1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 18 OF 2006 AND FIRST APPEAL NO. 310 OF 2005 FIRST APPEAL NO. 18 OF 2006 1. Special Land Acquisition Officer(N), Irrigation Department, Mapusa. 2. The Executive Engineer, W. D. VI, Irrigation Department, Now represented by W.D.VIII, GTIDC, Karaswada, Bardez, Goa. ... Appellants versus Smt. Gracinda Braganza, R/o. H. No. E579, Xetiavado, Duler, Mapusa-Goa. ... Respondent Shri G. Shirodkar, Government Advocate for the Appellants. Shri V. Menezes, Advocate for the Respondent. FIRST APPEAL NO. 310 OF 2005 Gracinda Braganza, residing at House No.E 5/9, Xetiavado, Duler, Mapusa, Goa, duly represented by her constituted attorney Mr. Miguel Arcanjo Francisco Xavier Braganza residing at S-1, Gracinda Apartment, 2 Feira Baxia, Mapusa, Goa. ... Appellant versus 1. Special Land Acquisition Officer(N) Irrigation Department, Morod, Mapusa, Goa. 2. The Executive Engineer, Works Division VI, Irrigation Department, Colvale Road, Bardez, Goa. ... Respondents Shri V. Menezes, Advocate for the Appellant. Shri G. Shirodkar, Government Advocate for the Respondents. CORAM : F. M. REIS, J. DATE : 10TH JUNE, 2011. ORAL JUDGMENT Both the above appeals were taken up together for final hearing as both challenge the Judgment and Award passed by the Reference Court dated 16-9-2005 in Land Acquisition Case No.28 of 2000. The parties shall be referred to in the manner they so appear in the cause title of the impugned Judgment. 3 2. Pursuant to a notification under Section 4 of the Land Acquisition Act, 1894(hereinafter referred to as the said Act) dated 29-9-1997, land admeasuring 570 sq. meters from the property surveyed under No.58/32 situated at Cunchelim, Bardez, Goa was intended to be acquired. After complying with the formalities of the said Act, an award was passed on 23-9-1999 and the possession of the land was taken on 10-4-2000 and compensation was fixed for the land acquired at the rate of Rs.40/- per sq. meter. Being dissatisfied with the said award, the Appellants preferred a reference for enhancement of the compensation and claimed a sum of Rs.1000/- per sq. meter for the land acquired besides a sum of Rs.5,00,000/- on account of severance charges. By Judgment and Award dated 16-9-2005, the Reference Court partly allowed the said reference and fixed the compensation for the land acquired at the rate of Rs.50/- per sq. meter besides a sum of Rs.3000/- as additional compensation for the severance together with statutory benefits. Being aggrieved by the said Judgment, the Appellant as well as the Respondents preferred the present appeal. 3. Shri V. Menezes, learned Counsel appearing for the Appellant assailed the impugned Judgment and pointed out that the land 4 is situated very close to the Mapusa City and had high potentials. Learned Counsel has submitted that the Appellant has adduced evidence on record to substantiate that the compensation offered by the Land Acquisition Officer is totally inadequate and as such, the Reference Court ought to have fixed the compensation at a minimum rate of Rs.650/- per sq. meter. Learned Counsel has further submitted that the Appellants have examined a valuer who has considered the sale instances and fixed the market value of the acquired land much higher than the one awarded by the Reference Court. Learned Counsel has further submitted that the sale deed dated 14-5-1993 is comparable with the land acquired and the Reference Court was not justified in rejecting the said sale instance. Learned Counsel has further submitted that the Appellants have also produced sale deed at Exh.25 where the price disclosed therein is shown at Rs.1750/- per sq. meter. Learned Counsel has further submitted that the Reference Court had not relied upon the sale deed at Exh.28 which is dated 11-11-1996 though it is comparable to the land acquired. Learned Counsel has further submitted that even the prices fixed for the purpose of stamp duty in the vicinity of the acquired land was much higher as the land is located close to Mapusa City. Learned Counsel has further submitted that the land acquired was a 5 housing site and there were residential houses and structures within a range of 15 meters from the acquired land and the acquired land is at a distance of 1 km. from St. Anthony High School, 1.5 kms. from Duler ground and 3 kms. from Pedem Sports Complex. Learned Counsel has taken me through the evidence on record and pointed out that the Reference Court has totally misdirected itself in enhancing the compensation by such a meagre sum. Learned Counsel has further pointed out that the Division Bench of this Court while disposing of First Appeal No.308 of 2005 in respect of the land which was acquired for the same purpose pursuant to a notification dated 21-8-1997 had fixed the compensation for the land acquired therein at the rate of Rs.310/- per sq. meter. Learned Counsel has further submitted that the land acquired therein and the land which is subject matter in the present acquisition are adjoining one another. Learned Counsel further submitted that the sale instances in the present case were also produced before the Division Bench of this Court and after considering the sale instances compensation came to be enhanced. Learned Counsel has further submitted that as such a higher rate of compensation is to be fixed, for the land acquired. Learned Counsel as such pointed out that the 6 impugned Judgment deserves to be quashed and set aside. Learned Counsel further submitted that the learned Reference Court has erroneously awarded only a sum of Rs.3000/- on account of severance charges. 