannot be compared to the land where presently a Hotel known as Marriott Hotel is located as, according to him, the land is not comparable apart from the fact that there is no evidence on record to show such comparability. The learned Government Advocate has further submitted that the Reference Court has erroneously come to the conclusion that the proposed road as shown in a developed plan is the road as approved under the Coastal Management Act. He further submitted that as no such road was existing or was likely to be constructed, the question of relying in the existence of such road to come to the conclusion that the CRZ Regulations are not applicable, does not arise at all. The learned Government Advocate has further submitted that the land of the Respondents has no potential value and, as such, the amount awarded by the Land Acquisition Officer at the rate of Rs.210/- per square metre is just and proper. -4- The learned Government Advocate has minutely taken us through the evidence of all the witnesses examined by the Respondents and submitted that the evidence cannot be relied upon as no material has been produced to show that the Sale Deed plots are comparable to the land acquired. The learned Government Advocate has also taken us through the evidence of the expert examined by the Respondents and pointed out that the report cannot be relied upon as the said expert has only made a mathematical calculation to arrive at the market value after taking an average price of different Sale Deeds which otherwise are not in the vicinity of the land acquired. The learned Government Counsel has further submitted that in view of the restrictions imposed by the statute, the land of the Respondents cannot be compared to the Sale Deed plots apart from the fact that no construction activity was permissible in the said portion of the land acquired. The learned Government Counsel has as such submitted that the Appeal is to be allowed and the enhancement of compensation as awarded by the Reference Court deserves to be quashed and set aside. 6. On the other hand, Shri Ramani, the learned Counsel, appearing for the Respondents has disputed the contention advanced by the learned Government Advocate. He submitted that the land acquired is situated in Miramar which is located within the municipal limits of Panaji and, as such, considering that the City of Panaji is a capital City, the land of the Respondents had very high potentiality. He further submitted that in view of the paucity of the availability of the land in the vicinity, the land of the Respondents had appreciable value. He further submitted that the land purchased by Hotel Marriott is comparable to the land of the Respondents and, as such, the market value of land can be determined on the -5- basis of such transaction. He further submitted that the Sale Deeds produced by the Respondents are comparable to the land acquired, and he has taken us through the evidence on record and pointed out that the land of the Respondents is comparable to the Sale Deed plots. He further submitted that the Sale Deeds plots are in the vicinity of the land acquired or at the radius of 1 kilometre which are very much comparable to the land acquired. He further took us through the evidence of the expert and pointed out that the expert had minutely relied upon the material for the purpose of arriving at the market value of the land acquired. He further submitted that the restrictions of the CRZ Regulations are not applicable to the land acquired as, according to him, there was a Samadhi towards the east-west side and considering that the said Samadhi was a structure, the restrictions as imposed under the CRZ Regulations are not at all applicable to the land acquired. He highlighted from the evidence on record to demonstrate that the Appellants themselves have admitted that there is a Samadhi which was a structure and which is located towards the east-west side. This admission itself is sufficient to come to the conclusion that the CRZ restrictions are not applicable to the land acquired. He further submitted that there is no infirmity committed by the Reference Court in enhancing the compensation and, in fact, the market value of the land is much more than the one awarded by the impugned Award. He further submitted that in the development plan, a road was proposed and in view of the existence of the said road, in any event, the CRZ restrictions are not applicable to the land acquired. The learned Counsel has taken us minutely through the evidence on record and demonstrated that the Sale Deeds produced by the Respondents coupled with the notarised Agreement, discloses that the amount awarded by the Reference Court is just and proper. He further submitted that the Agreement at exhibit 19 is in the -6- proximity of the land acquired wherein the land