1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NOS.1, 103/2002 AND 156, 297/2005 FIRST APPEAL NO.1/2002 1 Special Land Acquisition Officer (South Goa) Konkan Railway Corporation Limited, Amey Guest House, Davorlim Road, P.O. Navelim, Salcete Goa, 403 707. 2 Chief Engineer, Konkan Railway Corporation Ltd., Rawnfond, near Margao Railway Station , Margao- Goa. .. Appellants. Versus 1 Antonio Carvalho, r/o Nauta, Cortalim, Goa. 2 Dionisio N. F. Carvalho, r/o. Nauta, Cortalim-Goa. .. Respondents. Mr. E. Afonso, Advocate for the appellants. Mr. I. Agha, Advocate for the respondents. FIRST APPEAL NO.103 OF 2002. 1 Antonio Carvalho, 2 Dionisio N. P. Carvalho, 116, Nauta, Cortalim-Goa. .. Appellants. Versus 1 Special Land Acquisition 2 Officer, South Goa, KRCL, Amey Guest House, Davorlim Road, P.O. Navelim, Salcete Goa, 403 707. 2 The Chief Engineer, Konkan Railway Corporation Ltd., 4th Floor, Souza Tower, Church Square, Panaji Goa. 403001. .. Respondents. Mr. I. Agha, Advocate for the appellants. Mr. E. Afonso, Advocate for the respondents. FIRST APPEAL NO.156 OF 2005. The Communidade of Cortalim, Represented by the Attorney Cortalim Goa. .. Appellant. Versus 1 Special Land Acquisition Officer, South Goa, KRCL, Amey Guest House, Davorlim Road, P.O. Navelim, Salcete Goa, 403 001. 2 The Chief Engineer, Konkan Railway Corporation Ltd., 4th Floor, Souza Tower, Church Square, Panaji Goa. 403001. .. Respondents. Mr. M. P. Almeida, Advocate for the appellant. Mr. A. D. Bhobe, Advocate for the respondents. FIRST APPEAL NO.297 OF 2005. 1 Special Land Acquisition 3 Officer, South Goa, KRCL, Amey Guest House, Davorlimkk Road, P.O. Navelim, Salcete Goa. 2 The Chief Engineer, Konkan Railway Corporation Ltd., Rawanfond, Margao, Goa. .. Appellants. Versus Communidade of Cortalim, Represented by its Attorney, Cortalim Goa. .. Respondent. Mr. A. D. Bhobe, Advocate for the appellants. Mr. I. Agha, Advocate for the respondent. CORAM : A. P. LAVANDE & SMT. R. P. SONDURBALDOTA JJ. Reserved on : 20 th September, 2011. Pronounced on : 22 nd December, 2011. JUDGMENT : (Per A. P. Lavande, J.) Heard the learned Counsel for the parties. 2. All these four appeals are being disposed of by common judgment since they arise out of the judgments delivered by Additional District Judge, South Goa, Margao in Land Acquisition Cases arising out of the same Notification 4 issued under Section 4 of the Land Acquisition Act ('The Act' for short). 3. By Notification dated 30th September, 1991 issued under Section 4 of The Act, the lands belonging to several persons were acquired by the Government of Goa for Konkan Railway Corporation ('the KRC' for short) for construction of new BG line. The land belonging to the appellants in First Appeal No.103/2002 (hereinafter referred to as 'Carvalhos') and the land belonging to the appellant in First Appeal No.156/2005 (hereinafter referred to as 'the Communidade') were also acquired. An area admeasuring 1400 square metres of Survey No.128 Part of Cortalim village belonging to Carvalhos whereas an area of 1,06,042 square metres belonging to the Communidade bearing several survey numbers of village Cortalim were part of the acquired land. In respect of Carvalhos' land, the Land Acquisition Officer awarded Rs.4/- per square metre and further awarded Rs.14,049.60 towards trees. Insofar as the land of Communidade is concerned, the Land Acquisition Officer awarded Rs.4/- per square metre for Survey Nos.143/1, 145, 5/1 and Rs.2/- for Survey No.5/2 and an amount of Rs.825/- towards the value of the trees in Survey No.5/1 and Rs.2200/- for trees in Survey No.5/2. 5 4. Dissatisfied with the compensation awarded, Carvalhos sought reference under Section 18 of The Act and claimed an amount of Rs.450/- per square metre. The Communidade also sought reference under Section 18 of The Act and claimed compensation at the rate of Rs.300/- per square metre. 5. The reference sought by Carvalhos was registered as Land Acquisition Case No.394/1995. The Reference Court framed the following issues : “(i) Whether the applicants prove that the total area actually taken possession by Collector is 1800 sq. mts. and not 1400 sq. mts. as notified ? (ii) Whether the applicant proves that the market value was Rs.450/- per sq. mt. ? (iii) Whether the applicants prove that they are entitled to Rs.50,000/- towards the expenditure incurred in creating the infrastructure for submitting the development plans for approval viz the Architects fees for drawing courteous and subdivision and other miscellaneous expenditure ? (iv) Whether the applicant proves that Rs.5,00,000/- 6 towards injurious affection and damages due to the passing of the Railway line ? (v) What relief? What order ?” 