1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.189 OF 2006 1. Mr. Fernando Luis de Santos Fernandes, resident of H.No.1279, Mazilwaddo, Benaulim, Salcete, Goa. 2. Mr. Filipe de Rosario Fernandes, resident of H.No.1279, Mazilwaddo, Benaulim, Salcete, Goa. (Since deceased, through legal heirs) 2(i) Mrs. Carmela Da Sa Fernandes, wife of deceased Filipe do Rosario Fernandes and his children, 2(ii) Joavincent Fernandes, Bachelor, 2(ii)(a) Savio Fernandes, and his wife, 2(ii)(b) Freeda Fernandes, 2(iv)(a) Mrs. Maria Joice Fernandes, 2(iv)(b) Angelico Gracias, 2(v)(a) Carmo Fernandes and his wife, 2(v)(b) Vita Pereira Fernandes, 2(vi)(a) Anastasio Fernandes and his wife, 2(vi)(b) Lisa Paes Fernandes …. Appellants V/s 1. Deputy Collector (L.A.), South Goa, Margao. 2. The Executive Engineer, Works Div. VI (R-S), PWD, Fatorda, Margao-Goa. …. Respondents Mr. Judas Chagas Silva, Advocate for the Appellants. Ms. Susan Linhares, Additional Government Advocate for the Respondents. CORAM : F.M. REIS, J. 2 DATE : 22nd JULY, 2011 JUDGMENT : The above appeal challenges the judgment and award dated 6/03/2006, passed by the learned Additional District Judge, South Goa at Margao in Land Acquisition Case No.71/2004. 2. Pursuant to a Government notification issued under Section 4 of the Land Acquisition Act, 1894, (herein after referred to as “the said Act”), dated 16/03/1990 land was acquired belonging to the appellants admeasuring an area of 290 square metres out of the property surveyed under no.268/8 and an area of 675 square metres from the property surveyed no.334/1 and an area of 325 square metres from the property bearing survey no.334/2 of village of Benaulim for the construction of a road no.3 in Village Panchayat of Benaulim. 3. By an award dated 10/11/1992, passed by the Land Acquisition Officer under Section 11 of the said Act, a sum of Rs.23/- per square metre was offered for the land acquired. Being dissatisfied with the said amount the appellants sought a reference under Section 18 of the said Act and claimed compensation for the 3 land acquired at the rate of Rs.250/- per square metre besides compensation on account of the severance. By judgment and award dated 6/03/2006, the learned Reference Court answered the reference in the negative. Being aggrieved by the said judgment, the appellants have preferred the present appeal. 4. The learned Counsel appearing for the appellants has assailed the impugned judgment and pointed out that the land acquired is situated in Benaulim village which has high potentiality of being used for non agricultural purpose as it is a tourist destination. The learned Counsel further submitted that Benaulim beach is close to the acquired land and, that the learned Judge has erroneously discarded the instance produced by the appellants whilst deciding the reference and has come to an erroneous conclusion that the appellants are not entitled for enhancement of compensation. The learned Counsel further submitted that by the same notification land was acquired which was subject matter of First Appeal No.190/2006 wherein the compensation for the land acquired was fixed at the rate of Rs.60/- per square metre. The learned Counsel has further submitted that the land in the present case is adjoining to the land which was subject matter of the said 4 acquisition and, as such, the question of refusing the enhancement of compensation for the land acquired belonging to the appellants would not arise. The learned Counsel, as such, submitted that the impugned judgment deserves to be quashed and set aside and the appeal deserves to be allowed. 5. On the other hand, Ms. S. Linhares, the learned Additional Government Advocate appearing for the respondents has supported the impugned judgment. The learned Counsel submitted that the instances produced by the appellants are not comparable to the land acquired and, as such, the Reference Court was justified to decide the reference in the negative. As far as the comparability of the land acquired to the land which was subject matter of the First Appeal No.190/2006 is concerned the learned Additional Government Advocate did not dispute that the land in both the matters was acquired pursuant to the same notification and for the same purpose and had similar potentialities. The learned Counsel, as such, submitted that no interference is called for in the impugned judgment. 