-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 136 OF 2004 1. Deputy Collector (L.A.) and Land Acquisition Officer, Panaji – Goa. 2. The Director, Directorate of Transport, Panaji. …... Appellants V e r s u s 1. Shri Purushottam Sitaram Sinai Dessai R/O. Pernem Goa. (deceased) Through his L. R.'s : 1(a) Mrs. Ramabai Purushottam Dessai, major of age, wife, 1(b) Mrs. Shobha Shrikant Malkarnekar, major of age, daughter, 1(c) Mrs. Neema Uday Moye, major of age, daughter, 1(d) Mr. Uday Pandurang Moye, major of age, son-in-law. All to be served through their Attorney Dr. Vasudeo Deshprabhu, Pernem Goa. …... Respondents Mr. M. Salkar, Additional Government Advocate for the Appellants. Mr. J. P. Mulgaonkar, Advocate for the Respondents. CORAM :- A. S. OKA F. M. REIS, JJ. Judgment Reserved on : 6 th July, 2010. Judgment Pronounced on : 28 th July, 2010. -2- ORAL JUDGMENT (Per F. M. Reis, J.) The Appellants challenge the Judgment and Award dated 17th March, 2004, passed by the learned Addl. District Judge, Mapusa, in Land Acquisition Case no. 172/1996, whereby the reference filed by the Respondents was partly allowed and compensation for the land acquired was fixed at Rs.132/- per square metre. 2. By a Notification under Section 4 of the Land Acquisition Act, 1894, (hereinafter referred to as 'the said Act'), dated 15th January, 1991, an area of 7770 square metres was acquired from the property surveyed under no. 2/1 and 3/2 for the purpose of constructing a bus stand at Pernem in Pernem Taluka. By an Award dated 4th August, 1993 under Section 11 of the said Act, the compensation was fixed at the rate of Rs.15/- per square metre for the land acquired in the property surveyed under no. 2/1 and Rs.10/- per square metre for the land acquired in the property surveyed under no. 3/2. Being dissatisfied by the compensation awarded, a reference was preferred by the Respondents herein under Section 18 of the said Act and claimed a compensation at the rate of Rs.200/- per square metre. The learned Addl. District Judge by the impugned Judgment and Award dated 17th March, 2004, enhanced the compensation and fixed the market value of the land at the rate of Rs.132/- per square metre for the land acquired. 3. Being aggrieved by the said Judgment and Award dated 4th August, 1993, the Appellants, who are the Acquiring Bodies, have preferred the present Appeal. -3- 4. The learned Addl. Government Advocate, appearing for the Appellants, has submitted that the Reference Court has totally misdirected himself in determining the market value of the land acquired. He further submitted that the Award at exhibit 16 produced by the Respondents could not be relied upon for enhancement of compensation as the land was at a distance of 4 kilometres from the land acquired besides being totally dissimilar. He further submitted that there is no evidence on record adduced by the Respondents to establish that the nature of the land in the said Award and the land acquired is similar. He further submitted that the Reference Court has arbitrarily fixed the market value at Rs.132/- per square metre without following the well settled principles of law in respect of determination of compensation. He further submitted that the acquired land was agricultural land and was not suitable for construction purpose as it had no potentialities with that regard. He further submitted that the land acquired was low lying to the extent of more than three metres as to the land which was subject matter of exhibit 16 and, as such, the question of determining the compensation on the basis of the said Award would not arise at all. He further pointed out from the impugned Judgment that though the Reference Court found that the land acquired was low-lying, no deduction on that count was made whilst determining the compensation. The learned Counsel has further submitted that there is no corroborative evidence adduced by the Respondents to substantiate their claim for enhancement of compensation. He, as such submitted that the impugned Judgment and Award deserves to be quashed and set aside. 5. On the other hand, the learned Counsel appearing for the -4- Respondents has supported the impugned Judgment and Award. He submitted that there were comparable sale instances adduced by the Respondents to establish that the market value of land as on the date of Section 4 Notification was much higher than the one awarded by the Reference Court. He further submitted that the Reference Court has minutely considered all the evidence adduced by the Respondents and come to the conclusion that the land which was subject matter of the Award, at exhibit 16, was similar to the land acquired. He further submitted that the Reference Court has also taken into consideration that the land acquired had better potentialities as the same was located in Pernem Town as to the land at exhibit 16. He further submitted that the Reference Court has considered that the Notification in respect of the Award, at exhibit 16, was passed about two years prior to the Notification in the present proceedings, and after applying the well settled escalation in that regard, the compensation determined at the rate of Rs.132/- per square metre is just and proper. He further submitted that there is no infirmity committed by the Reference Court and, as such, the above Appeal deserves to be dismissed. 6. On hearing the learned Counsel for the parties and on perusal of the record, the following point arises for our determination : POINTS FOR DETERMINATION 1. Whether the Reference Court was justified to fix the market value of the land acquired at the rate of Rs.132/- per square metre. 7. In support of the claim for enhancement of compensation, the -5- Respondents have produced sale instances to establish that the market value of land, as on the date of Section 4 Notification, was much higher than the one awarded by the Land Acquisition Officer. Aw.1, who has been examined in the present case being the Power of Attorney of the widow of the original claimant late Purshottam Sinai Dessai, has deposed that he was well conversant with the facts of the acquisition proceedings and that by Notification dated 15th January, 1991, an area of 7770 square metres was acquired for the purpose of constructing Pernem Bus Stand. He has further deposed that an area of 4570 square metres was in respect of the property surveyed under no. 2/1 (part) and an area of 3200 square metres was with regard to the property surveyed under no. 3/2. He has further deposed that on the northern boundary of the acquired land, the Malpem-Pernem Major District Road is located and across the said road, there are several houses and commercial establishments located therein. He has further deposed that on the southern side of the acquired land, is the house property surveyed under no. 297 and that on the western boundary, there is a Municipal road. He