1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 267 OF 2007 1. Shri Sawaivir Sadassiva Rajendra Bassavaling Raje Wadiyar, 2. Smt. Padmavati Raje Wadiyar, both deceased represented by their legal heirs. 1a) Smt. Umadevi Raje Wadiyar, 1b) Shri Bassavaling Sadashiva Rajendra Wadiyar Raje. 1c) Smt. Vasundhara Raje Wadiyar, 1d) Shri Madhuling Naguesh Rajendra Wadiyar, all r/o. Shivtirtha Palace, Bandora, Ponda, Goa. ....... Appellants. V/s 1. Deputy Collector & S.D.O. L.A.O. Quepem, Goa. 2. Ex. Engineer, Works Division XIV (NH), P.W.D., Fatorda, Margao. ........ Respondents. Mr. R.G. Ramani, Advocate for the appellants. Mr. A. Kamat, Addl. Govt. Advocate for the respondents. CORAM :- A.S. OKA & F.M. REIS, JJ. Date of reserving the judgment : 05/07/2010 Date of pronouncing the judgment : 29/07/2010 2 J U D G M E N T : (Per A.S. OKA, J.) The original claimants in a reference under Section 18 of the Land Acquisition Act, 1894 have preferred the present appeal for challenging the Judgment and Award dated 25th April, 2007 passed by the reference Court by which the reference made at their instance has been rejected. 2. The acquired lands are situated at Poiguinim, Taluka Canacona. The survey numbers and the area of portions forming part of the acquired lands are as under : Survey No./Sub-division Nos. Area in Sq. meters. 188 part 9200 185/34 2720 170/24 360 176 4410 189/1 16420 186/1 1085 170/40 60 3. The notification under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as “the said Act”) was published in the Official Gazette on 7th July, 1988. The purpose of 3 acquisition was the construction of an approach road to Talpona- Galjibag bridge, Karwar side Phase-II. The Land Acquisition Officer, by an Award under Section 11 of the said Act, offered market value at the rate of Rs.17/- per sq. meter for the land surveyed under survey Nos. 188/1, 176 and 170/40. In respect of lands surveyed under survey Nos.186/1 and 170/24, the market value was offered at the rate of Rs.12/- per sq. meter. The appellants were held entitled to only 50 % of the market value as the said lands were tenanted lands. As far as the land surveyed under survey No.185/34 is concerned, for an area of 2707 sq. meters, the market value was offered at the rate of Rs.17/- per sq. meter, and for an area of 13 sq. meters, the market value was offered at the rate of Rs.5/- per sq. meter. Apart from the market value of the lands, compensation on account of trees was offered in respect of all the plots of land, except lands surveyed under Survey Nos.186/1 and 170/24 which were tenanted lands. Apart from granting compensation on account of trees, a sum of Rs.2,018/- was offered in respect of a well on the acquired land. 5. In the reference under Section 18 of the said Act, various claims were made by the appellants. The claim for the market value was at the rate of Rs.50/- per sq. meter. As stated earlier, by the 4 impugned Judgment and Award, the reference has been rejected. 6. The learned Counsel appearing for the appellants has taken us through the notes of evidence and other material on record. He has also taken us through the impugned Judgment. The learned Counsel submitted that the relevant date for determination of the compensation in the present case is 19th September, 1988, on which day the provisions of the Goa Land Use (Regulation) Act, 1991 were not applicable and, therefore, as regards the lands surveyed under Survey Nos.186/1 and 170/24, the compensation ought to have been awarded by taking into consideration the potential for non-agricultural use of the said lands. He invited our attention to a Sale Deed dated 16th August, 1988 (Exhibit-15) by which a plot of land surveyed under survey No.189/1, admeasuring 616 sq. meters, at the same Village, was sold at the rate of Rs.50/- per sq. meter. He pointed out that the land subject-matter of the said sale deed was not at all a developed property. He pointed out that merely because there were mundkarial houses on the land under three survey numbers, the learned reference Court could not have rejected the sale instance of the sale deed at Exhibit-15. He pointed out that the said three survey numbers are vast in area and merely because on some other portion of the said survey 5 numbers there were mundkarial houses, there was no reason to reject the sale instance at Exhibit-15. He invited our attention to the evidence of AW.1 Venkatesh Sawkar, the constituted attorney of the appellants. He submitted that the deduction of 40% made on account of development charges by the reference Court is completely erroneous. He submitted that further deduction of 40 % could not have been made on the ground that the acquired land was a strip of land. He submitted that the reference Court committed a gross error by making further deduction of 10% on account of expenditure on provision for the access. He submitted that the cost of access is included in development