- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 207 OF 2004. Shri Pandurang Soiru Naik, r/o House No. 552, Malim, Bardez, Near Fishing Jetty, Malim, Betim, Penha de Franca, Betim, Bardez, Goa (Since deceased, rep. through legal heirs) 1a. Shri Nanda Soiru Naik, residing at Malim, Penha de Franca, Bardez, Goa (since deceased, rep. through legal heirs) A Smt. Kamalabai Nanda Naik, B Shri Krishna Nanda Naik and his wife C Smt. Nazima K. Naik D Shri Soiru Nanda Naik and his wife E Smt. Sonal S. Naik F Shri Prasad Nanda Naik and his wife G Smt. Prashita P. Naik H Kum. Prashali Nanda Naik, all r/o House No. 552, - 2 - Malim Bardez, Near Fishing Jetty, Malim, Betim, Penha de Franca, Betim, Bardez, Goa. I Smt. Aparna B. Madgaonkar and her husband J Shri Baburao Madgaonkar, both r/o Caisua, Bardez, Goa. K Smt. Latika K. Naik and her husband L Shri Kalidas Naik, both r/o Sanvordem, Goa. .......... Appellants. Versus 1 The Dy. Collector, Goa North Div. Panaji, Goa. 2 The Chief Engineer, P.W.D., Altinho, Panaji, Goa. 3 The Law & Judiciary Dept., Secretariat, Panaji, Goa. 4 Smt. Devki alias Satyawati Pandurang Shirodkar (expired), r/o Opp. Industrial Estate, Corlim, Tiswadi Taluka (since deceased rep. through legal heirs) a. Smt. Vishaylata Kashinath - 3 - Naik, daughter of Pandurang Shirodkar, and her husband b. Shri Kashinath Bhiso Naik, both r/o H. No. 109, Kusmanem, Quepem, Goa. c. Smt. Jaya A. Vengurlekar, daughter of Pandurang Shirodkar, and her husband d. Shri Ajay Shanu Vengurlekar, both r/at H. No.246, Near Santeri Temple, Khorlim, Mapusa, Goa. .......... Respondents. Mr. D. Pangam Advocate for the Appellants. Mr. S. Linhares, Additional Government Advocate for the Respondent nos. 1 to 3. Mr. Sudin Usgaonkar, Advocate with Ms. Astrid Pereira, Advocate for Respondent nos. 4(a) to 4(d). CORAM:-F. M. REIS, J. DATE:-8 th OCTOBER, 2010. ORAL JUDGMENT The above Appeal challenges the Judgment and Award dated 5.5.2004 passed by the learned Additional District Judge, North Goa, Panaji in Land Acquisition case no.142/1996. - 4 - 2. By notification under section 4 of the Land Acquisition Act ( hereinafter referred to as 'the said Act') dated 1.1.1985 published in the Official Gazette dated 17.1.1985, the Respondents acquired certain areas of land admeasuring an area of 8807 square metres from the property surveyed under no.75/3(part) of village Penha de France, taluka Bardez Goa. 3. The Land Acquisition Officer by an Award dated 14.4.1987 offered the compensation for the land acquired at the rate of Rs.150/- per square metre. 4. Being dissatisfied with the said amount, the Appellants claimed compensation for the land acquired at the rate of Rs.400/- per square metre and Respondent no.4 claimed compensation for the land acquired at the rate of Rs.800/- per square metre. 5. By Judgment and Award dated 5.5.2004, the learned Reference Court rejected the reference filed by the Appellants and Respondent no.4. 6. Being aggrieved by the said Judgment and Award, the - 5 - Appellants have preferred the present appeal. 7. Shri D. Pangam, learned Counsel appearing for the Appellants has assailed the impugned Judgment and submitted that the Appellants has produced comparable sale instance wherein price in the vicinity of the land acquired is much more than Rs.300/- per square metre. The learned Counsel further submitted that the Reference Court has totally misdirected itself while passing the impugned Judgment and rejected the claim of the Appellants for enhancement of compensation. The learned Counsel further submitted that the Appellants have produced sale deed dated 12.10.1984 which is at Exh. 27 which demonstrates that the price was Rs.200/- per square metre in respect of the land which was much inferior in quality as to its location as compared to the land acquired. He further submitted that the land acquired is at a distance of about 200 metres from the Mandovi bridge and about one km from the KTC bus stand of Panaji City. Learned Counsel further submitted that the land acquired had a panoramic view as it was overlooking mandovi river and Panaji City and as such had high potentiality of being used for construction purpose. Learned Counsel further submitted that the main Government offices including Government Secretariat was - 6 - located in the vicinity of the acquired land and as such the land acquired had high demand. Learned Counsel further submitted that there was evidence on record to established that the land of the Appellants was much superior to the sale deed plot and as such said land, demanded much high value. Learned Counsel further submitted that considering that the land is situated close to the capital city of Goa the escalation has to be assessed at more than 30% per annum, considering the potentiality of the land and high demand for land in the vicinity of the acquired land. The learned Counsel further submitted that the Reference Court has totally ignored the basis principles of law in assessing the market value of the land as contemplated under section 23 of the said Act and came to the erroneous conclusion that the Appellants have failed to establish that they are entitled for enhancement of compensation. Learned Counsel as such submitted that the land acquired has to be valued at a minimum price of Rs. 300/- per square metre as the acquired land was much superior than the land which was subject matter of the sale deed at Exh. 27 dated 12.10.1984. Learned Counsel further submitted that the escalation for a period of more than two years should be at the minimum rate of 30% per annum considering that the land acquired had high potentiality of being used for construction and development - 7 - purpose and considering the location. 