- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 12 OF 2004 1 Land Acquisition Officer, Public Works Department (cell), Altinho, Panaji Goa. 2 The Executive Engineer, Works Division, VII, ( Bldgs North), PWD, Panaji Goa. ........ Appellants. Versus Smt. Maria Aurelia Olourdes Vaz, Resident of H. No. 291, At Dando, Goa Velha, Ilhas Goa. ........ Respondent. Ms. S. Linhares, Additional Government Advocate for the Appellants. Mr. P. A. Kholkar, Advocate for the Respondent. Coram:-F. M. REIS, J. Date:-26th August, 2010. ORAL JUDGMENT The above Appeal challenges the Judgment and Award dated 22nd October, 2003 passed by the learned District Judge, Panaji, in the Land Acquisition case no. 4/2000. 2. By notification bearing no. 22/6/91-RD dated 5th February, 1991 published under section 4 of the Land Acquisition - 2 - Act( hereinafter referred to as 'the said Act'), the Appellants proposed to acquire the land belonging to the Respondent surveyed under nos. 138/1, 138/2, 138/3 and 151/13 at Goa Velha Tiswadi Taluka, totally admeasuring an area of 5350square metres for realignment of the National Highway 17 between 8.915 to 12.965 Goa Velha by-pass. 3. By an Award dated 24th March, 1995, the Land Acquisition Officer fixed the compensation at the rate of Rs.15/- per square metre for an area of 3560 square metres of rice cultivated land and Rs.20/- per square metre for 1760 square metres of coconut garden. 4. Being dissatisfied with the said Award, the Respondent preferred a reference for enhancement of the compensation under section 18 of the Act and claimed a compensation at the rate of Rs.300/- per square metre for the land acquired besides compensation to the tune of Rs.1,34,000/- towards two mango trees, one teak wood tree, one rosewood tree, one cotton tree, 14 coconut saplings and 21 coconut trees existing in the land acquired. 5. By Judgment and Award dated 22nd October, 2003, the - 3 - learned District Judge partly allowed the reference and fixed the compensation for the acquired land in survey no. 151/13 admeasuring 1590 square metres at the rate of Rs.59/- per square metre besides other statutory benefits. The remaining claim put forth by the Respondent was rejected. 6. Being aggrieved by the said Judgment and Award, the Appellants have preferred an present appeal. The learned Additional Government Advocate Ms. S. Linhares appearing for the Appellants has submitted that the Reference Court has totally misdirected itself while determining the market value of the acquired land by not considering the well settled principle in determining the market value as provided under section 23 of the said Act. Learned Additional Government Advocate has further submitted that the Reference Court erroneously relied upon the sale deed at exhibit 13, which is not of a comparable sale instance. She further submitted that the Reference Court has failed to consider that the land acquired and the sale instance are not similar and as such the question of relying upon the said sale deed would not arise at all. Learned Additional Government Advocate has taken me through the Award passed by the Land Acquisition Officer under section 11 of the said Act and points out - 4 - that in the acquired portion of the land surveyed under no. 151/13 there were structures belonging to the mundkars. She further submitted that this aspect has not at all been considered by the Reference Court while determining the market value of the land. She as such submitted that as no cogent evidence has been adduced by the Respondent for any enhancement of compensation, the question of enhancing the compensation by the Reference Court does not arise at all. 7. On the other hand learned Advocate Mr. P. Kholkar, appearing on behalf of the Respondent has submitted that the impugned Judgment cannot be faulted at all. He further submitted that the learned Reference Court has minutely considered all the aspects as envisaged under section 23 of the said Act and fixed the market value of the land acquired at the rate of Rs.59/- per square metre. He further submitted that though in the acquired portion of land there were structures which were occupied by the mundkars, the Appellants have not claimed any amount for such structures and as such no deductions can be effected on that count. He further submitted that the price mentioned in sale deed plot was much less than the prevailing market value as the sale was effected to an alleged - 5 - tenant. He further submitted that in any event the Reference Court has fairly considered and fixed the market value of the land acquired. He further pointed out that the Reference Court has failed to give the requisite escalation at the rate of 10% per annum from the date of sale deed up to th date of section 4 notification. He further submitted that there is no justification shown by the Appellants for interference with the impugned judgment and Award. 8. Having heard the learned Counsel for the Appellants and the Respondent and on perusal of the records, the following point for determination arise in the present appeal:- POINT FOR DETERMINATION Whether the Reference Court was justified to fix the market value of the land acquired at the rate of Rs.59/- per square metre? 