:1: IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 313 OF 2003 1. The Executive Engineer, Works Division, XV, (NH) P.W.D., Ponda Goa. 2. Land Acquisition Officer, P.W.D. (Cell), Altinho, Panaji Goa. …. Appellants V e r s u s Shri Mahalsa Sausthan, Mardol, Ponda Goa. … Respondent Ms. S. Linhares, Additional Government Advocate for the appellants. Mr. Sudin Usgaonkar, Advocate for the respondent. CORAM : F. M. REIS, J DATE : 30 th SEPTEMBER, 2011 . ORAL JUDGMENT Heard Ms. S. Linhares, learned Additional Government Advocate for the appellants and Shri Sudin Usgaonkar, learned Counsel appearing for the respondent. 2. The above appeal challenges the judgment and award passed by the Reference Court dated 12.08.2003 in :2: Land Acquisition Case No. 32/1998. 3. Pursuant to a notification under Section 4 of the Land Acquisition Act, 1894 ( hereinafter referred to as “the said Act” ) published in Official Gazette dated 10.06.1993, the Government has acquired land for re-alignment of national highway between Mardol by-pass which included an area of 1050 square metres from the property surveyed under No. 21/1 of Village Veling of Ponda Taluka belonging to the respondent. By the award dated 08.06.1996 passed under Section 11 of the said Act, the Land Acquisition Officer offered the compensation for the land acquired at the rate of Rs.31/- per square metre for the area of 535 square metres which was garden land and Rs.25/- per square metre for the area of 515 square metres which was cashew garden. Besides the said amount, a sum of Rs.16991.63 was also paid on account of the trees existing in the acquired portion of the land. Being dissatisfied with the said amount, the respondent sought a reference under Section 18 of the said Act and claimed compensation for the land acquired at the rate of Rs.300/- per square metre. The Reference Court by the impugned judgment and award dated 12.08.2003 partly allowed the reference and fixed the compensation for the land acquired at :3: the rate of Rs.109/- per square metre. Being aggrieved by the said judgment, the appellants have preferred the present appeal. 4. Ms. S. Linhares, learned Additional Government Advocate appearing for the appellants has assailed the impugned judgment and pointed out that the Reference Court has misappreciated the evidence on record and has come to an erroneous conclusion that the market value of the acquired land was at the rate of Rs.109/- per square metre. The learned Counsel further pointed out that the sale instance produced by the respondent is not at all comparable to the land acquired and as such the reliance on the said sale instance is unjustified. The learned Counsel has taken me through the impugned judgment and pointed out that the Reference Court has not considered that the respondent have failed to discharge the burden cast on them to establish that the amount offered by the Land Acquisition Officer was inadequate. The learned Counsel further pointed out that the Reference Court has not considered that the land acquired was belonging to Devasthan and in view of Devasthan regulation, there were restrictions imposed not to alienate the lands belonging to them. The learned Counsel as such :4: submitted that the question of fixing the compensation on the basis that the land is free hold cannot be accepted. The learned Counsel as such submitted that the impugned judgment deserves to be quashed and set aside. 5. On the other hand, Shri S. Usgaonkar, learned Counsel appearing for the respondent has supported the impugned judgment. The learned Counsel has pointed out that the lands of Devasthan are sold for specific purpose including for the purpose of maintainance of the Devasthan after obtaining requisite permission from the general body of the Devasthan. The learned Counsel has pointed out Articles 30(3) and 52(3) of the Devasthan Regulation and pointed out that there was no embargo for the Devasthan in alienating the property belonging to the Devasthan. The learned Counsel further pointed out that in fact normally the Devasthan sells their lands by public auction and as such, such lands fetch higher value. The learned Counsel further pointed out that the land acquired is adjoining the national highway and have high potentiality of being used for commercial purpose and as such no interference is called for in the impugned judgment. 6. Having heard the learned Counsel for the parties :5: and on perusal of records, the following point arises for my determination in the present appeal : POINT FOR DETERMINATION Whether the Reference Court was justified to fix the compensation at the rate of Rs.109/- per square metre ? 7. On perusal of impugned judgment, I find that the Reference Court whilst fixing the compensation at the rate of Rs.109/- per square metre has taken note of the sale deed which is at Exhibit 14, which was a developed plot whereby land admeasuring an area of 320 square metres was sold for a sum of Rs.145/- per square metre in the year 1986. Apart from that, the Reference Court has also relied upon an award passed in Land Acquisition Case No. 50/91 at Exhibit 15 wherein the compensation was enhanced to Rs.68/- per square metre. The notification in the said proceedings was issued on 07.05.1987. In the present case, the notification was issued in the year 1993. Considering the gap of time between the two notifications, the Reference Court has appreciated the amount at the rate of 10% per annum and arrived at figure of Rs.109/- per square metre for the land acquired. Considering that the award passed in the said :6: proceedings at Exhibit 15 was on the other side of nulla, I find that the Reference Court was justified to take the said award as the basis for the purpose of determining the market value of the acquired land as the appellants have accepted the said award. The evidence further discloses that both the lands are comparable to one another and the nature of the land is similar and were acquired for road widening. Considering the said aspect, I find no justification to discard the said instance for the purpose of fixing the market value of the land acquired. 8. Whilst fixing the compensation, the Reference Court has also noted that a developed plot was sold in the year 1986 at the rate of Rs.145/- per square metre. Such plot was bounded by the national highway as well as by an internal road. After giving an appreciation of 10% and deducting on account of the development charges, the Reference Court found that the price fixed was reasonable and fair in the circumstances of the case. I find no reason to interfere in the said findings of the Reference Court. The contention of the learned Additional Government Advocate that the respondent has failed to discharge the burden that the price offered is inadequate deserves to be rejected. :7: 9. Taking into account the contention of the learned Additional Government Advocate to the effect that the Devasthan's lands cannot be alienated, I find that Shri S. Usgoankar, learned Counsel appearing for the respondent has rightly pointed out the provisions of the Devasthan Regulation which contemplate that the general body of such Devasthan are entitled to permit the alienating of the land as and when required. As such, the contention of the learned Additional Government Advocate that the Devasthan lands cannot be alienated cannot be accepted. But however considering that the regulations require some formalities to be complied in specific situation, I find that a deduction of 10% on account of such dissimilarity would meet the ends of justice. Hence, the amount of compensation payable to the respondent will have to be deducted by 10% for arriving at the market value of the acquired land at the relevant time. After such deduction, the compensation for the land acquired works out to be Rs.100/- per square metre approximately. The point for determination is answered accordingly. 8. In view of the above, I pass the following : O R D E R (i) The appeal is partly allowed. :8: (ii) The impugned judgment and award dated 12.08.2003 is modified and the compensation for the land acquired is fixed at Rs.100/- per square metre. (iii) Rest of the award granting statutory benefits stands confirmed. (iv) The appeal stands disposed of accordingly with no order as to costs. F. M. REIS, J at*