8. On the other hand Shri Sudin Usgaonkar appearing for Respondent nos. 4 has supported the submissions of the learned Counsel for the Appellants. 9. On the other hand Ms. S. Linhares, learned Additional Government Advocate appearing for the Respondents nos. 1 to 3 has supported the impugned Judgment. She submitted that the Reference Court after minutely examining the evidence on record has come to the conclusion that the Appellants have failed to establish that they were entitled for enhancement of compensation for the land acquired. She further submitted that the sale deed produced by the Appellants at Exh. 27 is not at all comparable with the land acquired. Learned Counsel further submitted that the expert evidence produced by the Appellants cannot be relied upon and there is no evidence on record to establish that the Appellants have discharged the burden cast on them to establish that the price offered by the Land Acquisition Officer was inadequate. Learned Counsel further submitted that the amount offered by the Land Acquisition Officer is just and proper and as such no interference is called for by this Court in the present appeal. - 8 - 10. Having heard the learned Counsel for the Appellants and the Respondents 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 reject the reference filed by the Appellants? 11. In support of their claim for enhancement of compensation the Appellants have examined Krishna Naik as AW1. He has stated in his deposition that the compensation offered by the Land Acquisition Officer by Award dated 14.4.1987 was apportioned between all the co-owners as there was no tenant in the said acquired land. He has further stated that the land acquired which is part of the property surveyed under no. 73/3 situated at Penha-de-France village is plain land situated on a plateau facing Mandovi River and having beautiful view of Panaji and Ribandar area and also of the Arabian sea. He has further stated that the land acquired is at a distance of 1 km away from the Panaji city and on the left hand side of the road there is a national highway road from Panaji to Mapusa. He has further stated that the land is rocky and suitable for industrial, commercial and residential purposes which has come up in the - 9 - locality of the acquired land besides the Porvorim and Penha de France areas are developed as tourist areas. He has further stated that at the time of acquisition there was electricity and water pipeline available along the Malim Betim road and also transport faclity was available in the vicinity of the acquired land. He has further stated that the Panaji bus stand is at a distance of 1 km and there was access of 6 metres wide to go to the acquired land. He has also stated that the market was available at Malim and Betim and that these areas where acquired land was located was fast developed. In support of his claim for enhancement of compensation, he has relied upon the sale deed admeasuring 740 square metres which was sold for a sum of Rs.1,48,000/- which works out to Rs.200/- per square metres. The said plot is situated at a distance of 1 km from the acquired land and the said sale deed plot is at Exh.27. He has also produced report of the valuer Shri R. V. Tamba who had visited the acquired land in the year 1987 and had given his opinion that the market value of the acquired land was Rs.400/- per square metre. In the cross examination he has denied the suggestion that the acquired land was a tenanted land. He has also denied the suggestion that the acquired land was not accessible by road. He has denied the suggestion that the sale deed at Exh. 27 was not comparable to the land acquired. He has - 10 - admitted that the sale deed plot was developed plot and was at a level of the road. 12. The next witness examined is Shri Ajay Vengurlekar, who has stated in his affidavit that the land acquired is situated in a strategic position and gives panoramic view of Panaji city across the river Mandovi. He further stated that the land acquired is suitable for putting up construction of hotels as all infrastructure facilities were available at the site. He has also produced the sale deed. He has relied upon the sale deeds dated 12.10.1984 and 10.6.1985 and stated that the market value of the acquired land was much higher. The sale deed dated 10.6.1985 is at Exh. 31 and sale deed