1 IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 145 OF 2004. 1 The Deputy Collector & S. D. O., Ponda, Goa. 2 The Executive Engineer, Division XVIII(R), PWD, Ponda, Goa. …....... Appellants. Versus 1 Shri Venkatesh R. N. Khauvate(Expired) 2 Shri Padmanabh R. N. Khauvate, 2(a) Smt. Sunita Padnabha Khauvate, 2(b) Shri Sandeep Padnabha Khauvate, 2(c) Smt. Shreya Sandeep Khauvate, All residing at Bandora, Ponda, Goa. …....... Respondents. Ms. S. Mordekar, Additional Government Advocate for the appellants. Mr. P. Kholkar, Advocate for the respondents. CORAM :- A. P. LAVANDE, J. DATE : 18 th November, 2011. 2 ORAL JUDGMENT :- Heard Ms. S. Mordekar, learned Additional Government Advocate for the appellants and Mr. P. Kholkar, learned Advocate for the respondents. 2. By this appeal, the appellants take exception to the Judgment and Award dated 15.3.2004 passed by the learned First Additional District Judge at Panaji in Land Acquisition Case No. 94/1998 partly allowing the reference under Section 18 of the Land Acquisition Act, 1894 ( 'the Act' for short). 3. Vide notification issued under section 4(1) of the Act published in the official gazette dated 7.11.1991, the Government of Goa acquired the lands of several persons for construction of Ponda Bye-pass road from Farmagudi to Dhavali. This included an area of 350 square metres of land from the survey no.84/5 of Queula Village belonging to the respondents. The acquired land was an agricultural land of uneven shape with different types of trees existing therein. 3 4. The respondents claimed compensation at the rate of Rs.500/- per square metre and also claimed compensation towards trees and towards compound wall existing in the acquired land. The Land Acquisition Officer fixed the market rate of the acquired land at Rs.25/- per square metre by award dated 13.11.1992. 5. The respondents sought reference under section 18 of the Act and claimed compensation at the rate of Rs. 500/- per square metre. 6. In Land Acquisition Case no.94/1998, the respondents herein examined two witnesses namely AW1 Sandeep Khauwate and AW2 Shri Bhaskar Khandeparkar, who is an architect. On behalf of the appellants herein one witness namely RW1 Pundalik Parkar was examined. The Respondents herein placed reliance upon the three sale deeds namely sale deed dated 25.5.1989 (Exhibit 17) by which plot of 735 square metres was sold at the rate of Rs.65/- per square metre, the sale deed dated 19.9.1990 (Exhibit 18) by which plot of 400 square metres was sold at the rate of Rs.140/- per square metre and the sale dated dated 4 20.9.1990 (Exhibit 19) by which plot of 815 square metres was sold at the rate of Rs.75/- per square metre. The reliance was also placed on the award dated 13.11.1992 by which a plot of land of survey no.260 of village Bandora, Goa belonging to Shri Jose Inacio Gracias (Exhibit AW1/4) was acquired. 7. The Respondents placed reliance upon the award passed in the case of Shri Jose Inacio Gracias in Land Acquisition Case no. 119/1998 by which the compensation in respect of the said land was enhanced to Rs.144/- per square metre and the learned Judge after holding that the acquired land and the land of Shri Jose Inacio Gracias was similar, fixed the market rate of the acquired land at Rs.144/- per square metre. 8. Ms. Mordekar, learned Additional Government Advocate appearing for the appellants submitted that against the award passed in Land Acquisition Case No. 119/98 in respect of the land of Shri Jose Inacio Gracias, the appellants had preferred an appeal bearing First Appeal no. 5/2003 and the same was settled in Lok Adalat and the appellants agreed to pay compensation at the 5 rate of Rs.89/- per square metre and therefore the impugned award passed by the Reference Court cannot be sustained. Ms. Mordekar, further submitted that by very same notification the appellants had acquired land belonging to Shree Shantadurga Devasthan of Kavlem bearing survey nos. 6/3 and 204/1 and this Court by judgment and award dated 1.10.2010 has fixed the market rate of the acquired land bearing survey no. 6/3 at Rs.80/- per square metre and in respect of the land bearing survey no. 204/1 at Rs.72/- per square metre in First Appeal No.164/2004. As such, at the most the respondents are entitled to compensation at the rate of Rs.72/- per square metre. Ms Mordekar further submitted that even if reliance is placed upon the consent award passed by the Lok Adalat in which the rate agreed was Rs.89/- per square metre further deduction is warranted in respect of the acquired land inasmuch as the acquired land in the present case was not fit for construction as deposed by the expert Shri Bhaskar Khandeparkar, (AW2) in cross examination. Ms. Mordekar, therefore submitted that the impugned award be set aside and the compensation fixed in respects of the acquired land be reduced. 