1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 264 OF 2005 1. The Special Land Acquisition Officer, (S.I.P.), I.D. Complex, Gogal, Margao, Goa. 2. The Executive Engineer, Works Division, VI, PWD, Fatorda, Margao, Goa. … Appellants V e r s u s 1. Francisco Baretto Opp. Holy Spirit Institute, Largo Padre Jose Vaz Road, Margao (since deceased represented by Legal heirs) 1(a) Mrs. Albertina Baretto e Rebello r/o Op. Presentation Convent, Margao, Goa. 1(b) Mrs. Silvia Baretto e Pereira, r/o Comba, Margao, Goa. 1(c) Mrs. Belina Baretto e Pereira presently in Canada. 1(d) Miss. Maria Adelina Baretto, r/o Opp. Holy Spirit School, Margao, Goa. … Respondents. Mrs. Susan Linhares, Additional Government Advocate for the Appellants. None for the Respondents. CORAM : F.M. REIS, J. DATE : 11th FEBRUARY, 2011 2 JUDGMENT : The above appeal challenges the judgment and award dated 12/11/2003 passed by the learned Additional District Judge, Margao, in Land Acquisition Case No.41/1993. 2. By a notification issued under Section 4 of the Land Acquisition Act, 1894, herein after referred to as "the said Act", dated 18/01/1990 published in the Official Gazette dated 24/05/1990, land was acquired for the construction of a road from Mungul Calata via Seraulim from Margao to Nuvem-Majorda road. The subject matter of the acquisition in the above appeal was an area of 250 square metres out of the property survey no.130/1(part) and an area of 275 square metres out of the property surveyed under no.129/2(part) totally admeasuring an area of 525 square metres belonging to the respondents. 3. By an award passed under Section 11 of the said Act dated 13/05/1992, the Land Acquisition Officer offered compensation at the rate of Rs.30/- per square metre for the land acquired. Being dissatisfied with the said amount, the respondents sought a reference under Section 18 of the said Act for enhancement for the compensation and claimed an amount of Rs.200/- per square metre 3 for the land acquired. By judgment and award dated 12/11/2003, the Reference Court partly allowed the reference filed by the respondents and fixed the compensation for the land acquired at the rate of Rs.85/- per square metre, besides statutory benefits. Being aggrieved by the said award, the appellants have preferred the above appeal. 4. Ms. Susan Linhares, the learned Additional Government Advocate appearing for the appellants has submitted that the Reference Court was not at all justified in enhancing the compensation in favour of the respondents. The learned Additional Government Advocate took me through the evidence on record and pointed out that the sale instances produced by the respondents were not comparable with the land acquired. The learned Counsel further submitted that the land acquired was for the construction of the road and, as such, the question of such land having any potentiality of being used for non agricultural purposes would not arise. Learned Counsel further submitted that the Reference Court has relied upon the awards passed in other reference proceedings which have been challenged before this Court and not become final. Learned Counsel, as such, pointed out that the impugned judgment deserves to be quashed and set aside. 4 5. The respondents though served have failed to remain present at the time of hearing nor were represented by any advocate. 6. Having heard the learned Additional Government Advocate for the appellants and on perusal of the records, I find that the following point for determination arises in the present appeal: POINT FOR DETERMINATION : (i) Whether the Reference Court was justified to fix the market value of the land acquired as on the date of Section 4 notification at the rate of Rs.85/- per square mater. 7. In support of their claim for enhancement, the respondents have examined Mr. Francisco Barreto as AW1. He has stated that the acquired land is predominantly a coconut garden and there were also houses and a chapel in the said property. He has further stated that the land was classified as bharad land. He has further stated that the acquired land is at a distance of about 5 to 6 kilo metres from the District Court building of Margao and 1 kilo metre from Seraulim Church. He has stated that the Konkan Railway had acquired another portion of his land which is at a distance of about 90 metres from the land acquired. He has produced the deed of 5 sale dated 25/09/1989 executed between one Joaquim Rebello who purchased land at the rate of Rs.300/- per square metre out of which Rs.210/- has been paid to the owner and Rs.90/- has been paid to the developer. In his cross-examination he has admitted that the land acquired was agricultural land, but however, there are three registered mundkarial houses and a chapel therein. He has further stated that the sale deed plot produced by him was a sub- divided plot. The respondents have also produced valuation report of the valuer who has stated that according to him the market value of the acquired land is Rs.200/- per square metre. He has also produced the said report. The valuer has also been examined and his cross-examination has also been conducted by the respondents. 