1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.228 OF 2004 WITH CROSS-OBJECTIONS NO. 8 OF 2005 1. The Land Acquisition Officer, PWD (Cell), Altinho, Panaji, Goa. 2. The Executive Engineer, WD-XXV(R), Fatorda, PWD, Margao, Goa. …. Appellants V/s Shri Santosh Mahadev Prabhu Dessai, R/o. Jonocao Bldg., 1st Floor, Flat No.2, Curchorem, Goa. …. Respondent Ms. Susan Linhares, Additioal Government Advocate for the Appellants. Mr. Sudesh Usgaonkar, Advocate for the Respondent. CORAM : F.M. REIS, J. DATE : 16th DECEMBER, 2010 JUDGMENT : The above appeal challenges the judgment and award passed by the learned Additional District Judge, South Goa, Margao in Land Acquisition Case No.123/2001 dated 25/05/2004. 2. By Government notification under Section 4 of the Land Acquisition Act, 1894, herein after referred to as “the said Act”, an 2 area of 1200 square metres from the property bearing survey no.112/3 and an area of 1875 square metres from the property bearing survey no.117/5 were intended to be acquired from village Loliem, for the construction of the road from Shri Shankarsha temple to National Highway-17 at Daptamol. The notification was dated 4/10/1996 and was published in the Official Gazette on 20/02/1997. 3. By an award dated 5/01/2000, the Land Acquisition Officer offered the compensation at the rate of Rs.6/- per square metre. Dissatisfied with the said amount, the respondent sought a reference under Section 18 of the said Act for enhancement of compensation and claimed a sum of Rs.125/- per square metre for the land acquired besides the sum of Rs.25,000/- for the trees existing therein. 4. By judgment and award dated 25/05/2004, the Reference Court fixed the compensation at the rate of Rs.50/- per square metre besides other statutory benefits. Being aggrieved by the said judgment, the appellants have preferred the present appeal. 5. The respondent after being duly served has filed cross- 3 objections claiming that the amount of compensation be enhanced to Rs.125/- per square metre. 6. Ms. Susan Linhares, the learned Additional Government Advocate appearing for the appellants has assailed the impugned judgment and pointed out that the sale instance produced by the respondent are not comparable to the land acquired which is a narrow strip of land and has no potential of being used for any non- agricultural and residential use and, consequently, the enhancement granted by the Reference Court does not survive. Learned Counsel took me through the evidence on record and pointed out that the respondent has failed to show that the land acquired is comparable to the sale instance produced by him. Learned Counsel further submitted that the Reference Court has totally misdirected itself in enhancing the compensation and, as such, the impugned judgment deserves to be quashed and set aside and the reference filed by the respondent deserves to be rejected. 7. On the other hand, Shri Sudesh Usgaonkar, the learned Counsel appearing for the respondent has opposed the contentions raised by the learned Additional Government Advocate. The learned Counsel submitted that the Reference Court has in fact 4 awarded very small amount when the market value of the acquired land in the vicinity is a minimum sum of Rs.125/- per square metre. Learned Counsel further submitted that the sale instances produced by the appellants disclose that the price in the vicinity of the acquired land was a minimum of Rs.150/- per square metre and, as such, the question of Reference Court fixing the compensation of only Rs.50/- per square metre would not arise. Learned Counsel further submitted that the Reference Court has erroneously refused the compensation for the land bearing survey no.117/5 when the said land was comparable to the land surveyed under no.112/3. Shri Usgaonkar pointed out that in a judgment passed by this Court in First Appeal No.224/2004, the compensation in respect of the property surveyed under no.116/4 has been fixed at the rate of Rs.65/- per square metre and with regard to the land bearing survey no.116/2 this Court has fixed the compensation at the rate of Rs.32/- per square metre. The learned Counsel further submitted that the lands in the present case are comparable to the land which is subject matter in First Appeal No.224/2004. 8. Having heard the learned Counsel and on perusal of the records, the following points for determination arise in the appeal: 5 POINTS FOR DETERMINATION : (i) Whether the Reference Court was justified to fix the compensation in respect of the land bearing survey no.112/3 at the rate of Rs.50/- per square metre. (ii) Whether the Reference Court was justified to refuse the reference in respect of the land bearing survey no.117/5. 