-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 91 OF 2007 Shri Ajit Rajaram Kantak, major, married, Advocate, resident of Plot 16, Caculo Colony, Miramar, Panaji. .....Appellant V e r s u s 1. Deputy Collector (LA), Land acquisition Officer, Collectorate, Panaji, Goa. 2. The Director of Tourism, Department of Tourism, Patto, Panaji, Goa. …...Respondents Mr. Sudin M. S. Usgaonkar, Advocate for the Appellant. Mr. G. Shirodkar, Government Advocate Respondents nos.1and 2. CORAM : A. S. OKA F. M. REIS, JJ. Judgment Reserved on : 15 th June, 2010. Judgment Pronounced on : 12 th August, 2010. JUDGMENT (Per F. M. Reis, J.) The Appeal challenges the Judgment and Award dated 16th November, 2006, passed by the learned District Judge-2, North Goa, Panaji, in Land Acquisition Case no. 35/1997, whereby the reference under Section 18 of the Land Acquisition Act preferred by the Appellant, came to be partly allowed. 2. By a Notification under Section 4 of the Land Acquisition Act, 1894, (hereinafter referred to as 'the said Act'), bearing no.22/154/93-RD dated 3rd -2- January, 1994, the land of the Appellant situated at Miramar, Panaji, came to be acquired for “Tented Accommodation for Tourists”, admeasuring an area of 4267 square metres. By an Award of the Land Acquisition Officer dated 22nd April, 1996, the compensation was fixed at the rate of Rs.210/- per square metre besides a sum of Rs.78,800/- towards trees existing in the acquired land and a sum of Rs.39,886/- for the structure of a platform located in the portion of the property surveyed under Chalta no. 1-A of P. T. no. 118. Being dissatisfied with the said compensation, the Appellant sought a reference under Section 18 of the Land Acquisition Act, claiming compensation of Rs.3,000/- per square metre for the land acquired besides Rs.78,800/- for the structure and Rs.15,000/- for the trees. Apart from that, the Appellant has also claimed compensation on account of severance in respect of the portion of the land admeasuring 200 square metres. After recording of evidence and hearing the parties, the Reference Court by the impugned Judgment dated 16th November, 2006, partly allowed the said reference and awarded a compensation for severance at the rate of Rs. 34/- per square metre and rejected the remaining claim put forward by the Appellant. 3. Being aggrieved by the said Judgment and Award, the Appellant has preferred the present Appeal. 4. The learned Counsel appearing for the Appellant submitted that the Reference Court has totally erred in refusing to award compensation for the land acquired. The learned Counsel further submitted that though the area of one land of the Appellant was less than 4000 square metres and was located in the 'P' Zone under the Planning & Development Authority (Development Plan) Regulations -3- 1989, nevertheless, the land had potentialities of being used for the purposes permitted therein by amalgamating the land acquired with adjoining properties. The learned Counsel further submitted that the Appellant is entitled not only on the basis of 'P' Zone for which the same can be used but also considering the potentiality of being used for optimum use in accordance with the statutory regulations. He further submitted that the land of the Appellant was located in the strategical locality of Panaji not very far from the river Mandovi and as no land was available in the locality, the value for the land of the Appellant was substantial. The learned Counsel further submitted that the Reference Court has failed to consider the potentiality of the said land by refusing to award compensation for the land acquired. He further submitted that in the adjoining land which was also acquired for the said purpose, the Reference Court had awarded compensation at the rate of Rs.1,439/- per square metre and the said land was subject matter of the Appeal before this Court being First Appeal no. 241/2005. He further submitted that in case the land of the Appellant had to be amalgamated with the said land, both the lands could be easily developed and such possibility could be considered by the Reference Court to arrive at the market value of the land as on the date of Section 4 Notification. He further submitted that the land of the Appellant was at a distance of 50 metres from Miramar Traffic Circle and had good commercial value considering its location at the site. He further submitted that the Appellant had even sought permission from the authorities to enable him to construct a marriage/ceremony hall. He further submitted that the Reference Court has misconstrued the Judgment of the Apex Court reported in ((1995) 2 S.C.C. 305) in the case of P. Ram Reddy vs. Land Acquisition Officer, inasmuch as the said Judgment supports the case of the Appellant to the effect that the potentiality of the -4- land can be considered for the purpose of arriving at the market value of land. The learned Counsel has further submitted that the Appellant has produced Sale Deed at exhibit 42, wherein a plot of land of 560 square metres was sold at the rate of Rs.1,750/- per square metre, which is located at a distance of 650 to 700 metres from the acquired land and, as such, he submitted that the Sale Deed could have been considered for the purpose of arriving at the market value of the land acquired. He further submitted that the Sale Deeds have been produced in support of the claim for enhancement of compensation in respect of plots located in the vicinity of the acquired land which demonstrate that the compensation awarded by the Land Acquisition Officer was inadequate. He further submitted that the Reference Court erred in relying upon the Sale Deed in respect of the acquired land for determining the compensation of the land acquired. The learned Counsel has further submitted that the Reference Court has erred in awarding compensation for severance only at the rate of Rs.34/- per square metre. The learned Counsel has further submitted that the Appellant had also claimed a compensation for the trees existing in the acquired land of Rs.15,000/- as well as a sum of Rs.78,800/- towards the value of the structure. The learned Counsel submitted that the claims for various trees which were cut in the year 1984 for which no compensation was awarded by the Land Acquisition Officer. The learned Counsel as such submitted that the Appellant is entitled for enhancement of the compensation for the land acquired apart from the compensation for the trees and the structure besides the value towards severance. 