1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 326/2005 1. Smt. Sitabai R. Shirodkar, widow, residing at Anjuna, Bardez, Goa. 1a) Smt. Vandana Vardhaman Shirodkar, w/o. Shri Vardhaman Ramrao Shirodkar, 30 years old, housewife, residing at Hudo vaddo, Chapora, Bardez, Goa. 1b) Smt. Kavita Gajanan Shirodkar, w/o. Shri Gajanan Shirodkar, 29 years old, housewife, residing at Hudo vaddo, Chapora, Bardez, Goa. 2. Shri Vardhaman Ramrao Shirodkar, son, residing at Anjuna, Bardez, Goa. 3. Shri Gajanan Ramrao Shirodkar, son, residing at Anjuna, Bardez, Goa. 4. Shri Vijaykumar Ramrao Shirodkar, son, residing at Anjuna, Bardez, Goa. ....... Appellants. V/s 1. Deputy Collector (LA), Land Acquisition Officer, having office at Panaji, Goa. 2. The Director of Health Services, Government, having his office at Panaji, Goa. ....... Respondents. 2 Mr. Ranjit Satardekar, Advocate for the Appellants. Mr. M. Salkar, Government Advocate for the Respondents. CORAM :- F.M. REIS, J. DATE:- 11th March, 2011. J U D G M E N T : The above appeal challenges the judgment and award dated 20/12/2004, passed by the learned Additional District Judge, Mapusa in Land Acquisition Case No.185/1990. 2. Pursuant to a notification dated 19/11/1987 under Section 4 of the Land Acquisition Act, 1894, hereinafter referred to as 'the said Act', the respondents intended to acquire the land belonging to the appellants admeasuring an area of 2665 square metres from the property surveyed under no.373/6 (part) of the Village of Anjuna, Bardez Taluka for the construction of a rural medical dispensary staff quarters at Shapora. By an award passed by the Land Acquisition Officer under Section 11 of the said Act, the compensation at the rate of Rs.20/- per square metre was offered to the appellants. Being dissatisfied with the said amount, the appellants sought a reference under Section 18 of the said Act for enhancement of the said compensation and claimed a sum of 3 Rs.116/- per square metre, besides severance charges on account of prejudice caused to the appellants due to the proposed acquisition. 3. After recording of evidence and hearing the parties, by the judgment and award dated 20/12/2004, the Reference Court awarded a sum of Rs.10,000/- on account of severance charges and refused to enhance any compensation in respect of the land acquired. Being aggrieved by the said judgment and award, appellants have preferred the present appeal. 4. Shri Ranjit Satardekar, the learned Counsel appearing for the appellants has assailed the impugned judgment and pointed out that the Reference Court has totally misdirected itself in coming to the conclusion that the appellants were not entitled for any enhancement of compensation. The learned Counsel further submitted that the restrictions imposed with regard to the agricultural lands occupied by tenants is only from the year 1991 whereas the acquisition in the present case was much prior to the introduction of the Goa Land Use Act, 1991. The learned Counsel took me through the notes of evidence and pointed out that the appellants have produced a sale instance in the vicinity of the acquired land which discloses that the market value of the acquired 4 land is much higher than the one offered by the Land Acquisition Officer. The learned Counsel has taken me though the impugned judgment and pointed out that the Reference Court has totally misappreciated the evidence on record to come to the erroneous conclusion that the appellants were not entitled for any enhancement of compensation. The learned Counsel further submitted that the impugned judgment has been passed without scrutinizing the evidence on record and, as such, the impugned judgment deserves to be quashed and set aside and, the compensation is to be fixed at a minimum rate of Rs.100/- per square metre. The learned Counsel further submitted that the severance charges as awarded by the Reference Court do not correspond to the damage sustained by the appellants on account of the acquisition and, as such, the severance charges deserve to be enhanced. Learned Counsel further submitted that there was appreciable evidence on record for the Reference Court to grant the severance charges as claimed by the appellants. The learned Counsel, as such, pointed out that the impugned judgment deserves to be modified and the appellants deserve to be awarded enhanced compensation for the land acquired. 5. On the other hand, Shri Salkar, the learned Government 5 Advocate appearing for the respondents has supported the impugned judgment. He pointed out that there is no evidence on record to substantiate that the sale instance produced by the appellants is comparable to the land acquired and that as the land acquired was agricultural land, the question of any potentiality of being used for non-agricultural purpose would not arise. The learned Counsel further submitted that there is no evidence adduced by the appellants to establish any comparability of the land acquired with the sale instance. Learned Counsel, as such, pointed out that there is no reason for interference in the impugned judgment and, consequently, the above appeal deserves to be rejected. 