dated 12.10.1984 is at Exh. 27. In the cross examination he has stated that the sale deed dated 10.6.1985 is in respect of the property surveyed under no. 121/1 and situated in Penha de France and is a developed plot. He has denied the suggestion that it is at a distance of 4 kms from the acquired land. He has also admitted that the other sale deed dated 12.10.1984 is a developed plot. 13. The next witness who has been examined is Mr. Ravindra Tamba who has stated on affidavit that the land acquired was not - 11 - effected by any restrictions in the master plan because it was lying in the village Penha de France. He has further stated that the whole property surveyed under no.75/3 admeasures 12500 square metres and is situated in village Penha de France. He has further stated that the property is a barren land and partially rocky terrain having slight slope. He has further stated that it has independent access of 6 metres width heading from the national highway 17 near Panaji-Mapusa road. He has further stated that it has a regular shape and the surface is levelled. He has further stated that the acquired land is suitable for Industrial, commercial and residential purposes and all basis parameters for ultilisation of the land for projects related to tourist promotion, housing complex were available to the land acquired. He has further submitted that the sale deed made available to him was admeasuring 740square metres which was of the year 1984 which was a developed plot. He has further stated that according to his opinion the market value of the acquired land was Rs.400/- per square metre. In the cross examination he has stated that the access road to the acquired land is on the eastern side. He has denied the suggestion that the acquired land had no access. He has further stated that the sale instance referred by him of the year 1984 was in respect of the land sold at Rs.200/- per square metre being a developed plot. He has - 12 - denied the suggestion that he has falsely stated the existence of amenities in the vicinity of the acquired land. 14. The Reference Court after examining the evidence on record has come to the conclusion that the Appellants failed to establish that they are entitled for any enhancement of compensation offered by the Land acquisition Officer. 15. For the purpose of determining the market value of the land as on the date of section 4 notification, the Apex Court in the Judgment in the case of Mahesh Dattatray Thirthakar Vs. State of Maharastra (2009 AIR SCW 2962) has held at para 37 that the compensation provision of the Land Acquisition Act is in the nature of a welfare stipulation and thus the State Government must be just and fair to those whose land is acquired. It is not just and fair to deprive the owner of any property without payment of its true market value, especially when the law provides that the same shall be paid. 16. The evidence of Appellants suggest that there is no dispute that the acquired land has a panoramic view of Mandovi river besides being located at the strategic position having the view of - 13 - Panaji city and Ribandar. Apart from that the movement on the river create an idealist view which commands a lot of demand for such land for the purpose of commercial tourist as well as residential activities. There is no dispute that on the opposite side across the Mandovi river the capital city of Panaji is situated. The evidence further suggest that the main KTC bus stand is located at a distance of 1 km from the acquired land. AW1 in his evidence has further deposed that there was high demand for the land in the vicinity of the acquired land, as fact the place where the land is situated was fast developing. This fact has not been disputed by the Respondent nos. 1 to 3 in the cross examination. These facts are material for the purpose of arriving at a just market value of the acquired land as on the date of section 4 notification. 17. In support of the claim for enhancement the Appellants have produced a sale instance which is at Exh. 27. The said sale deed was executed in October, 1984. On perusal of the said sale deed, I find that the sale instance therein was a developed plot. It was located on the hill adjoining the road Betim to Mapusa. 18. In the award of the Land Acquisition Officer, it is mentioned - 14 - that the acquired land, is located on the plateau, eastern side of which lies the national highway which is at a lower level. It further states that the site in question has a commanding view of Panaji city and Mandovi bridge and can be seen prominently from a distance. On the other hand the sale deed land at Exh. 27 is located on Betim Mapusa highway which is also on the hilly property but at a distance of at least 1 ½ kms from the acquired land. The said plot does not have such a panoramic view as the acquired land. The evidence discloses that the land acquired though located in a village is situated in the out skirts of Panaji City with access to road and services nearby. Some facilities such as