1 IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 113/2004. alongwith MISC. CIVIL APPLICATION NO. 617/2010. 1. The Special Land Acquisition Officer, Selaulim Irrigation Project, Gogal, Margao, Goa. 2. The Executive Engineer, Works Division XI, Irrigation Department, Gogal, Margao, Goa. … Appellants. V/s Smt. Vassudha V. Chari, R/o House No. 1542, Char-Rasta, Nagorcem, Canacona, Goa. … Respondent. Ms. Sapna Mordekar, Addl. Government Advocate for the Appellants. Mr. Shivan Dessai, Advocate for the Respondent. CORAM : F. M. REIS , J. DATE : 15 th October 2010 . 2 ORAL JUDGMENT The above appeal challenges the judgment and award dated 20.2.2004 passed by the learned Addl. District Judge, South Goa, Margao in LAC No. 21/1998/C. 2. By notification dated 7.4.1992 under Section 4 of the Land Acquisition Act (hereinafter called the said Act) published in the Official Gazette dated 27.7.1992 different lands were sought to be acquired from village Chapoli, Canacona Taluka for construction of link canal of Minor Irrigation Project. Among the said lands acquired, an area admeasuring 3,200 sq. metres belonging to respondents surveyed under No. 59/1 was also intended to be acquired. By award dated 21.7.1994 the Land Acquisition Officer (LAO for short) offered compensation at the rate of Rs. 3/- per sq. metre for the land acquired besides a sum of Rs. 16,462/- for the trees existing therein. Being dissatisfied with the said amount, the respondent sought reference under Section 18 of the said Act and claimed compensation at the rate of Rs. 50/- per sq. metre. By the said judgment and award dated 20.2.1994, the Reference Court fixed the compensation for the land acquired at the rate of Rs. 20/- per sq. metre. Being aggrieved by the said judgment the appellants have 3 preferred the present appeal. 3. The learned Addl. Government Advocate has assailed the impugned judgment and submitted that the Reference Court has failed to consider that there is no comparability between the land acquired and the sale instance produced by the appellant and as such came to an erroneous conclusion that the respondents were entitled for enhancement of compensation. She further submitted that in First Appeal No. 89/1999, this Court by judgment dated 29.6.2004 had allowed the appeal filed by the State in respect of a notification published in Official Gazette dated 21.7.1988 and the compensation awarded by the Reference Court therein at the rate of Rs. 28/- per sq. metre came to be quashed and set aside. She further pointed out that the sale instance produced by the respondents was not in the same village as the land acquired. She further submitted that the appellants have also filed an application for producing the judgment passed by this Court dated 29.6.2004. The Learned Government Advocate further submitted that in view of the said judgment, the impugned award cannot be sustained and deserves to be quashed and set aside. 4. On the other hand, Mr. Shivan Dessai learned Counsel for the respondent has supported the impugned judgment and submitted 4 that the Special Leave Petition preferred against the said judgment dated 29.6.2004 before the Hon'ble Supreme Court came to be allowed in Civil Appeal No. 1318/2007 by order dated 16.9.2010. He further submitted that the land acquired in the said proceeding and the land which is the subject matter of the present appeal are comparable lands and as such interference in the impugned judgment is not called for. The learned Counsel further submitted that the appeal be rejected. 5. Having heard the learned Counsel and on perusal of the record, the following point arises for my determination in the present Appeal: POINT FOR DETERMINATION 1. Whether the Reference Court was justified to fix the compensation for the land acquired at the rate of Rs. 20/- per sq. metre? 6. Before going through the merits of the matter, I will first consider the above application filed by the appellants for additional evidence to produce the judgment passed by this Court in First Appeal No. 89/1999. The learned Counsel for the Respondents produced the 5 said judgment of the Apex Court whereby the said judgment of this Court has been reversed. As such the said judgment passed by this Court has no value for the purpose of fixing the market value of the acquired land. Consequently the said application stands rejected. 