1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 13 OF 2002 Shri Putu Venkatesh P. Alvenkar, Guneavaddo, Varca, Salcete, Goa. ………. Appellant. V/s. 1. The Deputy Collector, Margao, Goa. 2. The Executive Engineer, Works Division VI (Road South) P.W.D., Fatorda, Margao – Goa. ………. Respondents. Mr. R.V. Kamat, Advocate for the appellant. Mr. V. Rodrigues, Addl. Govt. Advocate for the respondents. CORAM : D.G. KARNIK, J. DATE : 1st OCTOBER, 2010 ORAL JUDGMENT : 1. This appeal at the instance of the original landowner is directed against the judgment and award dated 21st September, 2001 passed by the District Judge, South Goa, at Margao, rejecting his reference application. 2. The appellant is the owner of the land surveyed under 2 survey No.59/16 and 65/3 situated at Orlim, of Salcete Taluka. On 22nd August, 1991, 600 sq. metres of survey No.59/16 and 480 sq. metres of survey No.65/3 of land belonging to the appellant was proposed to be acquired for the purpose of a road. After due inquiry, an award was published by the Land Acquisition Officer on 6th January, 1995, awarding compensation at the rate of Rs.10/- per sq. metre for the acquired land. In addition thereto, the Land Acquisition Officer also awarded a compensation of Rs.23,125/- towards the value of the coconut trees, standing on the acquired land. Aggrieved by the amount of compensation, the appellant made an application under Section 18 of the Land Acquisition Act, 1894, for a reference. The matter was referred to the Reference Court by the Collector. By a Judgment and Award dated 21st September, 2001, the Reference Court rejected the application for enhancement of compensation made by the appellant. Being aggrieved, the appellant is in appeal. 3. Learned Counsel for the appellant submitted that the Reference Court erred in awarding compensation at the rate of Rs.10/- per sq. metre. According to him, the market value of the land was much more. He claimed compensation at the rate of Rs.300/- per sq. 3 metre for the acquired land. He secondly submitted that the compensation awarded for the coconut trees was inadequate and compensation at the rate of Rs.600/- per coconut tree, should have been awarded. 4. As regards the valuation of the land, the appellant has relied upon two sale instances – one dated 25th March, 1983 in respect of a land surveyed under No.72/9 and another dated 28th January, 1985 in respect of survey No.20/2. Certified copies of the two sale deeds were produced on record and the Sub-Registrar was examined as AW.4. to prove the certified copies. Under the sale deed dated 25th March, 1983 at Exhibit 21, the Vendors therein sold land bearing survey No.72/9 ( Matriz No.164) for a sum of Rs.20,000/-. Though the learned Counsel for the appellant submitted that the land was sold at the rate of Rs.50/- per sq. metre, I am unable to deduce the said rate because the sale deed does not mention the exact area of the property sold under the said sale deed. The said sale deed, therefore, does not prove the rate to be Rs.50/- per sq. metre. 5. As regards the second sale deed (Exhibit 22) dated 28th 4 January, 1985, the Vendor therein had sold properties described in the first schedule and the second schedule to the sale deed, for a sum of Rs.40,000/-. The area of the property mentioned in the second schedule is 672 sq. metres. Relying upon the sale deed, the Counsel for the appellant submitted that the rate of the property bearing survey no.20/2 sold at Rs.60/- per sq. metre. The area of the property mentioned in the second schedule is 672 sq. metres. The area of the property described in the first schedule is not mentioned in the sale deed. This property appears to be fully developed property. The plan annexed to the sale deed shows that the vendor has his own structure in the remaining part of the property retained by the vendor. The sale is not of a comparable property. 6. The appellant examined himself as AW.1 and stated that the sale deeds were in respect of the land which were similarly situated. However, in the cross examination he admitted that he could not tell the area of the property under Survey No. 65/3 and 59/16, parts of which were acquired. He admitted that he could not give length and breadth of the properties under the sale deeds. He then stated that the property under survey No.65/3 was at a distance of about 400 to 500 5 metres from the junction of the internal road which meets Orlim- Margao Road. He then admitted that for going to the acquired property bearing survey no.59/16 he had to pass through the private properties of others. This means that one of the acquired properties did not have a proper access from the public road. As against this, the properties under the said deeds 21 and 22 had an access from the public road. They were nearer to the main road. 7. The appellant also examined one Nilesh Laad (AW.2), a Civil Engineer, as an expert witness. In his examination-in-chief, he stated that both the acquired properties were situated on the left side of the road which goes from Margao to Cavelossim. In the cross examination, he admitted that the property bearing survey no.59/16 was accessible only by a pathway. He then stated