charges and no separate deduction of 10 % could have been made on the said count. He pointed out that the claim for severance of the acquired land from the remaining land has not been considered. Lastly, he relied upon a Judgment dated 16th September, 2009 of this Court in First Appeal No.154/2005 to which the present appellants were the appellants. He pointed out that a portion of land surveyed under No.189/1, admeasuring 48,895 sq. meters and under survey No. 169/9 admeasuring 16,951 sq. meters of Village Poinguinim owned by the appellant was notified for acquisition for Konkan Railway Corporation Ltd. under a notification under Section 4 of the said Act published on 6 27th June, 1991 in the Official Gazette. Inviting our attention to the Judgment of this Court, he pointed out that this Court held that the market value of the acquired land therein was Rs.50/- per sq. meter as on 16th August 1988 which is the date of sale deed at Exhibit 15. He submitted that the said decision has attained finality which relates to a part of the land surveyed under Survey no.189/1 of which the other part is the subject-matter of the present appeal. He submitted that apart from the sale deed at Exhibit-15, the decision of this Court in First Appeal No.154/2005 shows that the market value of the acquired land, on the relevant date, was certainly at the rate of Rs.50/- per sq.meter. 7. The learned Addl. Govt. Advocate submitted that considering the huge area of the land subject-matter of acquisition, the sale deed at Exhibit-15 which relates to the land admeasuring 616 sq. meters, cannot be said to be comparable with the acquired land. He submitted that the decision of this Court in First Appeal No.154/2005 will have no application to the facts of this case. He submitted that the deductions to the extent of 80 % were justified considering the location and the nature of the acquired land. The learned Addl. Govt. Advocate submitted that the market value fixed by the reference Court is just and proper and no interference is called for. 7 8. We have carefully considered the submissions. We have perused the record of the case. The acquisition relates to the lands surveyed under different survey numbers. Except in the case of the land surveyed under Survey nos. 185/34 , 189/1, 186/1 and 170/24, the Land Acquisition Officer offered market value of Rs.17/- per sq. meter. In case of the lands surveyed under survey Nos. 186/1 and 170/24, the Land Acquisition Officer offered the market value of at the rate of Rs.12/- per sq. meter. As the said two portions of the lands were found to be tenanted, only 50% of the amount was ordered to be paid to the present appellants. The total compensation of Rs.2,88,037/- was granted on account of the trees and a sum of Rs.2,018/- on account of a well in the land surveyed under Survey No.188/1. The appellants examined their constituted attorney Shri Venkatesh Keshav Sawkar as their first witness. He stated in his evidence that the acquired lands form part of the appellants' property known as “Galjibag” situated at Poinguinim, Taluka Canacona. He stated that the said property known as “Galjibag” was a vast property on which there were paddy fields, coconut trees and other fruit bearing trees such as mango, jackfruit, etc. He stated that long before the acquisition, there was a primary school, a high school, a church and 3 temples in the said property. He 8 stated that there was also a fishing jetty in existence in the appellants' property. He stated that there were about 150 to 200 houses in the said property at the relevant time. He stated that the acquired land fell in the settlement zone where the development was possible. He stated that infrastructural facilities such as public transport, electricity were available to the acquired land and the acquired land had a motorable access. He stated that a Bank and a Post Office were situated within a radius of 1 km. from the acquired lands. He stated that the entire acquired land was flat, except a portion admeasuring 10,000 sq. meters from survey No.189/1. He relied upon a sale deed dated 16.8.1988 (Exhibit-15) under which the appellants sold a part of their same property “Galjibag” which was surveyed under Survey No.189/1. The area of the plot subject-matter of the sale deed was 616 sq. meters and the market value reflected from the sale deed is Rs.50/- per sq. meter. He stated that the land sold under the sale deed was similar in all respects to the acquired land. In fact, the witness stated that he himself executed the sale deed as the constituted attorney of the appellants. He described the well in existence on portion of the acquired land, as well as a rubble stone wall. He stated that the said well was in the land surveyed under survey No.188/1 and there was 9 one more well in the land surveyed under Survey No.185/34. It is pertinent to note that in the affidavit-in-lieu of examination in chief he