1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 138 OF 2003 1. Deputy Collector(Rev) and Land Acquisition Office, Panaji-Goa. 2. The Director, Directorate of Agriculture, Panaji-Goa. ... Appellants versus 1. Rajendra Vassudev Deshprabhu, (Dead) through L.Rs. 1a) Dr. Vassudev R. Deshprabhu 1b) Smt. Aparna R. Deshprabhu 1c) Miss Nayantara R. Deshprabhu All r/o Pernem-Goa. ... Respondents Mr. S. R. Rivonkar, Government Advocate for the Appellants. Mr. M. S. Sonak, Advocate for the Respondents. CORAM : A. P. DESHPANDE & N. A. BRITTO, JJ. DATE : 14TH OCTOBER, 2008. 2 JUDGMENT(Per N. A. BRITTO, J.) This is a State Government's appeal and is directed against Judgment/Award dated 22-11-2002 of the learned reference Court (Additional District Judge, Mapusa), by which the compensation payable to the Respondents (Applicants, for short) has been enhanced from Rs.17/- per sq. meter to Rs.175/- per sq. meter as against the claim of the said Applicants to Rs.350/- per sq. meter. 2. Some facts are required to be stated to dispose of this appeal. By virtue of Notification issued under Section 4(1) of the Land Acquisition Act, 1881, published on Gazette dated 1-2-1990 the Government acquired 106864 sq. meters of land. The subject matter of reference from which the present appeal arises is 5070 sq. meters of land of survey no.284/0 of Pernem, being the southern and western portion of their property belonging to two brothers namely Rajendra and Raghuraj, since deceased; and was admittedly a garden land, having different types of trees, and the L.A.O. by award dated 27-3-1991 paid compensation at the rate of Rs.17/- per sq. meter and apportioned the same on 50:50 basis i.e. 1/4th each was paid to the legal representatives of the said Rajendra and Raghuraj and the balance 50% to the three tenants, as per award, but as per the Applicants there were four tenants amongst whom the said 50% compensation was equally distributed. As regards the balance free hold land, the same is the subject matter of First Appeal No.123/2003 wherein we have allowed the cross objections and fixed the market value at Rs. 78.00 per sq. meter. 3 3. The Applicants are the legal representatives of the said Rajendra. Dissatisfied with the award of the L.A.O., the Applicants got a reference made, claiming enhancement of compensation at the rate of Rs.350/- per sq. meter and in support of the said reference the Applicants examined Applicant No.1(a) and who produced six awards and six sale deeds which are tabulated herein below, for easy reference:- Exh.No. Date of Notification /sale Area in sq. m. Price Distance in kms. Village Nature of land 1. AW1/B 20-8-1983 200 Rs.60/- 4 kms. Corgao garden 2. AW1/C 9-2-1984 530 Rs.20/- 4.5 kms. Dhargal Garden/paddy 3. AW1/D and E 27-11-1986 1200 Rs.75/- ½ km. Poraskadem bharad 4. AW1/F and I 7-9-1988 590 Rs.79.50 2 kms. Naibaga _ AW1/G 16-4-1985 5533 Rs.100/- 0.6 _ garden 5. AW1/H 22-6-1989 30300 Rs.123/- 2 kms. Pernem _ 6. A28 10-11-1988 4200 Rs.120/- Pernem _ 7. AW1/J 28-11-1985 160 Rs.300/- 0.5 Pernem garden 8. AW1/K 22-12-1987 178 Rs.100/- 0.7 Pernem garden 9. AW1/L 25-9-1989 100 Rs.200/- 1.3 Pernem Bharad/garden 10 . AW1/M 1-1-1991 100 Rs.100/- 1.5 Virnoda _ 11 AW1/N 19-8-1985 150 Rs.150/- 1.5 _ Garden 12 AW1/O 30-12-1991 100 Rs.600/- 0.5 _ Bharad 4. AW1/Dr. Rajendra, in his evidence stated that the acquired land was similar to the land of some of the sale deeds/awards and superior, as against others. For the view we are taking we do not propose to refer to the details of evidence given by him. The Applicants examined AW2/Gadekar to prove the sale 4 deed dated 25-9-1989/Exh.AW1/L and also examined Architect AW3/Shri Dessai, and the latter after considering the said sale deed-Exh.AW1/L as the most comparable instance valued the acquired land at Rs.170/- per sq. meter. 5. The learned reference Court ignored the sale deeds of Exhs.AW1/K, AW1/L, AW1/M and AW1/N as they were of small plots of land, and Exh.AW1/O though being of garden land, because it was a post notification sale deed. The learned reference Court referred to the award-Exh.AW1/B in which compensation awarded was Rs.60/- per sq. meter and observed that if an increase of 10% was given for every subsequent year, the compensation payable would work out to Rs.72/- per sq. meter, and since the acquired land was much better located it would have fetched around Rs.80/- per sq. meter. The learned reference Court also referred to the award-Exh.AW1/C in respect of 530 sq. meters of garden land like the acquired land, and then to Exh.AW1/D for which compensation was paid at the rate of Rs.75/- per sq. meter and observed that Exh.AW1/C was