that Margao- Cavelossim road enters through survey No.65/3 and proceeds through the private properties and then reaches survey no.59/16. This indicates that for going to the property survey no.59/16 one has to go through a path way passing through the private properties. He thus corroborated the appellant’s evidence that property bearing survey No.59/16 was not touching any public road and had no proper access from the public 6 road. He further stated that the land under Sale Deed dated 25th March, 1983 (Exhibit 21) was at a distance of 100 metres from Margao-Cavelossim road and the land covered under Sale Deed dated 28th January, 1985 (Exhibit 22) was at a distance of 150 metres from the main road and 25 metres from the internal road. He further admitted that the lands under the sale deeds Exhibits 21 and 22 were levelled lands. His evidence shows that the land covered by sale deeds exhibits 21 and 22 had a building potential and they were situated near the main road in the village. There is no sufficient evidence to show that the acquired lands had similar building potential. The acquired lands though situated in the same village, were at a distance from the main road and, therefore, the sale deeds Exhibits 21 and 22 would not be relevant for the purposes of determining the market value of the acquired land. There was no other satisfactory evidence about the market value of the land being in excess of what was awarded by the Reference Court. Hence, I hold that the Reference Court did not commit any error in holding that the appellant had not proved that the market value of the acquired land was in excess to Rs.10/- per sq. metre that was awarded by the Land Acquisition Officer. 7 8. Admittedly, there were trees in the acquired lands. The appellant had initially claimed compensation in respect of the cashew trees as well as the coconut trees. Counsel for the appellant, however, fairly stated that the appellant has not been able to prove the existence and yield of the cashew trees and therefore, the appellant does not claim any enhancement in respect of the cashew trees. The Counsel for the appellant, however, submitted that the compensation of Rs.23,125/- awarded for the coconut trees was inadequate and, was required to be enhanced. There is no dispute between the parties that there were 15 coconut trees in the acquired land. Apart from himself, the appellant also examined Constance Xavier Menezes, an agricultural expert to prove valuation of the coconut trees. Mr. Menezes, has retired as Director of Agriculture in the year 1991. He possesses Bachelor degree in agriculture. After retirement he has been working as a Government Registered Valuer for agricultural lands and farms. In my view, the Bachelor degree in agriculture, his work experience in the Agriculture Department of the Government and ultimate rise to the post of Director of the Agriculture at the time of his retirement and his further continued experience as Government Registered Valuer shows that he has sufficient knowledge and experience about valuation of the 8 agricultural lands, farms and trees. In his examination-in-chief he has stated about the prices of the coconuts in the year 1991 when the lands were acquired and on the basis of the yield he has given his expert opinion that the price of each coconut tree would be Rs.4594/-. He has submitted a written report, justifying the valuation. Though he admitted in the cross examination that he had not personally seen the trees in the year 1991 that in my view, does not make any difference. Existence of the trees is not doubted and they have been mentioned in the report of Land Acquisition Officer. The age of the trees has been mentioned by the appellant in his examination-in-chief to be about 25 years. That means, the trees were fully grown trees, giving normal yield. As against the evidence of Mr. Menezes, the Government has not produced any reliable evidence to the contrary. It has also not produced the panchanama of the land made at the time of acquisition and/or taking its possession showing the age of the trees. Government has not examined the Land Acquisition Officer, or any other person who had seen and inspected the trees at the time of the acquisition and/or possession. Relying upon the evidence of the appellant and the agricultural expert, I am of the view that the coconut trees ought to be valued at Rs.4500/- per tree (rounded off from Rs.4595/-, the value 9 given by the expert). So the total compensation for the 15 coconut trees would work out to Rs.67,500/-. As against that the Land Acquisition Officer has awarded a compensation of Rs. 23,125/-. The appellant is, therefore, entitlement to enhancement in compensation amounting to Rs.44,375/-. 9. For the aforesaid reasons, the appeal succeeds in part. The compensation awarded by the Land Acquisition Officer is enhanced by a sum of Rs.44,375/-. The respondents shall pay to the appellant this additional compensation of Rs.44,375/-, together with solatium thereon at the rate of 30 % p.a. together with interest at the statutory rate upto the date of payment. In view of the mixed success, the parties shall bear their own costs. D.G. KARNIK, J. ssm.