9. In support of their claim for enhancement, the respondent has examined Shri Santosh M. Prabhudesai, who has stated that two properties are subject matter of the acquisition which are surveyed under no.112/3 and 117/5(part). He has further stated that the acquired land of the respondent from survey no.112/3 admeasures 1200 square metres and in respect of survey no.117/5(part) the same admeasures 215.50 square metres. He has further stated that the land bearing survey no.117/5 is at a distance of about 100 metres from the main highway and the land surveyed under no.112/3 is adjacent to the National Highway. He has further stated that the Higher Secondary School is at a distance of about 100 metres and that the High School is adjacent to the ground and it is also located at a distance of 100 metres. He has further stated that the Government Health Center is about half kilometre and that 6 the bus stop is adjacent to the property bearing survey no.117/5 and at a distance of about 50 metres from the acquired property. In support of his claim for enhancement, he has produced the Sale Deed dated 27/09/1995 which is duly registered in respect of the property bearing survey no.356/10 wherein the property was sold at the rate of Rs.150/- per square metre for an area of 2140 square metres and at the rate of Rs.100/- per square metre for an area of 1500 square metres. Another sale instance dated 27/09/1995 has been produced wherein the price is at the rate of Rs.150/- per square metre for an area of 423 square metres from the land bearing survey no.356/10 of the same village. He has further stated that the property surveyed under no.112/3 is along the highway and opposite to the sale deed plot. He has further stated that the property surveyed under no.117/5 is at a distance of 450 metres from the sale deed plot. In his cross-examination, the said witness has stated that the National Highway-17 is abutting the property surveyed under no.112/3. He has further admitted that the property surveyed under no.112/3 has a gentle slope and at the end of said survey number there is a nalla which is the valley and 5 metres on either side is the said valley. He has further stated that the first property on the northern side is 112/3 and the last property is survey no.117/5. He has further admitted that in the property 7 survey no.117/5 there is a traditional access passing through the said portion of the property. He has further admitted the the property surveyed under no.117/5 is not touching the National Highway and if one stands at the beginning of the road where the acquisition ends, the National Highway is at the height of 12 metres in a sloppy gradient. He has further stated in his cross- examination that electricity and telephone facilities are not adjacent to the acquired land. He has further admitted that the said sale deed plots are at Exhibit 15 and 14 and are pertaining to the property situated on the other side of the National Highway-17 and that the plots under sale deed at Exhibit 15 and 14 are adjacent to each other and are abutting the National Highway. He has further stated that exactly opposite the acquired property under survey no.112/3 there is a hill. The respondent has also produced valuation report of Shri Vikas Dessai, who has stated that according to him the value of the land acquired is Rs.200/- per square metre. The said witness has been examined as AW2 and has been cross-examined. In his cross-examination, he has stated that the property under survey no.117/5 is not touching the National Highway and the property survey no.117/5 is at the height from the property survey no.117/3. He has further stated in his cross- examination that the property under survey no.112/3 is at a higher 8 level at the place where it touches the road. He has further stated that length of the property bearing survey no.112/3 is 90 metres and the breath varies. He has further stated that the property bearing survey no.117/5 pertains to five different people and the area belonging to the appellants is 215.50 square mteres from the said survey number and 1200 square metres from the property under survey no.112/3. He has further stated that the properties under sale deed plots at Exhibit 14 and 15 are almost levelled properties and are developed and sub-divided plots. 10. The Reference Court while passing the impugned judgment has come to the conclusion that the appellants have not disputed the genuineness of the sale instances produced by the respondent at Exhibit 14 & 15. The Reference Court has further found that on perusal of Exhibit 16 which is a survey plan and the site plan at Exhibit 22 demonstrates that the property bearing survey no.356/10 is across the road which is towards the northern side of the property under survey no.112/3. This discloses that the property under survey no.112/3 which is the subject matter of this appeal is in the vicinity of the sale deed plot which is admittedly surveyed under no.356/10. The learned Judge has considered the dissimilarities of the land acquired with the said sale instances and 9 has effected deductions of 70% and fixed the compensation at the rate of Rs.45/- per square metre. The Reference Court after giving escalation for a period of one year between the dates of Section 4 notification and the sale deed plot has fixed the compensation at the rate of Rs.50/- per square metre. 11. On perusal of the records, I find that the land involved in the present case is surveyed under no.117/5 admeasuring an area of 1875 square metres out of which the respondent is claiming compensation for a specific area admeasuring about 215.50 square metres. The other portion claimed by the respondents is from property bearing survey no.112/3 admeasuring an area of 1200 square metres which is also subject matter of the appeal. 12. From the over all evidence, it is evident that the property surveyed under no.112/3 is adjoining the National Highway. The sale deeds which have been relied upon by the respondent at Exhibit 14 and 15 are across the same National Highway and the same are on the opposite side of the land acquired which is separated by the said National Highway. The dissimilarities of the acquired land have been considered by the Reference Court and a deduction of 75% has been effected on account of such 10 dissimilarities. I have already highlighted the advantages as far as the land under survey no.112/3 is concerned which is across the National Highway. There is no doubt that there are some dissimilarities considering that the said land is sloppy and the infra structure facilities are not available therein. 