1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 43 OF 2005 1. Special Land Acquisition Officer(SIP), I.D. Complex, Gogal Margao, Goa. 2. The Executive Engineer, Work Div. IX, Irrigation Department, Gogol, Margao, Goa. ... Appellants versus Piedade Julio Fernandes, H.No. 73, Behind St. Sebastian Chapel, Comba, Margao, Goa. ... Respondent Shri S. Vahidulla, Government Advocate for the Appellants. Shri Sudin Usgaonkar, Advocate for the Respondent. CORAM : N. A. BRITTO, J. DATE : 23RD SEPTEMBER, 2010. ORAL JUDGMENT The State Government has filed the present appeal against Judgment/Award dated 8-10-2004 passed by the learned District and Sessions Judge in Land Acquisition Case No.61 of 1997 by which compensation has been enhanced from Rs.20/- to Rs.32/- per sq. meter. 2 2. Some admitted facts may be stated to dispose off the present appeal. The Respondent, hereinafter referred to as the applicant, had a property surveyed under Nos.220/5 and 220/6. The applicant had sold a part of the first survey number admeasuring 2025 sq. meters by sale deed dated 11-5-1989 at the rate of Rs.74/- per sq. meter to one Immaculate Rebello. The Government by virtue of notification issued under Section 4(1) of the Land Acquisition Act, 1884 published on Gazette dated 14-6-1990 acquired 1475 sq. meters of survey No.220/6, along with other lands for the purpose of setting up a main canal for Selaulim Irrigation Project from Arlem to Utorda. The acquired land was situated in Village Verna. The L.A.O. by award dated 20-1-1993 awarded to the applicant compensation at the rate of Rs.20/- per sq.meter and Rs.44,914/- for the trees existing thereon. 3. The applicant before the Reference Court sought enhancement of compensation at the rate of Rs.300/- per sq. meter, and also sought compensation at the rate of Rs.300/- per sq. meter by way of severance charges for 900 sq. meters. 4. In support of the reference, the applicant examined himself and two experts, namely one Engineer Shri Ernesto Moniz and one Agricultural Valuer by name Constancio Menezes as AW2 and AW3, respectively. The 3 applicant also produced the said sale deed dated 11-5-1989 for the purpose of enhancement. The Respondent did not examine any witnesses. 5. The learned Reference Court on the basis of the sale deed dated 11-5-1989, and by giving appreciation at the rate of 10% fixed the compensation payable at the rate of Rs.82/- per sq. meter. However, after considering the case of State of Haryana v. Gurcharan Singh(AIR 1996 SC 106) deducted the amount paid by the L.A.O. i.e. Rs.47,200/-, and held that the applicant was entitled to Rs.32/- per sq. meter. As regards severance charges, the learned Reference Court accepted the evidence of the applicant as well as AW2/Shri Ernesto Moniz and came to the conclusion that only 79 sq. meters had remained on the other side of the acquired land which had become useless to the applicant. The learned Reference Court accepted the opinion of AW2/Shri Moniz that the remaining area of 820 sq. meters could be developed and proceeded to award compensation for 79 sq. meters at the rate of 41/- per sq. meter i.e. half of Rs.82/-. 6. The learned Reference Court before taking Exh.PW1/A dated 11-5-1989 as the basis of determination of compensation referred to the case of Koyappathodi M. Ayisha Umma v. State of Kerala(AIR 1991 SC 2027) where the methods of valuation were spelt out, namely, opinion of experts, prices paid within a reasonable time in bona fide transactions of lands acquired 4 or lands adjacent to the lands acquired and number of years of purchase. The learned Reference Court then referred to the case of Panna Lal Ghosh v. Land Acquisition Collector(20204 AIR SCW 66) to state that the most reliable way to determine the market value was to rely on instances of the same land as was acquired or adjacent lands made shortly before or after Section 4 notification. The learned Reference Court found that survey No.220/5 was on the eastern side of survey No.220/6, and otherwise it is also not disputed that both the survey numbers were adjacent to one another and formed part of one and the same property. The learned Reference Court then referred to the evidence of the applicant and came to the conclusion that the sale deed Exh.PW1/A dated 