6. Having heard the learned Counsel and on perusal of the 5 record, the following point for determination arises in the present appeal: POINT FOR DETERMINATION: Whether the Reference Court was justified to dismiss the reference filed by the appellants. 7. On perusal of the impugned judgment, I find that the Reference Court has found that the Sale Instances at Exhibit 19 and 20 are in respect of the sub-divided plots. The learned Judge further found that as far as the Sale Instance at Exhibit 19 is concerned there was an encumbrance therein as it was being used by the purchaser and, as such, the same could not be comparable with the land acquired. The learned Judge has also discarded the award passed in Land Acquisition Case No.133/1993 on the ground that it was ex-parte award. The learned Judge has also not relied upon the report of the valuer. The learned Judge further found that the appellants failed to discharge the burden caste on them as regards to the valuation of the acquired land and, as such, the reference proceedings came to be answered in the negative. 8. On perusal of the evidence on record and affidavit of 6 AW1/Anastacio Fernandes, I find that the said witness has categorically stated that in Land Acquisition Case No.133/1993 a portion of the land was acquired for the same purpose pursuant to the same notification wherein the Reference Court has awarded compensation at the rate of Rs.60/- per square metre and that the acquired land therein is at a distance of about 200 metres away from the land acquired. He has further stated that another piece of land was sold pursuant to a sale deed dated 24/05/1989 which is at Exhibit 19 for a price of Rs.66/- per square metre and the said land is situated at a distance of 250 metres from the acquired land and was undeveloped land. Considering the proximity of the land acquired with the said instances there is no reason to disbelieve the said witness and accept his evidence to the effect that the land acquired was comparable to the sale instance. The Reference Court was justified in refusing to rely upon the said sale instance on the ground set out in the impugned judgment. This Court while disposing of First Appeal No.190/2006 in respect of lands which were acquired pursuant to the same notification for the same purpose and in the same village, has fixed the compensation at the rate of Rs.60/- per square metre for the land acquired. Whilst passing the said judgment, this Court has relied upon the same 7 instances. It was also noted therein that the appeal preferred challenging the award passed in Land Acquisition Case No.133/1993 wherein compensation was fixed at the rate of Rs.60/- per square metre was accepted while disposing of First Appeal No.100/2004. This Court while disposing of the said appeal by judgment dated 15/07/2011 has awarded compensation at the rate of Rs.60/- per square metre for the land acquired. There is no dispute that the land acquired in the present proceedings and the land which was subject matter of the acquisition in the said First Appeals are pursuant to the same notification for the same purpose. Apart from that the Land Acquisition Officer while offering compensation for the land acquired had classified the lands in a similar manner and offered the same compensation. 9. For the reasons stated in the judgment dated 15/07/2011 passed in First Appeal No.190/2006, I find no reason to award any different compensation for the land acquired in the present case. The learned Additional Government Advocate appearing for the respondents has not disputed the fact that the land acquired in the present proceedings and the land which was subject matter of the acquisition in the said appeals have similar features and are 8 situated in the same village. As such, I find that on the basis of the material on record and considering the instances produced by the appellants, the market value of the acquired land at the relevant time is to be fixed at Rs.60/- per square metre. The point for determination is answered accordingly. 10. In view of the above, I pass the following order: O R D E R (1) The appeal is partly allowed. (2) The impugned judgment and award dated 6/03/2006 is quashed and set aside. (3) The appellants are entitled for compensation for the land acquired at the rate of Rs.60/- per square metre. (4) Needless to state that the appellants are also entitled to statutory benefits under the provisions of Section 23(1-A), 23(2) and Section 28 of the said Act, in accordance with law. (5) The appeal stands disposed of accordingly with no order as to costs. F.M. REIS, J. NH/-