:1: IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 91 OF 2010 AND CROSS OBJECTION NO. 9 OF 2010 FIRST APPEAL NO. 91 OF 2010 1. The Special Land Acquisition Officer, Salaulim Irrigation Project, Water Resources Department, Gogol, Margao Goa. 2. The Executive Engineer, Works Division VI ( R & B), P.W.D., Fatorda, Margao. ... Appellants V e r s u s 1. Shri Durga Bhiku Nadkarni, Major in age, married and his wife, 2. Smt. Milan Durga Nadkarni, Major in age, housewife, both above residents of house No.4B, Cotto Waddo, Sanguem Goa. 3. Shri Govind Bhiku Nadkarni, major in age, married, and his wife, 4. Smt. Sushma Govind Nadkarni, both above permanent residents of house No.69A, Gundeabhat, Sanguem Goa and Temporary resident of TFI, III Floor, Paramount Shopping Complex, Navelim, Salcete Goa. :2: The above Respondent Nos. 1, 2 and 4 are represented herein by their Constituted Attorney Shri Govind Bhiku Nadkarni, the Respondent No.3 by virtue of Power of Attorney under No. 3374/2008 dated 4/6/2008 before Notary Rajendra T. Naik. ... Respondents. Mr. M. Salkar, Additional Government Advocate for the Appellants. Mr. S. Kakodkar, Advocate for the Respondents. AND CROSS OBJECTION NO. 9 OF 2010 1. The Special Land Acquisition Officer, Salaulim Irrigation Project, Water Resources Department, Gogol, Margao Goa. 2. The Executive Engineer, Works Division VI ( R & B), P.W.D., Fatorda, Margao. ... Original Appellants /Respondents ) V e r s u s 1. Shri Durga Bhiku Nadkarni, Major in age, married and his wife, 2. Smt. Milan Durga Nadkarni, Major in age, housewife, both above residents of house No.4B, Cotto Waddo, Sanguem Goa. :3: 3. Shri Govind Bhiku Nadkarni, major in age, married, and his wife, 4. Smt. Sushma Govind Nadkarni, both above permanent residents of house No.69A, Gundeabhat, Sanguem Goa and Temporary resident of TFI, III Floor, Paramount Shopping Complex, Navelim, Salcete Goa. The above Respondent Nos. 1, 2 and 4 are represented herein by their Constituted Attorney Shri Govind Bhiku Nadkarni, the Respondent No.3 by virtue of Power of Attorney under No. 3374/2008 dated 4/6/2008 before Notary Rajendra T. Naik. ... Original Respondents /Cross objectors. Mr. S. Kakodkar, Advocate for the Cross objectors/original Respondents. Mr. M. Salkar, Additional Government Advocate for the Respondents/original Appellants. CORAM : A. S. OKA, J DATED : 13th AUGUST, 2010. ORAL JUDGMENT The Appellants have taken an exception to the judgment and award dated 8th April, 2009 passed by the learned District Judge in a reference under Section 18 of the Land :4: Acquisition Act, 1894 ( hereinafter referred to as 'the said Act' ). 2. The Notification under Section 4(1) of the said Act was published in the Official Gazette on 10th March, 2005. The land was notified for public purpose of the construction of Nangillo-Masconi road in Cuncolim Village of Salcete Taluka. The acquisition relates to the land admeasuring 91 square metres out of the land surveyed under survey No. 355/3 ( part ), land admeasuring 235 square metres surveyed under survey No. 266/25 (part ), land admeasuring 1125 square metres surveyed under survey No. 267/4 ( part ) and land admeasuring 917 square metres surveyed under survey No. 267/3 ( part ). By an award under Section 11 of the said Act, the market value was offered at the rate of Rs.100/- per square metre. In the reference, the claim made by the Respondents ( original Applicants ) was for the market value at the rate of Rs.714/- per square metre. 3. By the impugned judgment and award , the learned Reference Court enhanced the market value of the acquired land at Rs.357/- per square metre except the land surveyed under survey No. 355/3 for which the market value was fixed at Rs. 285/- per square metre. There is a cross objection filed by the Respondents :5: ( original Applicants ). 4. The learned Additional Government Advocate has taken the Court through the impugned judgment and the record of the case. He submitted that the Reference Court has committed an error by relying upon the judgment and award in Land Acquisition Case No. 19/2006 ( Exhibit C-31) in as much as there was no evidence on record to show that the land subject matter of the said award was comparable to the acquired land. He submitted that for the same reason the sale instance at Exhibit C-24 could not have been considered. He submitted that as far as the land bearing survey No. 355/3 is concerned, the area thereof is only 91 square metres which was abutting a public road which is covered by the set back area. He submitted that the building potential of the said land could not have been considered at all. 5. The learned Counsel appearing for the Respondents submitted that the acquired lands are situated within the municipal limits of Cuncolim Municipal Council having all the infrastructure and facilities. He submitted that the acquired land had potential for residential and commercial use. He submitted that the total deduction of 50% made by the Reference Court is completely :6: erroneous. He submitted that in fact the deduction of 40% made towards the cost of the development is excessive. He submitted that the deduction of 10% made in addition to the deduction of 40% has no legal basis. He submitted that in any case, there was no reason for the learned Reference Court to treat the land surveyed under survey No. 355/3 differently from the other lands. He submitted that all four pieces of land are contiguous pieces of land and, therefore, there was no reason to hold that merely because the area of the land surveyed under survey No. 355/3 is only 91 square metres, a further deduction of 10% ( total 60% ) was required to be made. 6. I have carefully considered the submissions and I have perused the record of the case. Before dealing with the evidence adduced by the Respondents ( original Applicants ), it will be necessary to make a reference to the findings recorded by the Reference Court. After considering the evidence adduced by the Respondents, the Reference Court came to the conclusion that the judgment and award in Land Acquisition Case No. 19/2006 can be taken as the basis for assessing the market value of the acquired land. The learned Judge observed that the market value of the similar type of land as of the year 2000 can be taken as Rs.444/- per :7: square metre for determining the market value of the acquired land. The learned Reference Court made a deduction of 50% in respect of the lands surveyed under survey No. 266/25, 267/3, and 267/4. 