1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 149 OF 2006 1. Land Acquisition Officer, P.W.D. (Cell), Altinho, Panaji. 2. The Executive Engineer, Works Division XIII, (R), P.W.D. Mapusa Goa. ... Appellants V e r s u s Smt. Sundarabai G. Dhuri, Represented by her Power of Attorney Shri Pradip G. Dhuri, R/o Dandorim, Nerul, Bardez Goa. ... Respondent 1. Mr. M. Salkar, Additional Government Advocate for the Appellants. Mr. S. D. Padiyar, Advocate for the Respondent. CORAM : A. S. OKA & F. M. REIS, JJ. DATED : 21ST JUNE, 2010. ORAL JUDGMENT ( Per A. S. OKA, J ) The Appellants have taken an exception to the judgment and award dated 23rd February, 2006 passed in a reference under Section 18 2 of the Land Acquisition Act ( hereinafter referred to as “the said Act” ) made at the instance of the Respondent herein. 2. The acquisition relates to land bearing survey No.103/1 of Danadi in village Nerul, Taluka Bardez Goa. The Notification under Section 4 of the said Act was published on 24th June, 1998. The compensation was offered at the rate of Rs.19/- per square metre by the Land Acquisition Officer. The learned Additional District Judge by the impugned judgment and award dated 23rd February, 2006 has fixed the market value of the acquired land at the rate of Rs.781.80 per square metre. 3. The learned Additional Government appearing on behalf of the Appellants has taken us through the record and the evidence in the case. He pointed out that the Respondent/Claimant relied upon two sale instances of the sale deeds. The first sale deed at Exhibit 19 is dated 22nd January, 1996 which relates to a plot of land admeasuring an area of 372 square metres of survey No. 99/6. He submitted that apart from the fact that the sale relates to a small area of 372 square metres, the sale deed was executed as a result of the compromise between the vendor and 3 purchaser as reflected from the recitals of the said sale deed. He submitted that the said sale deed cannot be an evidence of the fair market value of the land subject matter of the same. He pointed out that the other sale instance at Exhibit 20 of sale deed dated 12th August, 1999 is not only of a post notification sale but it relates to a land ameasuring an area of 12500 square metres. He submitted that the land subject matter of the said sale deed is not at all comparable to the acquired land. He invited our attention to the finding recorded by the learned Reference Court in paragraph 14 of the judgment and submitted that the method adopted by the learned Reference Court for arriving at the market value at the rate of Rs.781.80 per square metre is completely illegal and erroneous. He, therefore, submitted that the market value fixed by the Reference Court is exorbitant and the award needs to be set aside. 4. The learned Counsel appearing for the Respondent/Claimant submitted that there is no evidence on record to show that the sale deed dated 22nd January, 1996 has been executed on the basis of the compromise between the parties. He submitted that going by the recitals in the sale deed, the purchaser is a person who had allegedly encroached upon the property and, therefore, the real market value on the date of the 4 sale deed will be much more than what is reflected in the sale deed. He pointed out that the land subject matter of the sale deed dated 12th August, 1999 is situated at a distance of about 50 metres. He submitted that the said land has many negative factors as compared to the acquired land including the fact that the area of the land subject matter of the said sale deed was 12500 square metres. He submitted that considering the said factors, the price of the acquired land will be much more than Rs.492/- per square metres which is reflected from the said sale deed. He, submitted that the market value fixed by the learned trial Judge is consistent with the market value reflected from the sale instance of the sale deed at Exhibit 20, and as a reasonable market value has been fixed, no interference is called for with the impugned judgment and award. 5. We have given careful consideration to the submissions. We have perused the record. Before adverting to the submissions made by the learned Counsel appearing for the parties, it will be necessary to consider the findings recorded by the learned Reference Court. The Reference Court has relied upon an award made by the Land Acquisition Officer relating to the acquisition of the year 1986 where the market value at the rate of Rs.30/- per square metre was offered. Under the said 5 award, another portion of the land bearing survey No. 103/1 which is the subject matter of the present acquisition was acquired. Under the said award, the market value at the rate of Rs.30/- per square metre was offered as on 27th February, 1986. It must be noted here that the learned Reference Court on the basis of the sale instance at Exhibit 19 held that the market value of the comparable land as on 22nd January, 1996 was Rs.725/- per square metre. The learned Judge relied upon the other sale instance at Exhibit 20. Thereafter, the learned Judge has proceeded to observe thus :- “14............... The admitted market value of the land as on 27.2.1986 of the land in survey No.103/1 was, therefore, Rs.30/- per square metre. The sale instance at Exhibit 20 establishes that the market value of the land in the locality, of similar land was Rs.492/- per square metre. There was, therefore, escalation in prices of land by about 25% p.a. Going by said statistics the market value of the land in the year 1996 will be about Rs.279/- per square metre. Shri Pradip, AW1, has also produced another sale deed of the year 1996 vide which a plot of land admeasuring 372 square metres was sold for Rs.725/- per square metre. The safe method of arriving at the market value of the land will, therefore, taking mean of two market values available. As in 1996, therefore, 6 the market value of the land will be Rs. 279 + 725 % 2 = 502 per square metre. As discussed hereinabove there was an escalation in price by about 25% p.a. As in 1996 the market value was Rs.502/- per square metre. Adding escalation at the rate of 25% p.a. to said market value; market value of the land in the year 1998 will be around Rs.781.80 per square metre. The applicant, therefore, will be entitled to compensation at the rate of Rs.781.80 per square metre.” On a plain reading of the aforesaid portion of the judgment, we feel that detailed reasons are not required to be recorded to come to a conclusion that the approach of the Court is completely erroneous. The learned trial Judge has adopted the comparison method to determine the market value of the acquired land. Therefore, what was necessary to be seen was what a bonafide and genuine buyer will offer as a price in respect of the acquired land on the relevant date which is 24th June, 1998. To say the least, the method adopted by the learned trial Judge is completely illegal. 6. That takes us to the consideration of the sale instance of sale deed dated 22nd January, 1996 at Exhibit 19. We have perused the certified copy of the said sale deed which is on record of the trial Court. 7 The recital records that the first vendor had filed a Civil Suit in the Civil Court for declaration, permanent and mandatory injunction against the purchaser on the ground that the purchaser was constructing an illegal structure on the property in question. It further records that the vendor agreed to sell the property to the purchaser. There is a specific recital in the sale deed that the first vendor and purchaser were desirous of compromising the pending suit by filing a joint compromise application in the pending suit. Thus, this is a case where one of the vendors had filed a suit against the purchaser alleging that the purchaser has encroached upon the land and has made an illegal construction thereon. The recital in the sale deed clearly shows that the first vendor and purchaser decided to compromise the pending suit and that led to the execution of the sale deed. This is the only conclusion which can be drawn on the plain reading of the sale deed. At this juncture, it must be noted that neither the vendor nor the purchaser under the said sale deed have been examined. It is true that in view of Section 51A of the said Act, a certified copy of a sale deed can be read in evidence. The sale deed itself records that the parties agreed to compromise the pending suit which led to the execution of the sale deed. Therefore, it was necessary 8 for the Respondent to examine either the purchaser or the vendor under the said sale deed to show that it was a fair bargain. As stated earlier, the test to be applied is what a bonafide and genuine buyer will offer as a price. On the basis of the recitals in the sale deed, the only conclusion which can be drawn is that the said sale deed does not depict the correct market value or fair market value of the land subject matter of the sale deed. 7. That takes us to the sale instance at Exhibit 20 which is a sale deed dated 12th August, 1999. The said sale deed has been executed approximately 13 months after the date of the publication of the notification under Section 4 of the said Act. It is true that a post notification sale cannot be outright rejected. It will be necessary to consider the evidence on this aspect. The constituted attorney of the Respondent stepped into the witness box. Referring to the property subject matter of the sale deed at Exhibit 20, he stated that the said property is a hilly portion without any access and whereas the acquired land was a plain land and that it was connected with road and having all civic amenities. The witness was cross examined on this aspect. He stated that the land subject matter of the sale deed was at a distance of 9 about 50 metres from the acquired land. There are certain negative factors of the land which are brought on record. One factor which is brought on record by the Respondent is that the said property is a hilly portion without any access. The acquired land is a plain land having access. Moreover, the area of the land subject matter of the said sale deed is 12500 square metres and the area of the acquired land is 1025 square metres. Considering the nature of the land acquired and the fact that the land subject matter of the sale deed at Exhibit 20 is a hilly land, the market value of the acquired land will be to some extent is more than Rs.492/- per square metre as on 12th August, 1999. However, the market value of the acquired land will have to be brought down as the relevant date of notification in this case is 24th June, 1998. 8. The Apex Court has repeatedly held that the determination of the market value under Section 23 of the said Act always involves an element of guess work. As stated earlier, in the present case, though the market value of the acquired land as on 12th August, 1999, will be to some extent more than Rs.492/- per square metre, the same will have to be brought down as the sale instance is a post notification sale. Thus, the conclusion which can be drawn is that on the relevant date, the market 10 value of the acquired land was Rs.492/- per square metre. Therefore, the Appeal must succeed in part and we pass the following order :- O R D E R (a) The impugned judgment and award is modified to the extent that the market value payable will be at the rate of Rs.492/- per square metre instead of Rs.781.80 per square metre. (b) The rest of the award is confirmed with no order as to costs. (c) The learned Registrar will determine the amount payable to the Respondent as per the modified award. The Registrar will permit the Respondent to withdraw the said amount with interest accrued thereon. The rest of the amount deposited by the Appellant in this Court with interest accrued thereon shall be permitted to be withdrawn by the Appellants. A. S. OKA, J F. M. REIS, J. at*