- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 284 OF 2004 The Executive Engineer, W.D. VI, ( R & B) P.W. D. Fatorda, Margao, Goa. ........ Appellant. Versus Smt. Sunita R. S. Kakodkar, Represented by her Power of Attorney Holder, Shri Chandreshekar R. S. Kakodkar, Hoskote House, Patrong, Baina, Vasco-da-Gama, Goa. a) Mr. Chandrashekhar Ramakant Sinai Kakodkar, Son of late Ramakant R.S. Kakodkar, Age about 53 years, bachelor, Engineer; b) Miss Bharati Ramakant Sinai Kakodkar, Daughter of late Ramakant R. S. Kakodkar, Aged about 49 years, spinster, unemployed; c) Mr. Sudhir Ramakant Sinai Kakodkar alias Sudir Ramakant Kakodkar, Son of late Ramakant Kakodkar, aged about 47 years, bachelor, service; d) Miss Kiran Ramakant R. S. Kakodkar, Daughter of late Ramakant R. S. Kakodkar, Aged about 46 years, spinster, - 2 - unemployed; and e) Mr. Nitin Ramakant Sinai Kakodkar, Son of late Ramakant R. S. Kakodkar, Aged about 44 years, bachelor, service All Indian National and Citizen and all are residing at Hoskote House next to Parulekar Hospital, Patrong, Baina, Vasco- Da-Gama, Goa 403 802. ........ Respondents. Ms. S. Linhares, Additional Government Advocate for the Appellant. Mr. T. Pereira, Advocate for the Respondents. Coram:-F. M. REIS, J. Date:-22nd October, 2010. ORAL JUDGMENT The above Appeal challenges Judgment and Award dated 12.3.2004 passed by the learned Additional District Judge-III, South Goa, Margao, in Land Acquisition case no. 29/1994. 2. The land belonging to the Respondents was acquired pursuant to the notification under section 4 of the Land Acquisition Act, ( hereinafter referred to as “the said Act') dated 6.12.1988 published in the Official Gazette dated 9.2.1989 for widening and - 3 - improvement of Curchorem-Sanquem road admeasuring an area of 380 square metres from the property surveyed under no. 161/2 at Curchorem. 3. By an Award passed by the Land Acquisition Officer, under section 11 of the said Act dated 23.6.1992 an amount of Rs.4/- per square metre was offered for the land acquired. 4. Being dissatisfied with the said amount, the Respondents sought a reference under section 18 of the said Act for enhancement of the compensation and claimed an amount of Rs. 150/- per square metre. 5. The Reference Court after recording the evidence and hearing the parties fixed the market value of the acquired land at the rate of Rs.30/- per square metre and directed payment of access amount of Rs.26/- per square metre for an area of 380 square metres. 6. Being aggrieved by the said Judgment and Award, the Appellant has preferred the present appeal. - 4 - 7. The learned Additional Government Advocate Ms. S. Linhares, appearing for the Appellant has assailed the impugned Judgment and submitted that the acquired land had no potentiality of being used for non agricultural purpose as the same was acquired for road widening. Learned Counsel further submitted that the Reference Court has erred in arriving at the market value of the acquired land at the rate of Rs.30/- per square metre. She further pointed out that the sale deed dated 31.3.1987 produced by the Respondents is not comparable with the land acquired and the land which was acquired was within the road widening area. She further pointed out that the set back of 20 metres has to be maintained for road widening on which land no development is possible under the statutory regulation. Learned Additional Government Advocate as such submitted that the impugned Judgment and Award deserves to be quashed and set aside. 8. On the other hand learned Counsel Mr. T. Pereira, appearing for the Respondents has supported the impugned judgment. He submitted that the Respondents has produced a comparable sale instance which is dated 31.3.1987 wherein a plot of land admeasuring 1000 square metres was sold at Rs.127/- per square metre in respect of property surveyed under no. 11/1. He further submitted that the - 5 - Reference Court was justified to fix the market value of the land on the basis of said sale deed. Learned Counsel further submitted that the Reference Court has deducted 80% on account of dissimilarity of the acquired land vis-a-vis the sale deed plot and as such no interference is called for by this Court in the impugned Judgment. Learned Counsel further submitted that the acquired land was part of the larger property and even assuming that the land acquired was within the road widening area the said area could be considered for calculating the FAR in respect of remaining portion of the land beyond the road widening area. Learned Counsel further submitted that the appeal deserves to be dismissed. 9. Having heard the learned Counsel and on perusal of the records, the following point for determination arise in the present appeal:- POINT FOR DETERMINATION Whether the Reference Court was justified to fix the market value of the land acquired at the rate of Rs.30/- per square meter? 10. In support of their claim for enhancement, the Respondents have examined Mr. Chandrashekhar R. S. Kakodkar, as - 6 - AW1. He has stated that the promulgated record of the holdings property belonging to the Respondents was surveyed under no. 161/2 part admeasures an area of 25,950 square metres. He has stated that an area of 380 square metres of the said property has been acquired by the Appellant. He has produced the sale deed dated 31.3.1987 in respect of which plot admeasuring 1000 square metres was sold for a sum of Rs. 1,27,000/- of the property surveyed under no. 11/1 of village Kakoda, situated at a distance of 2.5 kms from the acquired land. There is another sale deed dated 12.9.1988 wherein land admeasuring 134 square metres situated in the property surveyed under no. 155 was sold for a sum of Rs. 30,000/- which works out to Rs. 223/- per square metre. The said land is located at a distance of 2.8 kms from the