6. In support of the claim of enhancement of compensation, Carvalhos examined four witnesses, namely Antonio Carvalho- AW1, Maria Carvalho-AW2, who was seller in sale deed dated 23rd April, 1991 by which an area of 325 square metres of agricultural land was sold at the rate of Rs.200/- per square metre, Vikas Dessai- AW3 and Domnic Diniz-AW4, who was purchaser of the plot admeasuring 350 square metres which was purchased at the rate of Rs.95/- per square metre by sale deed dated 1st October, 1986. Antonio Carvalho-AW1 relied upon four sale deeds, the details of which are as follows : Sr. No. Sale Deed Date Exhibit Area in sq.mts. Rate in Rs. Type a) 01/10/1986 AW1/C 400 sq.mts 95/- Agricultural (no trees) b) 20/09/1988 AW1/D 425 sq.mts 176/- Residential c) 06/11/1989 AW1/B 175 sq.mts 225/- Agricultural (no trees) d) 23/04/1991 AW1/A 325 sq.mts 200/- Agricultural (no trees) 7. The Reference Court after considering the 7 evidence led by Carvalhos and more particularly the sale deeds relied upon by Carvalhos held that the small plot of land in the neighbourhood of the acquired land could be sold at the rate of Rs.200/- per square metre and considering that the area acquired was 1400 square metres, by judgment and order dated 31st August, 2001, the Reference Court enhanced the market rate of the acquired land to Rs.134/- per square metre. 8. The KRC has filed First Appeal No.1/2002 challenging the enhancement granted by the Reference Court whereas aggrieved by the inadequacy of the compensation, Carvalhos have filed First Appeal No,.103/2002 claiming compensation at the rate of Rs.450/- per square metre. 9. The reference sought by the Communidade was registered as Land Acquisition Case No.392/1995. The Communidade examined five witnesses in support of its case namely Pedru Carvalho-AW1, Alvaro Colaco-AW2, Vikas Dessai-AW3, John Pereira-AW4 and Krishna Prabhudessai- AW5. On behalf of KRC, one witness namely Sarvesh Verlekar was examined. Pedru-AW1 relied upon four sale deeds and two awards, the details of which are as under : 8 Sr. No. Sale Deed Date Exhibit Area in sq.mts. Rate in Rs. per sq.mts Type a) 01/10/1986 AW1/D 350 sq.mts 95/- Agriculture (one crop) b) 23/04/1991 AW1/E 325 sq.mts 200/- Agricultural no trees c) 21/09/1989 AW1/F 34.32 sq.mts 275/- Agricultural d) 06/11/1989 AW1/G 175 sq.mts 225/- Sr. No. Date and no. of award Exhibit Rate in Rs. per sq.mts Purpose i) Case No.99/43/ LA/85-86, 28/02/1989 AW1/B 65/- per sq. mts. For construction of major and minor bridges of NH17 and NH17(A) ii) LAC no.394/95 (award of Reference Court) AW1/H 134/- per sq. mts. B.G. Line for Konkan Railway 10. Initially, the IIIrd Additional District Judge after considering the evidence led by the parties by judgment and order dated 11th February, 2005 partly allowed the reference fixing the market rate of the acquired land at the rate of Rs.109/- per square metre in respect of Survey Nos.5/1, 5/2 and in respect of Survey Nos.145, 143/1 fixed the market rate of the acquired land at the rate of Rs.134/- per square metre. 11. By order dated 24th June, 2010, this Court 9 directed the Reference Court to decide the following issue and return the finding along with reasons, within a period of three months: “Whether the Applicants prove that they are entitled for compensation at the rate of Rs.300/- per square metre in respect of the land acquired besides the properties surveyed under nos.145, 143/1, 5/1 and 5/2 ?” Pursuant to the said order, the Reference Court passed judgment dated 12th October, 2010. The Reference Court held that the Communidade was not entitled to compensation at the rate of Rs.300/- per square metre in respect of the properties acquired in addition to survey nos.145, 143/1, 5/1 and 5/2. In First Appeal no.156/2005, the Communidade restricted its claim to only four survey numbers i.e. Survey Nos.5/1, 5/2, 143/1 and145 whereas the KRC has challenged the enhancement granted by the Reference Court. 12. In support of the appeal filed by Carvalhos, Mr. Agha, learned Counsel for the appellants made the following submissions : 10 (i) The Reference Court ought to have awarded the appellants Rs.450/- per square metre in respect of the acquired land and ought not to have made any deductions more particularly having regard to the judgment delivered in the case of Nelson Fernandes and others Vs. Special Land Acquisition Officer, South Goa and others; (2007)9 SCC 447 in which the land was acquired under the very same notification. (ii) Considering that the acquired land was only 1400 square metres and it was not comparably bigger land, no deduction ought to have been made by the Reference Court from Rs.200/- for the purpose of fixing the market rate of the acquired land and the compensation ought to have been fixed at least at the rate of Rs.200/- per square metre. (iii) Having regard to the