1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.56 OF 2002 1. Special Land Acquisition Officer (South Goa) Konkan Railway Corporation Limited, Amey Guest House, Darvolim Road, P.O. Navelim, Salcete Goa, 403 707 2. Chief Engineer, Konkan Railway Corporation Ltd., Rawfond, near Margao Railway Station, Margao-Goa. .. Appellants Versus 1. Maria Alice Almeida Binfol, Asolna, Salcete-Goa. .. Respondent. Mr. E. Afonso, Advocate for the Appellants. Mr. C.A. Ferriera, Advocate for the respondent. CORAM :- A. P. LAVANDE,J. DATE : 16 th July, 2009 . ORAL JUDGMENT : 1. By this appeal, the appellants take exception to the judgment and order dated 17.8.2001 passed by the Additional District Judge, Margao in Land Acquisition Case No.293/1994 partly allowing the reference. 2. By notification issued under Section 4 of the Land 2 Acquisition Act dated 31.5.1991,which was published on 27.06.1991, the State of Goa acquired lands in Goa for Konkan Railway Corporation at different places at Barcem, Padi and Quepem of Quepem Taluka admeasuring 5,65,285 square meters. The lands admeasuring 600 square meters bearing Survey No.3 and the land admeasuring Survey No.7175 square meters bearing Survey No.4 of Padi village belonging to the respondent, were part of the acquired land. The respondent claimed compensation @ Rs.50/- per square meter in respect of total area of 7775 square meters. The Land Acquisition Officer awarded Rs.2 in respect of bund portion of land admeasuring 225 square meters and in respect of remaining portion consisting of paddy filed, coconut trees, the Land Acquisition Officer by award dated 11.11.1993 awarded the compensation @ Rs.9/- per square meter. The Land Acquisition Officer also awarded Rs.13,600/- towards fruit value and Rs. 26,735/- towards wood value. Being dissatisfied, the respondents sought reference under 18 of the Land Acquisition Act claiming compensation @ Rs.50 per square meter. 3. In Land Acquisition Case No.293/1994, the respondent examined two witnesses namely the respondent 3 herself as AW1 and Babuso Naik, A.W.2, who according to the respondent, was one of the caretakers of the properties bearing Survey Nos. 3 and 4. The total area of Survey No.4 was a little more than 13,000 square meters. The respondent placed reliance upon two sale deeds dated 23.8.1988 and 26.8.1988 Exh.A.W.1/B colly and the award dated 20.02.1999 in L.A.C. No.126/1995. By the two sale deeds, of plot areas of 804 and 428 square meters respectively situated at Cuncolim were sold @ Rs.30/- per square. In terms of the award dated 20.2.1999, the Reference Court had awarded compensation @ Rs.40/- per square in respect of area of 8350 square meters situated at Cuncolim village and belonging to one Rui Fernandes. 4. The Reference Court placed reliance upon two sale deed dated AW1/B colly and held that the lands sold were comparable to the acquired land and after giving appropriate escalation and deductions arrived at the figure of Rs.28/- per square. Consequently, the Reference Court awarded compensation @ Rs.28/- per square in respect of the entire acquired land. 5. Mr. Afonso, the learned Counsel for the 4 appellants at the outset, submitted that there is absolutely no evidence on record that the sale deed lands were comparable to the acquired land. Moreover, the sale deed lands were situated at the distance of about 3 Kilometers from the acquired land within the municipal limits whereas the acquired land was situated in a village. He therefore, submitted that the Reference Court was not justified in placing reliance upon the two sale deeds for the purpose of fixing the market rate of the acquired land. He further invited my attention to the fact that even in respect of the award relied upon by the respondent, not only the same was not in respect of comparable land but also the appellants had preferred First Appeal No.80/1999 and this Court by judgment dated 11.2.2005 had reduced the compensation from Rs.40/- to Rs.20/ per square meter. Mr. Afonso submitted that the Reference Court without any evidence having been led by the respondent, enhanced the compensation without any justifiable ground. 6. Per contra Mr. Ferreira, the learned Counsel for the respondent/claimant submitted that having regard to the location of the land, the compensation granted is on the lower side and actually, the respondent is entitled to higher 5 compensation, but in the absence of of any challenge to the award, the respondent is not in a position to claim higher compensation. He further submitted that the acquired land was close to highway, school, panchayat and, therefore, the compensation fixed by the Reference Court cannot be said to be excessive warranting interference by this Court. According to Mr. Ferriera, the sale deeds Exh.AW1/B colly have been rightly relied upon by the Reference Court and merely because they are in respect of developed plots situated at Cuncolim, they cannot be said to be irrelevant for fixing the market rate of the acquired land. In so far as the finding of the Reference Court that award was not liable to be relied upon, is concerned Mr. Ferreira, submitted that the reason given by the Reference Court is absolutely unsustainable in law. The Reference Court has refused to place reliance upon the said award on the ground that there is no material on record that the compensation was actually paid in terms of the said award. Placing reliance upon the judgment of the Apex Court in the case of Nelson Fernandes and another versus Special Land Acquisition Officer reported in (2007)9 SCC 447, Mr. Ferreira submitted that the purpose of acquisition is relevant factor to be taken into consideration and, therefore, the Reference Court was not justified in 6 making any deductions after placing reliance upon two sale deeds. 