1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 233 OF 2002 AND CROSS OBJECTION NO. /2002 1. State of Goa, through the Sp. Land Acquisition Officer, (SIP), Gogol, Margao. 2. The Executive Engineer, Works Division XXIV, P.W.D., Borda, Margao. …...... Appellants. V/s. 1. Albino Santano Cosme Vales, and his wife 2. Maria Assucena Vales, 3. Domingos Antonio Bonifacio Vales and his wife. 4. Greta Monica Vales, 5. Francisco Libaio Paulo Vales and his wife 6. Theodora Joana Vales, 7. Josefato Pedro Antonio F. Vales, all r/o. Baina, Vasco da Gama. ….... Respondents. Mr. S. Bandodkar, Addl. Govt. Advocate for the appellants. Mr. E. Mendes, Advocate for the respondents. 2 CORAM :- A.P. LAVANDE, J. Date of reserving the Judgment :- 11th November, 2011. Date of pronouncing the Judgment :- 9th December, 2011. J U D G M E N T : By this appeal, the appellants take exception to the Judgment and Award dated 29.4.2002 passed by the IInd Additional District Judge, South Goa, Margao in Land Acquisition Case No.302/92, partly allowing the reference under Section 18 of the Land Acquisition Act (“the Act” for short). 2. By notification under Section 4 of the Act, which was published on 1st February, 1989, the Government of Goa expressed its intention to acquire land admeasuring 2575 sq. metres belonging to the respondents bearing Survey No.58/3 of Dabolim Village of Mormugao Taluka, for the public purpose of laying water pipe line and construction of service road from Cuelim to Vasco. The said area was reduced to 1275 sq. metres at the time of publication of notification under Section 6 of the Act. The respondents claimed compensation at 3 the rate of Rs.300/- per sq. metre and also claimed compensation for compound wall. The Land Acquisition Officer, by his award dated 15.1.92, awarded Rs.6/- per sq. metre. Dissatisfied with the award, the respondents sought reference and claimed Rs.300/- per sq. metre in respect of the acquired land and also Rs.156/- per linear metre in respect of the compound wall having length of 141 metres and also claimed compensation under Section 28 of the Act on the ground that the possession of the land was taken by the appellants prior to the award. 3. In Land Acquisition Case No.302/92, the respondents examined three witnesses, namely Albino S.C. Vales (AW.1); Pramod Dessai (AW.2) and Prabhakar Kamat (AW.3). Reliance was placed on Sale Deed dated 21.6.1988 Exhibit AW.1/K by which an area of 212 sq. metres was purchased by Pramod Dessai (AW.2) at the rate of Rs.225/- per sq. metre. No evidence was led on behalf of the appellants. 4. The Reference Court, upon appreciation of evidence led by the respondents, fixed the market rate of the acquired land at Rs.54/- per sq. metre and awarded Rs.13,000/- for the compound wall and also 4 awarded interest on the excess compensation at the rate of 9% per annum from 1.4.89 for the first year and thereafter, at the rate of 15 % p.a. till the excess sum was paid in the Court in terms of Section 28 of the Act. 5. Aggrieved by the award, the appellants have filed the above appeal. The respondents have filed the cross objection, claiming compensation at the rate of Rs.200/- per sq. metre in respect of the land and compensation of Rs. 15,806/- for the compound wall. 6. Mr. Bandodkar, learned Addl. Govt. Advocate submitted that the respondents themselves had sold the plots from the remaining portion of land and the respondents having not produced the sale deeds thereof, an adverse inference has to be drawn against the respondents. Mr. Bandodkar further submitted that the Reference Court could not have placed reliance upon the sale deed dated 21.6.1988 Exhibit AW.1/K, which was situated very close to the airport; whereas the acquired land was situated within Chicalim Village Panchayat. Mr. Bandodkar further submitted that nearness to the airport is a positive factor in respect of the sale deed dated 21.6.1988 which has not been 5 considered while fixing the market rate of the acquired land. Mr. Bandodkar submitted that the acquired land was a strip of land and in the absence of any evidence that the respondents had remaining portion of the land, no reliance could have been placed by the Reference Court upon the sale deed dated 21.6.1988 which was in respect of a developed plot. Mr. Bandodkar further submitted that in respect of the compound wall, the actual valuation comes to Rs.11,064/- and not Rs.13,000/- as mentioned in para 12 of the impugned judgment. Mr. Bandodkar, therefore, submitted that the appeal deserves to be allowed and the cross objection filed by the respondents deserves to be dismissed. Mr. Bandodkar has placed reliance upon the judgment in the case of Dy. Collector, Land Acquisition, Gujarat & Anr. vs. Madhubai Gobarbhai & Anr., 2010(2) All MR. 975 and an unreported judgment of learned Single Judge of this Court in State of Goa and anr. vs. Smt. Bindiya M. Verlekar, (First Appeal No.23/2002) dated 15th October, 2010. 