acquired land. In the cross examination he has admitted that high tension wire is passing through the property and that the property was hilly property having downward slope. He has further admitted that in the sale deed plot dated 12.9.1988 which is at Exh. AW1/P, there was a small house structure therein. He has further admitted that in the sale deed it is mentioned that besides the plot, structure existing therein was also sold. He has further admitted that he had obtained conversion of the land acquired by sanad which is at Exh.AW1/Hcolly for part of the property surveyed under no.161/2 - 7 - (part). He has further admitted that in the said sanad there were restrictions imposed for the purpose of development within the road widening area and that the land acquired was coming within the road widening area. He has denied the suggestion that the sale deed plot was developed plot but admitted that plot was purchased for the purpose of a suitable construction. The Reference Court after appreciating the evidence on record has come to the conclusion that the sale deed plot which is at Exh. 23/AW1/J dated 31.3.1987 is comparable to the land acquired. The Reference Court has further effected deduction on account of dissimilarity to the extent of 80% and fixed the market value of the acquired land. The Reference Court discarded the sale deed dated 12.9.1988 as it was not comparable to the land acquired besides the fact that the price mentioned therein was inclusive of the structure located in the said plot. 11. On perusal of the evidence on record, I find that no error has been committed by the Reference Court in relying upon the sale instance dated 31.3.1987 to form the basis to arrive at the market value of the acquired land. The sale instance, discloses that the plot which has been sold was admeasuring 800 square metres besides 200 square metres adjoining to the road on the western side and it was - 8 - bounded towards east by remaining portion of the property, on the south by plot no. 158 purchased by deed dated 31.3.1987 having shape of rectangle. The said plot is situated at Village panchayat of Kakoda, Quepem, Taluka and was subjected to road widening. There is no error committed by the Reference Court in coming to the conclusion that the sale deed plot at Exh. 23 is comparable sale instance. The Reference Court has found that the land acquired had demerit which affects its marketability. The acquired land was hilly area as compared to the sale deed plot and there was a High Tension wire passing through the acquired land. On such two counts the Reference Court has deducted 40% which cannot be said to be excessive, as expenses to develop the hilly portion of the land will incur substantial expenditure. Evidence further discloses that the sale deed plot is closer to the Churchorem as compared to the land acquired. On account of this disadvantage, the Reference Court has deducted 10%. Considering that the sale deed plot was admeasuring only 1000 square metres and development charges for the property of the Respondents were substantial considering its largeness, the Reference Court has deducted 30% on that count. 12. Though the acquired land was a strip of land in the road - 9 - widening area, nevertheless the said area could be used for the purpose of calculating the FAR in respect of the remaining portion of the land of the Respondents. It cannot be said that the land which comes within the road widening area has no value for the Respondents The Apex Court in the Judgment reported in (2009) 10 SCC 686, State of Goa & Anr. Vs. Gopal Baburaoi Gaudo & ors. has held at paras 4 and 5 thus:- “ 4. A long strip of land measuring more than two-thirds of an acre lying alongside and adjoining the highway cannot be treated as a land without value or without any potential for development, merely on the ground that the law relating to highways prohibited construction on either side of the highway, up to a depth of 40 m from the centre of the highway. All that was required to create or realise potential of such land was to annex or merge the said strip of land with the land to its rear. In that event, the strip of land will become the “access” to the rear side land from the main road and will also become the frontage of the aggregate land, thereby enhancing the potential and value of the rear side land, as also creating a potential for its own use. 5. The contention that a land adjoining the highway should be treated as having no - 10 - development potential (and therefore as land without much value except as ordinary agricultural land), while considering the lands to its rear which are farther away from the road , or other adjoining lands of the same extent, but having ore depth (so as to extend beyond the 40 m margin) as having potential for development, is illogical and cannot be accepted.” 13. Considering the said Judgment of the Apex Court the deduction which has been effected by the Reference Court on account of demerits cannot be faulted. The Reference Court has scrutinized the evidence on record minutely and has come to the conclusion that the market value of the acquired land is Rs.30/-. Learned Counsel appearing for the Appellant was not justified to contend that the acquired land of the Respondents has no value as it comes within the road widening area, as in view of the said judgment of the Apex Court, the said submission of the learned Counsel deserves to be rejected. 14. There is no error committed by the Reference Court in fixing the market value of the acquired land at Rs.30/- per square metre which cannot be said to be excessive or exorbitant. The point - 11 - for determination is answered accordingly. 15. In the facts and circumstances of the case, I find no merits in the appeal and hence the same stands dismissed with no order as to costs. F. M. REIS, J. vn*