was sold for Rs.1,400/- per square metre. The learned Counsel has taken us through the documents at exhibit 20, which is an Award of the Land Acquisition Officer dated 22nd September, 1986, wherein the amount of compensation was fixed at the rate of Rs.189/- per square metre as on 12th December, 1980. He further took us through exhibit 35, which are the Minutes of the 54th Meeting of the Goa Town and Country Planning Board, held on 20th June, 1991, and submitted that the ten metre wide road along River Mandovi from Youth Hostel to Yatri Niwal, was considered and approved in the ODP Plan. He took us to exhibit 40, which is the plan showing the said road as approved in the Minutes at exhibit 35. The learned Counsel has also taken us through exhibit 13, which is an Award of the Reference Court dated 4th November, 1996, wherein the compensation was fixed at the rate of Rs.313.50 per square metre as on 20th March, 1982. He further submitted that considering the overall evidence on record, there is no infirmity committed by the Reference Court in enhancing the compensation payable to the Respondents. Shri Ramani, the learned Counsel, has relied upon the Judgment of this Court reported in 2001(1) Bom. C. R. 451 in the case of Kisan Mehta & Ors. vs. State of Maharashtra & Ors. 7. On perusal of the records and the submissions advanced by both the learned Counsel, the following points for determination arise in the present Appeal. POINTS FOR DETERMINATION 1. Whether the land acquired has no potentiality in view of the restrictions imposed under the Coastal Regulations Zone Notification ? -7- 2. Whether the Reference Court was justified to award compensation at the rate of Rs.1,434/- per square metre for the land acquired ? 8. Dealing with the first point for determination, we find that there is no dispute that the land acquired comes within CRZ-II Regulations. Such classification has been done for regulating development activities in coastal areas within High Tide Line on the landward side. The development and construction activity of different categories of CRZ areas are regulated in accordance with the provisions of Clause 6(2) of the said Notification at Annexure-I. The development activities permitted in CRZ-II are as follows : “(i) **[Buildings shall be permitted only on the landward side of the existing road (or roads approved in the Coastal Zone Management Plan of the area) or on the landward side of existing authorised structures. Buildings permitted on the landward side of the existing and proposed roads/existing authorised structures shall be subject tot he existing local Town and Country Planning Regulations including the existing norms of Floor Space Index/Floor Area Ration: provided that no permission for construction of buildings shall be given on landward side of any new roads (except roads proposed in the approved Coastal Zone Management Plan) which are constructed on the seaward side of an existing road]. (ii) Reconstruction of the authorised buildings to be permitted subject to the existing FSI/FAR norms and -8- without change in the existing use. (iii) The design and construction of buildings shall be consistent with the surrounding landscape and local architectural style.” 9. On perusal of the said provision, it is clear that the buildings are allowed only on the landward side of the existing road or the roads approved by the Coastal Zone Management Plan of the area or on the landward side of the existing authorised structure. There is no dispute that there is no road existing on the landward side of the acquired land. So also, the road shown in the provisional ODP Plan, cannot be considered to be a road approved in the Coastal Zone Management Plan of the area. The said Plan produced by the Respondents cannot be considered to be a Coastal Zone Management Plan as envisaged in the said Notification. Shri Ramani, the learned Counsel appearing for the Respondents, has pointed out that in the cross examination of Rw.1/Hanumant Parsekar, he has stated as under : “The Samadhi of late Cashadeva is an authorised structure constructed by the Government. It is true that as per C.R.Z. Management Plan of Goa, area west of Sports Authority of India Complex up to Rotunda of Gaspar Dias is classified as CRZ-II. It is true that presently acquired land falls in this area. IT is true that present acquired land falls in CRZ-II. It is true that shore lies to the west of Samadhi of Sashadeva. It is true that major portion of presently acquired land lies to the landward side of the Samadhi.” -9- 10. On the basis of the said statement of the said witness, it can be concluded that the land acquired is in CRZ-II and that the Samadhi existing is an authorised structure constructed by the Government and that the shore line is towards the west of the Samadhi. The evidence further