road, water, electricity had reached the acquired land and commanding a special feature as it was strategically located. The land would have a higher demand and potential. It is well settled that for the purpose of determining the market value of the acquired land, various factors will have to be considered. One of the factors which is material is whether the land acquired has frontage towards national highway. The lands which are located in the proximity of the national high way will command high value as compared to the land which are situated in the interior location. The land which has motorable access will incur less expenditure on account of development charges. In the present case the land which has been acquired is close to the - 15 - national highway 17 towards its eastern side as can be established from the evidence on record. Apart from that the evidence discloses that there was 6 metres wide access to the land acquired. No evidence has been adduced by the Respondent nos. 1 to 3 to discard the said evidence of the Appellants. Considering the said facilities, I find that the land of the Appellants was better situated and had more appreciable value than the land which was the subject matter of the said sale instance at Exh. 27. Considering the location of the land acquired vis-a-vis the sale deed plot, I find that the acquired land is much better located then the sale deed plot. On account of such factors the acquired land would have a appreciation of minimum 25%. 19. The sale deed is dated October, 1984 and the notification is about 3 months thereafter. There is also a sale instance at Exh. 31 which is 6 months after the section 4 notification of the same village situated at Alto Porvorim wherein a plot of 378 square metres was sold for Rs. 1,00,000/-. The said plot is closer to the plot at Exh. 27. Thus trend suggests the appreciation in the value of the land in the same village. In the cross of AW2, the sale deed has not been challenged as being sham or nominal. Considering all these factors, I - 16 - find that after the said appreciation of 25%, the price of the developed plot would work out to Rs. 250/- per square metre. The land acquired is not developed whereas sale deed plot was developed plot and was also a hill property. The law is well settled that for the purpose of fixing the development charges, location and the nature of the land have material bearing in fixing such development charges. In the present case the land acquired was stated to be of rocky nature and being slightly hilly and a plateau which was levelled. Apart from that as it is situated in the vicinity of the capital city expenditure for the purpose of development would be less than that in case in which lands are situated in the further location. Considering all these factors, I find that the deduction of 33% on account of development charges would be just and proper. I accordingly fixed the market value of the acquired land at Rs.170/- per square metre. 20. The Apex Court in the said Judgment in Mahesh Dattatray Thirthkar VS. State of Maharashtra( supara) has held that burden of proving the true market value of the acquired property is on the State that has acquired it for particular purpose. When the land owner has been able to show by testimony and valuation report of the expert valuer that the amount of compensation awarded by the Land - 17 - Acquisition Officer was inadequate, the onus now shifts on the State to adduce sufficient evidence to sustain the award. In the present case apart from producing said sale instance at Exh. 27 the expert examined by the Appellants has deposed that the market value of the acquired land according to his opinion was Rs.400/- per square metre though there are no convincing reasons to arrive at such figure as found by the Reference Court. The evidence adduced by the Appellants sufficiently discloses that the burden cast on the Appellants that the price offered by the Land Acquisition Officer is inadequate has been established. The Respondents have failed to adduce any evidence to sustain the award of the Land Acquisition Officer. 21. The Reference Court as such failed to considered the said features of the acquired land while passing the impugned Judgment. The Reference Court erred in holding that the Appellant have failed to discharged the burden cast on them to establish that the compensation offered by the Land Acquisition Officer, was in adequate. The Point for determination is answered accordingly. 22. In view of the above, I pass the following:- O R D E R - 18 - i. The Appeal is partly allowed. ii The impugned Judgment and Award dated 5.5.2004 is quashed and set aside and the market value of the land acquired is fixed at the rate of Rs. 170/- per square metre. Needless to say that the Appellants would be entitled to statutory benefits as provided under section 23(1) )(A), 23(2) and section 28 of the said Act in accordance with law. iii. The Appeal stands disposed of accordingly with no Order as to costs. iv. Decree accordingly. F. M. REIS, J. vn*