9. While passing the impugned Judgment and Award the Reference Court has rejected the claim of the Respondent with regards to the properties surveyed under nos. 138/1, 138/2, 138/3. There is no cross appeal preferred by the Respondent challenging the said part of the impugned Judgment and Award. The only compensation awarded was with regards to the property surveyed - 6 - under no. 151/13 which is a garden land wherein there were coconut trees and other fruit bearing trees. 10. AW1 Maria Aurelia Lourdes Vaz, in her deposition has stated that she had sold a plot in the property surveyed under no.151/13 by sale deed dated 8th January, 1988 which is situated at a distance of two to three minutes walk from the acquired land. The land in the said sale deed at exhibit 13 is similar to the acquired land. On perusal of exhibit 13, I find that an area of 1000square metres was sold for Rs.45,000/-. Said sale deed further stipulates that the vendee had put up a claim of tenancy with regards to the area which has been sold to him. AW1 further states that the dispute has been amicably settled between the parties and the amount was fixed at Rs.45,000/- for an area of 1000square metres. There is no doubt that though the price mentioned therein may not reflect the correct prevailing market value nevertheless considering that the similarity of the land acquired with the sale deed land has not been disputed by the Appellants, I find that the price mentioned therein can form a basis for arriving at the market value of the land as on the date of section 4 notification in the present proceedings. The said witness has further deposed that the sale deed plot had coconut trees and it was similar to - 7 - the acquired land. She has also stated that the market value of the land in the vicinity of acquired land was Rs.300/- per square metres though the price mentioned therein was Rs.45/- per square metre. In the cross examination there is no serious challenge to the said contention. On the basis of material on record, there is no doubt that sale deed plot and land acquired are similar being of the same survey number and price fixed therein can form basis for determining the market value in the present case. In fact price in exhibit 13 may be less than the prevailing market value as on the relevant date but however the Respondent has failed to adduced any other evidence to substantiate her claim for enhancement of compensation for the land acquired. As no other evidence is forthcoming from the Respondent, the compensation for the acquired land will have to be determined on the basis of said sale deed at exhibit 13. 11. The Reference Court on the basis of the evidence on record at para 11 of the impugned Judgment has come to the conclusion that the acquired land has potentiality of being used for construction purpose. The inference relied upon by the Reference Court is the existence of houses in the acquired land and as well as the sale deed of the plot of said land. I find no fault in said findings - 8 - of the Reference Court to the effect that the land had construction potentiality. While determining the market value of the land the Reference Court has found that price mentioned in the said sale deed plot at exhibit 13 was Rs.45/- per square metre and fixed the compensation at the rate of Rs.59/- per square metre, for the land acquired. I find that the Reference Court ought to have given an escalation on cumulative basis at 10% per annum for 3 years the amount as such works out to be Rs.60/- per square metre. On perusal of the award under section 11 of the said Act, I find that in the acquired portion of the land surveyed under no. 151/13 there were three structures existing therein. It is stated that the said structures were belonging to the mundkars. This aspect has not been considered by the Reference Court whilst determining the market value of the acquired land. I find on account of such structures some deduction ought to have been given by the Reference Court while determining the market value. I find that the fair and just deduction on that account would be 15% on said value of the land. Market value as such works out to Rs.51/- per square. The value of the said structure has been already paid to the concerned occupier of the land acquired. In the fact and circumstances, I find that the market value of the land acquired is Rs. 51/- per square metre. The point for determination is - 9 - answered accordingly. 12. In view of the above, I pass the following:- i. The Appeal is partly allowed. ii. The impugned Judgment and Award dated 22nd October, 2003 is modified and the market value of the land acquired in respect of the property surveyed under no. 151/13 is fixed at Rs. 51/- per square metre. Remaining part of the Award granting statutory benefits is confirmed. iii. Registrar is directed to compute the amount payable to the Respondent and disburse the said amount in accordance with above alongwith accrued interest thereon. Excess amount deposited shall be refunded to the Appellants with accrued interest there on. iv. The Appeal stands disposed of accordingly with no Order as to costs. F. M. REIS, J. vn*