1 IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 151/2004. 1. Smt. Indira Vinayak Sawant, 2. Pundolik Vinayak Sawant, 3. Kum. Gunaprabha Vinayak Sawant, 4. Tejpal Vinayak Sawant, 5. Rohan Vinayak Sawant, 6. Shri Vidyadhar P. Sawant, 7. Shri Subhash P. Sawant, all r/o Pottobab Niwas, Ribandar, Ilhas, Goa … Appellants. V/s 1. Dy. Collector and Land Acquisition Officer, Panaji, Goa. 2. The Executive Engineer, W.D.I., Irrigation Department, Panaji, Goa. … Respondents. Mr. R. G. Ramani, Advocate for the Appellants. Ms. Susan Linhares, Addl. Government Advocate for the Respondent. 2 CORAM : F. M. REIS , J. DATE : 22 nd October 2010 . ORAL JUDGMENT The above appeal takes exception to the judgment and award dated 6.12.2003 passed by the learned IInd Addl. District Judge, North Goa, Panaji in LAC No. 71/1997. 2. The land belonging to the appellants came to be acquired pursuant to the notification dated 3.11.1989 under section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the said Act) published in the Official Gazette dated 24.11.1989 from survey No. 566/1 admeasuring 769 sq. metres, survey Nos. 567/2 admeasuring 2030 sq. metres and survey No. 567/3 admeasuring 795 sq. metres situated at Santa Cruz for the purpose of strengthening and improvement of bund and defending paddy field at Pato Kator at Chirkulem Khazen at Santa Cruz, Tiswadi Taluka. From the said area the property surveyed under No. 566/1 and 567/3 are bund areas and property surveyed under No. 567/2 is rice land. Land Acquisition Officer (LAO for short) by award dated 2.8.1991 awarded compensation for the bund at the rate of Rs. 30/- per sq. metre and rice 3 land at the rate of Rs. 20/- per sq. metre. Being dissatisfied with the said amount, the appellants sought reference under Section 18 of the Act for enhancement of the compensation and claimed Rs. 1,200/- per sq. metre for the land acquired. By judgment and award dated 6.12.2003 the Reference Court rejected the said reference filed by the appellants. Being aggrieved by the said judgment and award, the appellants have preferred the present appeal. 3. Mr. R. G. Ramani, the learned Counsel appearing for the appellants has assailed the impugned judgment and submitted that the Reference Court has totally misconstrued the evidence on record and erroneously came to the conclusion that the appellants are not entitled for the compensation as claimed. The learned Counsel further submitted that the appellants have adduced comparable sale instances wherein the market value of the land is at the minimum rate of 250/- per sq. metre for the land acquired. He further submitted that the Reference Court failed to consider that the appellants produced award which is at exhibit 14 in respect of land comparable to the land acquired. The learned Counsel further submitted that the lands which were acquired pursuant to the said notification were more than 6 years as compared to the land in the present acquisition wherein the 4 compensation fixed was much higher. He submitted that the land acquired which was subject matter of said award at exhibit 14 is in the vicinity of the acquired land though the land acquired therein is tenanted land. He further submitted that the facilities available to the land acquired were also available to the land which was subject matter of the present acquisition. The learned Counsel took me through the evidence on record and pointed out that there is ample evidence that both lands have comparability and as such can form the basis for fixing the market value. He further submitted that the question of contending that the land acquired is submerged under water would not arise as the land acquired was bund area and rice land. He submitted that these factors itself disclose that the land is suitable for non agricultural purpose. The learned Counsel pointed out that both the lands were similar and as such the appellants were entitled for enhancement of compensation to the one awarded by the Land Acquisition Officer. 4. On the other hand, Ms. Susan Linhares, the learned Addl. Government Advocate has supported the impugned judgment. She pointed out that it was for the appellants to discharge the burden of proving that the price offered by the LAO was inadequate. She 5 submitted that the acquired land is not similar to the land which is subject matter of sale instance at exhibit 14. She submitted that the land which was subject matter at exhibit 14 is situated in the municipal area and acquired land is situated in a rural area and is submerged with water. She submitted that the land which is submerged area has no potential, and there is no evidence on record about any comparable sale instance and as such the question of awarding compensation on behalf of said award would not arise. She further submitted that there is no infirmity committed by the Reference Court in rejecting the reference as the appellants have failed to discharge the burden of proving that the compensation awarded by the LAO is inadequate. She as such submitted that the appeal deserves to be dismissed. 5. Having heard the learned Counsel and on perusal of the record, the following point arises for my determination in the present appeal: POINT FOR DETERMINATION 1. Whether the Reference Court was justified in rejecting the reference filed by the Appellants? 