of inferior land, being bharad, and if 25% increase was given it would work out to Rs.100/- per sq. meter and in the year of acquisition it would work out to Rs.140/- per sq. meter. Ultimately, the learned reference Court referred to the sale deed-Exh.AW1/J by which land was sold at the rate of Rs.300/- per sq. meter on or about 28-11-1985 and further observed that if the rate was enhanced at the time of acquisition it would work out to Rs.420/- per sq. meter and if proportionate deduction was given the rate would work out to 5 Rs.250/- per sq. meter, but without assigning any further reason why the same rate was not being given to the Applicants in respect of the acquired land, the learned reference Court proceeded to fix arbitrarily the market value of the acquired land to Rs.175/- per sq. meter. This market rate is higher than the one assessed by Applicants' own witness Shri Dessai and is presumably based on the sale deed -Exh.AW1/J and the self serving and uncorroborated testimony of AW1/Dr. Vassudev. The approach of the learned reference Court can be said to be totally erroneous in that the learned reference Court has not arrived at the market value either on the basis of most comparable sale instance or award nor on the basis of average of such instances, assuming such a method was otherwise permissible, and on this count alone the impugned award deserves to be set aside. Exh.AW1/J was not close either from point of time or distance and was of free hold land. The learned reference Court also did not take care to ensure that only 50% of the market value determined would be payable to the Applicants. Learned Counsel on behalf of the Applicants submits that such a clarification could be done by this Court. At the same time, it must be observed that the finding of the learned reference Court that the provisions of the Goa Land Use(Regulation) Act, 1991 which came into force w.e.f. 2-11-1990 were inapplicable to the facts of the present case cannot be faulted as the notification in this case under Section 4(1) of the Act was gazetted on 1-2-1990. 6. The determination of market value of land with building potentialities is an intricate exercise which calls for collection and collation 6 of economic criteria and though at times some guess work is permissible, in this what is impermissible are feats of imagination. The Apex Court in Chimanlal Hargovinddas v. Special Land Acquisition Officer (AIR 1988 SC 1862), inter alia, has stated that if sale instance method is to be used then the Court has to correlate the market value reflected in the most comparable instance and the most comparable instance, out of the genuine instances, have to be identified on the consideration of proximity from time angle and proximity from situation angle and after sale instance is identified to provide the index of market value, the price reflected therein may be taken as the norm and the market value of the land under acquisition and can be deducted by making suitable adjustments for the plus and minus factors vis-a-vis the land under acquisition by placing the two in juxtaposition. The Apex Court in Shaji Kuriakose and another v. Indian Oil Corporation Limited and others((2001) 7 SCC 650) has stated that Courts adopt sales method of land because a method furnishes the evidence for determination of the market value of the acquired land at which a willing purchaser would pay for the acquired land if it is sold in the open market at the time of issue of notification under Section 4 of the Act but before that is done certain factors are required to be fulfilled, and only on fulfillment of those factors, the compensation can be awarded, according to the value of the land reflected in the sales, and, the factors laid down are:- 7 1. The sale must be a genuine transaction, 2. The sale deed must have been executed at the time of proximate to the date of issue of notification under Section 4 of the Act. 3. That the land covered by the sale must be in the vicinity of the acquired land. 4. That the land covered by the sales must be similar to the acquired land, and 5. The size of the plot of the land covered by the sale be comparable to the land acquired, and, if all these factors are satisfied then there is no reason why the sale value of the land covered by the sales be not given to the acquired land and in case of dissimilarity as regards the locality, shape, size or nature of the land between the land covered by sales and the land acquired, it is open to the Court to proportionately reduce the compensation for the acquired land than what is reflected in the sales depending upon the disadvantages attached with the acquired land. 7. If at all any sale or award instance was to be considered as a guide for the purpose of fixing the market value of the acquired land, it ought to have been Exh.28 which was proximate to the date of notification and was in the vicinity of the acquired land but there is not even a whisper to the said award Exh.28 in the impugned Judgment. The land of the said award of Exh.28 was closest both in point of time and location. 