- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 86 OF 2004 1 Deputy Collector (L.A.), Margao, Goa. 2 The Executive Engineer, W.D. XII, PHE-SWSP, Sanguem, Goa. ........ Appellants. Versus Timblo Agro Development Pvt Ltd., Post Box No. 34, Kadar Manzil, Margao, Goa. ........ Respondent. Mr. V. Rodrigues, Additional Government Advocate for the Appellants. Mr. P. S. Rao, Advocate for the Respondent. Coram:-F. M. REIS, J. Date:-17th SEPTEMBER, 2010. ORAL JUDGMENT The above Appeal takes exception to the Judgment and Award dated 31st December, 2003 passed by the learned Additional District Judge, South Goa, Margao, in Land Acquisition case no. 32/2001. - 2 - 2. By notification under section 4 of the Land Acquisition Act, ( hereinafter referred to as “the said Act') an area of 1405 square metres from the property surveyed under no. 11 and an area of 3365 square metres from the property surveyed under no. 40/1 of village Cortali, Sanquem in Sanquem Taluka was intended to be acquired by the Appellants for laying an additional gravity main of 1000 media parallel pipeline for 160MLD, Sealaulim water supply project in villages of Xelpem and Cortali of Sanquem Taluka. Notification under section 4 of the said Act was issued and published in Official Gazette dated 31st January, 1997. By an Award under section 11 of the said Act dated 27th January, 2000, the compensation was fixed at Rs. 7/- per square metre. Being dissatisfied with the said Award, the Respondent filed a reference under section 18 of the said Act for enhancement of the compensation and claimed compensation at the rate of Rs.100/- per square metre for the land acquired. The Respondent also claimed compensation of Rs. 13,500/- towards old yielding cashew trees, Rs. 4,900/- for 7 medium yielding cashew trees and Rs.5000/- towards the value of he jackfruit tree. 3. By Judgment and Award dated 31st December, 2003, the learned Additional District Judge, South Goa Margao, determined the - 3 - market value of the land acquired at the rate of Rs.44/- per square metre. Remaining claim of the Respondent for compensation towards the trees etc came to be rejected. 4. Being aggrieved by the said Judgment and Award, the Appellants have preferred the present appeal. The learned Additional Government Advocate Mr. Vivek Rodrigues, appearing for the Appellants has assailed the impugned Judgment and submitted that the Reference Court was not justified to enhance the market value of the acquired land. He further submitted that the Reference Court has erroneously relied upon the Judgment at exhibit 17 to fix the market value of the acquired land. He further pointed out that the Reference Court has failed to consider that there is no comparability with the land therein and the land acquired. The learned Counsel has further submitted that the Reference Court has erroneously given an escalation of 10% for the land acquired to arrive at the market value as on the date of section 4 notification. The learned counsel has taken me through the evidence on record and pointed out that there is no evidence adduced by the Respondent to substantiate its claim for enhancement of compensation. He further submitted that the Respondent has failed to discharge the burden cast on them to - 4 - establish that the amount offered by the Land Acquisition Officer was inadequate and as such the impugned judgment deserves to be quashed and set aside. 5. On the other hand learned Counsel Mr. Parag Rao appearing for the Respondent has supported the impugned judgment. He submitted that the law is well settled that when sale instance in respect of the same property is available, it is the best evidence for the Court to determine the market value of the land. He further submitted that the land acquired in the present case and the land which was subject matter of the previous acquisition is part and parcel of the same property having similar features. He further pointed out that there is no infirmity committed by the Reference Court to rely upon the Judgment at exhibit 17 to fix the market value of the acquired land as on the date of section 4 notification. The learned counsel has further submitted that there is no reason for any interference in the impugned judgment and Award in the present appeal. 6. Having heard the learned Counsel and on perusal of the records, the following point for determination arise in the present appeal:- - 5 - POINT FOR DETERMINATION Whether the Reference Court was justified to fix the market value of the land acquired at the rate of Rs.44/- per square meter? 