demonstrates that the major portion of the property acquired is on the landward side of the said Samadhi. On the basis of said evidence itself, there can be no dispute that the land acquired was located on the landward side of the existing authorised structure which is the said Samadhi. In view of the above, it is evident that the restrictions imposed under the CRZ Notification would not be applicable to the major extent of the land acquired in the present proceedings. The Judgment of this Court relied upon by learned Counsel appearing for the Respondents, as such, is not relevant for the purpose of disposing of the above Appeal in the facts of the present case. As such, the first point for determination is answered accordingly. 11. In support of the claim for enhancement of compensation, the Respondent is his affidavit in evidence has stated that the acquired land is situated at Miramar within the Panaji Municipal limits and is sandy in nature, leveled with road and fit for construction. The remaining portion of the said property was already acquired for a public purpose for Food and Craft Institute. He further stated that in the year 1980, the land adjoining to the acquired land was acquired by the Government for constructing a luxury Hotel known as Hotel Marriott and that the nature of the land acquired therein is similar to the land acquired of the Respondents. He further deposed that there were many buildings in the vicinity of the acquired land which were being used for residential and commercial purposes and Government offices within a distance of 100 metres from the land acquired. He -10- further deposed that the land acquired was shown in the ODP and was classified as CRZ-II. 12. In support of his claim, the Applicants have produced difference sale instances. Exhibit 12 is an Award dated 23rd February, 1987, wherein the land of the Respondents admeasuring an area of 11,812 square metres was acquired for parks, recreational and other facilities. The said land was at a distance of one kilometre from the acquired land and the amount awarded by the Land Acquisition Officer was at the rate of Rs.200/- per square metre. Exhibit 45 is the Award dated 26th May, 2003, in Land Acquisition Case no. 37/93, whereby the compensation was enhanced to Rs.300/- per square metre in respect of the land acquired wherein the relevant date of Notification was 20th March, 1982. The Respondents were also parties to the said acquisition proceedings. Another Award of the Court dated 4th November, 1996, was produced at exhibit 13, which covered the same Notification as exhibit 12 and 45, wherein the land belonging to Julieta Coutinho admeasuring an area of 600 square metres, compensation was fixed at the rate of Rs.313.50 per square metre as on 20th March, 1982. Exhibit 14, is an Agreement dated 15th April, 1983, whereby two third plots of area of 504 square metres of paddy land, partly developed and situated at a distance of one kilometre was agreed to be sold at the rate of Rs.800/- per square metre. Another sale instances produced by the Respondent is the Sale Deed dated 13th March, 1992, which is at exhibit 15, which was executed pursuant to the Agreement at exhibit 14. Exhibit 17, is the Sale Deed dated 2nd January, 1985, whereby the plot admeasuring of about 550 square metres, situated at about one kilometre from the acquired land, was sold at the rate of Rs.800/- per square metre to one Maria Antao Pinto. Exhibit 18 is a Sale Deed -11- dated 30th November, 1993, whereby pursuant to an Agreement dated 22nd September, 1992, a plot of 560 square metres was sold at the rate of Rs.1,750/- per square metre. The said plot is stated to be at a distance of 1.5 kilometres from the acquired land. Exhibit 19 is an Agreement of Sale dated 8th July, 1992, whereby an area of 301 square metres located at a distance of 75 metres from the acquired land was agreed to be sold at the rate of Rs. 1,400/- per square metre by Jose Cristovam Pinto and his wife. The Award dated 22nd September, 1986, at exhibit 20, was produced in respect of land admeasuring 9025 square metres whereby the land was acquired for Hotel Marriott at the rate of Rs.189/- per square metre as on 12th December, 1980. 