sale deeds upon which reliance was placed and considering that the acquired land was adjacent to the highway and considering the fact that the acquired land was at the distance of about 500 metres from the electronic city, the Reference Court ought to have granted higher compensation. In support of his submissions, Mr. Agha placed 11 reliance upon the following judgments : (i) Nelson Fernandes and others Vs. Special Land Acquisition Officer, South Goa and others; (2007)9 SCC 447 (ii) Subh Ram and others Vs. State of Haryana and another; (2010)1 SCC 444. (iii) Special Land Acquisition Officer and another Vs. Manuela Faria Roadrigues; First Appeal No.9/2002 dated 15/10/2010. (iv) Communidade of Cortalim Vs. Special Land Acquisition Officer and another; First Appeal Nos.155/2005 and 29/2006, dated 30/11/2010. (v) Special Land Acquisition Officer Vs. Elesbao Pereira; First Appeal Nos.63/2002 & 67/2002 dated 9 th March, 2005. (vi) Shri Ambya Kalya Mhatre (d) Through legal heirs and Ors. Vs. The State of Maharashtra; Civil Appeal No.7784/2011, dated 12/09/2011. 13. Mr. Afonso, learned Counsel appearing for the respondents in Carvalhos' appeal and for the appellants in First Appeal No.1/2002 filed by the KRC submitted that the land involved in the case of Nelson Fernandes (supra) was situated near Cortalim market and is better situated than the 12 land of Carvalhos. Learned Counsel further submitted that all the developments around the acquired land had taken place after the acquisition and as such, no case is made out for grant of higher compensation by Carvalhos. Mr. Afonso relied upon the judgment in First Appeal No.103/2000 in which land of one Shriniwas Fadte situated at Cortalim village bearing Survey No.14/6 was acquired by the notification dated 24th October, 1991 by the KRC for the very same purpose. This Court by judgment and order dated 18th August, 2009 passed in First Appeal No.103/2000 fixed the compensation at the rate of Rs.150/- per square metre. Mr. Afonso submitted that no case has been made out for grant of higher compensation in respect of the Carvalhos' land, whereas the compensation granted by the Reference Court is on much higher side and, therefore, deserves to be reduced. 14. Mr. Bhobe, learned Counsel appearing for the KRC in First Appeal No.297/2005 and for the respondents in First Appeal No.156/2005 submitted that the compensation granted in respect of the acquired land is excessive and the Reference Court ought not to have held that the market rate of the small plot of land in the neighbourhood of the acquired land was Rs.200/- per square metre and in any case considering the area of the acquired land, deduction of 33 % 13 was justified. Learned Counsel further submitted that the compensation fixed is highly excessive and the Reference Court could not have placed reliance upon the sale deeds relied upon by the Communidade of Cortalim. Mr. Bhobe further submitted that in any case, the Communidade of Cortalim has not made out any case for enhancement of compensation granted by the Reference Court and, therefore, the appeal filed by the Communidade of Cortalim deserves to be dismissed. 15. Mr. Almeida, learned Counsel appearing for the appellants in First Appeal No.156/2005 adopted the arguments advanced by Mr. Agha, learned Counsel for the appellants in First Appeal No.103/2002. 16. We have carefully considered the rival submissions, perused the record and the judgments relied upon. 17. In view of the rival submissions, the following point arises for determination in First Appeal Nos.1/2002 and 103/2002 : “Whether the market rate of Rs.134/- per square metre fixed by the Reference Court is fair ? If not, what is the 14 market value of the acquired land of Carvalhos as on the date of publication of Section 4 notification ?” 18. The following point arises for determination in First Appeal Nos.156/2005 and 297/2005: “Whether the market rates fixed by the Reference Court in respect of the acquired land of the Communidade at Rs.109/- and 134/- per square metre are just and fair? If not, what is the market rate of the said land ?” 