7. Per contra, Mr. Mendes appearing for the respondents submitted that the acquired land was better situated than the plot in sale deed dated 21.6.1988 and, therefore, the Reference Court ought to 6 have awarded Rs.200/- per sq. metre in respect of the acquired land. The learned Counsel further submitted that the Reference Court ought to have considered the valuation report submitted by Mr. Prabhakar Kamat (AW.3). The learned Counsel further submitted that the Reference Court, after making deduction for development, ought not to have made further deduction on the ground of largeness of the acquired land. The learned Counsel further submitted that the deduction of 40% made for development is on higher side and, therefore, the impugned judgment and award deserves to be set aside. Mr. Mendes fairly conceded that the Reference Court has committed an error in awarding Rs.13,000/- towards the compound wall and the said amount works out to Rs.11,064/-, as contended by Mr. Bandodkar. 8. I have carefully considered the rival submissions, perused the record and the judgments relied upon. 9. In view of the rival submissions, the following point arises for determining the appeal : 7 Whether the market rate of the acquired land fixed by the reference Court at the rate of Rs. 54/- per sq. metre is just and proper ? if not, what was the market rate of the acquired land on the date of publication of the notification under Section 4 of the Act ? 10. The Reference Court has placed reliance upon the sale deed dated 21st June, 1988 Exhibit AW.1/K, by which a developed plot of land admeasuring 212 sq. metres was purchased by Pramod Dessai, AW.2 at the rate of Rs. 225/- per sq. metre. The Reference Court deducted 40% towards development charges, 20 % for the largeness of the acquired land and 50% on the ground that the acquired land was falling within the setback area and it was not useful for construction purpose and fixed the market rate at the rate of Rs.54/- per sq. metre. Perusal of the evidence of Albino S.C. Vales (AW.1); Pramod Dessai (AW.2) and Prabhakar Kamat (AW.3) discloses that the plot in the sale deed dated 21st June, 1988 was near Dabolim Airport, whereas the acquired land was at a distance of about 2 kms. from the plot in the sale deed. The acquired land was an undeveloped land, whereas the plot in the sale deed was a developed plot. 8 11. In so far as the deduction made by the Reference Court towards development charges and for largeness of land is concerned, in my considered opinion, having regard to the settled principles governing fixation of market rate in land acquisition matters, no fault can be found with the approach of the Reference Court. However, in so far as the deduction of 50% on the ground that the acquired land was falling within the setback area and as such, could not be used for construction purpose is concerned, I find it difficult to accept the approach of the Reference Court. The record itself discloses that initially a larger area of the respondents' land was sought to be acquired in terms of Section 4 notification, which was later on reduced to 1275 sq. metres. Therefore, there is evidence on record to show that the respondents had additional land which was not acquired and, as such, the ratio of the Judgment of the Apex Court in the case of State of Goa and anr. vs. Gopal Baburao Gaudo and ors., (2009) 10 SCC 686 is squarely applicable. In the said case, the Apex Court has held that when a long strip of land adjoining a highway is acquired, the same cannot be treated as the land without value or without any potential for development, since the strip of land would become an access to rear side land from the main road, thereby enhancing the potential and value 9 of rear side land. In view of the fact that there is material on record to show that the respondents had more land, the ratio of the unreported judgment in the case of State of Goa and anr. vs. Smt. Bindiya M. Verlekar (supra), relied upon by Mr. Bandodkar does not advance the case of the appellants. However, I find merit in the submission of Mr. Bandodkar that the plot purchased by Pramod Dessai being nearer to the airport, was better located than the acquired land which was situated within the limits of Chicalim Village Panchayat. Mr. Bandodkar is justified in placing reliance on the judgment in the case of Dy. Collector, Land Acquisition, Gujarat & Anr. vs. Madhubai Gobarbhai & Anr., (supra), in which it has been held that the land which is situated near aerodrome has better potential than the one which is faraway. In my considered opinion, having regard to the location of the plot in sale deed dated 21st June, 1988 vis-a-vis the acquired land, a further deduction of 40% deserves to be made. Thus, from the figure of Rs.108/- per sq. metre arrived at after deducting 40% and 20% towards development charges and largeness of the land respectively, a further deduction of 40% is warranted on account of location of the acquired land vis-a-vis the plot in the sale deed dated 21st June, 1988. Therefore, the market rate of the acquired land, as on 10 the date of publication of Section 4 notification, works out to Rs.64.80 which is rounded off to Rs.65/- per sq. metre. Therefore, the market rate of the acquired land, as on the date of publication of Section 4 notification works out to Rs.65/- per sq. metre. The respondents are also entitled to compensation of Rs.11,064/- towards the compound wall and also compensation in terms of Section 28 of the Land Acquisition Act and as ordered by the reference Court. Needless to mention that the respondents are also entitled to all other statutory benefits under the Act. 12. In view of the above, First Appeal No.233/2002 is dismissed and cross objection filed by the respondent is, partly, allowed. Considering the facts and circumstances of the case, parties to bear their own costs. A.P. LAVANDE, J. ssm.