13. On perusal of the records, we find that the land subject matter of Award at exhibit 20 though is located adjoining to the land acquired, nevertheless, as there was a gap of nearly 14 years between the Section 4 Notifications, it would be very speculative to allow the said Award to be the basis for determining the market value of land especially considering the fact that there are comparable sale instances produced by the Respondents which are within the period of ten years from the date of Section 4 Notification. The land subject matter of the document at exhibit 18 is nearly two kilometres from the land acquired. The nature of the said Sale Deed plot and the location thereof is totally different from the land acquired. Admittedly, the land acquired in the present case is very close to Mandovi River which is not the case in respect of the sale instance at exhibit 17. So also, the documents at exhibit 12, 13 and 45 are with regard to acquisitions which took place more than ten years from the date of Section 4 Notification in the present case. Such Awards cannot form a basis for determining the market value considering that -12- there are other sale instances which are of more proximate of time. Exhibit 15 is with regard to the sale of undivided rights. Thus, the said sale instances at exhibits 14 and 15, cannot form a basis to determine the market value of land in the present case. 14. The other sale instance which is at exhibit 19 was the closest sale instance with regard to the proximity of time as well as its location. It is stated that the land which was subject matter of the said Agreement for sale dated 8th July, 1992, is at a distance of 75 metres from the acquired land. The said Agreement was executed about two years from the date of Section 4 Notification. The price mentioned therein is at the rate of Rs.1,400 per square metre. The amount of Rs.5000/- only was payment as earnest money. Though Aw.3, who was the son of the purchaser was examined to confirm the said Agreement, nevertheless, in the cross examination he has admitted that the Sale Deed pursuant to the said Agreement was not executed. Hence as the Agreement did not culminate into a Sale Deed, it would not be appropriate to consider the said Agreement to determine the market value of the land, but it can be considered to ascertain the general trend of the then prevailing market value of land in the vicinity of the acquired land. 15. The only sale instance which remains to be considered is the one at exhibit 17, which is Sale Deed dated 2nd January, 1985, whereby a plot of about 550 square metres situated at a distance of about one kilometre from the acquired land was sold at the rate of Rs.800/- per square metre. To prove the contents of the said transaction, the Respondents have examined A.w.5. He has deposed that Shri Dattaprasad Kamat had purchased an area of 550 square metres for the sum -13- of Rs. 4,40,000/- i.e. at the rate of Rs.800/- per square metre. He has further stated that he was the duly constituted attorney of the said purchaser and that the said plot is situated at Miramar and it is developed plot at a distance of about 500 metres from the Marriott Hotel. The Panaji-Miramar road is about 25 metres away from the said plot. In the cross examination, Aw.5 has stated that the said purchased plot is part of St. Mary's Colony and that he did not know the Applicant nor had seen the acquired land. He has also stated that there are many structures in the vicinity of the said colony. The fact that the said Sale Deed plot was located at Miramar which is also the location of the land acquired has not been disputed in the present case. The distance being 500 metres from the acquired land has also not been challenged. The authenticity of the said sale instance has not been disputed in the cross examination. Aw.1 in his deposition has stated that the sale instance dated 2nd January, 1985, is an interior plot and is situated at a distance of one kilometre from the acquired land. The said plot was a paddy field. Aw. 8, Shri Vernekar, has stated that the said Sale Deed plot at exhibit 17 is at a distance of about one kilometre approximately from the acquired land towards the east of Panaji-Miramar road. 16. Considering that the said Sale Deed plot is at a distance of 500 metres to one kilometre from the acquired land, we find that the price fixed in the said sale instances can form the basis for determining the market value of land in the present case. The Sale Deed is dated 2nd January, 1985. The Notification in the present case was issued in the year 1994. The Respondents are entitled for escalation in the market value of land during the said period. The other sale instances which have been produced by the Respondents disclose upward trend of -14- the market value ranges from Rs.200/- per square metre in the year 1982. There is no dispute that the said land is located at Miramar which is a prime location of the capital city of Goa. The said land was also adjoining the Marriott Hotel which is considered to be a prestigious destination for tourists. The land is within a radius of about one kilometre from the market place and other facilities such as commercial establishments, Government Offices and other residential houses. The picturesque view of Mandovi River can be seen from the land acquired. The Apex Court in the case reported in 2008(14) S.C.C. 745, in the case of General Manager, ONGC Ltd. vs. Rameshbhai