1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.29 OF 2003 1. Special Land Acquisition Officer (North Goa) Konkan Railway Corporation Limited, Amey Guest House, Davorlim Road, P.O. Navelim, Salcete Goa 403 707. 2. Chief Engineer, Konkan Railway Corporation Ltd; Rawnfond, near Margao Railway Station, Margao-Goa. .. Appellants Versus 1. Jose Ortense D'Souza 2. Clara Lourdes D'Souza 3. Jose Arnaldo de Souza, 4. Charmaine Cyrila de Souza All represented by their constituted attorney Mrs. Maria Especiosa D'Souza r/o Nivol Vaddo, Sircaim- Bardez, Goa. .. Respondents. Mr. E. Afonso, Advocate for the Appellants. Mr. S. G. Bhobe, Advocate for the respondents. CORAM :- A. P. LAVANDE, J. DATE : 24 th August, 2010. ORAL JUDGMENT : By this appeal, the appellants take exception to 2 the judgment and order dated 18th September, 2002 passed by the IInd Additional District Judge, Panaji in Land Acquisition Case No. 32/1995 partly allowing the reference under Section 18 of the Land Acquisition Act (hereinafter referred to as 'the Act' for short). 2. Vide notification published under Section 4(1) of the Act in the official gazette dated 20th July, 1991, the appellants acquired lands for construction of B. G. Line between Roha and Mangalore. An area of 10,921 square meters belonging to the respondents was part of the acquired land. The respondents claimed compensation at Rs.300/- per square meter. By award dated 18th January, 1994, the Special Land Acquisition Officer (the SLAO) awarded Rs.16/- per square meter in respect of the acquired land and Rs.24,108/- in respect of the structures existing in the acquired land. The compensation of Rs.5676.97 was awarded for the trees existing in the acquired land. 3. Aggrieved by the inadequacy of the compensation granted, the respondents sought reference and claimed compensation of Rs.300/- per square meter and also claimed higher compensation in respect of the compound wall, 3 structures and trees existing in the property in Land Acquisition Case No.32/1995. The respondents have examined two witnesses namely Especiosa D' Souza – AW1 and Subhash Chandra Bhobe- AW2 - an Architect. The applicants produced two sale deeds – dated 21st April, 1993 by which an area of 980 square meters was sold @ Rs.59/- per square meter. The said property was about 1 Kilometer away from the acquired land. The respondents also relied upon the sale deed dated 7th February, 1991 by which two properties bearing separate survey numbers were sold by the said sale deed. An area admeasuring 2140 square meters bearing survey no.97/1-A with a house thereon was sold for Rs.4,12,500/- and another plot admeasuring 350 square meters bearing survey no.106/8 was sold for Rs.17,500/-. The learned Reference Court placed reliance upon the sale deed dated 7th February, 1991, more particularly the sale in respect of 350 square meters of land and after deducting 50%, awarded Rs.25/- per square meter in respect of the acquired land. The other claims were rejected by the Reference Court. Aggrieved by the compensation granted in favour of the respondents, the appellants have filed the present appeal. 4 4. Mr. Afonso, learned Counsel for the appellants submitted that the Reference Court has erred in enhancing the compensation by placing reliance upon the sale deed dated 7th February, 1991. He further submitted that the Reference Court ought not to have relied upon the said sale deed inasmuch as the plot of 350 square meters of land was surrounded on three sides by the roads; whereas there was no road abutting the acquire land and the same was not developed. He further placed reliance upon the judgment of the Division Bench of this Court dated 23rd February, 2005 in F.A. No.16/2001 by which the appeal filed by the appellants therein was allowed and compensation granted by the Reference Court @ Rs.145/- per square meter in respect of another land acquired by the very same notification, was set aside by maintaining award passed by the Land Acquisition Officer. Mr. Afonso further submitted that the acquired land was an agricultural land and a canal was passing through the said property, and as such the same could not have been compared to the plot in the sale deed dated 7th February, 1991. He further submitted that the compensation granted by the SLAO was fair and the respondents had not discharged the burden of proving that the compensation granted by the SLAO was not fair. He, therefore, submitted 5 that the impugned judgment and order be quashed and the appeal be allowed. 