1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 112 OF 2000 AND CROSS OBJECTION NO. 1 OF 2001 The Executive Engineer, W.D. XXI (P.H.E.), P.W.D., Fatorda, Margao, Goa. .... Appellant V/s Communidade of Margao through its Attorney having office at Communidade Building, Margao, Goa. .... Respondents Mr. Guru Shirodkar, Addl. Govt. Advocate for the Appellant/Respondent in Cross Objection. Mrs. A. Agni, Advocate for the Respondent/Cross objector. CORAM : A.P. LAVANDE, J. Date of reservation of judgment :4th DECEMBER, 2008 Date of pronouncement of judgment : 17th DECEMBER, 2008 JUDGMENT : The appellant has preferred the above appeal against the award dated 21/02/2000 passed by the District Judge, South Goa, Margao in Land Acquisition Case No. 264/1991 partly allowing the reference. 2. Vide notification issued under Section 4 of the Land Acquisition Act (hereinafter referred to as 'the Act') which was published in the Official 2 Gazette dated 3/10/1986 an area of 2051 sq. mts. of land belonging to the respondent bearing various survey numbers was acquired by the Government for Underground Drainage Scheme to Margao Town. Out of the said area, an area of 500 sq. mts. was bharad land and the remaining area of 1,551 sq. mts. was paddy field. The Land Acquisition Officer awarded compensation at the rate of Rs. 50/- per sq. mt. in respect of the bharad land and Rs. 30/- per sq. mt. in respect of the land shown as paddy filed. Dissatisfied, the respondent sought reference under Section 18 of the Act and claimed Rs. 300/- per sq. mt. in respect of the entire land. 3. In Land Acquisition Case No. 264/1991, the respondent in support of his claim for higher compensation examined 4 witnesses namely Rajendra Talak/AW1, Wilson Fernandes/AW2, Jose Gracias/AW3 and Krishna Prabhudessai/AW4. The appellant examined only one witness namely Shri H.K. Ramesh/RW1. The respondent also relied upon sale deed dated 28/11/1990 which was proved through Rajendra Talak/AW1 and sale deed dated 4/12/1985 which was in respect of agricultural land situated about 700 mts. from the acquired land. The respondent also relied upon the valuation report given by Krishna Prabhudessai/AW4 which was not accepted by the reference Court on the ground that the valuer had visited the plot about 8 years after the acquisition. The reference Court relied upon the sale deed dated 4/12/1985 and after making certain deductions fixed the compensation 3 at the rate of Rs. 165/- per sq. mt. in respect of the bharad land. In respect of paddy field portion of the land the reference Court rejected the reference on the ground that no sale deed or award in respect of the comparable land was produced by the respondent. Aggrieved by the award, the appellant has filed the present appeal. Respondent has filed Cross-objection claiming compensation at the rate of Rs. 300/- per sq. mt. in respect of 1,551 sq. mts. of land and Rs. 135/- per sq. mt in respect of 500 sq. mts. of land. 4. Mr. Shirdokar, the learned Government Advocate appearing on behalf of the appellant submitted that the respondent has not established similarity between the acquired land and the plot sold by sale deed dated 4/12/1985. He further urged that the acquired land belonged to Communidade of Margao and, as such, it was not a free hold land which could have been sold by the Communidade, in view of the provisions of the Code of Communidade. In support of his submission, Mr. Shirodkar relied upon the Division Bench judgment of this Court dated 8/08/2000 in First Appeal No. 158/2003 (Communidade of Sancoale V/s. The Government of Goa & Anr.). He also relied upon the judgment in the case of Kanta Devi & Ors. V/s. State of Haryana & Anr. (2008 (5) ALL MR 969). He therefore urged that the appeal be allowed. 5. Per contra Ms. Agni, the learned Counsel appearing for the respondent 4 submitted that the respondent is entitled to higher compensation both in respect of bharad land and paddy field portion belonging to the respondent. Learned Counsel further submitted that the deductions made by the reference Court are highly excessive and without any justification. Learned Counsel further submitted that under a Code of Communidade there are no fetters on the powers of Communidade to sell its property and therefore no deduction can be made on the footing that land belongs to Communidade. The learned Counsel invited my attention to several provisions of Code of Communidade more particularly, Articles 5, 30, 179 to 181 and 532 of the Code and submitted that there is absolutely no bar for a Communidade to sell its property. The Division Bench of this Court in the judgment reported in 2005 (Supp.) Bom.C.R. 377 in the case of Wireless, Transmitting Station V/s. Communidade of Bambolim has held that land belonging to Communidade is not a free hold land which is not the correct legal