has further deposed that the property surveyed under no. 2/1 is bharad type land being flat and about 50 cms. below the road level. The property surveyed under no. 3/2 was a flat, bharad type of land which was located at a depth of three metres below the road level. He has further deposed that the claims of tenancy over the said land have been rejected by the learned Mamlatdar. He has further given the details of communication network available in the vicinity of the acquired land. He has further deposed that in the year 1983, the Government had acquired an area of 300 square metres of garden land wherein an Award was passed in respect of the property surveyed under no. 207/6. He has also deposed that another portion of 220 square metres of a paddy field was acquired in the year 1980 at a distance of -6- 800 metres from the acquired land for the purpose of National Highway wherein the amount was enhanced to Rs.16/- per square metre. He has further deposed that in the other land acquisition proceedings in the year 1986, an area of 1200 square metres of bharad land was acquired wherein the amount was enhanced to Rs.141/- per square metre and this Court had reduced the compensation to Rs.75/- per square metre. He further deposed that in another acquisition in the year 1988, an area of 4200 square metres was acquired which was at a distance of 200 metres from the acquired land, wherein the compensation was fixed at Rs.120/- per square metre. He has also deposed with regard to an acquisition in 1988 that for an area of 8900 square metres which is located about 300 square metres from the acquired land acquired for the purpose of PWD complex, the amount was enhanced to Rs.83/- per square metres. He has also deposed that in the year 1991, the Government had acquired the garden land at a distance of 1.5 kilometres of the land acquired in the present case, for the purpose of Konkan Railway, wherein the compensation was determined at the rate of Rs.125/- per square metre. He has also deposed that some parcels of lands were sold by his father in the year 1988, which are located at a distance of 3.5 kilometres from the acquired land. He has further deposed that the acquired land is similar to the sale instances produced by the Respondents. In the cross examination of the said witness, there is no substantial challenge to the similarities and the location of the land acquired viz a viz the sale instances. With regard to exhibit 16, Aw.1 has stated that it was in respect of an area of 30,300 square metres of land which was acquired for the purpose of I.T.I. and the compensation was enhanced to Rs.123/- per square metre and the same were located at a distance of two kilometres from the acquired land. In the cross examination, he has admitted that the said land was plain land suitable -7- for construction and that it was closer towards Kurla Industrial Estate vis a vis the acquired land. He denied the suggestion that the land was at a distance of four kilometres from the acquired land. 8. The evidence adduced by the Respondents especially the Awards at Exhibit 16, 17, 21 and 23 demonstrate the market value of land within a radius of upto 3 kilometres from the acquired land in Pernem. The sale instances produced establish steady increase in the land rates in the vicinity of the acquired land. The Reference Court after appreciating the evidence adduced by the Applicants, has come to the conclusion that the land which was subject matter of exhibit 16, was comparable to the land acquired. The learned Counsel appearing for the Appellants was unable to show any infirmity with regard to the said finding but, however, his submission was that though the Reference Court had found that the land acquired was low lying and no conversion was effected, some deductions on that count ought to have been given. However, on perusal of the impugned Award, we find that the Reference Court has considered that the land acquired was at a distance of about two kilometres from the land subject matter of the said Award. The Reference Court has also considered that there was substantial dissimilarity in the area acquired in the said Award which was more than 30,000 square metres as against an area of 7770 square metres involved in the present acquisition. The Reference Court has also considered that the amount awarded as per the said award was at the rate of Rs.123/- per square metre and that the Notification in the said case under Section 4 was published about two years prior to the Notification in the present case. The Award at exhibit 16, was in respect of land notified under Section 4 of the said Act on 30th January, 1990. The Notification under Section 4 of -8- the said Act, in the present case, is dated 15th January, 1991 and was published in the Official Gazette on 6th March, 1991 while in the newspaper Gomantak Times on 20th November, 1991. The time gap was nearly two years between the Notifications under Section 4 of the said Act from the Award at exhibit 16. Considering the well settled escalation for the period of two years at the rate of 10 percent per annum on cumulative basis, the amount works out to Rs.149/- per square metre approximately. 9. The Reference Court has come to the conclusion that the land which was subject matter of the acquisition at exhibit 16 and the land acquired in the present case was similar in all respects but, however, there was a difference in the area of the land acquired besides the land being low lying in the present case. Besides that, the Reference Court also found that the land acquired was abutting the Malpem Pernem Road, which was notified as a Major District Road apart from the fact that the National Highway was at a distance at 1.5 kilometres away and all the civic amenities were available in the vicinity of the acquired land. Considering the said positive factors of the acquired land, the only demerits is the size and the fact that it is low lying. After some appreciation on account of the positive factors the net deduction of 12 percent would be just and proper. Though the Reference Court has not given the specific deduction on each aspect, nevertheless we find that the amount awarded by the Reference Court of Rs. 132/- per square metre is fair and reasonable in the circumstances of the case. There is no infirmity committed by the Reference Court in determining the compensation at the rate of Rs.132/- per square metre for the land acquired. The learned Counsel for the Appellants is not justified in contending that the Reference Court has not taken into -9- consideration that the land acquired was low lying whilst determining the market value of land. The point for determination is answered accordingly. 10. In view of the above, no interference is called for in the impugned Judgment. Hence, the above Appeal stands dismissed with no orders as to costs. A. S. OKA, J. F. M. REIS, J. arp/*