7. I have considered the submissions made by the learned Counsel for the parties and peruse the record. The question which arises for determination in the present appeal is whether the compensation granted by the Reference Court in respect of the acquired land @ Rs.28/- per square is just and proper and if not, to what compensation the respondent is entitled to. 8. The evidence led by the respondent / claimant discloses that the acquired land was close to highway, school and panchayat and also close to Forest Department. The evidence further discloses that the area of entire 600 square meters acquired from Survey No.3 was paddy field. Similarly, Babuso Naik AW2 stated in examination-in-chief that area of 6000 square meters of paddy filed land was acquired from Survey No.4. Therefore, according to the respondent herself out of total area acquired an area of 6600 square meters was paddy field land. It is the case of the respondent in her evidence that the lands having Survey Nos. 3 and 4 were were looked after by 3 caretakers namely Sada 7 Kilkiro Naik, Pandurang Kilkiro Naik and Babuso Kilkiro Naik and they used to pay Rs.50,000/- per year towards the value of the fruits of the trees and they were also paying 10 'khandies' of paddy per year from the paddy land. The evidence of Babuso AW2 is on similar lines. There is no dispute that the area of 7175 square meters out of area of of little more than 13000 square meters was acquired from the Survey No.4. There is absolutely no evidence on record as to what was the amount paid in respect of the fruits existing in the trees from the acquired portion. Therefore, it is not possible to fix the compensation payable to the respondent on the basis of yield of fruits from the acquired land. 9. The Reference Court has placed reliance upon two sale deeds Exh.AW1/B Colly on the ground that they were comparable and after increasing 10 % every year has deducted 30 % towards the development charges and arrived at the figure @ Rs.28/- per square meter. In Chimanlal Hargovinddas V. Special Land Acquisition Officer and another reported in AIR 1988 SC 1652, the Apex Court has held that in order fix the market rate of the acquired land, the Reference Court can rely upon the comparable instances provided they are genuine, on the following consideration : 8 (i) Proximity from time angle, (ii) Proximity from situation angle. 10. The Apex Court has further held that the reference has to be treated as the original proceeding and the market value has to be decided afresh on the basis of material produced before it and the claimant is in the position of a plaintiff who has to show that the price offered for his land is inadequate on the basis of the material produced in the Court. Therefore, the question, which arises for consideration is whether two sale deeds could have been relied upon by the Reference Court for the purpose of fixing the market rate of the acquired land. Indisputably, both the sale deeds are in respect of plots admeasuring 804 and 428 square meters respectively situated within the municipal limits of Cuncolim. The evidence led by the applicant further discloses that the sale deed plots were situated at the distance of about 3 Kilometers from the acquired land. In my considered opinion, by no stretch of imagination, the plots sold by the sale deed can be said to be comparable since they are situated at the distance of 3 Kilometers from the acquired land and that too in the municipal area. Admittedly, the acquired land is situated in Paddi village of Quepem Taluka. 9 Moreover, the sale deed plots are in respect of developed plots whereas the acquired land was paddy filed, garden land and bund. It is also pertinent to note that the Land Acquisition Officer had awarded Rs.2/- per square meter compensation in respect of land admeasuring 225 square meters. There is absolutely no evidence on record led by the respondent that there was no bund in the acquired land. This burden was on the respondent which the respondent has failed to discharge. 11. In so far as the award Exh.AW1/E relied upon by the respondent is concerned no doubt the reason given by the Reference Court is absolutely untenable in law but the fact remains that the land which was the subject matter of the said award,was also situated at Cuncolim within the municipal limits at the distance of about 3 Kms. as per the evidence of the respondent herself. This being the position, in my considered opinion, the land in the said award cannot be said to be comparable to the acquired land. By no stretch of imagination, the sale deed plot or the land forming the subject matter of the said award, can be said to be comparable vis-a-vis the acquired land and, therefore, no reliance could have been placed on the said sale deeds as 10 well as the award. Moreover, the compensation granted by the Reference Court in terms of the Award Exh.AW1/E @ Rs.40/- per square meter has been reduced to Rs.20/- by this Court by judgment delivered 11.2.2005 in First Appeal No.80/1999. 12. No doubt, the evidence led by the respondent establishes that the acquired land was situated close to highway, school and panchayat. But that by itself would not be sufficient to enhance the compensation granted in favour of the respondent. There is no other evidence led by the respondent to justify the claim for higher compensation. In so far as the judgment in the case of Nelson Fernandes and others upon which Mr. Ferreira placed reliance is concerned, no doubt in the said judgment, the Apex Court has held that the purpose of acquisition is relevant factor, but the said judgment would not advance the case of the respondent since I have already held that neither the sale deeds nor the award can be said to be of comparable lands as regards the nature of the lands and proximity. 13. In view of the above discussion, I am of the considered opinion, that the Reference Court was not 11 justified in enhancing the compensation. Therefore, the impugned judgment dated 17.08.2001 passed by the Additional District Judge, Margao in Land Acquisition No.293/1994 is quashed and set aside and the award passed by the Land Acquisition Officer is maintained. The appeal is allowed. Having regard to the facts and circumstances of the case, the parties are directed to bear their own costs. A. P. LAVANDE, J. SMA