8 8. Be that as it may, Mr. Rivonkar, learned Government Advocate submits, referring to the various provisions of the Tenancy Act(G.D.D. Agricultural Tenancy Act, 1964) that the acquired land being tenanted land had no building potential. Learned Government Advocate further submits that the acquired land being agricultural land the valuation could have been done at the most on the basis of the annual yield. Learned Counsel further submits that the learned Reference Court also did not consider that there was an impediment, namely, that the land could not have been used for building purposes. Alternatively, Mr. Rivonkar has submitted that the acquired land being agricultural land there were restrictions for its development and on account of the said restrictions at least 50% deduction ought to have been made by the learned reference Court in the price awarded and in this context Mr. Rivonkar has placed reliance on the case of Comunidade of Candolim v. Deputy Collector(North)(2005(1) Goa L.R. 25) and to the case of Comunidade of Sancoale v. Government of Goa and another (unreported decision of this Court dated 8-8-2008 in First Appeal No.158 of 2003), wherein learned Counsel submits, that a deduction 50% was taken because the acquired land was Comunidade land. 9. Indeed, in the case of Comunidade of Candolim v. Deputy Collector(North)(supra) a Division Bench of this Court has stated that as the subject land belonged to the Comunidade, therefore it was not free hold land; Under Article 153 of the Code of Comunidades, the Governor had the powers to 9 authorize the exchange of land of Communidades and determine its requests for grant of leases. Under Articles 179 and 180, the lands belonging to the Comunidades can be sold only when in liquidation proceedings the assets are found to be inadequate. In short, the land belonging to the Comunidades could not be utilized for a purpose which would enhance its market value and the restrictions imposed on such land under the Code of Communidades clearly show that its free use is not permissible and when the land under acquisition suffers statutory restrictions, the obvious consequences that follow is on its market value, and, therefore, such land cannot be compared with other sale instances in respect of the free hold land. It may be noted here that, in the case of Comunidade of Querim (unreported Judgment dated 21-12-2004 in First Appeal No.5 of 2004) a Division Bench of this Court had approved a deduction of 25% in case of comunidade land as compared to free hold land. In the said case of Comunidade of Candolim v. Deputy Collector(North)(supra) the Division Bench had also occasion to refer to a three Judge Bench decision of the Apex Court in the case of Special Deputy Collector and another v. Kurra Sambasiva Rao and others (AIR 1997 SC 2625) wherein the Apex Court had observed that the burden of proof that the amount awarded by the L.A.O. is not adequate is always on the claimant. The burden is to adduce relevant and material evidence to establish that the acquired lands are capable of fetching higher market value than the amount awarded by the L.A.O. or the L.A.O. proceeded on a wrong principle of law. The object of the inquiry in a reference under Section 18 of the Act is to bring on record the price which the land under acquisition was capable of fetching in the 10 open market as on the date of the notification. What is fair, reasonable and adequate market value is always a question of fact which depends on the evidence adduced, circumstantial evidence and probabilities arising in each case. 10. On the other hand, Mr. M. S. Sonak, learned Counsel on behalf of the Applicants has submitted that even in case the subject land was agricultural it did not mean that it did not have building potential and in case there were tenants it would only peg down the price and for that suitable deduction can be made. Learned Counsel further submits that even under the Tenancy Act there was no clog on conversion and in that regard Section 3(1-A) of the Tenancy Act has been referred to. Learned Counsel further submits that there was no legal evidence produced by the Respondents to show that there were tenants in the acquired