7. On perusal of the evidence on record, I find that AW1 who has been examined has stated that the acquired land was a flat levelled land accessible by public tar road and about 4 kms away from the Sanquem Municipal Town. Primary School is about 1 km. Market, Post Office, Bank are about 4 kms away from the acquired land. He further stated that the part of the said property was acquired by the Government earlier and in respect of which the District Court had granted compensation at the rate of Rs.20/- per square metre as on 7th October, 1985. The said Award is marked as exhibit 17. In his cross examination he has stated that the nature of the previous acquired land is similar to the one in the present acquisition. Remaining cross examination is in respect of yield of the trees existing in the acquired land which claim came to be rejected by the Reference Court and no appeal has been preferred by the Respondent against the said part of the Judgment and Award. The Respondent has also examined Shri Vikas Dessai, who is an expert witness. He has stated that the land acquired is located in the property surveyed under - 6 - nos. 40/1 and 11/1 of Cortali village in Sanquem Taluka. He has further stated in his evidence that infrastructure for development was available within the vicinity of the acquired land. He has further stated that the land surveyed under nos. 11/1, 40/1 and 40/2 was acquired pursuant to a notification published in Official Gazette on 7th October, 1985 which was subject matter of Land Acquisition Case no. 70/1988. He further stated that the land is of the same village and of the same property which has now been acquired. In the cross examination he has submitted that the property surveyed under nos. 40/1 and 11/1 are bharad land. He has further admitted that there are several houses in the portion of the property surveyed under no. 40/1. The Reference Court while passing the impugned Judgment and Award has relied upon the said Award passed which is at exhibit 17 and fixed the market value of the land as on the date of section 4 notification at Rs. 44/- per square metre. There is no dispute that the land which was subject matter of the present acquisition and land which was subject matter of the Award at exhibit 17 are of the same property. The evidence discloses that the nature of the both the land is similar. 8. Considering such similarities, the price fixed at exhibit 17 can form the basis for determining the market value of the land in the present proceedings. - 7 - The Apex Court in the judgment reported in 1996(2) S.C.C. 152 Shakuntalabai and others Vs. State of Maharashtra, has held at para 4 as follows:- 4. The question, therefore, is whether the High Court has committed any manifest error of law or had applied any wrong principle of law in determining the compensation and whether its failure to consider Exs. 38 and 44 does make any difference. Having given our consideration to the contention of Shri Mohta, we think that the High Court had not committed any manifest error of law or omitted to apply any correct principle of law. It is seen that if there is evidence or admission on behalf of the claimants as to the market value commanded by the acquired land itself, the need to travel beyond the boundary of the acquired land is obviated. The need to take into consideration the value of the lands adjacent to the acquired land or nearabout the area which possessed same potentiality to work out the prices fetched - 8 - therein for determination of market value of the acquired land would arise only when there is no evidence of the value of the acquired land. In a case where evidence of the value of the acquired land itself is available on record, it is unnecessary to travel beyond that evidence and consider the market value prevailing in the adjacent lands. 9. As such the Reference Court was justified in relying upon the Award at exhibit 17 for determining the market value of the land. It is well settled that escalation of 10% on cumulative basis is granted to arrive at the market value of the acquired land as on the date of notification when the land acquired has potentiality of being used for non agricultural purposes. The evidence discloses that the land was suitable for construction purposes and was close to Sanguem Town. As such the Reference Court was justified to grant such escalation. The notification in the earlier acquisition was dated 7th October, 1985. The Reference Court as such fixed the market value at the rate of Rs.44/- per square metre after granting escalation of 10%. I find no infirmity in the fixation of such compensation by the Reference Court. The point for determination is answered accordingly. - 9 - 10. In view of above, there is no merits in the above Appeal and as such the Appeal stands dismissed with no order as to costs. F. M. REIS, J. vn*