19. Insofar as the land of Carvalhos is concerned, admittedly, the same admeasures 1400 square metres. The evidence of AW1-Antonio Carvalho establishes that the acquired land is situated at a distance of about 500 metres from Verna electronic city and the same is adjacent to Airport road. Water supply facility was available since 1974 in the said land and the same was situated in settlement zone. There were cashew and mango trees and some other types of trees in the acquired land at the time of acquisition. The evidence of AW1-Antonio Carvalho stands corroborated by AW2-Maria Carvalho- the mother of AW1 and AW3- Vikas Dessai. The evidence led by Carvalhos on these aspects has not been shaken in cross-examination conducted by the acquiring body. 15 20. The applicant AW1- Antonio Carvalho has relied upon four sale deeds referred to in paragraph no.6. The Reference Court, after making reference to the sale deeds and the distances of the said sale deed plots from the acquired land, has held that the small plot of land could be sold in the neighbourhood of the acquired land for Rs.200/- per square metre. The Reference Court, thereafter, deducted 33 % towards the development costs on the ground that the acquired land was garden land and after placing reliance upon the judgment in the case of Brig. Sahib Singh Lalha Vs. Amritsar Improvement Trust and others; AIR 1982 SC 940, has arrived at the figure of the market rate of Rs.134/- per square metre. 21. Insofar as the sale deed dated 20th September, 1988 -AW1/D relied upon by Carvalhos is concerned, the land involved was sold for residential purpose at the rate of Rs.176/- per square metre and was not proximate in time considering the date of publication of Section 4 Notification. Similarly, the sale deed – AW1/C dated 1st October, 1986 relied upon by AW1- Antonio Carvalho, was in respect of an agricultural land and was not proximate in time considering the date of publication of Section 4 Notification. In terms of 16 the sale deed dated 6th November, 1989 -AW1/B upon which reliance has been placed, an area of 175 square metres of agricultural land was sold at the rate of Rs.225/- per square metre. The said land is situated at about 1 and ½ kilometres away from the acquired land and the same had no proper access. The sale deed dated 23rd April, 1991 -AW1/A by which AW2- Maria Carvalho sold an area of 325 square metres at the rate of Rs.200/- per square metre, can be taken for the purpose of fixing the market rate of the acquired land since the said sale deed is proximate in time and location. It is well settled that when several sale deeds are relied upon by the claimant in reference under Section 18 of The Act, the sale deed which is proximate in time and place qua the acquired land, has to be preferred, provided the nature of the plot in the sale deed and the acquired land is similar and in case there is any difference, appropriate deductions have to be made. The sale deed plot was an agricultural land with no trees thereon and was situated at a distance of 700 metres from the acquired land. Therefore, having regard to the settled principles governing the fixation of compensation under Section 18 of The Act, the said sale deed can form the basis for fixing the market rate of the acquired land. As stated above, the Reference Court has deducted 33 % from the price mentioned in the sale deed dated 23rd April, 1991 on 17 the ground that if the acquired land is acquired for development purpose, deduction of 33 % was justified. The sale deed dated 23rd April, 1991 itself suggests that the property sold was an agricultural land and there is absolutely no evidence on record to show that the same was sold for the purpose of carrying out any construction thereon. Therefore, in our considered opinion, the approach of the Reference Court in deducting 33 % towards development costs, is not sustainable in law. 22. The evidence led by the applicants to which reference has been already made, establishes that the acquired land was abutting Airport road, whereas plot in sale deed- AW1/A had no such an advantage. However, the sale deed plot was admeasuring 325 square metres, whereas the acquired land is 1400 square metres. Moreover, in the acquired land, there were admittedly some cashew and mango trees and some other types of trees, whereas the sale deed plot did not have any trees thereon. Therefore, positive and negative factors of the sale deed plot and the acquired land balance each other and, therefore, in our considered opinion, the market rate of the acquired land as on the date of Section 4 Notification can be safely taken to be Rs.200/- per square metre. Since there is no evidence that the plot in sale 18 deed dated 23rd April, 1991 was sold for carrying out development by way of construction, the question of deducting the compensation towards trees, does not arise in view of the judgment of the Apex Court in the case of Ambya Kalya Mhatre (supra) relied upon by Mr. Agha. Therefore, Carvalhos are entitled to compensation at the rate of Rs.200/- per square metre in respect of an area admeasuring 1400 square metres and are also entitled to compensation of Rs.14,049.60 towards trees existing thereon. 