6 6. In support of their claim for enhancement of compensation the appellants have examined Subhash Sawant as AW1. He has deposed that the acquired land is situated at Santa Cruz and comprises of 3 survey numbers namely 566/1 admeasuring 769 sq. metres, 567/2 admeasuring 2030 sq. metres and 567/3 admeasuring 795 sq. metres and the total land acquired was admeasuring 3,594 sq. metres. He has further stated that the acquired land is hardly 150 metres away from the new Highway and at a distance of 300 metres approximately from the old Highway and that there were residential houses within 50 metres of the acquired land. He further stated that there was access to the acquired land but the same was not motorable. The distance from KTC bus stand is stated to be 1.3 kms. and the commercial centre in Panaji city is at a distance of 1.5 kms. from the acquired land. He has further stated that the bund of the appellant was with the level of the road while the paddy field was half a metre below. He has also stated that there were no tenants in the acquired land. With regard to exhibit 14, he has stated that the land therein was half a metre below the level of the road and the land was at a distance of 150 metres from the acquired land. He has also stated that the land which was subject matter of exhibit 14 was tenanted land. He has further stated that by an award passed in LAC No. 7 42/1988 dated 29.9.1994, the price was enhanced to Rs. 124/- per sq. metre by the Reference Court. The said award was marked as exhibit 15. The said land was at a distance of 150 metres from the acquired land. He has denied the suggestion that the land admeasuring 2030 sq. metres was under water. 7. The next witness examined is AW2, Casmiro Correia who has stated that the acquired land is partly paddy field and partly bund and located about 20 metres away and that construction was possible in the acquired land. He further stated that the facilities such as bus stop, school, hospital and church were available at a distance of ½ km. from the acquired land. In his cross examination he has stated that there are no approvals in respect of the farm house constructed by him which is said to have been constructed in the year 1985. 8. The next witness examined is AW3, Guilhermo Furtado. He has stated that he knows about the award passed in LAC No. 42/1988 wherein amount was fixed at the rate of Rs. 112/- per sq. metre. He has stated that he knows the acquired land and that there were facilities like electricity, water and telephone to the acquired land and the old Panaji- St. Cruz road is at a distance of 300 metres 8 from the acquired land and the farm house was situated adjacent to the acquired land. In the cross examination he has stated that the distance from the acquired land to St. Cruz is 1 km. He has further stated that there is no road to go to the acquired land as the area is surrounded by paddy field and water bodies. 9. The Reference Court whilst passing the impugned judgment has come to the conclusion that on the basis of the evidence on record, it appears that the land acquired was mostly coming under the water. The learned Judge further held that the appellants have failed to discharge the burden cast upon them to establish the market value of the acquired land as on the relevant date. The Reference Court further held that as no expert has been examined to establish similarity, the award at exhibit 14 cannot form basis to fix the market value of the acquired land. The Reference Court further held that there were total dissimilarities between the acquired land and the land at exhibit 14 to the effect that there was distance of 1.3 kms. from the acquired land. As such, the reference came to be rejected. 10. On perusal of the evidence on record, I find that there is no dispute that by an award passed at exhibit 14, the compensation 9 was fixed for different natures of lands therein at different rates in LAC No. 88/1985. The notification in the said case for realignment of the road was dated 16.1.1984 and the compensation awarded was at the rate of Rs. 112/- per sq. metre for the land acquired. There is also no dispute that in another LAC No. 17/1985 the market value of the land was fixed at the rate of Rs. 112/- per sq. metre in respect of the notification under section 4 of the said Act which is dated 12.1.1983 and published in the Official Gazette on 16.1.1984. The Reference Court had fixed the compensation therein at the rate of Rs. 112/- per sq. metre and the amount was ordered to be apportioned between the land lord and the tenant at 50%. There is also no dispute that an appeal was preferred against the said judgment before this Court and the same came to be dismissed in First Appeal No. 171/2001 by judgment dated 29.8.2005. 11. Aw1 has stated that the land acquired is at a distance of 150 metres from the land which is the subject matter of the award at exhibit 14. The land at exhibit 14 and the land which was subject matter of said First Appeal No. 171/2001 are in the same notification. Considering the location and giving necessary deduction on account of dissimilarities, I find that the award at exhibit 14 can form the basis 10 for determining the market value in the present case. The Reference Court was not justified in discarding the sale instance at exhibit 14 merely because the land acquired was 1.3 kms. apart and dissimilar. Besides that dissimilar factors can be accounted by giving suitable deduction. Considering the evidence on record, especially the evidence of Aw1 and Aw3 who have deposed that the land acquired and the land which is subject matter of the award are similar and located in the vicinity thereof and no evidence to the contrary has been adduced by the Respondents, I find that the award at exhibit 14 can form the basis for determining the market value of the land acquired. 