1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.206 OF 2002. Ismalia Cora Piedade Costa Pereira, Arlem, Raia, Goa (deceased) and is represented by following L.Rs. 1a. Ashok Joseph Piedade Costa Periera aged 64 years, resident of House No.222, Arlem, Raia, Goa. b. Joao Mario Piedade Costa Periera, aged 63 years, resident of House No.260/I, Gavon, Raia, Goa c. Aruna Graca Piedade Costa Periera, Aged 61 years, original resident of House No.222 d. Guido Da Costa Periera, aged 59 years, original resident of House No.222, Arlem, Raia, Goa e. Pearl Lucia Piedade Costa Periera, aged 55 years, resident of House No.106/B-A, Nuvem, Salcette, Goa f. Maria Paula Piedade Costa Periera, aged 51 years, resident of House no.222, Arlem, Raia, Goa. .. Appellants Versus 1. The Deputy Collector and L.A.O., Quepem, Goa 2. Director of Sports and Youth Affairs, Panaji, Goa. .. Respondents. 2 Mr. C. Mascarenhas, Advocate for the appellants. Ms. Susan Linhares, Additional Government Advocate for the respondents. CORAM :- A. P. LAVANDE, J. DATE : 16 th December, 2011. ORAL JUDGMENT : Heard Mr. Mascarenhas, learned Counsel for the appellants and Ms. Linhares, learned Additional Government Advocate for the respondents. 2. The appellants are the legal representatives of the original appellant Ismaila Cora Piedade Costa Pereira. The appellants take exception to the judgment and award dated 15th February, 2002 passed by the District Judge, South Goa, Margao in Land Acquisition Case No.51/1997 by which the reference under Section 18 of the Land Acquisition Act ('The Act' for short) has been rejected. 3. By Notification dated 1st February, 1994 issued under Section 4 of The Act, which was published in official gazette on 2nd February, 1994, the Government of Goa expressed its intention to acquire 6975 square metres of land 3 of Survey No.95/2 of village Molcornem of Quepem Taluka belonging to the appellants. The appellants claimed compensation at the rate of Rs.50/- per square metre. The Land Acquisition Officer fixed the market rate of the acquired land at the rate of Rs.6/- per square metre. The appellants sought reference under Section 18 of The Act and claimed compensation at the rate of Rs.50/- per square metre. 4. In Land Acquisition Case No.51/1997, the appellants examined two witnesses namely AW1- Edwin D'Costa Pereira and AW2-Krishna Gaonkar. The appellant placed reliance upon the judgment and award -exhibit 19 dated 16th October, 1999 passed in Land Acquisition Case No.52/1997 by the District Judge, South Goa, Margao in which in respect of the land bearing Survey No.95/10 admeasuring 3710 square metres which was also acquired by the same Notification, the Reference Court fixed the market rate at Rs.20/- per square metre. 5. The Reference Court rejected the reference primarily on the following three grounds : (i) The original claimant had not examined herself 4 without giving any reason. (ii) The Reference Court refused to place reliance upon the award exhibit 19 because the respondent had no opportunity to cross-examine Krishna- the landlord or the witnesses which were produced in the said case before the award was passed. (iii) The acquired land was being used as football ground and as such, did not have any potential as such and could not have been purchased by a prudent purchaser. 6. Mr. Mascarenhas, learned Counsel appearing for the appellants submitted that the Reference Court ought to have relied upon exhibit 19 and at least ought to have fixed the market rate of the acquired land at Rs.20/- per square metre. Mr. Mascarenhas after taking me through evidence of the two witnesses submitted that the acquired land in the present case was touching Molcorne- Rivona road; whereas the land which was subject matter in award exhibit 19 was not touching to main road and admittedly, was on a higher level. Mr. Mascarenhas further submitted that although the acquired land was used as a football ground for a considerable number of years, the same does not affect the 5 market value of the acquired land inasmuch as the said land was allowed to be used as football ground by consent of the original claimant and the consent could have been withdrawn at any point of time. He further submitted that there is absolutely no evidence led by the respondents to show that any amount is spent on the filling of the acquired land though it was on level lower than the land in award exhibit 19. According to Mr. Mascarenhas, the acquired land was better situated as compared to the land in award exhibit 19 and considering the purpose of acquisition i.e. for construction of playground, the acquired land was better situated than the land in award exhibit 19. Mr. Mascarenhas, therefore, submitted that the appeal is liable to be allowed by enhancing the compensation. 7. Per contra, Mrs. Linhares, learned Additional Government Advocate supported the impugned judgment and award and submitted that the Reference Court was justified in rejecting the reference on the grounds stated therein and, therefore, no interference is warranted with the impugned judgment and award. 8. In view of the rival submissions, the following 6 point arises for determination of the appeal : “Whether the Reference Court was justified in rejecting the reference ? If not, what was the market rate of the acquired land as on the date of publication of Section 4 Notification ?” 9. As stated above, the appellants had relied upon the award passed by the District Judge in Land Acquisition Case No.52/1997- exhibit 19 in which case, an area of 3710 square metres bearing Survey No.95/10 was also acquired by the very same notification. In respect of the said land, the Reference Court enhanced the market rate from Rs.6/- to Rs.20/- per square metre. 