1 IN THE HIGH COURT OF BOMBAY AT GOA First Appeal No.170 of 2003 The Fabrica of the Church of Benaulim, Benaulim. .... Appellant. V e r s u s 1. Deputy Collector (SDO), Sub-Div., Margao. 2. The Executive Engineer, Works Div. VI, P.W.D., Fatorda, Margao ..... Respondents Mr. R.G. Ramani, Advocate for the Appellants. Mr. Guru Shirodkar, Additional Government Advocate for the Respondents. Coram: A. P. Lavande, J. Reserved on : 17/09/2010. Dictated on: 27/09/2010. ORAL JUDGMENT: By this appeal the appellant takes exception to the judgment and award dated 10/3/2003 passed by the Additional District Judge, South Goa Margao, in Land 2 Acquisition Case No.176 of 1996 dismissing reference under Section 18 of the Land Acquisition Act (“The Act” for short), sought by the Appellant. 2. Vide notification dated 13/2/1991 issued under Section 4 of the Land Acquisition Act,1894 (“The Act” for short) published in Official Gazette dated 22/08//1991 and published at appropriate places on 30/1/992, the Government of Goa acquired lands for construction and black topping of Vassuvaddo Bondir-Vassuvaddo Sorlim Tambdimati Mazilwado road in village Panchayat Benaulim in Salcette Taluka. An area admeasuring 250 sq.metres out of survey no.382/5, an area of 60 sq.metres out of survey no.243/2, an area of 80 sq.metres out of survey no.376/10 and an area of 210 sq.metres out of survey no.391/1 belonging to the appellants was part of the acquired land. The appellants claimed Rs.300/- per sq.metre and claimed compensation in respect of the trees 3 existing in the acquired portion of the land. The Land Acquisition Officer fixed the market rate of the acquired land at Rs.7/- per sq.metre and also granted compensation of Rs.9765/- towards the value of trees in survey no.382/5 and Rs.12,565/- towards value of trees in survey no.393/1. 3. Aggrieved by the inadequacy of the compensation granted, the appellant sought reference under Section 18 of the Act and claimed Rs.300/- per sq.metre. In Land Acquisition Case No.176 of 1996, the appellant examined Fr. Lourenco Pascoal Dias, AW.1 and produced sale deed dated 1/6/1987 (Exhibit AW.1/B) by which a plot of land admeasuring 500 sq.metres was sold at the rate of Rs.180/- per sq.metre which was situated at a distance of about 500 metres from the acquired land. He also produced another sale deed dated 30/6/1988 (Exhibit AW.1/C) by which an area admeasuring 228 sq.metres was sold at the rate of Rs.197.36 per sq.metre, which was also 4 at a distance of about 500 metres from the acquired land. He also produced another sale deed (Exhibit AW.1/D) by which portion of survey no.393/1 belonging to the appellant herein was sold to Succorina Fernandes at the rate of Rs.325/- per sq.metre. He deposed that all the three plots were not developed plots and were similar to the acquired land. In the cross examination, he deposed that the acquired land was a coconut garden and he received compensation of Rs.9765/- towards value of the trees in survey no.382/5 and Rs.12,565/- towards value of the trees in survey no.393/1. He also admitted that the plot in sale deed (Exhibit AW.1/D) was situated at Sernabatim village and that he had not seen plots in sale deeds (Exhibits AW. 1/B and AW.1/C). He further stated that village Sernabatim was adjoining the property of the appellant. He denied the suggestion that both the plots were at a distance of much more than 500 metres. He also stated that the plot sold by him was bounded on the east by the 6 metres wide existing 5 traditional access and on the west by 3 metres wide existing traditional access. He further admitted that the Government had acquired land which was showing a traditional access in the plan annexed to the sale deed at (Exhibit AW.1/D) and the said access was leading up to the chapel. He further admitted that the traditional access was passing through survey no.376/10 and also through survey no.382/5.He denied the suggestion that price in the sale deed plot (Exhibit AW.1/D) was inflated in order to claim higher compensation. He also denied the suggestion that the sale deed plots were far superior than the acquired land. 4. The appellant examined Joao Araujo, AW.2 who was the vendor in the sale deed dated 1/6/1987. His evidence discloses that the sale deed plot was not a sub- divided plot and was a coconut garden. His evidence further discloses that under sale deed dated 30/6/1988 6 (Exhibit AW.1/C), he had sold portion of the said property at Rs.190/- per sq.metre. He further stated that through the acquired land people used to pass, but he stated that there was no traditional access either in his property or in the acquired land. In the cross examination, he admitted that land which was subject matter of Exhibit AW.1/D) was adjacent to Margao-Colva road and was purchased by the owner of the adjoining land. He further admitted that on the either side of the acquired land there were residential houses and the residents of those houses were passing through the property of the appellants in order to come to the road leading to Benaulim beach. 5. Ernesto Moniz, AW.3, a Civil Engineer was examined as an expert. However, his evidence is of not much use, since he visited the property on 27/7/1997, i.e. much after Section 4 notification was published. He submitted the report (Exhibit AW.3/B) dated 29/6/1991 in 7 terms of which the value of the acquired property was fixed at the rate of Rs.258/- per sq.metre. 6. The Reference Court held that since admittedly traditional access was passing through the acquired land, the same did not have any potential. The Reference Court further held that the plots in all the three sale deeds were without any encumbrances and therefore could not have been compared with the acquired land. Consequently, the Reference Court rejected the reference. 