specifically stated that in case of the lands surveyed under survey No.186/1 and 170/24, only 50 % of the market value was made payable to the appellants. However, in the entire affidavit-in-lieu of examination in chief, he has not disputed the observations made by the Land Acquisition Officer that on both the said lands there were tenants. In the cross examination he stated that in the year 1991 Konkan Railway Corporation acquired a part of the same property for which compensation at the rate of Rs. 15/- per sq. meter was awarded. He stated that the land acquired for the Railway was a hilly land. He admitted that in the land subject-mater of the sale deed at Exhibit-15 a house was already in existence. He admitted that in the Galjibag property there were hills, paddy fields and valleys. He denied the correctness of the suggestion that most of the property was encroached upon. 9. The second witness examined by the appellants is one Mr. Vidhyadhar Verenkar, who stated that he visited the acquired lands at least on two occasions after publication of declaration under Section 6 of the said Act. He stated that he had prepared a plan of the acquired 10 lands. The appellants also examined Mr. Vikas Desai, an expert valuer. He stated that on 20th August, 1988 and on two occasions thereafter, he visited the acquired lands. He also stated that the acquired lands were situated in the settlement zone, on which construction was possible. He stated that the acquired lands were abutting Talpona-Galjibag road. He stated that a primary school, a high school, temples, church, custom house and a fishing jetty were in the radius of 100 to 500 meters from the acquired lands and the electricity was available on the acquired lands. He also referred to the sale deed dated 16th August, 1988 at Exhibit-15. He stated that the plot subject- matter of the sale deed was sold without making sub-divisions and it was not a developed plot. He stated that in respect of the area of the acquired land, permissible FAR was 80 %. He stated that in all respects, the acquired land was better than the land subject-mater of the sale deed Exhibit-15, in the sense that the land subject-matter of the sale deed was away from the main road and the acquired lands were touching the existing PWD road and, therefore, the acquired lands had higher commercial potentialities. The witness was cross examined by the Government Advocate. He denied the correctness of the suggestion that the land surveyed under Survey no.189/1 is hilly, with 11 cashew trees and stated that it was situated on a plateau having cashew trees, but no jungle trees. He stated that the western portion of the said survey number had a little slope and the northern portion was a plateau. 10. The reference Court referred to the sale deed at Exhibit-15. The reference Court observed that the market value of the land subject- matter of the sale deed will be more than the market value of the open piece of land, as there was a house in existence. The reference Court observed that assuming that the sale deed is taken as a comparable sale instance, deduction of 40 % will have to be made on account of development cost. Further deduction of 40 % will have to be made on the ground that the acquired land forms a strip of land which was coming in the set back area. Further 10 % deduction was made on account of cost of providing an access. The other two sale deeds were discarded by the reference Court. As far as the sale deed dated 2nd July, 1987 is concerned, the reference Court rightly observed that as the land subject-matter of the sale deed was situated in a different village, the same cannot be considered as an instance of a comparable sale. The other sale deed at Exhibit-26 dated 19th August, 1985 reflected market value at the rate of Rs.15.90 per sq. meter, which related to an 12 independent and developed plot. Therefore, the sale deed was rightly discarded. 11. The learned Counsel appearing for the appellants relied upon a decision of a Division Bench of this Court dated 16th November, 2009 in First Appeal No.154/2005. The said decision arises out of a reference under Section 18 of the said Act in respect of land surveyed under survey no.189/1, admeasuring 48,985 sq. meters and the land surveyed under survey No.169/9 admeasuring 16,951 sq. meters of the same village forming part of the same property. A notification under Section 4 of the said Act was published on 10th June, 1991. In the said case, the Land Acquisition Officer offered market value at the rate of Rs.4/- per sq. meter. The decision of this Court arises out of an award made under Section 18. The reference Court fixed the market value at the rate of Rs.15/- per sq. meter. The reference Court recorded a finding that the market value of the acquired land was Rs.65/- per sq. meter, but made a deduction of Rs.50/- per sq. meter. The reference Court had relied upon the sale deed which is at Exhibit-15 