6. Upon hearing the learned Counsel and on perusal of records, the following points for determination arise in the present appeal: POINT FOR DETERMINATION (i) Whether the Reference Court was justified to refuse any enhancement of compensation for the land acquired belonging to the appellants. (ii) Whether the Reference Court was justified to fix the sum of Rs.10,000/- on account of severance charges. 6 7. In support of the claim for enhancement, the appellants have examined as AW1/Shri Vardhaman Ramrao Shirodkar. He has stated on affidavit that there is an agricultural land situated at Anjuna comprising of an area of 17275 square metres which originally belonged to the Communidade of Anjuna and surveyed under no.373/6. He has further stated that his late father took the said land on lease and that his late father was a tenant of the said land surveyed under no.373/6, which was subsequently purchased under the provisions of Agricultural Tenancy Act. He has further stated that by a notification under Section 4, an area of 4100 square metres was intended to be acquired from the said portion of the property surveyed under no.373/6, but however, subsequently in the notification under Section 6, the area came to be reduced to 2665 square metres. He has further stated that the said portion of the property got sub-divided into three small pieces one admeasuring 1435 square metres towards the eastern side and the other piece of about 1350 square metres on the western side and the same cannot be used for any purpose. He has further stated that the said area was in the most prominent locality of Anjuna and adjoining the acquired land a big hotel is located. He has further stated that the amount offered by the Land Acquisition Officer at the rate of Rs.20/- per square metre is too low compared to the 7 value prevailing in the locality. He has further stated that the Land Acquisition Officer ought to have fixed the compensation at the rate of Rs.136/- per square metre. He has further given the location of the land acquired and stated that the acquired land had potential of being used for construction purpose. He has also produced the sale deed dated 24/01/1986 at Exhibit PW1/K and a valuation report at Exhibit PW1/L. He has further stated that on account of the acquisition, the land has become severed and claimed compensation on account of such damages incurred by the appellants and that the land of the appellants got cut off from the Mapusa-Vagator beach road. He, accordingly, claimed for compensation as stated in his affidavit. He has also produced the judgment in tenancy case no.4/1997 which is at Exhibit 28 and the said sale deed dated 24/01/1986 is at Exhibit 34. In the cross- examination, he has admitted that he has been cultivating paddy in the acquired land which was yielding about 10 khandis of paddy. He denied the suggestion that he had not suffered any damage on account of the bifurcation of the land by the appellants. He has denied the suggestion that he is not entitled for any enhancement of compensation. The next witness examined is AW2/Prazares Gonsalves, who is a surveyor. He has deposed that the land of the appellants came to be bifurcated on account of the acquisition and 8 that there is no access to the piece of land admeasuring 1350 square metres from any side. He has further stated that the main portion of the property is located in Anjuna and it is abutting the public road of Mapusa to Vagator beach. He has further stated that on the western side of the acquired portion there is a big hotel known as 'Diamond Hotel' with cottages. He has further stated that the acquired land is 1 kilometre from Vagator beach and 1 kilometer from Chapora market and Chapora beach. He has further stated that the acquired land is a flat land. In the cross- examination, he has stated the width of the road on the eastern side and on the southern side is 10 metres. He has further stated that the eastern portion of the property is not falling within the road widening area. He has further stated that about 240 square metres of the remaining eastern part of the land would go for road widening. The appellants have also examined AW3/Arminio Rebeiro De Santana, who is the son of Mr. Rui A.F. Rebeiro. He has stated that his deceased father was a registered valuer. He has identified the signature of his father on report dated 27/05/1993 as well as in the two plans. The said report and the plans are at Exhibit 43 (colly). In the cross-examination, he stated that he was not aware about the land acquisition case and that he is not aware about the report as he was not associated with his father. 9 AW4/Mauris D'Souza, who has stated that the Confraria of St. Michael Church had auctioned its property and he had purchased the property in such auction. The said property was near the church which he had purchased and was situated 5 kilometres from the Vagator beach. In the cross-examination, he has stated that the property purchased by the sale deed is below the hill and that he had purchased the land for residential purposes. He had denied the suggestion that the sale deed plot is more than 500 metres from the acquired land. Next witness examined is AW5/Indumati Bhavanishankar Jetha, who has stated that her house is located near the beach. She has stated that she is aware where the acquired land is located. She has further stated that there are houses in the vicinity of the said land at a distance of about 5 to 7 kilometres. She has further stated that she has a shop in the property surveyed under no.373/6, which is close to the primary health centre. In the cross-examination, she has admitted that she was not an agricultural tenant. To the suggestion that the price mentioned by her is Rs.250/- to Rs.350/- per square metre in the year 1994, for non agricultural property, she answered that she cannot say. 8. The Reference Court while passing the impugned judgment has relied upon the deposition of AW1 who has stated that it is not 10 possible to construct anything in the acquired land besides agriculture. The learned Judge, as such, came to the conclusion that the acquired land had no potentiality and, consequently, declined to award any enhancement of compensation to the appellants. 