-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 238 OF 2006 1. Deputy Collector and SDO, South Goa, Margao, Goa. 2. The Executive Engineer, W.D. VI (R-S) P.W.D., Fatorda, Margao, Goa. … Appellants V e r s u s 1. Smt. Milagrina Pereira e Xavier, House No.39, Aquem Baixo, Rawanfond, Navelim, Salcette, Goa. …. Respondent Mr. Manish D. Salkar, Government Advocate for the Appellants. Mr. S. Karpe, Advocate for the Respondent. Coram :- F. M. REIS, J Date : 5 th August, 2011. JUDGMENT The above Appeal challenges the Judgment and Award dated 9.08.2005 passed by the learned Additional District Judge South Goa, Margao in Land Acquisition Case No.72/2003/I. Land belonging to the Respondent was acquired by the Appellants for widening of the Margao-Quepem road from Rawanfond to Paroda skew canal in Salcete Taluka, pursuant to Notification issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the 'said Act') dated 04.10.1996, admeasuring an area of 510 square metres from the property surveyed under no.37 at Aquem. By an Award passed by the Land Acquisition Officer under Section 11 of the said Act dated 19.10.2001, a sum of -2- Rs.20/- per square metre was offered to the Respondents for the land acquired. 2. Being dissatisfied with the said amount, the Respondents sought a reference under Section18 of the said Act for enhancement of compensation and claimed a sum of Rs.2000/- per square metre for the land acquired. By the Judgment and Award dated 09.08.2005, the learned Reference Court partly allowed the said reference and fixed the compensation for the land acquired at the rate of Rs.200/- per square metre. 3. Being aggrieved by the said Judgment, the Appellants preferred the present Appeal. 4. Shri M. Salkar, the learned Government Advocate appearing for the Appellants has assailed the impugned Judgment and pointed out that the Reference Court had totally misdirected itself in fixing the compensation for the land acquired at the rate of Rs.200/- per square metre. The learned Counsel has further submitted that the Reference Court has not considered that the land acquired was coming within the road widening area and, as such, the said land had no potential value to be used for non-agricultural purpose. The learned Counsel further pointed out that the learned Judge has erroneously relied upon a sale instance of a developed plot for the purpose of fixing the market value of the land acquired as such land cannot be considered to be a comparable sale instance. The learned Counsel has further taken me through the Sale Deed at exhibit 22 and pointed out that the said sale instance is of the year 1987 and the Notification in the present case was issued in the year 1996 within a gap of more than five years and, a such, the question of relying upon the said sale instance for the purpose of -3- determination of the market value of the land acquired is totally erroneous. The learned Counsel has submitted that the Appeal deserves to be allowed and the impugned Judgment and Award be quashed and set aside. 5. On the other hand, Shri Karpe, the learned Counsel appearing for the Respondent has supported the impugned Judgment. The learned Counsel has submitted that the sale instance produced at exhibit 22 is in the vicinity of the acquired land and there is no infirmity committed by the Reference Court in relying upon the said sale instance as basis for determining the compensation payable to the Respondent. The learned Counsel has further submitted that an area of about 500 square metres was acquired in the present proceedings and only an area of 165 square metres has been left out for the Respondent which resulted in substantial loss and deprivation to the Respondent on account of the acquisition of her property. The learned Counsel has taken me through the impugned Judgment and pointed out that the learned Judge has rightly assessed the evidence on record and has enhanced the compensation for the land acquired at the rate of Rs.200/- per square metre. With regard to the submission of learned Counsel appearing for the Appellants that the land acquired was coming within the road widening area, the learned Counsel has pointed out that this aspect can only be considered as a dissimilarity for the purpose of considering the market value of the land acquired and, under no circumstances, it can be a factor which would totally disentitle the land owner for compensation of the land acquired on the basis that it had potential value. In support of his submission he has relied upon the Judgment of the Apex Court reported in 2009(10) S.C.C. 686, in the case of State of Goa v. Gopal Baburao Gaudo. -4- 6. Having heard the learned Counsel and on perusal of the record, the following point for determination arises in the present appeal:- Whether the Reference Court was justified to fix the compensation for the land acquired at the rate of Rs.200/- per square metre ? 7. In support of her claim for compensation for the land acquired, the Respondent has examined Gregory Xavier, who is a duly constituted Attorney of the Respondent. He has stated in his affidavit that the acquired land was a bharad land and was close to Margao Quepem State Highway and adjoining the Margao Municipal limits. He has further stated that the land acquired had high potentiality of being used for residential purpose as according to him, it was situated less than 2 kilometres from Margao Town and less than one kilometre from the Margao Konkan Railway Station. He has further stated that the land acquired is about two kilometres from Navelim Post Office and Rosary College at Navelim. He has further stated that at a distance of less than 500 metres from the acquired land, there was a sale of a plot of land at the rate of Rs.250/- per square metre pursuant to a Sale Deed dated 29.10.1987. Apart from that, there was another Sale Deed dated 26.11.1991, which is also at a distance of less than 500 metres wherein the rate was Rs.400/- per square metre. In the cross examination, there is only a general denial of the averments in his deposition. 