property and in any event it was not shown that the tenants were those who were protected under the Tenancy Act. Learned Counsel further submits that the Government in the case of tenants, generally contends that the tenants are unable to put the land to any other use, other than agriculture, and deprives them from paying fair market value and in case of owners contends that the owners cannot put the land to any use as the land is tenanted and thus practically deprives both the owners and the tenants from receiving adequate and fair market value. Learned Counsel has placed reliance on two recent unreported decisions of this Court, both dated 24-9-2008 in First Appeal No. 101/2003 and First Appeal No.216/2003. The first decision was followed in the second, and, in fact both pertain to cases where the applicability of Goa Land Use(Regulation) Act, 1991 11 was urged on behalf of the Government. Learned Counsel has also placed reliance on the case of Suresh Kumar v. T. I. Trust, Bhopal (AIR 1989 SC 1222). 11. That the acquired land was garden land and was tenanted was not a fact which was ever disputed on behalf of the Applicants. In fact, it was admitted before the Land Acquisition Officer that Krishna A. Khautancar, Keshav and Harichandra had tenancy rights and the L.A.O. had noted that this claim was rightly supported by form Nos.I and XIV. The Applicants' witness had also admitted that they had four tenants. Learned Counsel on behalf of the Applicants submits that the nature of tenancy was not indicated by the Applicants witness AW1/Dr. Deshprabhu. We are unable to accept such a submission. When the Applicants accepted that there were four tenants in relation to the acquired property the only inference to be drawn was that they were the tenants who were protected under the Tenancy Act and in case it was otherwise it was for the said AW1/Dr. Deshprabhu to have so indicated. Not only that, the Applicants raised no objection in 50% of the compensation being paid to them. That is the practice followed by L.A.Os. Admission is the best form of evidence of facts admitted and requires no further proof. 12. The Apex Court in M. B. Gopala Krishna and others v. Special Deputy Collector, Land Acquisition((1996) 3 SCC 594) has stated that a free hold land and one burdened with encumbrances does make a big difference in attracting willing buyers. A free hold land normally commands higher 12 compensation while the land burdened with encumbrances secures lesser price. The fact of a tenant in occupation would be an encumbrance and no willing purchaser would willingly offer the same price as would be offered for a free hold land. 13. In the case of Suresh Kumar v. T. I. Trust(supra) the Apex Court has stated that market value should be correctly determined and there should be neither unjust enrichment on the part of acquirer nor undue deprivation on the part of owner. The market value must be determined by reference to the price which a willing vendor might reasonably expect from willing purchaser. The land is not to be valued merely by reference to the use to which it has been put on the date of notification but also with reference to the use to which it is reasonably capable of being put in the future. 14. The Fifth Amendment to the Tenancy Act came into force w.e.f. 8-10-1976. Section 2(1-A) defines the expression “agriculture” to include horticulture and raising of food crops, grass or garden produce, but does not include allied pursuits. Section 2(7-A) defines the expression “garden” to mean land use primarily for growing coconut trees, arecanut trees, cashew trees or mango trees. Section 18A of the Tenancy Act deals with purchase of land on tillers' day by tenants and sub-section(1) provides that on the tillers' day, every tenant shall, subject to other provisions of the Act, be deemed to have purchased from his landlord the land held by him as a tenant and such land shall vest in him 13 free from all encumbrances subsisting on the said day. Sub-Section(2) further provides that where a tenant, on account of his eviction from the land by the landlord before the tillers' day, is not in possession of the land on the said day, but has made or makes an application for possession of the land under Section 18 within the period specified therein, then, if the application is allowed by the Mamlatdar or, as the case may be, in appeal by the Collector or in revision by the Administrative Tribunal, he shall be deemed to have purchased the land on the day on which the final order allowing the application is passed. It is not necessary to refer to the other sub-sections of Section 18A. Section 18D deals with the