4. Shri G. Shirodkar, learned Government Advocate for the Respondent has assailed the impugned Judgment and Award and pointed out that there was no material on record for the Reference Court to enhance the compensation. Learned Counsel has further submitted that the sale instances produced are mostly within the municipal area whereas the land which is subject matter of the present acquisition is situated in Cunchelim and as such the sale instances are not comparable with the land acquired. Learned Counsel submitted that the Judgment produced by the Appellant passed by a Division Bench of this Court dated 5-8-2010 cannot be considered as there is no comparability between the land acquired in the present proceeding and the land in the said acquisition. Learned Counsel has further submitted that the land acquired in the said proceedings is pursuant to a different notification though for the same purpose, and it is well settled that unless comparability is established between the land acquired and the land in the said acquisition 7 such Judgment will not be considered. Learned Government Advocate has further submitted that the land acquired had no potential use and the Reference Court was not justified to enhance the compensation on the basis of the sale instances produced by the Appellant. Learned Government Advocate as such pointed out that the appeal preferred by the Respondent deserves to be allowed and the appeal filed by the Appellants be rejected. 5. Having heard the learned Counsel the following point for determination arises:- Whether the Appellants are entitled for compensation at the rate of Rs.1000/- per sq. meter and the compensation for severance charges? 6. On perusal of the evidence on record and on going through the impugned Judgment, I find that the Reference Court has rejected the sale instances produced by the Appellant merely because there is a huge disparity between the instances produced by the Appellant and the amount awarded for the land acquired. Learned Counsel has also discarded the evidence on the ground that the land is situated in Mapusa 8 City. The Reference Court has further held that the acquired land has a School, National Highway, a Football Stadium and a Sports Complex near it but, however, the Reference Court has not scrutinized the evidence on record to consider the comparability of the land acquired with the sale instances produced by the Appellant as well as by the Respondent objectively. Apart from that, the learned Government Advocate is justified to contend that the Appellants are not entitled to rely upon the Judgment passed by the Division Bench of this Court dated 5-8-2010 without establishing the comparability of the land acquired with the land which is subject matter of the acquisition though it is contended by Shri V. Menezes, learned Counsel appearing for the Appellant that the lands are adjoining to one another which is otherwise disputed by the learned Government Advocate. Nevertheless it is incumbent upon the Appellants to establish the comparability of the land acquired with the land which is subject matter of the said acquisition. Shri V. Menezes, learned Counsel for the Appellant has drawn my attention that there is no evidence with regard to the comparability of the land acquired. He submitted that the reference may be remanded for fresh adjudication after permitting the Appellant to produce the said Judgment to establish the comparability with the land acquired. 9 Considering the facts and circumstances of the case, I find that in the interest of justice, it would be appropriate for the Reference Court to decide the reference afresh after allowing the parties to adduce evidence to establish the comparability or otherwise between the land acquired in the said Judgment dated 5-8-2010 and the land which is acquired in the present proceedings. The sale instances produced by the Respondent would also have to be considered to ascertain whether the sale instances can form the basis for fixing the market value. The Reference Court as such will permit the Appellants to produce the said Judgment dated 5-8-2010 and adduce evidence to establish the comparability with the land acquired which is subject matter of the said acquisition. No doubt, the Respondent will also be entitled to lead evidence in rebuttal. As such, the matter is to be remanded to the Reference Court to decide the reference afresh in the light of the observations made hereinabove. 7. In view of the above, I pass the following Order:- ORDER 1. Both the appeals are partly allowed. 2. The impugned Judgment and Award dated 16-9-2005 passed in Land Acquisition Case No.28 of 2000 is quashed and set aside. 10 3. Land Acquisition Case No.28 of 2000 is restored to the file of the Reference Court. 4. The Reference Court is directed to decide the reference afresh in the light of the observations made hereinabove in accordance with law. All contentions raised are kept open. 5. Both the appeals are disposed of accordingly with no orders as to costs. 6. The parties are directed to appear before the Reference Court on 30-8-2011 at 10.00 a.m. F. M. REIS, J. RD 11 12