1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEALS NOS.162 OF 2005 & 221 OF 2006 FIRST APPEAL NO. 162 OF 2005 Communidade of Cortalim Represented by its Attorney Shri Peter Carvalho, age 42 years, resident of H.No.116, Nauta, Cortalim Goa. … Appellant V e r s u s 1. Special Land Acquisition Officer South Goa, KRCL, Amey Guest House, Davorlim, Goa. 2. The Chief Engineer, Konkan Railway Corporation Ltd., 4th Floor, Souza Towers, Church Square, Panaji Goa. … Respondents Mr. Sudesh Usgaonkar, Advocate for the appellant. Mr. A. D. Bhobe, Advocate for respondent nos. 1 & 2. AND FIRST APPEAL NO. 221 OF 2006 1. Special Land Acquisition Officer, South Goa KRCL, Amey Guest House, Davorlim Road, P.O. Navelim, Salcete Goa. 2. The Chief Engineer, Konkan Railway Corporation Ltd., Rawanfond, Margao, Goa. … Appellants V e r s u s 2 Communidade of Cortalim Represented by its Attorney, Cortalim Goa. … Respondent Mr. A. D. Bhobe, Advocate for the appellants. Mr. Sudesh Usgaonkar, Advocate for the respondent. CORAM : S.A. BOBDE & F.M. REIS, JJ. Reserved on : 20th JUNE, 2011 Pronounced on :12th August,2011 JUDGMENT : (Per F.M. REIS, J.) Both the above appeals challenge the same judgment and award passed by the learned Additional District Judge, South Goa at Margao in Land Acquisition Case No.513/1995. 2. The parties shall be referred to in the manner they so appear in the cause title of the impugned judgment. 3. Pursuant to a notification issued under Section 4 of the Land Acquisition Act, 1894, herein after referred to as "the said Act" published in the Official Gazette dated 5/08/1994, an area of 19986 square metres belonging to the applicants was intended to be acquired as additional land in Soncoale and Cortalim villages of Mormugao Taluka for the construction of new broad gauge line of 3 the Konkan railway. Amongst the lands which were acquired, an area of 50 square metres being part of the property surveyed under no.5/1; 1575 square metres being part of the property surveyed under no.5/2; 875 square metres being part of the property surveyed under no.259/1 and 50 square metres being part of the property surveyed under no.259/2 was acquired by the respondents. By an award dated 25/08/1995 under Section 11 of the said Act, the Land Acquisition Officer offered compensation for the land acquired to the applicants at the rate of Rs.4/- per square metre. Being dissatisfied with the said amount, the applicants sought a reference under Section 18 of the said Act for enhancement of compensation and claimed a sum of Rs.350/- per square metre for the land acquired. By the impugned judgment and award dated 11/02/2005, the Reference Court partly allowed the said reference filed by the applicants and fixed the compensation for the land acquired at the rate of Rs.144/- per square metre for 2550 square metres, besides statutory benefits. Being aggrieved by the said judgment, the applicants who are the appellants in First Appeal No.162/2005 and the respondents/acquiring body, who are the appellants in First Appeal No.221/2006 have preferred the present appeal. 4 4. Shri Sudesh Usgaonkar, the learned Counsel appearing for the applicants has assailed the impugned judgment and pointed out that the Reference Court has erred in fixing the compensation at the rate of Rs.144/- per square metre, as the applicants have adduced sufficient evidence to substantiate their claim that price in the vicinity of the acquired land was Rs.300/- to Rs.350/- per square metre. The learned Counsel has further submitted that the market value fixed by the Reference Court is not just and appropriate, and as such, the amount awarded deserves to be enhanced. The learned Counsel has further submitted that the applicants have produced awards in respect of similar lands wherein much higher compensation was awarded for the land acquired. The learned Counsel has further pointed out that the applicants have produced sale instances which are at Exhibit AW1/D dated 1/10/1986 as well as the Sale Deed at Exhibit AW1/F dated 23/04/1991, which are comparable to the land acquired and, as such, the Reference Court ought to have relied upon the said sale instance for fixing the market value of the acquired land. The learned Counsel has further submitted that the Reference Court has erroneously discarded the Sale Deed dated 23/04/1991 on the basis that it is not a bona fide 5 transaction on a hypothetical basis which cannot be accepted in law. The learned Counsel during the course of his submissions has also produced judgments passed by the Division Bench of this Court in First Appeal No.155/2005 and First Appeal No.29/2006 whereby the appeals preferred by the applicants as well as the respondents came to be dismissed and the compensation fixed by the Reference Court at the rate of Rs.144/- per square metre was upheld. The learned Counsel has taken us through the evidence on record as well as the deposition of the witnesses and pointed out that there was sufficient evidence on record to substantiate the claim of the applicants that the market value of the acquired land was at least Rs.250/- per square metre and, as such, the appeal deserves to be allowed and compensation awarded by the Reference Court be accordingly modified. 5. On the other hand, Shri A.D. Bhobe, the learned Counsel appearing for the respondents has assailed the impugned judgment and has disputed the contentions advanced by the learned Counsel appearing for the appellants. The learned Counsel further pointed out that the amount of compensation awarded by the Reference Court at the rate of Rs.144/- per square metre is on the higher side 6 and, as such, the compensation deserves to be adequately reduced. The learned Counsel further submitted that the Sale Deed produced by the applicants are not at all comparable to the land acquired and, as such, the question of fixing the compensation on the basis of the said sale instances would not arise. The learned Counsel further submitted that the instances relied upon by the Reference Court for fixing the market value of the land are not comparable with the land acquired. The learned Counsel has further submitted that the Reference Court has erred in relying upon the award at Exhibit AW1/G for the purpose of fixing the market value of the acquired land as the said land was not comparable. The learned Counsel further submitted that there was no evidence adduced by the applicants to substantiate their contention that the amount offered by the Land Acquisition Officer was inadequate. The learned Counsel, however, did not dispute the fact that pursuant to a notification passed about 1 month prior to notification in the present case, the Division Bench of this court had upheld the amount of compensation awarded therein at the rate of Rs.144/- per square metre. 