in the present case. It must be noted here that by the said Judgment, this Court enhanced the market value to Rs.43/- per sq. meter. A perusal of the judgment of this Court shows 13 that it was held that the reference Court was justified in amalgamating the market value of the land with the value of the trees standing thereon. However, this Court accepted the base value of Rs.50/- per sq. meter on the basis of the sale instance of the sale deed of land surveyed under Survey No.189/1 in the form of the sale deed dated 16th August, 1988. The same sale deed is at Exhibit-15 in the present case. As the said sale deed at exhibit-15 was of August 1988, on market value of Rs.50/- per sq. meter, escalation was granted for determining the market value as of 10th June, 1991. The acquired land, subject- matter of the first appeal, was again a part of the same property surveyed under Survey No.189/1. This Court upheld the finding of the reference Court holding that the sale deed at Exhibit-15 was in respect of comparable land. In the circumstances, apart from the evidence adduced by the constituted attorney of the appellants that the acquired land was similar in all respects to the land subject-matter of Exhibit- 15, in view of the decision of this Court in the aforesaid appeal, the sale deed at Exhibit-15 will have to be accepted as comparable sale instance. This Court has held that the land subject-matter of the sale deed was comparable notwithstanding the fact that on the land subject-matter of Exhibit-15 there was a house. 14 12. Therefore, there is no reason why this Court should not accept the sale deed at Exhibit-15 as a comparable sale instance. In the present case, it is not disputed by the appellants that the land surveyed under survey no.186/1 and 170/24 respectively admeasuring 1085 sq. meters and 360 sq. meters are tenanted lands. Even after holding that the said lands are tenanted lands, 50 % of the compensation out of the compensation fixed at Rs.12/- per sq. meter has been granted by the reference Court. As the said two lands were in possession of the tenants, no enhancement can be granted in respect of the said lands. The Land Acquisition Officer has fixed the market value of the land under survey No.189/1 at the rate of Rs.5/- per sq. meter. The constituted attorney of the appellants in paragraph 14 of his affidavit- in-lieu of examination-in-chief stated that most of the acquired land was flat, except a portion admeasuring about 10,000 sq. meters from the land surveyed under survey No.189/1. The total area of the land acquired out of the said survey number is 16,420 sq. meters. The constituted attorney stated that the said area of 10000 sq. meters was having a slope with gradient ranging from 1 to 6 meters. 13. Now turning back to the decision of this Court in First 15 Appeal No.154/2005, this Court noted that the acquired land was hilly and was having sloppy topography. Even after observing this, the finding of the reference Court of accepting the land subject-matter of the sale deed at Exhibit-15 as comparable was upheld by this Court. It is pertinent to note that the land subject-matter of the sale deed at Exhibit-15 and one of the lands subject-matter of acquisition in First Appeal No.154/2005 were again the lands surveyed under the same survey No.189/1. In the circumstances, out of the acquired lands in the present case, the land surveyed under survey No.189/1 cannot be treated differently. 14. Therefore, in respect of the acquired land, save and except the tenanted land, the estimation of the market value will have to be made on the basis of the sale deed dated 16th August, 1988 at Exhibit- 15. As stated earlier, the notification under Section 4 of the said Act in the present case was lastly published on 19th September, 1988. Though the land subject matter of Exhibit-15 is held to be comparable by this Court in its earlier decision, considering the large area of the acquired land subject-matter of the present appeal, a deduction of 1/3rd will have to be made on account of largeness of the acquired land. Thus, after making a deduction of Rs.16.66, the market value of the 17 (B) The appellants will be entitled to the statutory benefits under Section 23(1A), Section 23(2) and Section 28 of the Land Acquisition Act, 1894. (C) The exercise of determining the compensation payable under the modified award shall be made by the reference Court within a period of 2 months from the date on which the certified copy of this Judgment is produced before it. The determination shall be made after hearing both the parties. (D) The respondents shall deposit the enhanced amount in terms of the modified award within a period of 2 months from the date on which the determination amount is made by the reference Court. (E) The appellants will be entitled to proportionate costs throughout. (F) The appeal is partly allowed in the above terms. A.S. OKA, J. F.M. REIS, J. ssm