- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 25 OF 2004. 1 Dy. Collector (L.A.) Margao, Goa. 2 The Executive Engineer, WD VI ( R & B), PWD, Fatorda, Margao-Goa. ........ Appellants. Versus Shri Marcos dos Santos das Chagas E Silva, r/o. H. No. 1334, Mazilvado, Benaulim, Salcete, Goa. ........ Respondent. Mr. Guru Shirodkar, Government Advocate for the Appellants. None present for the Respondent. Coram:-F. M. REIS, J. Date:-26th August, 2010. ORAL JUDGMENT The above Appeal challenges the Judgment and Award dated 20th September, 2003 passed by the learned District Judge, South Goa, Margao in the Land Acquisition case no. 3/2001. 2. By notification under section 4 of the Land Acquisition Act( hereinafter referred to as 'the said Act') bearing no. 22/166/92- - 2 - RD dated 6th January, 1993 published in the Official Gazette dated 26th April, 1993, the land belonging to the Respondent surveyed under nos. 1/6 and 416/6 of Benaulim Village was sought to be acquired for the purpose of widening and black topping of the road leading from Colva to Varca junction Khareband via Benaulim in village Benaulim, Colva and Senarbatim of Salcette Taluka. The area of the land acquired of the Respondent admeasures an area of 175square metres from property surveyed under no. 1/6 and 210 square metres from the property surveyed under no.416/6. 3. By an Award passed under section 11 of the said Act dated 4th April, 1996, the Land Acquisition Officer awarded compensation at the rate of Rs. 20/- per square metre. Being dissatisfied with the said Award the Respondent has preferred a reference for enhancement of the compensation under section 18 of the Act and claimed compensation at the rate of Rs.400/- per square metre besides compensation for severance charges to the tune of Rs.30,000/-. 4. By the Judgment and Award dated 20th September, 2003, the Reference Court partly allowed the reference and fixed - 3 - compensation of acquired land at the rate of Rs.30/- per square metre and the claim of severance charges made by the Respondent came to be rejected. 5. Being aggrieved by the said Judgment and Award, the Appellants have preferred the present appeal. 6. Heard learned Government Advocate Shri G. Shirodkar, for the Appellants. None present for the Respondent though served. Learned Government Advocate has submitted that the Reference Court has totally misdirected itself in awarding compensation at the rate of Rs.30/- per square metre and according to him once the Reference Court came to the conclusion that the sale deed plot produced by the Respondent was not similar to the land acquired, the question of enhancement of compensation on the basis of the Award produced by the Respondent does not arise at all. He further submitted that the land consumed for road widening had no potential value for being used for any construction purpose and as such the Reference Court could not have enhanced the compensation of the acquired land. He further submitted that the road was shown in ODP plan and as such the question of enhancing - 4 - the compensation to the tune of Rs. 30/- per square metre cannot be justified. 7. Having heard the learned Counsel for the Appellants and on perusal of the records, the following point for determination arise in the present appeal:- POINT FOR DETERMINATION Whether the Reference Court was justified to fix a compensation at the rate of Rs.30/- per square metre for the land acquired? 8. On perusal of the impugned Judgment and Award, I find that the Reference Court has discarded the sale deed produced by the Respondent on the ground that the sale deed plot was not comparable to the land acquired. The only evidence relied upon by the Reference Court to determine the compensation is the Award which is at exhibit 19 in respect of the property which was acquired for the construction of a new road in the same village of Benaulim and which is surveyed under no. 312/1 wherein compensation was fixed at the rate of Rs.60/- per square metre. AW1 Marcos Dos Santos Chagas e Silva in his evidence has stated that within the radius of 800 metres of the - 5 - acquired land there is a school, local panchayat office, central Government fisheries office and laboratory, shops, post office, five star hotels and many other small hotels. The Benaulim main beach itself is about 1½ kms away from the land acquired while Vaddie beach is about 900metres from the land acquired. He has further stated that the land acquired is in the locality which is developed and the price of land in the area is steadily rising. The location of the said land and existence of said facilities in the vicinity of the said land has not been challenged by the Appellants in the cross examination of AW1. AW2 Mr. Martinho Wilson das Chagas e Silva has also deposed with regards to the existence of the facilities in the vicinity of the acquired