- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 147 OF 2004. with MISCELLANEOUS CIVIL APPLICATION NO. 668 OF 2010. 1 Dr. Armando De Silva, Dental Surgeaon, resident of House no. Nagoa, Verna, Salcete Goa; 2 Mrs. Imelda Da Silva, resident of House no. Nagoa, Verna, Salcete Goa; 3 Mr. Teddy Da Silva, resident of House no. Nagoa, Verna, Salcete Goa; 4 Mrs. Arzilia Da Silva, resident of House no. Nagoa, Verna, Salcete Goa; 5 Mr. Cyril Da Silva, resident of House no. Nagoa, Verna, Salcete Goa; 6 Mrs. Jenifer Da Silva, Dental Surgeaon, resident of House no. Nagoa, Verna, Salcete Goa; 7 Mr. Placio Da Silva, resident of House no. Nagoa, Verna, Salcete Goa; 8 Mrs. Silvia Da Silva, resident of House no. Nagoa, Verna, - 2 - Salcete Goa; The Appellant nos. 2 to 8 are represented by thier lawful attorney Dr. Armando da Silva. .......... Appellants. Versus 1 The Deputy Collector (Development) Margao, Salcete, Goa. 2 The Executive Engineer Works Dovosopm VI, Public Works Department, Fatorda, Salcete, Goa. .......... Respondents. Mr. M. P. Almeida, Advocate for the Appellants. Ms. S. Mordekar, Additional Government Advocate for the Respondents. Coram:-F. M. REIS, J. Date:-8th OCTOBER, 2010. ORAL JUDGMENT The above Appeal challenges the Judgment and Award dated 29.12.2003, passed by the learned District Judge, South Goa, Margao in Land Acquisition case no. 201/1994. 2. By notification issued under section 4 of the Land Acquisition Act( herein after referred to as “the said Act”) dated - 3 - 17.9.1990 which was published in the Official Gazette dated 15.11.1990, an area of 500 square metres out of survey no. 12/10 part and 60 square metres out of survey no. 11/1 part came to be acquired in village Nagoa belonging to the Appellants for the construction of road from Verna to Consua via Maina-Consua and Churchwada in Nagoa and Cortalim of Salcete Taluka. 3. The Land Acquisition Officer by an Award under section 11 of the said Act offered compensation at the rate of Rs.14/- per square metre for the acquired land. Being dissatisfied with the said amount the Appellants preferred a reference for enhancement of the compensation under section 18 of the Act and claimed compensation at the rate of Rs.250/- per square metre besides compensation of Rs.3000/- for each coconut tree, Rs.5000/- towards each mango tree, Rs. 5000/- towards each jackfruit tree and Rs.4000/- towards Cashew trees. 4. By Judgment and Award dated 29.12.2003, the Reference Court answered the reference in the negative. 5. Being aggrieved with the said Judgment and Award, the - 4 - Appellants have preferred the present appeal. 6. Mr. M. P. Almeida, learned Counsel for the Appellants has assailed the impugned judgment and submitted that the Reference Court has failed to consider that the Appellants had adduced evidence in the nature of sale instance which discloses that the land acquired is comparable to the said sale deeds and as such the Appellants were entitled for the enhancement of compensation. Learned Advocate for the Appellants further submitted that the Appellants had produced documents which were at Exh. AW1/A, AW1/C, AW1/D, AW1/E and AW1/F which were exhibited subject to production of originals and due to inadvertence the originals thereof were not produced by the Appellants. He further submitted that the Appellants have filed an application under Order 41 Rule 27 of the C.P.C., to permit them to produce the certified copies of all the said documents. He further submitted that in view of the fact that the said documents were not produced the Reference Court misdirected itself in rejecting the reference. Learned Counsel further submitted that the Appellants have adduced sufficient evidence to substantiate their claim for enhancement on account of trees existing in the acquired land. He as such submitted that the application for leading additional evidence be - 5 - allowed and the Reference Court be directed to decide the reference a fresh after giving an opportunity to both the parties of being heard. 7. On the other hand Ms. S. Mordekar, learned Additional Government Advocate appearing for the Respondents has supported the impugned Judgment. She further submitted that the Appellants have failed to adduce evidence to substantiate that the acquired land is comparable with the sale instance plots. She further submitted that the Reference Court has rightly rejected the claim for the value of the trees in the acquired land as no evidence has been adduced by the Appellants on that count. The learned Counsel further submitted that the Appellants ought to have produced the certified copies before the Reference Court before hearing of the said reference and as such there is no ground for permitting the Appellants to produce the said documents at this stage. In any event she submitted that in case of remand, the Respondent should be allowed to lead evidence in rebuttal. 8. Having heard both the learned counsel for the Appellants and the Respondents, and on perusal of the records, the following points for determination arises in the present appeal:- - 6 - POINTS FOR DETERMINATION 1. Whether the Reference Court was justified to refuse the compensation on account of trees existing in the acquired land? 2. Whether the Reference Court was justified to reject the reference filed by the Appellants? 