23. Insofar as the land of Communidade is concerned, the Communidade has restricted its claim to only four survey numbers namely 5/1, 5/2, 143/1 and 145. Insofar as the lands bearing survey nos.5/1 and 5/2 are concerned, the Reference Court has referred to the evidence of AW5 – Krishna Prabhudessai which establishes that the lands under Survey No.143/1 and 145 were opposite the land under Survey No.128 which was subject matter in Land Acquisition Case No.394/1995. The evidence of AW5 establishes that Survey No.128 is on the northern side of the road whereas lands bearing Survey Nos.143 and 145 lie on the southern side of the road. His evidence establishes that the land under Survey No. 128 is separated from Survey Nos. 143 and 145 by the highway proceeding Verna Plateau to Birla. 19 He deposed that land bearing Survey No.128 which was subject matter of exhibit AW1/H was Bharad land with moorum soil. He further deposed that the said land was similar in nature as Survey Nos.143 and 145. 24. Perusal of the award exhibit AW1/H discloses that the acquired land was garden type land. It is the case of the applicant- AW1 Peter Carvalho in his evidence that the land bearing Survey No.145 was rocky land with few cashew trees. The Reference Court held that land under Survey No.128 which was subject matter of Land Acquisition Case No.394/1995 and the land involved in Survey Nos.143/1 and 145 were in the close proximity and all these lands were adjacent to the road and as such, the market rate of the acquired land can be fixed on the basis of the said award. In our considered view, though the Reference Court was justified in placing reliance upon the award in Land Acquisition Case No.394/1995, the Reference Court was not justified in fixing the same market rate. Firstly, perusal of the award AW1/B discloses that the land in the award was a garden type of land and there is absolutely no reference in the award that it was a rocky land. Therefore, in our considered view, the Reference Court was not justified in placing reliance upon the evidence of AW5- Krishna 20 Prabhudessai, whose evidence on the other aspects was not accepted by the Reference Court. Therefore, having regard to the admitted position that the lands bearing Survey Nos.145 and 143 were rocky lands, the same has to be taken as negative factor vis-a-vis the lands involved in the award exhibit AW1/H. Moreover, the land admittedly belongs to the Communidade of Cortalim. This Court consistently has taken a view that the Communidade land cannot be taken as freehold land. After considering the provisions of Code of Communidade and the ratio laid down in the case of Communidade of Candolim Vs. Deputy Collector North Panaji, Goa; (2005)1 GLR 25 to which reference has been made in the unreported judgment dated 24th June, 2010 passed by the Division Bench of this Court in First Appeal Nos.283/2002 and 103/2003 upon which reliance has been placed by Mr. Bhobe, we hold that while fixing the market rate of the land of the Communidade in the present case, deduction of 25 % in the market value of the freehold land will have to be made. 25. Moreover, as stated above, the lands under Survey Nos.143/1 and 145 were rocky lands, whereas there is no evidence on record to show that the land involved in Land Acquisition Case No.394/1995 admeasuring 1400 square 21 metres was rocky land. In our considered opinion, the deduction of 10 % will have to be made on this count. We have held that the market rate of the land which was subject matter of Land Acquisition Case No. 394/1995 as on the date of publication of Section 4 Notification was Rs.200/- per square metre. Therefore, deducting 35 % from the market rate of the acquired land in Land Acquisition Case No.394/1995, the market rate of the land under Survey Nos.145 and 143/1 works out to Rs.130/- per square metre. 26. Insofar as the lands bearing Survey Nos.5/1 and 5/2 are concerned, the Reference Court has placed reliance upon the award produced by AW1-Peter Carvalho passed by the Land Acquisition Officer dated 28th February, 1989 in Case No.99/43/LA85-86 in respect of several properties including Survey Nos.5/1 and 5/2 in which lands of several persons were acquired for public purpose. As per the version of AW1- Peter Carvalho, these lands were situated within the radius of 1500 metres from the acquired land and they were also paddy fields in terms of exhibit AW1/B. The market rate of the acquired land was fixed at Rs.65/- per square metre. One of the lands bearing Survey No.5 of village Sancoale was belonging to Salgaonkars. The deposition of AW1 brings out that the lands of several persons under Survey No.5 of 22 Sancoale village was inter-tidal paddy field. The Reference Court placed reliance upon the evidence of RW1- Sarvesh Verlekar, who was examined by the acquiring body, has admitted that out of the lands of Salgaonkars, the land which was acquired under Survey No.5 was of similar nature as acquired land in the present case under Survey Nos.5/1 and 5/2. The Reference