11-5-1989 could be the best index for determining the value of the land as it was nearest from time angle and situation angle. This observation was made by the Reference Court with reference to Chimanlal Hargovinddas v. Special Land Acquisition Officer(AIR 1988 SC 1652). For the purpose of giving appreciation of 10%, the learned Reference Court referred to the case of Special Land Acquisition Officer v. Mohd. Hanif Sahib(AIR 2002 SC 1558) and noted that the Supreme Court had held that 10% increase per year was neither excessive nor unreasonable and thereafter, after taking the sale deed dated 11-5-1989 as the basis and giving appreciation of 10% the learned Reference Court determined the compensation payable at Rs.82/- per sq. meter and further observed that there was no question of making any deduction in the price of the sale deed as there were no 5 disadvantages of the acquired land vis a vis the plot of the sale deed and further observed that the areas sold were almost equal being both small plots. Regarding the evidence of AW3/Shri Menezes, the learned trial Court accepted the opinion given by AW2/Shri Moniz who had fixed the compensation payable at the rate of Rs.82/-. 7. This appeal has been filed by the State of Goa, against the award of the said compensation. No appeal or cross objections have been filed by the applicant. 8. Shri S. Vahidulla, learned Government Advocate on behalf of the Government submits that the sale deed Exh.PW1/A dated 11-5-1989 was a developed plot since it can be seen on a perusal of the said sale deed that a N.O.C. was obtained for the construction of a house. As regards the severance charges, learned Government Advocate submits that no plan was produced by the applicant to show that indeed after the acquisition an area of 79 sq. meters was severed. 9. Shri Sudin Usgaonkar, learned Counsel on behalf of the Respondent submits that the applicant had denied the suggestion that the plot of sale deed was a developed plot. Learned Counsel also refers to the evidence of AW2/Shri Moniz who had stated that the plot of the sale deed was not a 6 sub-divided plot. As regards the first submission of Shri Vahidulla, I find that there is absolutely no merit in the same. Assuming that a N.O.C. was obtained by the purchaser of the plot for the construction of the house, it did not indicate that the same was a developed plot and a suggestion to that effect was denied by both the witnesses of the applicants and no evidence was led on behalf of the Government to show to the contrary. As regards the severance charges, the learned Reference Court has referred to the evidence of the applicant as well as to the evidence of AW2/Shri Moniz who had clearly stated that the severed portion was 820 sq. meters on one side and 79 sq. meters on the other side. AW2/Shri Moniz had also stated that 820 sq. meters was fit for development but the remaining 79 sq. meters had become useless as it was unfit for any development. The learned Reference Court has noted that in the cross-examination there was no serious challenge to that part of evidence of AW2/Shri Moniz, and in my view rightly. The learned Reference Court by accepting the evidence of the expert Shri Moniz has awarded compensation at half the rate i.e. at Rs.41/- per sq. meter by way of severance charges, and in my view, the said finding of the learned Reference Court also cannot be faulted. 10. Shri Usgaonkar, learned Counsel submits that the Government had absolutely no case to file the appeal. He submits that the appeal deserves to be dismissed with costs. 7 11. Considering the facts of the case, the amount of compensation awarded by the learned Reference Court on the basis of the sale deed dated 11-5-1989 which was of the same property and of the adjacent survey number cannot be faulted at all, and so also the award of severance charges. The learned Reference Court has correctly followed the principles laid down by the Apex Court and has awarded compensation.There is no merit in this appeal whatsoever. Consequently, the same is hereby dismissed. Appellants to pay costs of this appeal which are quantified at Rs.5000/- to the Applicant/Respondent. The amount deposited along with accrued interest be paid to the Applicant/Respondent. N. A. BRITTO, J. RD