10% more deduction was made in respect of the land surveyed under survey No. 355/3 as the area of the said land was only 91 square metres. 7. Before adverting to the evidence regarding the market value of the acquired land, it must be noted here that except for the fact that the area of the land surveyed under survey No. 355/3 is 91 square metres, there is no other factor which is brought on record on the basis of which the said land can be treated differently from the remaining part of the acquired land. 8. The Respondents examined the third Respondent who relied upon a sale deed dated 11th May, 1999 in respect of alleged undeveloped land admeasuring 408.50 square metres out of survey No. 355/3 which was sold at the market value of Rs.403/- per square metre. The first witness examined by the Respondents stated that the land subject matter of the sale deed was adjacent to the acquired land. He also relied upon the judgment and award in Land Acquisition Case No. 19/2006. The said land acquisition case :8: was a reference under Section 18 of the said Act in respect of an area of 675 square metres out of the land surveyed under survey No. 355/3. The witness deposed that the acquired land was similar to the land subject matter of the said land acquisition case in all respects. Apart from the aforesaid two documents, the Respondents produced Form I & XIV in respect of the lands in question. The Respondents relied upon the valuation report of Mr. Mahendra S. Kakule. 9. As far as the award at Exhibit C-31 relied upon by the Respondents is concerned, the same related to the land surveyed under survey No. 355/3 admeasuring 675 square metres. The Notification under Section 4(1) of the said Act in respect of the said land is published on 13th July, 2000. The Applicants in the said land acquisition case were the Respondents herein. It must be noted at this stage that one of the lands subject matter of the present acquisition also forms part of the land surveyed under survey No. 355/3 which was the subject matter of the Land Acquisition Case No. 19/2006. Therefore, the Reference Court was justified in treating the said award as the basis for determination of the market value. By the judgment and award at Exhibit C-31, the Reference Court fixed the market value of the land subject matter :9: of the said reference at Rs. 178/- per square metre which will have to be treated as the market value as of July, 2000. It must be noted here that the market value of Rs. 178/- was arrived at after making 60% deduction from the market value at the rate of Rs.444/- per square metre. 10. Reliance was placed by the Respondents on the sale deed dated 11th May, 1999. The sale deed relates to an area of 408.50 square metres. The sale instance is of May, 1999. When the award in respect of a part of the same land held by the Respondents is available, the same will have to be preferred to the sale deed at Exhibit C-24. If the market value of 2005 is calculated on the basis at the rate of Rs.178/- per square metre as of 2000 by giving 10% escalation on cumulative basis, the market value as on the relevant date i.e. 10th March, 2005 will be approximately Rs.286.67. In this case, we are dealing with the relevant date of the year 2005 in respect of the land situated within the municipal limits. Considering the fact that the acquired land was in urban area (within municipal limits ), escalation of the market value from the year 2000 to 2005 will have to be taken at the rate of 15% per year on cumulative basis which will be around Rs.357/- or Rs.358/- per square metre. In the circumstances, the market value arrived at :10: Rs.357/- per square metre by the Reference Court cannot be faulted with. Therefore, no case for grant of enhancement in market value above Rs.357/- per square metre is made out. 11. There was no reason for the learned Reference Court to treat the land surveyed under survey No. 355/3 differently by making 10% additional deduction for arriving at the market value of the said portion of the land at Rs.285/- per square metre. Though the area of the said portion is only 91 square metres, it is part of the larger contiguous land which was acquired. Therefore, the market value of the said portion of the land will have to be also fixed at Rs. 357/- per square metre. Therefore, the Appeal preferred by the Appellants must fail. The cross objection will have to be allowed only to the aforesaid extent. 12. Hence, I pass the following order :- O R D E R (A) The Appeal is dismissed with no order as to costs. The cross objection is partly allowed with no order as to costs. (B) The impugned award is modified by enhancing the market value of the land surveyed under survey No. 355/3 to :11: Rs. 357/- per square metre. The enhanced amount to be deposited with the Reference Court within eight weeks. Rest of the award is not disturbed. (C) Civil Application No. 102 of 2010 does not survive and the same is accordingly disposed of. A. S. OKA, J at*