12. In the present case there are two types of lands namely paddy field portion and bund land. On perusal of exhibit 14 it is seen that the Reference Court had fixed the market value at the rate of Rs. 112/- per sq. metre for the bund land. As far as the nullahs and water bodies are concerned, the price was fixed at Rs. 50/- per sq. metre and as far as paddy field portion is concerned, the price was fixed at Rs. 112/- per sq. metre. The learned Addl. Government Advocate does not dispute that the land which is subject matter of the notification in the said awards were of the year 1984. The Reference Court has 11 discarded the said award only on the ground that the lands were located at a distance of more than 1 km. and there was no comparability established with regard to the land acquired. The land acquired therein was for the national highway and located in the vicinity of the acquired land. The evidence further discloses that infrastructural facilities for development was available within the radius of 500 metres. Besides that, both the lands were located in the same village Santa Cruz which is in the outskirts of Panaji Municipal area. 13. The Apex Court in the Judgment reported in 2009(14) S.C.C. 367 in the case of Mohd. Raofuddin V/s. Land Acquisition Officer has held at paras 10,11,12 and 14 thus: 10. One of the principles for determination of the market value of the acquired land would be the price an interested buyer would be willing to pay if it is sold in the open market at the time of issue of notification under Section 4 of the Act. But finding direct evidence in this behalf is not an easy exercise and therefore, the Court has to take recourse to other known methods for arriving at the market value of the land acquired. 11. One of the preferred and well-accepted methods adopted for working out the market value of the land in acquisition cases is the comparable sales method. The comparable sales i.e. the lands sought to be compared must be similar in nature and potentiality. Again, in the absence of sale deeds, the judgments and awards passed in respect of acquisition of lands, made in the same 12 village and/or neighbouring villages can be accepted as valid piece of evidence and provide a sound basis to determine the market value of the land after suitable adjustments with regard to positive and negative factors enumerated in Sections 23 and 24 of the Act. Undoubtedly, an element of some guesswork is involved in the entire exercise. 12. In Shaji Kuriakose v. Indian Oil Corpn. Ltd. this Court had observed as under: (SCC pp. 652-53, para 3) “3. … While fixing the market value of the acquired land, comparable sales method of valuation is preferred than other methods of valuation of land such as capitalisation of net income method or expert opinion method. Comparable sales method of valuation is preferred because it furnishes the evidence for determination of the market value of the acquired land at which a willing purchaser would pay for the acquired land if it had been sold in the open market at the time of issue of notification under Section 4 of the Act. However, comparable sales method of valuation of land for fixing the market value of the acquired land is not always conclusive. There are certain factors which are required to be fulfilled and on fulfilment of those factors the compensation can be awarded, according to the value of the land reflected in the sales. The factors laid down inter alia are: (1) the sale must be a genuine transaction, (2) that the sale deed must have been executed at the time proximate to the date of issue of notification under Section 4 of the Act, (3) that the land covered by the sale must be in the vicinity of the acquired land, (4) that the land covered by the sales must be similar to the acquired land, and (5) that the size of plot of the land covered by the sales be comparable to the land acquired. If all these factors are satisfied, then there is no reason why the sale value of the land covered by the sales be not given for the acquired land. However, if there is a dissimilarity in regard to locality, shape, site or nature of land between land covered by sales and land acquired, it is open to the court to proportionately reduce the compensation for acquired land than what is reflected in the sales 13 depending upon the disadvantages attached with the acquired land.” 14. Thus, comparable sale instances of similar lands in the neighbourhood at or about the date of notification under Section 4(1) of the Act are the best guide for determination of the market value of the land to arrive at a fair estimate of the amount of compensation payable to a landowner. Nevertheless, while ascertaining compensation, it is the duty of the Court to see that the compensation so determined is just and fair not merely to the individual whose property has been acquired but also to the public which is to pay for it. 14. In 2008 (17) S.C.C. 436 in case of CESC Ltd. V/s. Sandhya Rani Barik, the Apex Court has held at paras 16,19,20 and 21 thus: 16. The case of the appellant was that the plot which was acquired for their use was wholly landlocked. This forms a very important factual issue which is important while determining the compensation. 19. The armchair assessment of land value has to proceed with common sense and circumspection. One should attempt to find out the just and reasonable compensation without attempting any mathematical precision in that regard. For the purpose of assessing compensation, the efforts should be to find out the price fixed for the similar land in the vicinity. 