9. Dealing with the first point for determination, I find that from the evidence on record apart from the bare statement on the part of the Appellants no evidence has been adduced with regards to the claim of the Appellants for the value of trees existing in the acquired land. 10. In any event in the judgment reported in 2006(2) Mah. L. J. 436 Ramgonda Layappa Birajdar versus Land Acquisition Officer and others, the Division Bench of this Court has held at para 13 thus:- In addition to above, the Land Acquisition Officer has also awarded the compensation to the tune of Rs. 91,27,851/- towards the value of trees. It is not clarified as to whether these are the forest trees or also include fruit bearing trees. The Apex Court in (State of Haryana v. Gurcharan Singh and Anr.)6, reported in A.I.R. 1996 S.C. 106 had - 7 - clearly ruled that compensation is the value of the acquired land and under no circumstances, the Court should allow the compensation on the basis of nature of the land as well as fruit bearing trees. In other words the market value of the land is to be determined on the basis of the value of land but the value of fruit bearing trees can not be added thereto. Needless to say that in case of trees yielding forest produce are to be valued in addition to the value of the land. However, in the case in hand it is not clear whether the amount of Rs. 91,27,851/- relates in entirety to the forest trees or also include fruit bearing trees. Once the Apex Court has laid down the law to the effect that the Land Acquisition Officer cannot take into consideration value of fruit bearing trees while determining compensation on the basis of the value of the land in question, the Land Acquisition Officer has clearly acted in contravention with the law laid down by the Apex Court while awarding compensation of Rs. 91,27,851/- in addition to the value of the land to the tune of Rs. 3,05,95,405/-. For the reasons stated above, therefore, it is apparent that the act of the Land Acquisition Officer in the matter of fixation of award clearly disclose an abuse of powers which warrants interference by this court in the writ jurisdiction. - 8 - 11. As such the Reference Court was justified to refuse the claim of the Appellants for the value of the trees existing in the acquired land. Hence point for determination is answered accordingly. 12. With regards to the second point for determination, I find from the impugned Judgment that the Appellants have fail to produce the original documents at Exh. AW1/A, AW1/C, AW1/D, AW1/E and AW1/F. In fact the Appellants ought to have produced the said documents before the final arguments before the Reference Court. Considering that the documents were exhibited and only certified copies were not produced, I find that in the interest of justice, the application filed by the Appellants under Order 41 Rule 27 of the C.P.C., has to be allowed. The Appellants shall be permitted to produce the documents at Exh. AW1/A, AW1/C, AW1/D, AW1/E and AW1/F. The Reference Court was justified in rejecting the claim of the Appellants on the basis that the sale deed at Exh. AW1/B as it is not in the vicinity of the acquired land and the same is not comparable with the acquired land. The finding given by the Reference Court on this Count is confirmed. The land in the said sale instance is very far from the acquired land and cannot form the basis to fix the market - 9 - value of the acquired land. 13. In the facts and circumstances of the case, the Reference Court was unable to consider the said documents at Exh. AW1/A, AW1/C, AW1/D, AW1/E and AW1/F, as original thereof were not produced by the Appellants. In the interest of justice as the land of the Appellants has been lost in the acquisition, I find that the Appellants shall be permitted to produce certified copy of the said documents. The Reference Court will thereafter have to decide the reference a fresh after hearing both the parties and ascertain whether the said sale instances produced by the Appellants are comparable with the land acquired. No doubt for the purpose of producing the said documents, the Appellants will be entitled to recall AW1 only for the production of the aforesaid documents at Exh. AW1/A, AW1/C, AW1/D, AW1/E and AW1/F. The Respondents shall be entitled to cross examine the said witness on the said documents. Needless to say that the Respondents shall be entitled to lead evidence if any, if they so desire in answer to the said evidence adduced by the Appellants. The point for determination is answered accordingly. 14. In view of the above, I pass the following:- - 10 - O R D E R i. The Appeal is partly allowed. ii. The Application under Order 41 Rule 27 of the C.P.C. is allowed. The Appellants are permitted to produce the documents at Exh. AW1/A, AW1/C, AW1/D, AW1/E and AW1/ F. iii. The Reference in Land Acquisition Case no. 201/1994 is restored to the file of the Reference Court. iv. The Reference Court shall decide the said reference afresh with regards to issue no.1 only, framed in the said proceeding after permitting the Appellants to produce the said documents and allowing the Respondents to adduce further evidence in the light of the observations made herein above, and after hearing both the parties, pass a fresh decision, in accordance with law. v. The Appeal and the application stand disposed of accordingly with no order as to - 11 - costs. vi. Parties are directed to appear before the Reference Court on 6.12.2010 at 10.00a.m. and abide by the further directions of the Reference Court. F. M. REIS, J. vn*