6 9. Per contra, Mr. P. Kholkar, learned counsel for the respondents supported the impugned judgment and award and further submitted that in any case respondents are entitled to compensation at the rate of Rs.89/- per square metre since the dispute between appellants and Joao Inacio Gracias was settled before Lok Adalat by fixing the compensation at the rate of Rs.89/- per square metre. Mr. Kholkar further submitted that respondents are entitled to higher compensation than Rs.89/- per square metre since the evidence discloses that the acquired land was better in all respect than the land of Shri Jose Inacio Gracias. 10. I have carefully considered the rival submissions and perused the record. 11. In view of the rival submissions, following point arises for determination:- Whether the market rate of the acquired land fixed by the Reference Court at Rs.144/- per square metre is fair and just? If not, what was the market rate of the acquired land as on the date of 7 publication of Section 4 notification? 12. Indisputably, the award passed in Land Acquisition Case no. 119/98 in respect of the property of Shri Jose Inacio Gracias was challenged by the appellants and in Lok Adalat the appeal was settled by fixing the compensation at the rate of Rs.89/- per square metre. Therefore, the judgment of the Reference Court fixing the compensation at the rate of Rs.144/- per square metre cannot be sustained. 13. The next question which arises for determination is what would be fair market rate of the acquired land as on the date of publication of Section 4 notification. As stated above, Ms. Mordekar has placed reliance upon the judgment of learned Single Judge of this Court passed in First Appeal no. 164/2004 in which learned Single Judge has fixed the market rate at Rs.80/- per square metre and Rs.72/- per square metre in respect of the lands bearing survey nos. 6/3 and 204/1 respectively. The Reference Court has fixed the compensation at the rate of Rs.72/- per square metre on the ground that the land bearing survey no. 204/1 was not situated close to the main road. In the present case, although Shri Sandeep 8 Khauvate, AW1 has deposed that the acquired land was fit for construction, the same is belied by his own witness Shri Bhaskar Khandeparkar. In cross examination he has clearly admitted that major part of the land could not have been utlised for construction purpose. He further stated that the acquired land could have been utlised for providing access and for other development activities. As such the acquired land cannot be compared with the land belonging to Shri Jose Inacio Gracias which had a building potential. Therefore, I am unable to accept the submission of Mr. Kholkar, learned Counsel for the respondents that the respondents are entitled to the compensation at the rate of Rs.89/- per square metre. Considering that this Court has fixed the market rate in respect of the land of Shree Shantadurga Devasthan at Rs.72/- per square and also further considering the market rate fixed in respect of land of Shri Jose Inacio Gracias, I am of the considered opinion that it would be just and proper to fix the market rate of the acquired land at Rs.72/- per square metre Since the land of Shri Jose Inacio Gracias was fit for construction and major portion of the acquired land was not fit for construction, appropriate deduction deserves to be made while fixing the market rate of the 9 acquired land even on the basis of price agreed by the appellants in respect of the land of Shri Jose Inacio Gracias. Even if 20% deduction is considered for fixing the market rate of the acquired land vis-a-vis the land of Shri Jose Inacio Gracias the market rate of the acquired land would come to Rs.72/- per square metre. In any case, therefore, the market rate of the acquired land as on the date of publication of Section 4 notification cannot exceed Rs.72/- per square metre. Accordingly market rate of the acquired land is fixed at Rs. 72/- per square metre. 14. For the reasons aforesaid, the impugned Judgment and Award is partly set aside and the compensation in respect of the acquired land is fixed at Rs.72/- per square metre. 15. Mr. Kholkar, learned Counsel for the respondents submits that pursuant to the order passed by this Court, the appellants have deposited an amount of Rs.1,34,000/- (Rupees one lakhs thirty four thousand only). An appropriate amount due in terms of the judgment and award passed today be paid to the respondents along with accrued interest. Ms. Mordekar learned 10 Additional Government Advocate for the appellants has no objection. Accordingly, Registry to pay to the respondents the appropriate amount due to the respondents in terms of the judgment and award passed today along with accrued interest there on and the balance amount with accrued interest be paid to the appellants. Registrar (Judicial) shall calculate the amount due to the parties after giving an opportunity of being heard to the parties. 16. Appeal stands disposed of in aforesaid terms with no order as to costs. A. P. LAVANDE, J. vn*