- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NOS. 236 OF 2004 & 237 OF 2004. FIRST APPEAL NO. 236 OF 2004. Jose Francisco Dias, (Since deceased) represented through his legal representatives 1a Smt. Catarina Rosy Dias, widow of late Jose Francisco Dias, age 62 years, resident of H. No. 255, Tariwada, Maxem, Cancona Goa. 1b Shri Lurdino Mateus Dias, son of late Jose Francisco Dias, married, age 32 years, resident of H. No. 255, Tariwada, Maxem, Cancona Goa. 1c Smt. Olinda De'Silva E. Dias, wife of Lurdino Mateus Dias, age 26 years, resident of H. No. 255, Tariwada, Maxem, Cancona Goa. 1d Smt. Mateusinha Dias E. Fernandes, daughter of Jose Francisco Dias, age 38 years, married, resident of Royal Plaza, Flat no. F2, Chaudi, Cancona Goa. 1e Shri Judas Manuel Sucoro Fernandes, husband of 1(d) above, age 44, resident of Royal Plaza, Flat no. F2, - 2 - Chaudi, Cancona Goa. 1f Smt. Ammy Concencao Dias E Fernandes daughter of Jose Francisco Dias, age 34, resident of H. No. 387, Agas, Loliem, Canacona-Goa. 1g Shri Milagree Fernandes, husband of 1(f), age 35, resident of H. No. 387, Agas, Loliem, Canacona-Goa. .......... Appellants. Versus The Executive Engineer, Works Div. XXV(NH), P.W.D. Borda, Margao-Goa. .......... Respondent. Mr. Sudesh Usgaonkar, Advocate for the Appellants. Ms. S. Mordekar, Additional Government Advocate for the Respondent. WITH FIRST APPEAL NO. 237 OF 2004. Shri Mohandas T. Prabhu, Loliem, Canacona-Goa. 1a Smt. Geeta M. Prabhu Gaonkar, wife of late Mohandas T. Prabhu Gaonkar, 72 years of age, resident of House no. 234, Maxem, Canacona, Goa. 1b Smt. Anuja A. Pandit, 40 - 3 - years of age, daughter, married, resident of House no. HL-116, Housing Board, Gogol Margao, Salcete, Goa. 1c Shri Atul R. Pandit, 44 years of age, daughter, married, resident of House no. HL- 116, Housing Board, Gogol Margao, Salcete, Goa. 1d Smt. Tanuja S. Prabhudessai, 39 years of age, daughter of late Mohandas T. Prabhu Gaonkar, resident of House no. 32, Kavlem, Ponda Goa. 1e Shri Sandip P. Prabhudessai, 43 years of age, resident of House no. 32, Kavlem, Ponda Goa. 1f Shri Dattaprasad M. Prabhu Gaonkar, 37 years of age, married, resident of House no. 234, Maxem, Canacona, Goa. 1g Smt. Renuka D. Prabhu Gaonkar, 25 years of age, wife of late Dattaprasad M. Prabhu Gaonkar, resident of House no. 234, Maxem, Canacona, Goa. .......... Appellants. 1 Dy. Collector & Land Acquisition Officer, Quepem- Goa. - 4 - 2 The Executive Engineer, Works Div. XXV(NH), P.W.D., Margao-Goa. .......... Respondents. Mr. Sudesh Usgaonkar, Advocate for the Appellants. Ms. S. Mordekar Additional Government Advocate for the Respondents. Coram:-F. M. REIS, J. Date:- 8th October, 2010. ORAL JUDGMENT Both the above appeals have been taken up together as they pertains to the lands acquired pursuant to the same notification bearing no. 22/132/88-RD dated 24.11.1988 for the construction of an approach road to Galgibaga Bridge on National Highway 17. ( Parties shall be referred to as they so appear in the cause title of the impugned Judgment). 2. Facts in the First Appeal no. 236/2004 By said notification issued under section 4 of the Land Acquisition Act ( hereinafter referred to as the “said Act”) published in the Official Gazette dated 19.1.1989 an area of 190 square metres out of survey no. 4/3 and an area of 325 square metres out of survey - 5 - no.5/12 of village Poinguinim, belonging to the Applicants was intended to acquire by the Respondent. 3. By an Award passed by the Land Acquisition Officer dated 2.12.1991, compensation at the rate of Rs.3/- per square metre was awarded for the acquired land. 4. Being dissatisfied with the said amount, the Applicants preferred a reference for enhancement of the compensation under section 18 of the said Act and claimed compensation at the rate of Rs.100/- per square metre for the land acquired besides compensation at the rate of Rs. 2000/- per coconut tree. The Reference Court after recording the evidence and hearing the parties dismissed the reference filed by the Applicants. 5. Being aggrieved by the said Judgment and Award, the Applicants have preferred the present appeal. 6. Facts in the First Appeal no. 237/2004 By said notification an area of 930 square metres out of survey no. 4/6 of village Poinguinim, belonging to the Applicants was - 6 - intended to acquire by the Respondents. 7. By an Award passed by the Land Acquisition Officer dated 2.12.1991 the market value was assessed at the rate of Rs.3/- per square metre for the acquired land. 8. Being dissatisfied with the said amount, the Applicants preferred a reference for enhancement of the compensation under section 18 of the said Act and claimed an amount of Rs.100/- per square metre for the land acquired besides compensation at the rate of Rs.2000/- per coconut tree. By Judgment and Award dated 14.6.2004, the Reference Court rejected the said reference filed by the Applicants. 9. Being aggrieved by the said Judgment and Award, the Applicants have preferred the present appeal. 