position. She therefore urged that this is a fit case for making reference for deciding the issue as to whether the land belonging to Communidade is free hold and whether there are any restrictions on Communidade to sell its land. In support of her submissions, learned Counsel relied upon the following authorities: (1) Pradip Chandra Parija & Ors. V/s. Pramod Chandra Patnaik & Ors. (2002 (1) SCC 1), (2) Sitaram Deoba Maratha V/s. Hawadya Piraji (AIR 1976 BOM 1), (3) Wireless, Transmitting Station V/s. Communidade of Bambolim (2005 (Supp.) Bom.C.R. 377), (4) Communidade of Candolim V/s. Dy. Collector (North) (2005 (Supp.) 5 Bom.C.R. 811), (5) Lucknow Development Authority V/s. Krishna Gopal Lahoti & Ors. (2008 (1) SCC 554), (6) Kasturi & Ors. V/s. State of Haryana (2003 (1) SCC 354), (7) Nelson Fernandes & Ors. V/s. Special Land Acquisition Officer, South Goa & Ors. (2007 (9) SCC 447) 6. I have carefully considered the submissions made by the learned Counsel for the parties and perused the record and the judgment relied upon. In view of the rival submissions, the following points arise for determination in the appeal. (i) Whether the compensation granted by the reference Court at the rate of Rs. 165/- per sq. mt. in respect of bharad land admeasuring 500 sq. mts. is excessive? (ii) Whether respondent is entitled to higher compensation than the one awarded by the reference Court in respect of the entire acquired land admeasuring 2051 sq. mts.? 7. The reference Court refused to rely upon the evidence of the expert Krishna Prabhudessai/AW4 on the ground that he had visited the acquired land almost 8 years after the date of Section 4 notification. The reference Court also refused to accept the report submitted by him. No fault can be found with the finding of the reference Court. The reference Court also rightly did not place reliance upon sale deed dated 28/11/1990 which was executed almost after 4 years from the date of Section 4 notification. The 6 reference Court placed reliance on the sale deed dated 4/12/1985 which was duly proved through Wilson Fernandes/AW2. By the said sale deed an area of 850 sq. mts. was sold at the rate of Rs. 285/- per sq. mt. The said land was also agricultural land and was at a distance of about 700 mts. from the acquired land. The reference Court on the basis of the evidence led held that the bharad land admeasuring 500 sq. mts. was at a lower level by about 1 mt. and, as such, required filling. The reference Court deducted Rs. 60/- per sq. mt. on this count. Since there were 20 coconut trees in the sale deed plot the reference Court deducted Rs. 30/- per sq. mt. and further deducted Rs. 30/- per sq. mt. on the ground that the acquired land had no excess whereas the sale deed plot had excess. Thus the reference Court deducted Rs. 120/- per sq. mt. from the sale deed plot and arrived at the compensation at the rate of Rs. 165/- per sq. mt. in respect of bharad portion of the land. As stated above, in respect of paddy field portion reference Court held that there was no comparable sale instance or award and therefore rejected the reference. 8. I shall first deal with the arguments of Ms. Agni that there are no restrictions on the powers of Communidade in so far as sale of its property is concerned and therefore the ratio led down in the case of Communidade of Sancoale (supra) requires reconsideration. Ms. Agni has placed reliance upon Article 30 of the Code of Communidade in support of of her submission that sale of the Communidade property is permissible. Article 30(4)(f) reads 7 thus: Art. 30. The Communidades have the following powers: 4. To decide over: a) ..., b)..., c)..., d)..., e)..., f) The long leases, sale or exchange of lands. 9. The Division Bench of this Court in the case of Communidade of Candolim (supra) has held that under Articles 179 and 180 the lands belonging to Communidades can be sold only when in liquidation proceedings the assets are found to be inadequate and the land belonging to Communidades cannot be utilised for a purpose which will enhance its market value and the restrictions imposed on such land under the Code of Communidades clearly shows that its free use is not permissible. The Division Bench further held that in view of statutory restrictions, the land belonging to Communidades cannot be compared with other sale instances in respect of the free hold land. 10. In the case of Communidade of Sancoale (supra), the Division Bench of this Court deducted 50% considering the difficulty in making Communidade land marketable. 11. Except Article 30(4)(f) which permits Communidade to decide 8 regarding long leases, sale or exchange of lands, there is no other provision found in the Code of Communidades which permits the sale of the Communidade land except Articles 179 and 180 which permit sale of Communidades land when in liquidation proceedings the assets are found to be inadequate. 