... 1 ... IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO.39/1999 Smt. Olivia F. D'souza, house No.1, Fransons Villa, Curca, Ilhas, Goa. ... Appellant v e r s u s 1. Deputy Collector, Land Acquisition Officer, Panaji. 2. Executive Engineer, W.D. II, P.W.D., Panaji, Goa. ... Respondents Mr. S. D. Lotlikar, Senior Advocate with Mr. P. Lotlikar, Advocate for the Appellant. Ms. W. Coutinho, Government Advocate for the respondents. ... 2 ... CORAM: A. P. LAVANDE, J. JUDGMENT RESERVED: 21ST October, 2008. JUDGMENT PRONOUNCED : 24th October,2008. JUDGMENT: This appeal is directed against judgment and award dated 30.01.1994 passed by the District Judge, North Goa, Panaji, in Land Acquisition Case No.8/1994, partly allowing which the reference sought by the applicant. 2. The strip of land admeasuring 309 sq.mtrs., from four strips of sub division Nos.2, 3, 4 and 5 of survey no.115 of Santan, Talaulim was acquired by the Government of Goa for the purpose of widening and improvement of Santan, Talaulim road vide Notification dated 16.02.1989 issued under section 4 ... 3 ... of the Land Acquisition Act ('The Act' for short). The Land Acquisition Officer awarded Rs.10/- per sq.mtr. The applicant sought reference claiming Rs.300/- per sq.mtr. in respect of the acquired land. The Reference Court partly allowed the reference by awarding compensation at the rate of Rs.63/- per sq.mtr. Aggrieved by the judgment and award, the applicant has filed the present appeal. 3. In the Reference Court, the applicant examined three witnesses, Luis D'souza, (Aw.1) the husband and constituted attorney of the applicant, Vikas Vithal Dessai, (Aw.2) valuer and Anthony Pereira Aw.3 who had sold a developed plot admeasuring 225 sq.mtrs. at the rate of Rs.100/- per sq.mtr. at Selaulim, Santana by sale deed dated 15.07.1985. The Reference Court did not place reliance on the evidence of the expert on the ground ... 4 ... that the evidence was only based upon the opinion of the expert and not on any data. The Reference Court placed reliance upon the sale deed dated 15.07.1985 (Exh.Aw.1/B) executed by Anthony Pereira, (Aw.3) by which he sold a plot admeasuring 225 sq.mtrs. at Salaulim, Santan at the rate of Rs.100/- per sq.mtr. The Reference Court held that the plot sold by the said sale deed was comparable land and deducted 40% for development and further deducted 15% on the ground that the land was below the level of the road and therefore, it required filling to make it suitable for construction purpose. Thereafter increasing the amount by 10% per year valued the market price of the acquired land at Rs.63/- per sq.mtr. 4. Mr. Lotlikar, learned Senior counsel appearing for the applicant submitted that the ... 5 ... acquired land was better in all respects than the plot sold by sale deed dated 15.07.1985. Moreover, the acquired land is situated at Curca whereas the said plot is situated at Santana. He further submitted that no deduction ought to have been made by the Reference Court towards development charges since the deduction can be made only if a large chunk of land is to be developed. Without prejudice to this submission, learned counsel submitted that in any case deduction could not have exceeded 30% as has been held by the Division Bench of this Court in the case of The Managing Director, Goa Industrial Development Corporation, Goa v. Shri Sadashiv S. N. Sardessai and two others reported in [2005 (1) Goa L.R. 36]. He further submitted that the deduction of 15% is made by the Reference Court on the ground that the acquired land required filling to make it suitable for construction purpose is patently ... 6 ... unsustainable in as much as there is no evidence that without carrying out any filling the acquired land was not fit for construction. He further submitted that the acquired land was just 25 cms. below the road level and therefore, no deduction ought to be made on the ground that it is at a lower level, since the construction is possible without carrying out any filling. He further submitted that the location of the acquired land is better than the plot sold by sale deed dated 15.07.1985 and therefore, the applicant is entitled to enhanced compensation. 5. Per contra, Ms. Coutinho, learned Government Advocate appearing on behalf of the respondents supported the impugned judgment and award and submitted that the deduction made by the Reference Court cannot be faulted. She further submitted that the acquired plot was low lying and ... 7 ... was an undeveloped plot and therefore the Reference Court was justified in making the deductions while fixing the market rate of the acquired land by comparing it to the plot sold by sale deed dated 15.07.1988. 6. I have considered the submissions made by the learned Senior counsel for the applicant and learned Government Advocate and perused the records and the judgment relied upon. 7. The Reference Court was justified in rejecting the evidence of the expert Shri Vikas Dessai Aw.2 since his evidence was not based on any data and Mr. Lotlikar, learned Senior Counsel very fairly has not relied upon his evidence. The Reference Court has considered the plot sold by sale deed dated 15.07.1985 as comparable land and has ... 8 ... deducted 40% towards the cost of development. The Division Bench of this Court in the case of The Managing Director, Goa Industrial Development Corporation, Goa v. Shri Sadashiv S. N. Sardessai (Supra) has held that in terms of the Supreme Court guidelines, the deduction can vary depending upon the facts of the case between 30% and 65%. It is pertinent to note that the acquired land is a small strip of land admeasuring 309 sq.mtrs. Therefore, I find merit in the submission of Mr. Lotlikar, that deduction of 40% towards development cost is on higher side but I am unable to agree with Mr. Lotlikar that no deduction should have been made while comparing the acquired land with the said plot. It is an admitted fact that the acquired land was not a part of the developed land whereas the said plot sold by sale deed dated 15.07.1985 was a developed plot fit for construction. Therefore, I am of the ... 9 ... considered opinion that it would be appropriate to deduct 30% towards development costs. In so far as the submission made by Mr. Lotlikar, learned Senior counsel that no deduction ought to have been made on the ground that the acquired land was little below the road level is concerned, I find merit therein. There is evidence on record that the acquired land is about 25 cms. below the road. The mere fact that the acquired land is below the road, by itself is not sufficient to hold that the same could not have been used without filling. Therefore, I am unable to accept the reason given by the Reference Court for deducting 15% for the purpose of filling the land, having regard to the location of the acquired land. Moreover, the acquired land is situated at Curca about 7 kms. from Panaji and about 3 kms. from Goa Medical College, Bambolim and is also situated in the area of conglomeration of houses of village Curca. ... 10 ... Considering the location of the acquired land and after deducting 30% for development charges, the rate of the acquired land in the year 1985 works out to Rs.70/- per sq.mtr. The said plot was sold on 15.07.1988 whereas the Notification under Section 4 is dated 16.2.1989. Thus the acquired land has been acquired after about three and a half years of the execution of the sale deed. Therefore, by increasing the said amount by 10% per year, the market value of the acquired land as on the date of Notification under section 4 works out to Rs.98/- per sq.mtr. 8. For the reasons aforementioned, the appeal is partly allowed. The appellant is entitled to receive compensation at the rate of Rs.98/- per sq.mtr. in respect of the acquired land. Needless to mention that the appellant is also entitled to all ... 11 ... the statutory benefits under the Act. 9. The appeal is partly allowed in the aforesaid terms. Considering the facts and circumstances of the case, there shall be no order as to costs. A. P. LAVANDE, J. lh/.