purchase price payable to the landlords and sub-section(1) thereof provides that the purchase price payable by a tenant to the landlord in relation to the land which has been deemed to have been purchased by the tenant under Section 18A shall be the amount indicated in column 2 of the Table shown therein in respect of the categories of land specified in the corresponding entry in column 1. In other words, the said Table fixes the purchase price for garden land, rice land, etc. as indicated therein. Section 18E deals with the the mode of payment of purchase price by a tenant and sub-section(1) thereof provides that on the determination of the purchase price by the Mamlatdar under Section 18C, the tenant shall deposit the purchase price with the Mamlatdar in the manner provided in this Section. Sub-Section(2) thereof provides that the tenant shall have the option to deposit the purchase price either in lumpsum or in ten equal annual instalments. The other sub-section deals with the payment of the first, second or subsequent instalments, and, sub-section(5) provides where a lumpsum payment or any instalment of the 14 purchase price has not been deposited on the due date, the amount in default shall carry interest at the rate of 6% per annum. Section 18G deals with recovery of purchase price as arrears of land revenue by the landlord and Section 18H deals with the issuance of certificate of purchase on deposit of the purchase price in lumpsum or of the first instalment. Section 18K deals with restrictions on transfers of land purchased under this Chapter and provides that no land purchased by a tenant under this Chapter shall be transferred by sale, gift, exchange, mortgage, lease or assignment without the previous sanction of the Mamlatdar; provided that no such sanction shall be necessary where land is to be mortgaged in favour of the Government or a co-operative society for the purpose of a loan for affecting any improvement of such land. 15. A Division Bench of this Court in the case of State of Goa v. Pedro Antonio((1996) 2 GLT 246) reiterated the principle that the responsibility of establishing inadequacy of the offer and the market value of the land as on the date of the notification under Section 4(1) of the Act lies on the claimants. The learned Division Bench was considering cases, one of which was of a paddy field situated in the proximity of the Railway Station at Vasco da Gama, where electricity, water and other civic amenities were available at close distances, and it was contended that the paddy field had immense potential for building constructions. The learned Division Bench then referred to the case of P. Ram Reddy and others v. L.A.O., Hyderabad((1995) 2 SCC 305) and after considering the guidelines stated therein; held as follows: 15 “Coming to the land in question we have another hurdle. As we pointed out earlier, the lands are under the possession of the tenants. Their tenure is entirely controlled by the provisions of the Agricultural Tenancy Act. The landlord cannot evict the tenant. The tenant cannot dispose of the land at his own will, and at the same time the landlord also cannot dispose of the land as a willing seller. There are certain restrictions and legal impediments in its alienability. Therefore if a tenant wants to sell his land he has to overcome certain restrictions put on the alienability of the land under the provisions of the Goa, Daman and Diu Agricultural Tenancy Act particularly under Section 18K. Section 18K of the said Act reads as follows: “18K. Restrictions on transfers of land purchased under this Chapter. - No land purchased by a tenant under this Chapter shall be transferred by sale, gift, exchange, mortgage, lease or assignment without the grievous sanction of the Mamlatdar: Provided that no such sanction shall be necessary where the land is to be mortgaged in favour of the Government or a co-operative society for the purpose of a loan for effecting any improvement of such land.” The restrictions imposed by the Act vis- a-vis on the landlord is that he cannot sell the property except to the tenant. The restrictions put on the tenant is that he shall not transfer or alienate or mortgage the property except with the 16 permission of the Mamlatdar. These restrictions go a long way about the alienability of the land. We cannot say what price the land in question will fetch in a transaction between a willing seller and a willing purchaser. These statutory restrictions naturally will have to be borne by a bonafide purchaser”. 16. Consequently, enhancement granted by the reference Court was set aside and the awards of the L.A.O. were confirmed.