5. On the other hand, the learned Government Advocate Shri Shirodkar, has disputed the contentions advanced by the learned Counsel for the Appellant. -5- The learned Counsel has taken us through the provisions of the Planning and Development Authority (Development Plan) Regulations 1989 and submitted that there is no dispute that the land of the Appellant was located in 'P' Zone. The user which is prohibited in the said Zone consists of the user for industry, wholesale trade, ware housing, storage, airports, air station, electrical power plant and gas works. All other uses other than specified above are permitted. He further submitted that the minimum size of plot for such activity has to be 4000 square metres and, considering that the plot of the Appellant is admittedly less than 4000 square metres, the question of using the said land for any other purpose, does not arise at all. He further submitted that the Appellant was attempting to put up a structure which he was unsuccessful in view of the objections raised by the statutory authorities. He further submitted that the Sale Deed plots produced by the Appellant cannot be comparable to the land acquired as, admittedly, the Sale Deed plots are not located in the 'P' Zone. He further submitted that the Appellant himself has purchased the land at the rate of Rs.21/- per square metre and, considering the amount awarded by the Land Acquisition Officer to Rs. 210/- per square metre, the Appellant is not entitled for any such enhancement of compensation. The learned Government Counsel further submitted that there is no appreciable evidence adduced by the Appellant to substantiate his claim for the value of the trees as well as the structure existing therein. The learned Government Counsel further submitted that the Appellant is not entitled for any enhancement of compensation nor has he brought any evidence on record substantiating their claim to that effect. The learned Government Counsel further submitted that the contention of the learned Counsel for the Appellant that the land of the Appellant had potentialities of being amalgamated with the adjoining land, is -6- far fetched inasmuch as there is nothing on record to substantiate any such intention nor that there was any proposal to that effect at the time of Section 4 Notification. The learned Counsel further submitted that such submission depends upon speculations which cannot be considered for the purpose of determining the compensation of the land acquired. The learned Counsel as such submitted that the Reference Court has minutely considered the evidence on record and no interference is called for in the impugned Judgment and Award passed by the Reference Court. 6. On the basis of the submissions advanced by the learned Counsel and on perusal of the record, the following points arise for my determination. POINTS OF DETERMINATION 1. Whether the Appellant is entitled for enhancement of the compensation as offered by the Land Acquisition Officer in the award under Section 11 of the Land Acquisition Act ? 2. Whether the Appellant is entitled for any compensation on account of the trees existing in the acquired land and compensation for the structure existing therein ? 3. Whether the Appellant is entitled to any enhancement towards the value of the land on account of severance in view of the acquisition of the land of the Appellant ? 7. Dealing with the first point of determination, we find that there is no -7- dispute that the area of the land acquired in the present acquisition, admeasures 236 square metres under Chalta no. 1/A and 3134 square metres under Chalta no.1/B of P.T. Sheet no. 118 of Panjim City. The total area as such adds up to 3370 square metres. There is no dispute that the land acquired falls within zone 'P' under the Planning & Development Authority (Development Plan) Regulations 1989. The said regulations provide that the minimum size of the plot has to be 4000 square metres. As the acquired land in the present proceedings and the remaining land of the Appellant does not meet the minimum size plot specified in 'P' Zone, the acquired land prior to the acquisition could not be used for any development purpose. In fact, Aw.1, in his deposition has admitted that he had applied to the North Goa Planning and development Authority for clarifying the zoning of the land acquired as per his letter dated 16th December, 1994, at exhibit 22. As per the reply received by Aw.1, he was informed that the acquired land was shown in 'P' zone. Aw.1 has also deposed that the Planning and Development Authority had raised two objections with regard to his intending project of constructing a marriage/ceremony hall by amalgamating Chalta no. 1/A and 1/B of P.T. Sheet no. 118. The first objection was that the entire plot did not admeasure 4000 square metres and the second was that there was no direct road abutting to the said land. In view of the said admitted position that the minimum requirements of the plot size were not available for the land acquired in the present proceedings, the land cannot be considered to have any potentiality of being used for development purposes. The Learned Counsel appearing for the Appellant