10. Consideration of the submissions in both the appeals:- Shri Sudesh Usgaonkar, learned Counsel appearing for the Applicants in both the appeals has assailed the impugned Judgment and submitted that the Reference Court has totally erred in - 7 - refusing enhancement of compensation for the land acquired. Learned Counsel further submitted that the Applicants have relied upon the sale instance of similar type of land wherein land was sold at the rate of Rs.90/- per square metre in the year 1987. He has further submitted that a Judgment was also produced passed by this Court wherein compensation was fixed at the rate of Rs.35/-. Learned Counsel further submitted that the Reference Court has totally misconstrued the said sale instance in coming to the conclusion that the price fixed therein was inclusive of mundkarial house. He further pointed out that the sale deed instead demonstrates that the house existing therein was constructed by the purchaser. Learned Counsel further submitted that the sale instance produced by the Applicants at AW1/D is comparable to the land acquired and there was no reason for the Reference Court to discard the said sale deed for the purpose of fixing the market value of the acquired land. Learned Counsel further submitted that the Reference Court has erroneously discarded the expert evidence produced by the Applicants. Learned Counsel further submitted that the Applicants have also produced Awards in respect of the lands which are comparable to the land acquired. Learned Counsel further submitted that the Reference Court has totally mis-appreciated the evidence on record and came to the - 8 - erroneous conclusion that the references deserve to be rejected. Learned Counsel relied upon the Judgment of this Court passed in First Appeal no.128/2004 whereby the land which was subject matter of the same notification wherein the same sale instance was relied upon, has been remanded for fresh adjudication by the Reference Court. He as such submitted that similar orders be passed in the present appeals. 11. On the other hand Ms. S. Mordekar learned Additional Government Advocate appearing for the Respondents has supported the impugned Judgment. She submitted that the Awards produced by the Applicants are not comparable to the land acquired. She further submitted that the sale deeds produced by the Applicants are not at all comparable to the land acquired as admittedly lands therein was sold to a mundkar. She further pointed out that having mundkar in the property is an encumbrance and as such the question of relying upon such sale instance for the purpose of determining the market value of the acquired land would not arise at all. Learned Counsel further submitted that the expert evidence cannot be relied upon as there is a doubt in the genuineness of the said report. The learned Additional Government Advocate however did not dispute that another land - 9 - which was the subject matter of the same notification has been ordered to be decided afresh by this Court in First Appeal no. 128/2004. 12. Having heard the learned Counsels and on perusal of the record, the following point for determination arise in both the appeals:- Whether the Reference Court was justified in rejecting the References filed by the Applicants? 13. There is no dispute that in support of the claim for enhancement the Applicants has produced a sale instance which is of the year 1987 wherein the price was mentioned at Rs.90/- per square metre. On perusal of the said sale instance, I find that the recitals therein states that the structure which was existing in the sale deed plot was belonging to the purchaser. As such the Reference Court was not justified in discarding the sale deed on the ground that the land which was sold was inclusive of a mundkarial house. The evidence on record further suggest that the Reference Court after discarding the said sale instance has not appreciated the evidence to ascertain as to whether the land acquired was comparable to the sale deed plot. In First Appeal no. 128/2004 on the same ground, this Court has - 10 - remanded the matter for fresh adjudication by the Reference Court. For the reasons stated therein, I find that in the interest of justice, the matter deserves to be remanded for fresh adjudication by the Reference Court after hearing both the parties in accordance with law and ascertain whether there is evidence on record to substantiate the claim of the Applicants that the land acquired is comparable to the land which is the subject matter of the said sale instance. Learned additional Government Advocate has also submitted that the land acquired is not comparable to the sale instance. These contentions will have to be appreciated by the Reference Court on the basis of the evidence which has been adduced by the parties. The Reference Court will have to scrutinize the evidence adduced by the parties and ascertain as to whether there is similarity or otherwise between the acquired land and the said sale instance relied upon by the Applicants. The potentiality of the land as well as comparable feature and/or similarity will have to be gone into for the purpose of considering whether the sale instance is comparable with the land acquired. As the Reference Court has not carried out the said exercise, I find that that the matter deserves to be reconsidered by the Reference Court. Hence, point for determination is answered according. - 11 - 14. In view of the above, I pass the following O R D E R i. The Appeals are partly allowed. Impugned Judgment and Award dated 14.6.2004 is quashed and set aside. The reference filed by the Applicants being Land Acquisition case nos. 22/1993 and 248/1992 are restored to the file of the Reference Court. ii. The Reference Court is directed to decide the said references afresh after hearing both the parties on the basis of the evidence on record and in accordance with law. The contentions raised by the parties are left open. iii. The Appeals stand disposed of accordingly with no Order as to Costs. iv. Parties are directed to appear before the Reference Court on 22.11.2010 at 10.00a.m. and abide by further directions. F. M. REIS, J. vn*