5. Per contra, Mr. Bhobe, learned Counsel for the respondents supported the impugned judgment and order. He invited my attention to the fact that the SLAO had himself relied upon the sale deed dated 7th February, 1991. However, Mr. Bhobe submitted that the SLAO did not consider the true import of the said sale deed while fixing the market rate of the acquired land and awarded compensation of Rs.16/- per square meter. He further submitted that there is absolutely no evidence brought on record that a canal is passing through the acquired land. Mr. Bhobe further urged that the stray admission by Especiosa D' Souza – AW1, who at the relevant time was 87 years old that the sale instances relied upon by her were in respect of developed plots, cannot be considered to be conclusive in view of the sale deed dated 7th February, 1991 produced by her. Mr. Bhobe further submitted that the Reference Court has rightly deducted 50% after considering the value of the plot sold by sale deed dated 7th February, 1991. He, therefore, urged that the appeal, which is without any merit, be dismissed. 6 6. I have carefully considered the rival submissions and perused the record. As stated above, Especiosa D' Souza – AW1, who was examined on behalf of the respondents, placed reliance upon two sale deeds dated 7th February, 1991 and 21st April, 1993. The Reference Court rightly did not place reliance upon the sale deed dated 21st April, 1993 since it was a post-notification sale deed. The question, which arises for consideration is whether reliance could have been placed on the sale deed dated 7th February, 1991, more particularly in respect of plot of land admeasuring 350 square meters, which was sold for Rs.17,500/- i.e. @ Rs.50/- per square meter. According to Especiosa D' Souza, the plots which were sold by the sale deed dated 7th February, 1991, were at a distance of 1 Kilometer from the acquired land. In terms of the award passed by the Land Acquisition Officer, the said plots were at a distance about 1 Kilometer from the acquired land. No doubt, the acquired land is an agricultural land; whereas there is absolutely no evidence on record that the sale deed plot was an agricultural land. Moreover, the acquired land did not have the benefit of the said plot of having roads on three sides. However, the fact remains that the sale deed plot is situated at a distance of 1 to 1 ½ Kilometer away from 7 the acquired land. It is well settled by a catena of decisions of the Apex Court that in fixing the market rate of the acquired land, the sale deed in respect of even smaller plot from the same village, has to be considered and appropriate deductions have to be made. Applying this principle, in my considered opinion, the Reference Court has not fallen into any error in deducting 50% from the sale price mentioned in the sale deed dated 7th February, 1991 which is just proximate in point of time and also location. This being the position, in my considered opinion, the Reference Court was perfectly justified in making 50 % deduction while arriving at the market value of the acquired land. Considering the location, the area and the other potentialities of the acquired land, in my view, the Reference Court was justified in deducting 50 % from the price fixed in the sale deed dated 7th February, 1991 in respect of the plot admeasuring 350 square meters. Therefore, no fault can be found with the impugned judgment and order passed by the Reference Court. 7. In so far as the judgment dated 23rd February, 2005 in First Appeal No.16/2001 is concerned, in the said case, the compensation awarded by the Reference Court at 8 the rate of Rs.145/- per square meter in respect of the land of the respondents was set aside. Although the land in the said case was acquired by the same notification, the fact remains that the respondents/ claimants in the said appeal did not rely upon the sale deed dated 7th February, 1991 before the Reference Court but relied upon sale deeds which were post- notification. In this factual background, this Court allowed the appeal and maintained the award. The said judgment does not help the appellants in as much as it is settled law that each reference has to be decided on the basis of the evidence led by the parties. 8.. In view of the above, I find no merit in the present appeal. Hence, the appeal is dismissed. Having regard to the facts and circumstances of the case, there shall be no order as to costs. A. P. LAVANDE, J. SMA