8. The Reference Court while passing the impugned judgment has held that the respondent himself has admitted that the kaccha road was passing though his property and which portion has now been acquired by the Government. He has also admitted that the said portion could not be used for agricultural purposes and no authority would permit construction activity on the said access. The Reference Court has considered that the Sale Deed plot itself discloses that certain amount was paid to the developer and certain 6 amount was paid to the owner. The Reference Court has found that the similarities and the advantages of the said plot as compared with the acquired land has not been pointed out by the respondents. The Reference Court has rejected the said Sale Deed at Exhibit AW1/B as there was no evidence with regard to the comparability of the land acquired vis-a-vis the said sale deed plot. The Reference Court has also examined the valuation report and found that the report was prepared after a gap of 5 years from the date of acquisition and the same could not be considered to determine the market value of the acquired land. The Reference Court has considered the award passed in Land Acquisition Case No.44/1993 and 43/1993 in respect of the land of the same notification wherein the Reference Court had awarded compensation at the rate of Rs.85/- per square metre. The Reference Court, as such, found that the land in question in both the awards were adjacent to the land acquired in the present proceedings. The Reference Court has also observed that the Counsel for the appellants fairly conceded that both these awards could be taken into consideration for deciding the market value of the acquired land. As such, the compensation was fixed at the rate of Rs.85/- per square metre for the land acquired. 7 9. On perusal of the records of this Court, I find that the First Appeal No.135/2003 was preferred by the appellants challenging the judgment and award dated 18/12/2002, passed by the Reference Court in Land Acquisition Case No.43/1993. The said appeal came to be disposed of by judgment dated 24/11/2010 by this Court and on the basis of the evidence on record, the learned Single Judge has fixed the market value of the acquired land at the rate of Rs.65/- per square metre. From the evidence and submissions of the learned Counsel appearing for the appellants before the Reference Court, there is no dispute that the land acquired as well as the land which was the subject matter of the said award were similar in nature and in its vicinity thereof. Considering all these factors, I have perused the said judgment passed by this Court on 24/11/2010 and found that both the notifications in both the proceedings are of the same date i.e. 18/01/1990. As stated above, there is no dispute that both the lands are in the vicinity of one another and are comparable to each other. The Reference Court, after perusing the evidence on record has fixed the compensation in respect of the land of the appellants in the present case at the rate of Rs.85/- per square metre on the basis of the award passed in Land Acquisition Case No.43/1993 which was impugned in the said First Appeal No.135/2003. 8 10. On the over all facts on record, I find that there is no reason to award any different compensation for the land acquired in the present proceedings. Nothing has been pointed out by the respondents to establish that the land acquired in the present case has better amenities and facilities than the land which is the subject matter of Land Acquisition Case No.43/1993. For aforesaid reasons, I find that the market value of the land as on the date of Section 4 notification is to be fixed at the rate of Rs.65/- per square metre being the same rate as fixed by this Court in First Appeal No.135/2003. The learned Additional Government Advocate was unable to persuade me to take any contrary view on the basis of material on record. The contention of learned Additional Government Advocate to the effect that the respondents have not discharged the burden to establish that the price offered to them was inadequate cannot be accepted. There was sufficient evidence which would disclose that the respondents would be entitled for enhancement in the compensation. I, accordingly, fix the market value of the acquired land at the rate of Rs.65/- per square metre. The point for determination is answered accordingly. 11. In view of the above, I pass the following order: 9 O R D E R (i) The appeal is partly allowed. (ii) The impugned judgment and award dated 12/11/2003 is modified and the market value of the acquired land is fixed at the rate of Rs.65/- per square metre. (iii) The remaining part of the award granting statutory benefits is confirmed. (iv) The appeal stands disposed of accordingly with no order as to costs. F.M. REIS, J. NH/-