10. There is no challenge thrown by the respondents to the said award. It is well settled that the award passed in Land Acquisition Case, which has become final, affords best evidence to fix the market rate of the other land acquired by the same notification, provided the nature of the two lands is identical. In the light of this principle, the question which arises for consideration is whether the Reference Court was justified in rejecting the reference. 7 11. Insofar as the first ground on which the Reference Court relied upon is concerned, I find that Mr. Mascarenhas is justified in submitting that this can never be ground for rejecting reference under The Act because land acquisition case is not akin to the suit in all respects and the claimant is entitled to prove the market rate of the acquired land by leading appropriate evidence to that effect and it may not be necessary in all the cases for the claimant to step in the box to prove the market rate of the acquired land. In the present case, AW1- Edwin Pereira, who is son of the original claimant, was examined and it was not necessary for her to step in the box to depose about a fact exclusively within her knowledge and therefore, no adverse inference on this ground can be drawn against her. Moreover, there is no serious dispute that the acquired land was used as football ground after 1970 with the consent of the claimant which fact AW1- Edwin Pereira has fairly stated in the examination- in-chief. Insofar as the claim of tenancy is concerned, the claimant had relied upon the judgment given by the Reference Court (exhibit 17) by which the reference made under Section 30 of The Act at the instance of the person claiming tenancy was rejected. That being the position, the 8 alleged claim of tenancy to the acquired land could not be the factor to be taken into consideration for fixing the market rate of the acquired land. 12. The evidence on record clearly suggests that the acquired land was a levelled land; whereas the land in award exhibit 19 was on higher level. The evidence on record also suggests that the acquired land had direct access to Molcorne-Rivona road. According to AW1- Edwin Pereira, the land involved in award exhibit 19 did not have a direct access, but the access was through the present acquired land. However, perusal of the award exhibit 19 discloses that the Reference Court had accepted the case set up by the applicant that the acquired land had access. As such, I am not inclined to accept the solitary statement of AW1- Edwin Periera which is contrary to award exhibit 19. 13. As stated above, the award exhibit 19 being the award in respect of the adjoining land vis-a-vis the acquired land, would offer the best evidence to fix the market rate of the acquired land. Therefore, in order to fix the market rate of the acquired land, what has to be considered is the plus and minus factors for the purpose of fixing the market rate of 9 the acquired land vis-a-vis the award exhibit 19. The fact that the acquired land was on lower level than the land in exhibit 19 would not be a factor in favour of the applicant in the absence of any evidence having been brought on record as to whether the acquired land was filled or the land in exhibit 19 was brought at the level of the acquired land. However, the fact that the acquired land was used as football ground for a considerable number of years prior to acquisition, would be the minus factor affecting the market rate of the acquired land. It is well settled by a catena of decisions of the Apex Court that for the purpose of fixing the market rate of the acquired land, the Court has to consider as to what price a willing buyer would offer to a willing seller in respect of the land which is acquired. Considering the fact that the acquired land was admittedly used as football ground and also functions were held therein from 1970, would, in my considered opinion, be the factor which would definitely go against the claimant for the purpose of fixing the market rate of the acquired land. A prudent buyer who wants to buy the property in a village would not offer the same price in respect of the property, which is being used as football ground for a considerable number of years which he would offer for a property not being used as a football ground 10 for obvious reasons. In case he wants to develop the property he would not like to face any problem from the people in the village who have been using the land as playground for a considerable number of years. Therefore, the fact that the property is being used for a number of years as football ground though with the consent of the owner, would be minus factor for the purpose of fixing the market rate of the acquired land and appropriate deduction deserves to be made on this count. In my considered opinion, in the present case, considering the facts and circumstances of the case, appropriate deduction would be 30%. Since the award in exhibit 19 was in respect of the adjoining land which was also acquired by the same notification and admittedly the Reference Court had fixed the market rate at Rs.20/- per square metre for the said land, the same would form the basis for fixing the market rate of the acquired land with appropriate deductions. I have already held that the appropriate deduction would be 30 %. Therefore, the market rate of the acquired land as on the date of publication of Section 4 Notification works out to Rs.14/- per square metre. Accordingly, I hold that the market rate of the acquired land as on the date of publication of Section 4 Notification would be Rs.14/- per square metre. 11 14. In view of the above discussion, the appeal is partly allowed. The market rate of the acquired land is fixed at Rs.14/- per square metre. The appellants are also entitled to all the statutory benefits under the Act. The parties to bear their own costs. A. P. LAVANDE, J. SMA