land and similarity of the acquired land with the sale deed produced by AW1. The witness has also filed an additional affidavit and has produced Judgment and Order dated 8th May, 1998 with regards to Land Acquisition case no. 133/93 whereby land belonging to the Francisco Correira de Meireles was acquired for the road. He has further stated that land acquired in the said proceeding is similar to the land acquired of the Respondent and that the acquired land is at a location having a distance of about 800mts from the sea shore, high tide line. The distance of the land acquired with that of the property in the said award is stated to be 600metres. In the cross - 6 - examination the suggestion that the land was not similar was denied. The distance between the land acquired and the land subject matter of said Award was not disputed. In the cross examination the similarity of the land was also not disputed but however the only dispute raised in the cross examination is that the land acquired of the Respondent in the present case was for widening the area. 9. The Appellants have examined RW1 P. M. Naik who has deposed that no construction was permissible within the radius of 12.5 metres on either side of the road from the center of the road. In his cross examination he stated that he does not know whether the area of the land in the vicinity was developed as on the date of section 4 notification. He has further stated that the acquired land was not suitable for construction as it is within the set back area. 10. The Reference Court after coming to the conclusion that the land which was subject matter of the Award at exhibit 19 was similar to the land belonging to the Respondent and has given a deduction of 50% for arriving at the market value of the acquired land. Dealing with the contention of the learned Government Advocate to the effect that the acquired land was subject matter of the - 7 - acquisition was coming within the road widening area and as such the land has no construction potential value for being used for non agricultural purpose, I find that the Apex Court in the Judgment reported in 2009 (5 ) ALL MR 1022 in the case of State of Goa and another vs. Gopal Baburao Gaudo and others has held at para 13 thus :- “13. Primarily, the increase in land prices depends on four factors: situation of the land, nature of development in surrounding area, availability of land for development in the area, and the demand for land in the area. In rural areas, unless there is any prospect of development in the vicinity, increase in prices would be slow, steady and gradual, without any sudden spurts or jumps. On the other hand, in urban or semi-urban areas, where the development is faster, where the demand for land is high and where there is construction activity all around, the escalation in market price is at a much higher rate, as compared to rural areas. In some pockets in big cities, due to rapid development and high demand for land, the escalations in prices have touched even 30% to 50% or more per year, during the nineties. - 8 - 11. In view of the said judgment of the Apex Court, merely because the land acquired comes within the road widening area it cannot be said that the land has no potentiality of being used for non agricultural purpose. Appellants have thus failed to adduce any evidence that there was no land available for the Respondents beyond the acquired land for the purpose of development. Once such evidence has not been adduced it is not open to the appellants to contend that land acquired had no potential value of being used for non agricultural purpose. Appellants has also stated that as per ODP plan the said existing road was classified as a major road and the prescribed width of the said road is 25 metres and no construction is permissible. However the Appellants have failed to produce the ODP plan to substantiate the said contention. Appellants have not shown the approved ODP plan but however unless and until the land has been acquired it cannot be said that the Appellants have any right for such land as on date of section 4 notification. The Reference Court after considering all the aspect including that the land acquired was coming within the road widening area has deducted 50% from the market value fixed in the said Award dated 8th May, 1998 in Land Acquisition Case no. 133/1993 to arrive at a compensation payable to the Respondent. I find no error committed by the Reference Court in - 9 - passing the impugned Judgment and Award. In the fact and circumstances of the case, deduction of 50% is just and proper and no infirmity has been committed by the Reference Court by awarding the compensation at the rate of Rs.30/- per square metre. No interference is called for in the impugned Judgment and Award, hence appeal is dismissed with no order as to costs. F. M. REIS, J. vn*