7. Mr. Ramani, learned counsel appearing for the appellant submitted that the approach of the Reference Court in rejecting the reference is patently unsustainable in law. Learned counsel further urged that the Reference Court ought to have relied upon sale deed dated 30/6/1988 (Exhibit AW.1/C), which was proximate in point of time and location and considering the yearly increase at the rate 8 of 10% per annum, on compounding basis ought to have fixed the market rate of the acquired land considering the market rate of the sale deed plot at Rs.275/- per sq.metre, since notification was published about 3 and half years after the execution of the said sale deed. He further submitted that the Reference Court ought to have made appropriate deductions on account of existence of traditional access in the acquired land. The Reference Court could not have rejected the entire reference on the ground that there was a traditional access passing through the acquired land. Mr. Ramani submitted that the learned Single Judge of this Court had deduced 7% on account of existence of access to the acquired land. In support of his submission, Mr. Ramani relied upon judgment of this Court in the case of Executive Engineer, P.W.D VI (R & B), Fatorda, Margao and another Vs. Shri Antonio Almeida and ors., reported in CDJ 2008 BHC 34. 9 8. Per contra, Mr. Shirodkar, learned Government Advocate appearing for the respondents supported the impugned judgment and award and submitted that since there was a traditional access passing through the acquired land, the appellants at the most were entitled to 20% of the market rate. In support of his submissions, Mr. Shirodkar relied upon judgments of this Court in First Appeal No.5 of 2005, First Appeal no.142 of 2007 and First Appeal No. 176 of 2000. 9. I have carefully considered the rival submissions and perused the record. In view of the rival submissions and the findings given by the Reference Court the following point arises for determination in the appeal: Whether the Reference Court was justified in rejecting the reference? If not what compensation the appellant is entitled to? 10 10. As stated above, the Reference court dismissed the reference primarily on the ground that the sale deed plot relied upon by the appellant had no encumbrance whereas there was a traditional access passing through the acquired land. In my opinion, the approach of the Reference Court is patently unsustainable in law. Merely because the traditional was passing through the acquired land, the same would not justify rejection of the reference. In case land with traditional access is acquired by the Government, the Reference Court is bound to take this fact into consideration while fixing the market rate of the acquired land on the basis of the comparable sale instance. However, mere existence of traditional access would not be a ground to reject reference in toto. Therefore, the Reference Court ought not to have rejected the reference solely on the ground that there was a traditional access passing through the acquired land. 11 11. The next question which arises for consideration is which sale deed out of the three sale deeds relied upon by the appellant, can be relied upon for ascertaining the market rate of the acquired land. In so far as sale deed date 18/10/1993 is concerned, the sale is post notification sale deed and it is the case of the respondents that it was executed with a view to get higher compensation in respect of the acquired land. In my opinion therefore, no in place reliance upon the said sale deed by which an area of 353.63 sq.mtrs bearing survey no.393/1 was sold at the rate of Rs.325/- per sq.metre. In my considered opinion having regard to the location and time factor, sale deed dated 30/6/1988 (Exhibit AW.1/C) can be taken into consideration for fixing the market rate of the acquired land. The said sale deed was executed on 30/6/1988. The notification in the present case was last published on 30/1/1993 i.e. after a period of almost three and half years. Taking the yearly increase at the rate of 12 10% on compounding basis the market rate of the said sale deed plot works out to Rs.275/- per sq.metre as on the date of publication of Section 4 notification. 12. The next question which arises for consideration is what would be the appropriate deductions? Admittedly, a traditional access was passing through the acquired land. No doubt in the factual background of the case the learned Single Judge of this Court has granted 7% deduction for access, but it is also well settled that what would be the appropriate deduction would depend upon several factors and there cannot be a fixed deduction for a particular disadvantage. Having regard to the factual matrix in the present case, I am of the considered opinion that the appropriate deduction would be 20%. Therefore, the rate works out to Rs.220/- per sq.metre. The evidence led by the appellant discloses that 13 in the plot sold by sale deed (Exhibit AW.1/C) there were no trees, obviously, therefore, the nature of the acquired land and the nature of the sale deed plot was not similar. On this count also appropriate deduction deserves to be made. I am of the opinion that appropriate deduction would be 20%. Therefore, the market rate of the acquired land as on the date of publication of Section 4 notification works out to Rs.176/- per sq.metre. ln the impugned judgment and award the Reference Court has clearly mentioned that the appellant has not pressed the reference in respect of an area of 60 sq.metres out of survey no. 243/2. 13. According to the appellant the amounts of Rs. 9765/- and Rs.12,565/- were paid towards the trees existing in survey nos.382/5 and 393/1 respectively. It is also well settled that claimant in Land Acquisition case is not entitled to value of the land as well as the value of the 14 trees on yield basis. Therefore, the said amounts are also liable to be adjusted against the amounts payable to the appellants. 14. In view of the above discussion, the market rate of the acquired land to the extent of 540 sq.metres is fixed at the rate of Rs.176/- per sq.metre. The amount of Rs. 22,330/- payable towards the trees existing in the acquired land shall be adjusted towards the compensation payable in respect of the land acquired. Needless to mention that the appellant is also entitled to all the statutory benefits under the Act. 15. In view of the findings given above, I do not deem it necessary to deal with the authorities cited by both sides. 16. For the reasons aforesaid, the appeal is allowed 15 to the extent indicated above. Having regard to the facts and circumstances of the case, the parties are directed to bear their own costs. A. P. Lavande, J Ap/-