12. This being the position, I find it difficult to accept submission of Ms. Agni that there are no fetters on the powers of Communidade from selling its land like any other individual owner of the property. I am also of the considered opinion that the respondent has not made out a case for reference to decide the issue as to whether there are fetters on the powers of Communidade from selling its land or whether the 50% deduction made in the case of Communidade of Sancoale (supra) is legal and justified. There cannot be straight jacket formula for deciding the appropriate deduction while fixing the market rate of the acquired land. 13. As stated above, the reference Court has relied upon sale deed dated 4/12/1985 since the land sold by the sale deed was also agricultural land situated at a distance of about 700 mts. from the acquired land and, as such, was comparable with the bharad land acquired. Since the Division Bench of this Court in the case of Communidade of Sancoale (supra) has deducted 50% on the ground that the land belonged to Communidade, I do not see any 9 reason to take a different view. Following the said judgment, I am of the opinion that 50% deduction has to be made on the ground that the acquired land belongs to Communidade. The reference Court deducted Rs. 60/- per sq. mt., which is almost 20% of the price mentioned, for the purpose of filling the acquired land and Rs. 30/- per sq. mt. i.e. almost 10% on the ground that there were coconut trees in the sale deed plot and another 10% on the ground that there was no excess. Thus, total deduction on this three counts comes to almost 40% vis-a-vis the price mentioned in the sale deed dated 4/12/1985 i.e. Rs. 285/- per sq. mt. I am of the considered opinion that the proper deduction on above three counts should be 20%. Thus, the total deduction in respect of an area of 500 sq. mts. comes to 70%. Thus, the market rate of the said acquired land as on 4/12/1985 comes to Rs. 85.50. Notification under Section 4 that was published on 3/10/1986 which is little less than one year and therefore it would be just and proper to increase the rate by 10%. Thus, the market rate in respect of bharad portion of acquired land as on the date of Section 4 notification comes to Rs. 94/- per sq. mt. 14. In respect of the paddy field portion admeasuring 1,551 sq. mts. as stated above, the reference Court has rejected the reference on the ground that the respondent had not produced any sale deed or award in respect of comparable land. No doubt the respondent did not produce any sale deed or award in respect of an sale of paddy filed. However, the fact remains that 10 paddy field portion of the acquired land is also an agricultural land and although bharad land has better potential than paddy filed, it cannot be said that paddy field had absolutely no building potential or could not have been put to any other use. Considering the fact that there is no evidence that the land was tenanted agricultural land, in my opinion, it would be just and proper to deduct 40% from the value fixed in respect of bharad portion of land. Moreover, the Land Acquisition Officer himself fixed the compensation payable in respect of paddy field portion at 60% of the compensation payable in respect of the bharad land. Therefore, the market rate of the land admeasuring 1,551 sq. mts. as on date of publication of Section 4 notification comes to Rs. 56.40 per sq. mt. which is rounded up to Rs. 56/-. 15. I do not deem it necessary to refer to the authorities relied upon in the course of arguments by Ms. Agni for the respondent inasmuch as there can be no straight jacket formula for finding out what should be the proper deductions made in a case while fixing the market rate of an acquired land vis-a-vis sale deed plot of comparable land. The same depends upon several factors like location, nature, other advantageous and disadvantages vis-a-vis the sale deed plot, etc. In the present case, after comparing the sale deed plot with the acquired land which was bharad land and after making appropriate deductions, I have come to the conclusion that the total deduction would be 11 70% and accordingly fixed the market rate of the bharad land. 16. In view of the above discussion, the market rate in respect of the bharad portion of the acquired land admeasuring 500 sq. mts. is fixed at the rate of Rs. 86/- and in respect of an area of 1,551 sq. mts. which was a paddy filed portion, the market rate is fixed at Rs. 56/- per sq. mt. 17. For the reasons aforesaid, the appeal and the cross-objections are partly allowed. Needless to mention that the respondent is entitled to all the statutory benefits under the Act. In the facts and circumstances of the case, the parties are directed to bear their own costs. A.P. LAVANDE, J. NH/-