13. While disposing of First Appeal No.224/2004, this Court has fixed the compensation in respect of the property under survey no.116/4 at the rate of Rs.65/- per square metre. On perusal of the said judgment, I find that the property under survey no.116/4 and the land which is subject matter of the said acquisition surveyed under no.112/3 have some dissimilar factors. The property surveyed under no.116/4 is levelled land compared to the said land surveyed under no.112/3 which is sloppy and towards the National Highway, but however, considering that the land subject matter of the present acquisition is adjoining the National Highway the same would have better commercial value, the said dissimilarities referred to herein above are set off from an appreciation which could be given considering that the property under survey no.112/3 is adjoining the National Highway. Considering the nature of the land and the other similar features in respect of the property surveyed under no.116/4 and 112/3, I find that the rate fixed in 11 respect of the said portion of the property at the rate of Rs.65/- per square metre should be fixed with regard to the land under survey no.112/3 is concerned in the present acquisition. The said amount of compensation has been arrived at after considering the sale deed at Exhibit 14 & 15 as the basis to fix the market value of the land acquired. The Reference Court was not justified to effect deduction of 75% to fix the market value of the land, for the reasons already stated while disposing of First Appeal No.224/2004. The first point for determination is answered accordingly. 14. As far as the property under survey no.117/5 is concerned, the respondent is claiming an undivided share of the property. Evidence discloses that the said portion of the property is also sloppy. Apart from that there was a traditional pathway which was passing through the said portion of the property. There is a dispute as to whether the traditional pathway was passing through the portion of the land acquired, but however, the same does not make any difference, as in any event, considering that there is a pathway existing in the said portion of the property, the said factor will have to be considered for the purpose of fixing the market value of the acquired land. The undivided share of the property which is 12 claimed by the respondent by itself cannot be considered to be a free holding, considering that there are restrictions in transferring to the third party such undivided share in the property. 15. While disposing of First Appeal No.224/20024, this Court has fixed the compensation for the property surveyed under no.116/2 at the rate of Rs.32/- per square metre. The said land surveyed under No.116/2 is comparable to the land surveyed under no.117/5 and in fact very close there to. The dissimilar factor is that the land under survey no.117/5 had a traditional pathway passing through it. This negative factor has to be accounted for while fixing the market value of the acquired land. Considering all these factors, the market value of the land survey no.117/5 is to be fixed at Rs.25/- per square metre, after making the deduction of 20%, on account of such negative factors. The Reference Court was not justified in refusing to award any compensation to the property under Survey No.117/5, on the ground that it was used as a traditional footpath and had no potential value. Existence of such footpath no doubt is a factor which has to be considered to effect deduction on account of any such dissimilarity, but it cannot be a ground to refuse any compensation especially when there is no dispute that the respondent had more land besides the portion 13 acquired. It is admitted fact that the land was not acquired for any such footpath. Considering the facts and circumstances of the case and on account of dissimilarities herein above stated, the market value of the land in respect of the property under survey no.117/5 is fixed at the rate of Rs.25/- per square metre for the part of the land acquired. The learned Additional Government Advocate is not justified to contend that the sale instances produced by the respondent are not comparable to the land acquired or that the land acquired had no potentiality. The second point for determination is answered accordingly. 16. In view of the above, I pass the following order: O R D E R (i) First Appeal No.228/2004 stands dismissed. (ii) Cross-objections No.8/2005 are partly allowed and impugned judgment and award dated 25/05/2004 is modified and compensation in respect of the property bearing survey no.112/3 admeasuring an area of 1200 square metres is fixed at the rate of Rs.65/- per square metre and the compensation in respect of the property bearing survey no.117/5 admeasuring an area of 215.50 square metres is fixed at the rate of Rs.25/- per square metre. (iii) Needless to say the respondents will be entitled 14 to all the statutory benefits under the provisions of Section 23(1-A), Section 23(2) and Section 28 of the said Act, in accordance with law. (iv) The appeal and the Cross Objections stand disposed of accordingly with no order as to costs. F.M. REIS, J. NH/-