-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 128 OF 2004 1. Shri Vaman Anant Prabhu Gaonkar (since deceased represented through legal representative) 1a. Smt. Ratnabai Vaman Prabhu Gaonkar, widow 1b. Shri Uihas Vaman Prabhu Gaonkar, son and his wife 1c. Smt. Sudha Ulhas Prabhu Gaonkar 1d. Shri Anil Vaman Prabhu Gaonkar, son and his wife 1e. Smt. Nila Prabhu Gaonkar 1f. Shri Rajendra Vaman Prabhu Gaonkar, son and his wife 1g. Smt. Sushma Prabhu Gaonkar, All r/o Loliem, Canacona. 2. Ramesh Lolienkar r/o Loliem, Canacona. (The name of Applicant No.2 is deleted as per order dated 14.11.1997) …...Appellants V e r s u s 1. Dy. Collector and Land Acquisition Officer, Quepem. 2. The Executive Engineer, W.D. XXV (NH) P.W.D. Borda, Margao. ….. Respondents Mr. Sudesh Usgaonkar, Advocate for the Appellants Ms. Sapna Mordekar, Additional Government Advocate for the Respondents. -2- CORAM: F. M. REIS, J. DATE : 3 rd September, 2010. ORAL JUDGMENT The above appeal takes exception to the Judgment and Award dated 28th January, 2004 passed by the Learned District Judge, South Goa, Margao in Land Acquisition Case No. 246/1992 where by the reference sought by the Appellants came to be dismissed and the reference answered in the negative. 2. By Notification issued under Section 4 of the Land Acquisition Act,1894 (hereinafter referred to as the 'said Act') dated 24th November, 1988 and published in the Official Gazette dated 19th January, 1989, a portion of the property admeasuring an area of 420 square metres surveyed under No. 4/1 of Village Poinguinim of Canocona Taluka was sought to be acquired by the Respondents for the approach road to the Galgibaga bridge on National Highway 17. By an award passed under section 11 of the said Act, the land acquisition officer fixed the compensation at the rate of Rs.3/- per square metre. Being dissatisfied with the said amount, the Appellant sought a reference under section 18 of the said Act for enhancement of compensation and prayed for a compensation to tune of Rs.75/- per square metre. By the Judgment and Award dated 28th January, 2004, the reference filed by the Appellants came to be rejected. -3- 3. Being aggrieved by the said Judgment, the Appellants have preferred the present Appeal. 4. Mr. Sudesh Usgaonkar, learned counsel appearing for the appellants has assailed the impugned Judgment and submitted that the Sale deed produced by the Appellants, which is at Exhibit AW/1/A is a comparable exemplar whereby the price fixed was at the rate of Rs.92/- per square metre. He further submitted that though there was a structure in the said sale deed plot, nevertheless, the said structure existing therein was belonging to the purchaser and as such the price mentioned in the said sale deed was with regard to the open land only. He further submitted that the Reference Court has erroneously discarded the sale instance on the ground that the price paid for the structure was not disclosed in the said Sale Deed. He further submitted that the Sale Deed land is at a distance of 350 meters from the acquired land and the facilities available to the acquired land were much superior to the land in the said sale instance. He further pointed out that the Reference Court has erroneously rejected the said reference. 5. On the other hand the learned Additional Government Advocate, has vehemently opposed the above Appeal. She submitted that the Reference Court has minutely examined the evidence adduced by the Appellant and came to the conclusion that the Appellant had failed to establish that the acquired land was comparable to the sale instance. She further pointed out that the sale instance produced by the Appellant is in respect of -4- the land which is across the river which is not at all comparable with the acquired land. She further pointed out from the evidence on record that though it was sought to be contended by the Appellants that the acquired land was superior to the land mentioned in the said sale instance, nevertheless, there is evidence on record to demonstrate that the acquired land was towards the southern on Karwar side of the proposed bridge. She further pointed out that the evidence discloses that there is no comparability at all between the sale instance and the acquired land. The learned Counsel has further taken me through the notes of evidence and pointed out that there is no evidence adduced by the Appellant to show the comparability of the land in the sale instance with the acquired land. She further submitted that the expert examined by the Appellant has not even referred to the sale instance and, as such, his evidence cannot help the Appellant to seek any enhancement of compensation on the basis of the said sale instance. The learned Addl. Government Advocate submitted that there is also a dispute as to whether the structure which is existing in the Sale Deed plot was of a mundkar or not. The learned Addl. Government Advocate further submitted that there is no infirmity in the impugned Judgment and, as such, the Appeal deserves to be rejected. 6. Having heard the learned Counsel for the Appellants and the Respondents and on going through the records, the following point for determination arises in the present Appeal :- 1. Whether the Reference Court was justified to dismiss the reference filed by the Appellant ? -5- 7. There is no dispute that in support of the claim of the Appellant, a sale instance was produced by the Appellant, which is at Exhibit Aw.1/A. The Reference Court whilst considering the said sale instance has discarded it on the ground that the price mentioned therein would not reflect the correct market value of the open land as there was a structure located therein. On perusal of the said sale instance at exhibit Aw.1/A, I find that the Sale Deed stipulates that the structure which was existing in the Sale Deed plot was belonging to the purchaser. As such, the question of the purchaser paying any amount on account of such structure, would not arise at all. On the background of such facts, I find that the price which is mentioned in the said Sale Deed is the price paid on account of land which was the subject matter of the said sale instance. The Reference Court was not justified to discard the said Sale Deed by misconstruing the Sale Deed at exhibit Aw.1/A. The expert examined by the Appellant has not at all referred to the said sale instance. The said expert has stated in his deposition that he has visited the property for the purpose valuation much after the land was acquired. There is no evidence on record to demonstrate whether the land acquired was in the same nature as it existed as on the date of Section 4 Notification. The evidence of the expert on comparability of the sale instance at exhibit Aw.1/A with the acquired land, will as such not help the Appellant. 8. The learned Counsel appearing for the Appellants has submitted that the Appellants have brought evidence on record to establish the -6- comparability. He submitted that they have examined a witness who is Aw.3 who had deposed about the facilities available to the acquired land as against the sale instance. He has further pointed out that Aw.1 has also brought evidence on record to establish the comparability. I find that the Reference Court has not at all appreciated the evidence on record to consider as to whether the land acquired and the land which was subject matter of the sale instance is comparable or not. The learned Addl. Government Advocate has in fact submitted that the land acquired is not at all comparable with the sale instance. The Learned Addl. Government Advocate has further submitted that the land acquired is of inferior quality to that of the sale instance. All these aspects will have to be gone into by the Reference Court to consider as to whether the land acquired is comparable with the Sale Deed at exhibit Aw.1/A. I find, that considering that the Reference Court has not appreciated the evidence on record, on that count, in the interest of justice, it would be appropriate that the matter be remanded back to the Reference Court to decide the reference filed by the Appellants afresh in the light of the observations made hereinabove on the basis of the evidence which is already on record. The evidence adduced by the Appellants shall have to be scrutinized by the Reference Court and ascertain whether there are similarities or otherwise between the acquired land and the sale instance at exhibit Aw.1/A. The point for determination is answered accordingly. 8. In view of the above, I pass the following : -7- ORDER (i) The Appeal is partly allowed. (ii) The impugned Judgment and Award dated 28.01.2004 is quashed and set aside. (iii) The reference filed by the Appellants is restored to the file of the Reference Court. (iv)The Reference Court is directed to decide the reference afresh after hearing both the parties on the basis of the evidence on record in accordance with law. (v) The parties are directed to appear before the Reference Court on 25.10.2010 at 10.00 a.m. F. M. REIS, J. arp/*