relying upon the Judgment of the Apex Court reported in P. Reddy & Ors. V/s. Land Acquisition Officer, Hyderabad, Urban Development Authority, Hyderabad & Ors. (supra) submitted that the land had potentiality if the same was amalgamated -8- with other adjoining land jointly. He further submitted that even the land which was subject matter of the present acquisition could be amalgamated with the adjoining land belonging to Agnel Pinto for the purpose of carrying out a joint project. In view of such possibility, the learned Counsel submitted that the land acquired had potentiality of being used for development purposes. We are afraid that we cannot accept the said contention of the learned Counsel appearing for the Appellant as there is no material on record to substantiate the said contention. There is no evidence adduced by the Appellant to show that there was any possibility on the part of the Appellant amalgamating with the lands of Shri Agnelo Pinto whose land was also acquired in the same Notification. There is no evidence adduced of any remote possibility on that count. Accepting such contention, to ascertain that the potentiality of this land acquired, would be very speculative. Such possibility would depend on many improbabilities which cannot be the basis for this Court to come to the conclusion that the land had potentialities of being used for development purposes. Unless there was specific material on record to demonstrate about the existence of such an arrangement, this Court cannot come to the conclusion that the land acquired in the present acquisition could have potentiality of being used for development. 8. In 2009 (11) S.C.C. 164, in the case of Karnataka Urban Water Supply and Drainage Board & Ors. vs. K. S. Gangadharappa & anr., the Apex Court has held at Para 8(8), (17) and 9 thus : “8. “16. … 8. In Suresh Kumar v. Town Improvement Trust, in a case under the Madhya Pradesh Town Improvement Trusts -9- Act, 1960, this Court held that the rates paid for small parcels of land do not provide a useful guide for determining the market value of the land acquired. While determining the market value of the land acquired, it has to be correctly determined and paid so that there is neither unjust enrichment on the part of the acquirer nor undue deprivation on the part of the owner. It is an accepted principle as laid down in Vyricherla Narayana Gajapatiraju v. Revenue Divl. Officer that the compensation must be determined by reference to the price which a willing vendor might reasonably expect to receive from the willing purchaser. While considering the market value disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy it must alike be disregarded; neither must be considered as acting under any compulsion. The value of the land is not to be estimated as its value to the purchaser. But similarly this does not mean that the fact that some particular purchaser might desire the land more than others is to be disregarded. The wish of a particular purchaser, though not his compulsion may always be taken into consideration for what it is worth. Section 23 of the Act enumerates the matters to be considered in determining compensation. The first criterion to be taken into consideration is the market value of the land on the date of the publication of the notification under Section 4(1). Similarly, Section 24 of the Act enumerates the matters which the Court shall not take into consideration in determining the compensation. A safeguard is provided in Section 25 of the Act that the amount of compensation to be awarded by the Court shall not be less than the amount awarded by the Collector under Section 11. Value of the potentiality is to be determined on such materials as are available and without indulgence in any fits of imagination. Impracticability of determining the potential value is writ large -10- in almost all cases. There is bound to be some amount of guesswork involved while determining the potentiality.” 17. The deduction to be made towards development charges cannot be proved in any straitjacket formula. It would depend upon the facts of each case. 9. It is right as contended by the learned Counsel for the respondents that deductions can be made for development. But the deductions have to be made from some definite figure. In the instant case the High Court has not indicated any basis but has come to an abrupt conclusion that the claim of the owners for enhancement has to be accepted but not for Rs.9,00,000 per acre as claimed but at Rs/4.00,000 per acre. Market value has a definite concept and it cannot be evaluated without any foundation or basis.” In view of the said Judgment of the Apex Court, the sale instances produced by the Appellant are not comparable as the lands therein are not subject to statutory restriction in the case of the land acquired and, as such, cannot form a basis to determine the market value of land. Hence, the Reference Court was justified in coming to the conclusion that as the land acquired did not meet the requirements of the minimum plot size of 4000 square metres, it had no development potentiality. The potentiality of the land has to be assessed on the basis of some material adduced by the claimant. Unless there is such material, the Court cannot determine the potentiality on abstract basis. As such, we find that the land acquired had no potentiality for being used for development purposes as on the date of Section 4 Notification. 