20. The difference in the land acquired and the land sold might take on various aspects. One plot of land might be larger, another small, one plot of land might have a large frontage and another might have none. There might be differences in land development and location. There might be special features which have to be taken note of and reasonably considered in the matter of 14 assessing compensation. 21. Where a very large plot of land has been acquired and the comparison is sought to be made with a comparatively smaller piece of land which has been sold or otherwise dealt with, then in that event, a percentage of the price is to be knocked off because of the largeness itself of the acquired land. Accordingly, the High Court made the deductions. The High Court also dealt with the question of land locking and held that it was a special feature which had to be taken note of. 15. Hence whilst determining the compensation of the acquired land, all the said factors will have to be considered to arrive at a just and fair compensation. 16. The property surveyed under No. 567/3 admeasuring 795 sq. metres is a paddy field which was covered with water. AW1 has stated that the price determined in the said awards is at the rate of Rs. 120/- to Rs.150/- per sq. metre for the comparable paddy field. The notification thereof was in the year 1984. The Apex Court in the judgment reported in 2008 (14) S.C.C. 745 in the case of General Manager, Oil and Natural Gas Corporation Limited V/s. Rameshbhai Jivanbhai Patel And Another has held at para 14 thus: 14. On the other extreme, in remote rural areas where there was no chance of any development and hardly any buyers, the prices stagnated for years or rose marginally 15 at a nominal rate of 1% or 2% per annum. There is thus a significant difference in increases in market value of lands in urban/semi-urban areas and increases in market value of lands in the rural areas. Therefore, if the increase in market value in urban/semi-urban areas is about 10% to 15% per annum, the corresponding increases in rural areas would at best be only around half of it, that is, about 5% to 7.5% per annum. This rule of thumb refers to the general trend in the nineties, to be adopted in the absence of clear and specific evidence relating to increase in prices. Where there are special reasons for applying a higher rate of increase, or any specific evidence relating to the actual increase in prices, then the increase to be applied would depend upon the same. 17. There is no dispute that the land at exhibit 14 and 15 is closer to the municipal area or in the vicinity thereof and the land acquired was in rural area and/or much further and covered with water. Considering that the land was without any motorable access and the surrounding were also water bodies the appreciation can be considered at 5% per annum. Considering the escalation at 5% for 6 years, the amount works out to Rs. 160/- per sq. metre as on the date of notification. The land acquired admittedly did not have a motorable access and it was surrounded by water bodies. In view of the location and consequent development costs the deduction should be 50% and as such the amount works out to Rs. 80/- per sq. metre. As the land was covered with water, a further deduction would have to be effected on such factor. I find that a deduction on that count 16 should be 25%. The amount as such works out to Rs. 60/- per sq. metre. Even assuming that the paddy field was covered with water, I find that in the award at exhibit 14 the market value of the land which was a nullah/water bodies was assessed at the rate of Rs. 50/- per sq. metre in an acquisition in year 1984. As such, the amount of Rs. 60/- per sq. metre for the said part of the land acquired would be just and proper. 18. From the said award at exhibit 14 the compensation for bund land has been fixed at Rs. 112/- per sq. metre. After giving an escalation of 5% per annum the amount works out to Rs. 150/- per sq. metres approximately. The evidence discloses that the said bunds surveyed under survey no. 566/1 and 566/3 were surrounded by paddy fields which are covered with water, which is a dissimilar factor which will have to be accounted for. Considering the location of the said bunds substantial expenditure would be incurred for the purpose of making the land suitable for construction purpose. On account of the said dissimilarities, I find that the deduction of 50% is necessary for determining the market value, I accordingly fix the market value of the acquired land at Rs. 75/- per sq. metre. The Reference Court was not justified in coming to the conclusion that the appellants were 17 not entitled for any compensation. In fact in view of the said award passed at exhibit 14 and 15, the appellant has discharged the burden to establish that the compensation awarded by the LAO was inadequate. No evidence was adduced by the respondents to rebut the evidence of the appellants. Considering the evidence on record, I find that in view of the comparable sale instance in the nature of said awards, the Appellants are entitled for enhancement of compensation from the one awarded by the Land Acquisition Officer. The point for determination is answered accordingly. 19. In view of the above, I pass the following: O R D E R i. The appeal is partly allowed . ii. The impugned judgment and award is quashed and set aside. iii. The appellants are entitled for the compensation i.e. the land surveyed under No. 567/2 admeasuring 2030 sq. metres at the rate of Rs. 60/- per sq. metre; the land surveyed under No. 566/1 and 567/3 totally admeasuring 1564 sq. metres at the rate of Rs. 75/- per sq. metre. Needless to say that the appellants are 18 entitled for statutory benefits as provided under Section 23 (1-A) and 23(2) as well as