8. The learned Judge whilst passing the Judgment dated 09.08.2005, has appreciated the evidence on record and found that on perusal of the sale -5- instance of exhibit 22 which is a Sale Deed dated 29.10.1987 and the sale instance at exhibit 23 which is dated 26.11.1991, there was an increase in the price by about 14 percent but however the said sale instances are located within the jurisdiction of Margao Municipality. The learned Judge as such has granted an appreciation of 10% on the basis of the sale instance exhibit 22 and worked out the compensation to Rs.589/- considering a gap of nine years between the date of the Sale Deed and the Section 4 Notification. The learned Judge has further granted 66 percent deduction on account of development charges and fixed the compensation for the land acquired at the rate of Rs.200/- per square metre. 9. On perusal of the evidence on record, I find that the learned Judge has failed to take note of the sale instances at exhibit 23 which is much later than the Sale Deed at exhibit 22 and is also more proximate in time to the Section 4 Notification in the present case. But however, the learned Judge has found that both the said two sale instances are located within the jurisdiction of Margao Municipal Council whereas the land acquired was located beyond such limits. In fact, it would be more appropriate for the learned Judge to determine the compensation for the land acquired on the basis of the said sale instance exhibit 23 for the purpose for fixing the market value of the acquired land considering that both the said sale instances are stated to be at a distance of about 500 metres from the land acquired. It is well settled that normally sale instances which are around five years prior to the Section 4 Notification are acceptable pieces of evidence for the purpose of fixing the market value of the acquired land in cases in which such sale instances are available. Considering that the sale instance of the year 1991 was brought on record by the Respondents, the learned Judge ought to have -6- considered the said sale instance for the purpose of fixing the market value of the land acquired. Considering the said sale instance at exhibit 23 and after giving an escalation of 10 percent per annum on the price of Rs.400/- per square metre for a period of five years, the amount would work out to Rs.650/- per square metre approximately and after deducting two thirds on account of development charges, the compensation would work out to Rs.215/- per square metre. The Reference Court has fixed the compensation on the basis of the sale instance at exhibit 22 and determined the market value of the acquired land at the rate of Rs.200/- per square metre after making deductions up to 66 percent on account of development charges. The Apex Court in the said Judgment in the case of State of Goa v. Gopal Baburao Gaudo,(supra), it has been held at paras 4, 5 and 7 as under : “4. A long strip of land measuring more than two- thirds of an acre lying alongside and adjoining the highway cannot be treated as a land without value or without any potential for development, merely on the ground that the law relating to highways prohibited construction on either side of the highway, up to a depth of 40 m from the centre of the highway. All that was required to create or realise potential of such land was to annex or merge the said strip of land with the land to its rear. In that event, the strip of land will become the “access” to the rear side land from the main road and will also become the frontage of the aggregate land, thereby enhancing the potential and value of the rear side land, as also creating a potential for its own use. “5. The contention that a land adjoining the highway should be treated as having no development potential (and therefore as land without much value except as ordinary agricultural land), while considering the lands to its rear -7- which are farther away from the road, or other adjoining lands of the same extent, but having more depth (so as to extend beyond the 40 m margin) as having potential for development, is illogical and cannot be accepted. 6. … 7. Therefore, determination of market value of the acquired land with reference to the value of comparable land cannot be faulted.” 10. Considering the said Judgment of the Apex Court and the contentions of the learned Government Advocate to the effect that the Sale Deed of a developed plot cannot be considered for the purpose of fixing the market value of the acquired land, cannot be sustained especially taking into consideration that there is no dispute that the Respondent was owning the land beyond the land which was coming within the road widening area. In any event, any deduction on account of such factor can be considered to have been set off in view of the fact that the Reference Court has fixed the compensation on the basis of the said sale instance at exhibit 22 and fixed the amount at Rs.200/- per square metre. 11. On perusal of the impugned Judgment, considering the deductions effected by the Reference Court which otherwise appear to be excessive and as no Cross Objections have been filed by the Respondent, I find that the amount determined by the Reference Court fixing the market value of the land at the rate of Rs. 200/- per square metre, cannot be considered to be excessive or exorbitant. The amount has been determined after making maximum deductions on account of development charges though the land acquired was substantially small. The -8- amount as determined by the Reference Court is fair and reasonable in the facts and circumstances of the case. Shri Salkar, the learned Government Advocate is not justified to contend that the Respondent was not entitled for any enhancement of compensation. The point for determination is answered accordingly. 12. In view of the above, I find no merit in the above Appeal and, consequently, the Appeal stands dismissed with no orders as to costs. F. M. REIS, J. arp/*