9. The learned Counsel appearing for the Appellant submitted that the -11- land acquired in the present proceedings and the land acquired in First Appeal No. 141/2005 are of similar nature and the Appellant is entitled for the same compensation. The said contention cannot be accepted. Even the lands in the same notification can have different potential values depending upon the statutory regulations. In the present case, admittedly the land in First Appeal No.141/2005 had an area of more than 4000 square metres, which is not the case with the land in the present acquisition. As such, the said land cannot be compared with the land in the present acquisition. For the purpose of determining the market value of land acquired, it is well settled that sale instance in respect of the same land would be a safe basis to arrive at the market value of the land acquired, in cases in which there are no other comparable sale instances. In the present case, the Sale Deed in respect of the land acquired is at exhibit 54. The Sale Deed is dated 28th December, 1988, in respect of the same land which is the subject matter of the present acquisition. Even assuming 10 percent escalation is given on the said amount for 5 years on cumulative basis, the amount works out to Rs.34/- per square metre. The Land Acquisition Officer has awarded a sum of Rs.220/- per square metre. As such, we find that no case is made out by the Appellant for enhancement of compensation as awarded by the Land Acquisition Officer. Hence, we find that the Reference Court was justified in refusing any enhancement of compensation on the market value of land acquired in the present proceedings. The first point for determination is answered accordingly. 10. The next point for determination is whether the Appellant is entitled to a sum of Rs.15,000/- towards the trees which existed in the acquired land and, secondly, a sum of Rs.78,800/- towards the value of the structure. There is no -12- dispute that the Land Acquisition Officer had paid a sum of Rs.77,800/- to the Appellant towards the value of the tress existing in the acquired land. It is the contention of the Appellant that the said trees were valued in the year 1996, but earlier to that in the year 1994, the Forest Officer had auctioned Cajuarina trees which were standing and fallen in the acquired land. The auction was taken by Shri Ramnath Saw Mill and a sum of Rs.15,000/- was deposited in the Forest Department. There was correspondence exchanged between the Appellant and the Forest Department in November, 1994 , which is after the Section 4 Notification in the present case. It is further his contention that the said trees were removed and cut between Section 4 Notification and the date when the valuation was done in 1996 and, hence, he is entitled to a sum of Rs.15,000/- on account of the said trees. There is no challenge to the said aspect in the cross examination about the existence of the said tress as on Section 4 Notification and the cutting of the trees by the Forest Department between the date of Section 4 Notification till the date of valuation in 1996. As such, as the said trees were existing as on the date of Section 4 Notification, the Appellant would be entitled for the value of the said trees. The Reference Court has rejected the said contention on the ground that the Appellant has admitted that the said trees were planted by the Forest Department. It is not disputed that the land where the said trees were existing belonged to the Appellant. The Land Acquisition Officer himself had paid a sum of Rs.78,800/- for such trees which were existing in the year 1996 when the valuation was carried out, hence, admittedly, the Forest Department did not put up a claim for such trees which were existing on the date of its valuation. Hence, the Appellant cannot be deprived of the value of the trees which were existing on the date of Section 4 Notification on the ground that the trees are alleged to have been planted by the -13- Forest Department. Hence, the Appellant is entitled for the said sum of Rs.15,000/- towards the value of the trees as the amount is not disputed by the Respondents. With regard to the claim of the Appellant towards the structure existing in the said land, Aw.1 in his affidavit in evidence has deposed that he had carried out the valuation of the said structure from an approved valuer who had fixed the valuation of structure at Rs.78,800/-. He has produced the report of such valuation at exhibit 38. In the cross examination of Aw.1 there is no serious challenge to the said report nor to the existence of the said structure and the valuation thereof. Aw.3 has also deposed that as per the PWD rates then prevailing at the rate of Rs.2,880 per square metre, the value of the said structure works out to Rs.78,800/-. In the valuation report at exhibit 38, we find that it is stated that the plinth of the structure had a load bearing foundation and it was complete and finished with red cement flooring on which a structure was erected for provisional shelter. It is further stated that w.e.f. 1st April, 1993, vide an Office Memorandum dated 21st April, 1993, the rates of buildings are fixed at the rate of Rs.2880/- per square metre. The plinth cost at 12% of the above rates works out to Rs. 345.60 per square metre and the costs of the existing completed plinth admeasuring 226 square metres after some deduction on account of depreciation is fixed at Rs.78,800/- excluding the land value. The said facts were also confirmed by Aw3 who is the son of the said valuer and is also an Architect. Aw.3 in para 12 of his affidavit has also confirmed that the value of the plinth structure is Rs.78,800/-. As there is evidence adduced by the Respondents to rebut the said evidence adduced by the Appellant, we find that the Appellant is entitled to a sum of Rs.78,800/- as the value of the said structure. As stated by AW.1 in his deposition, a lumpsum amount of Rs.36,886/- was awarded by the Land Acquisition Officer as compensation for the structure. As such, the -14- Appellant would be entitled for enhanced amount of Rs.41,914/- on account of the said structure. We, accordingly, hold that on account of the said trees and the structure, the Appellant is entitled for a sum