6. Having heard the learned Counsel and on perusal of the 7 record, the following point for determination arises in the present appeal: POINT FOR DETERMINATION: Whether the Reference Court was justified to fix an excess amount of Rs.140/- per square metre as the compensation for the land acquired. 7. In support of their claim for enhancement, the applicants have examined Shri Pedro Carvalho as AW1, who has produced several sale instances in respect of the subject matter of different properties in the vicinity of the acquired land for the purpose of claiming enhancement of compensation for the land acquired. From his deposition, we find that the property surveyed under no.5/1 is a bundh surrounded by paddy field bearing survey no.5/2. The property surveyed under no.259/1 and 259/2 are also paddy fields which were used for fishing and cultivation which was done much earlier. The witness examined by the applicants Shri Vikas Dessai has produced a site inspection report under Exhibit 18. Another expert who was examined was Shri Krishna Prabhudessai. The respondents have also examined Sarvesh Verlekar, who was working for the Konkan Railway Corporation. In support of their 8 claim for enhancement the applicants have produced three Sale Deeds, one at Exhibit AW1/C and the others at Exhibit AW1/D and AW1/F. The learned Judge has for cogent reasons discarded the Sale Deed dated 21/09/1989. The learned Judge has discarded the Sale Deed at Exhibit AW1/D on the ground that the plots therein were located in the settlement zone and that the land acquired which was a paddy field was not comparable to the Sale Deed plot. The learned Judge has also discarded the Sale Instance at Exhibit AW1/F as it was in respect of agricultural garden land and not a paddy field. 8. We find no infirmity in the said findings of the learned Judge in discarding the said Sale Instances. The learned Judge has considered the awards produced by the applicants at para 42 and 43 of the impugned judgment and found that there was no serious dispute as far as comparability of the land acquired and the land which was subject matter of the said award. The learned Judge has also considered admission of RW1 at para 48 of the judgment and held that the award at Exhibit AW1/G was comparable to the land acquired. The said award was arising out of an acquisition made pursuant to a notification under Section 4 issued on 13/02/1986 but 9 however the notification in the present case was issued in the year 1994. The said award was passed by the Land Acquisition Officer whilst passing an award under Section 11 of the said Act. We find no infirmity committed by the Reference Court in relying upon the said award for the purpose of fixing the market value of the acquired land. On the basis of admission of RW1 that the land therein was also under water which was similar to the land acquired in the present case, we find that no infirmity in relying upon the said instances for fixing the market value of the acquired land. After giving an appreciation of 10% per annum, the Reference Court has fixed the compensation at the rate of Rs.144/- per square metre. Considering that the Land Acquisition Officer had offered a sum of Rs.4/- per square metre, the Reference Court directed that excess amount of Rs.140/- per square metre be paid to the applicants as compensation. 9. Considering the said evidence on record, we find that the Reference Court has not committed any error in fixing the compensation at the rate of Rs.144/- per square metre for the land acquired on the basis of the instance at Exhibit AW1/G. The Division Bench of this Court whilst disposing of the First Appeal 10 No.155/2005 and 29/2006 wherein the applicants were also parties has upheld the compensation awarded by the Reference Court in respect of the land acquired therein pursuant to a notification dated 27/09/1994 in the vicinity of the land acquired herein. Considering that there is no serious dispute with regard to the comparability of the land acquired in the present case and the land which was the subject matter of the said acquisition, we find no reasons to award any different compensation in the present proceedings. The Reference Court has rightly appreciated the evidence on record and fixed the compensation at the rate of Rs.144/- per square metre and directed the payment of the excess amount of Rs.140/- for the land acquired. Similar was a situation while disposing of First Appeal No.155/2005. 10. Shri A.D. Bhobe, the learned Counsel appearing for the respondents was not justified to contend that the applicants have failed to discharge the burden to establish that the price offered by the Land Acquisition Officer was inadequate. RW1 himself has admitted that the land involved in the document at Exhibit AW1/G is comparable to the land acquired. The amount offered therein was at the rate of Rs.65/- per square metre in the year 1986. After 11 giving an appreciation of 10% the Reference Court has arrived at a compensation at the rate of Rs.144/- per square metre and directed the payment of an excess amount of Rs.140/- per square metre. We find no infirmity committed by the Reference Court in fixing the market value of the acquired land. 11. Shri Sudesh Usgaonkar the learned Counsel appearing for the applicants also was not justified to contend that the applicants are entitled to an higher compensation. AW1 in his deposition has relied upon the document at Exhibit AW1/G and further submitted that the said land was comparable. 12. The sale instances relied upon by the applicants have been rightly rejected by the Reference Court for cogent reasons. Hence, there is no merit in both the above appeals. The point for determination is answered accordingly. In view of the above, both the aforesaid appeals stand dismissed with no order as to cost. S.A. BOBDE, J F.M. REIS, J. NH/-