7. In support of the claim for enhancement, the respondent has examined AW1, Shri Damodar Chari. He has stated that through the property of the respondent there is a public road which leads to Chapoli village and the same road can be used in order to come to Canacona. He further stated that the property of the respondent is located at village Chapoli where there are many residential houses within a radius of 100 metres. He has also stated that the land acquired was suitable for construction purpose. He has also stated that at a distance of 500 metres from the acquired land the Government has also acquired land for construction of Chapoli dam and that both the lands were of similar nature having same advantages. He has stated that the Reference Court had fixed the compensation for the said land at Rs. 42/- per sq. metre. He has further stated that the market and school are at a distance of 2 kms. from the acquired land. He has also stated that the land purchased by Agnelo Barreto is similar to the acquired land. He has produced the 6 award dated 6.4.1988 and the sale deed dated 31.10.1988 at exhibit 19. He has also produced the award dated 20.3.2002 in LAC No. 36/1993 which is at exhibit 20. The land acquired in the said proceeding is situated at a distance of 200 metres from the acquired land and at the same level. The land therein was acquired for minor irrigation tank at Chapoli, Canacona. In the cross examination he has stated that the road which was existing has now been submerged and not useable and the Government has provided an alternate road. He has also stated that the nature of the land acquired was bharad land and was used for cashew plantation. He has also stated that the sale deed plot at exhibit 19 is situated next to the petrol pump on the Highway. He has further stated that the land which is subject matter of exhibit 20 was about 200 metres away from the land of the respondent. 8. The next witness who has been examined is Balkrishna Naik Gaonkar who has stated in his affidavit that the land acquired was bharad type of land having cashew trees and forest trees. He has further stated that he is the co-owner of the property surveyed under No. 72/2 which was acquired by the Government and the said land was at a distance of 300 metres from the acquired land. He has 7 further stated that the compensation was enhanced to Rs. 40/- per sq. metre for his land. In his cross examination he has stated that there were no houses around the acquired land but they were close to the internal road going to Nagarcem. He has also admitted that the award passed in his favour was under challenge before this Court and has not become final. 9. The Reference Court whilst passing the impugned judgment has found that the sale deed which is dated 31.10.1988 was in respect of an area of 1500 sq. metres which was sold at Rs. 60/- per sq. metre. This plot was at Palolem Canacona and was bounded on the East by National Highway No. 17. The sale deed plot was found to be superior to the land acquired and was at a distance of 2 kms. apart. The Reference Court after considering the gap between the date of the sale deed of the notification under Section 4 of the Act has given an escalation of 10% per annum and has arrived at the figure at Rs. 75/- per sq. metre as on the date of notification and thereafter effected the deductions on account of the disadvantages and similarities. The Reference Court has deducted 20% as the acquired land was cultivable land and another 20% as the sale deed plot was next to National Highway No. 17 and situated at Palolem. A further 8 deduction of 15% was effected as the land acquired was undeveloped and sale deed plot was sub-divided plot and as such the price of Rs. 20/- per sq. metre is fixed as on the date of Section 4 notification. 10. On perusal of the evidence on record and the sale instance produced by the respondents, I find that the Reference Court after detail analysis of the evidence on record has fixed the market value of the acquired land at Rs. 20/- per sq. metre. The Reference Court after taking into consideration that the sale deed plot was sub- divided plot has given the necessary deductions on account of dissimilarities. The Reference Court has also effected the deductions on the ground that the land acquired was not close to National Highway. Considering the overall evidence on record, I find no infirmity in the judgment passed by the Reference Court. 11. Apart from that, from the judgment passed by the Apex Court in Civil Appeal No. 1318/2007 pertaining to the land which was acquired by the Government for the construction of the minor irrigation tank at Chapoli village in Canacona Taluka by notification issued on 21.7.1988, I find that the Apex Court has affirmed the value of the land at Rs. 28/- per sq. metre for the bharad land and Rs. 15/- 9 per sq. metre for the paddy field portion. The land acquired is also found to be partly paddy fields and partly garden type land. The Reference Court has awarded consoled amount of Rs. 20/- per sq. metre for the land acquired. The land in the present case was also acquired for the link canal for the same project. As such, I find that the market value fixed by the Reference Court at the rate of Rs. 20/- per sq. metre cannot be said to be excessive. The Reference Court after deducting a sum of Rs. 8/- per square metre paid by the LAO has directed the payment of excessive amount of Rs. 12/- per sq. metre for an area of 3,200 sq. metres which has been acquired. I find no reason to interfere in the fixation of the said amount. The point for determination is answered accordingly. 12. In view of the above, there is no merit in the above appeal. The appeal stands dismissed with no order as to costs. 13. The above application also stands disposed of. F. M. REIS, J. MF/-