9. On perusal of the evidence on record, I find that there is no dispute that the appellants have produced the sale deed dated 24/01/1986 which is at Exhibit 34 wherein an area of 540 square metres was sold for a total sum of Rs.39,400/- which works out to approximately Rs.73/- per square metre. The land which was subject matter of the said sale deed and that in the present acquisition are situated in the same village. No doubt the appellants have not adduced precise evidence on record to establish the extent of the comparability of the land acquired with the sale deed plot, nevertheless, there is no dispute that the appellants have produced a report of a valuer, who has valued the land in his valuation report which is at Exhibit 43 (colly). Considering the said valuation report, there is no dispute that the land acquired was close to Vagator beach and adjoining the road proceeding from Mapusa to Vagator beach. The evidence further discloses that adjoining to the land acquired there was a hotel which was located. 11 The market place and other facilities were within the radius of more than 1 kilometre from the acquired land. Apart from that there is no dispute that the land was acquired in the year 1987 and the restrictions for change of user to tenanted land came only in the year 1991. As such, the finding of the Reference Court that the acquired land, as on the relevant date, could not be used for any other purpose, other than agricultural purpose, cannot be accepted, merely on the basis of the statement of AW1. It is to be noted that his evidence was recorded in the year 2004. At that relevant time, the Act restricting the use of land was already in force. The suggestion put by the respondent to AW5 is also to be considered wherein the respondents admit that the price of Rs.250/- is with regard to non agricultural land as on the relevant date. There is no dispute that the land acquired and the land in the said sale deed plot are from the same village. The land acquired, no doubt, was agricultural land, nevertheless, as on the relevant date, the same had potential of being used for non-agricultural use after compliance in statutory requirements. Apart from that there are restrictions in transfer of such land under the Agrucultural Tenancy Act, 1964. On perusal of the sale deed at Exhibit 34, the land therein appears to be in the nature of an undeveloped plot, suitable for construction, while the land in the present case was an 12 agricultural land, which has statutory restrictions and the use for non agricultural was limited at the relevant time. The land acquired is also located adjoining the road, a hotel and close to the beach. 10. Considering all these factors, I find that the deduction of 45% would be just and proper on account of dissimilarities for fixing the market value of the land in the present case. The price in the said sale deed is at the rate of Rs.73/- per square metre and, after such deduction, the amount works out to Rs.40/- per square metre, approximately, as on the date of Section 4 notification. The first point for determination is answered accordingly. 11. As far as the second point for determination is concerned, the Reference Court has awarded a sum of Rs.10,000/- towards severance charges. On perusal of the evidence on record, I find that there is no substantial material adduced by the appellants to substantiate their claim as to the actual damage sustained on account of the acquisition. Merely because the land is agricultural land, does not by itself entitle the appellants to claim any severance charges unless cogent evidence is brought on record to substantiate damage sustained on account of such severance. The Reference 13 Court has fixed the said compensation at Rs.10,000/-. I find that there is no justification for interference in the said amount awarded by the Reference Court, as the respondents have also not filed any cross-objection. The second point for determination is answered accordingly. 12. In view of the above, I pass the following order: O R D E R (i) The appeal is partly allowed. (ii) The impugned judgment and award dated 20/12/2004 is modified and the appellants are entitled for compensation for the land acquired at the rate of Rs.40/- per square metre. (iii) Needless to state the appellants would be entitled for statutory benefits under Section 23(1-A), 23(2) and Section 28 of the said Act in accordance with law. (iii) The remaining part of the award granting Rs.10,000/- towards severance charges is confirmed. (iv) The appeal stands disposed of accordingly with no order as to costs. F.M. REIS, J. NH/-