1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 83/2001 1. State of Goa, Rep. by Dy. Collector & Sub-Divisional Officer, Ponda Sub-Division, Ponda, Goa. 2. The Executive Engineer, Works Division XVII (PHE-N), Public Works Department, Alto-Porvorim, Bardez, Goa. …… Appellants. V/s. 1. Smt. Sitadevi alias Jaya Raghuraj Deshprabhu, wife of late Raghuraj Vassudev Deshprabhu, 2. Shri Devendra R. Deshprabhu, 3. Smt. Sunita Devendra Deshprabhu, 4. Shri Jitendra Devendra Deshprabhu, 5. Smt. Rupa Jitendra Deshprabhu, 6. Smt. Silpa Satish Ugrankar, 7. Dr. Satish Shripad Ugrankar, 8. Smt. Devika D. Kulkarni, 9. Dr. Dilip Mahabai Kulkarni, Represented by their duly constituted attorney Shri Atmaram Babi Sinai Dessai, r/o. Mauswada, Pernem, Goa. ……. Respondents. Mr. M. D. Salkar, Addl. Govt. Advocate for the Appellants. Mr. D. Pangam, Advocate for the Respondents. 2 CORAM : S.C. DHARMADHIKARI, J. DATE : 29th April, 2011. ORAL JUDGMENT : This First Appeal challenges the Judgment and Award of the Reference Court, namely, the Additional District Judge, at Mapusa, in Land Acquisition Case No.141/1990. This Judgment and Award is dated 29th April, 2000, by which the learned Reference Court determined the market value of the land under acquisition, at the rate of Rs.50/- per sq. metre. Based upon this fixation, the statutory benefits have also been awarded. 2. Aggrieved thereby, the State has filed this Appeal. 3. It is not in dispute that the lands, in question, namely Survey No.272/5 and 272/20 of Village Mandrem were acquired for a public purpose, namely, Rural Water Supply Scheme to the Village Mandrem, Junaswada, in Pernem Taluka. The Section 4 Notification is dated 12th July, 1984. The area of the land under acquisition is 485 sq. metres. 3 4. The Special Land Acquisition Officer awarded compensation for the land under Survey No.272/5 at the rate of Rs.5/- per sq. metre and for the land under Survey No. 272/20 at the rate of Rs. 7/- per sq. metre. Aggrieved by this, the Respondents sought a reference under Section 18 of the Land Acquisition Act, 1894, which was dealt with and decided by the Reference Court. 5. On behalf of the Respondents/Original Applicants, witness examined was one Shri Jitendra Deshprabhu. He produced true copies of the Deed of Renunciation, Deed of Succession, and Record of Rights Certificate. In addition, he relied on Sale Deeds. First one is exhibited as AW.1/F, while the another Sale Deed that is produced is Exhibit AW.2/A. 6. While deposing on behalf of the Respondents, AW.1 stated that the land under Survey No.272/5 is about 4 metres away from the tar road; whereas the land surveyed under Survey No.272/20 is about 15 metres away from the tar road. He stated that at the time of acquisition, prices of the lands in the locality were Rs.100/- per sq. 4 metre. He relied on the Sale deed dated 1st September, 1984 and admitted that this Deed was executed by his parents. However, he stated that the land covered by the Sale Deed and the land under acquisition have more or less same potential. They can be developed as tourist spot, as they are close to Arambol Beach. Adjoining lands have been already developed for tourist project. In the cross examination, he admitted that the acquired land was a coconut garden and that it was an agriculture land. 7. Relying upon this, it is contended by Mr. Salkar, learned Addl. Govt. Advocate that Section 4 Notification is dated 12th July, 1984; whereas the Sale Instances are dated 1st September, 1984 and 9th March, 1993, respectively. Even the post-Notification Sale Deeds can be relied upon but only to undertake comparative study and analysis. Such a comparative study and analysis has not been undertaken and the admission of the Applicant in the cross examination has been ignored. Even the deductions are on the lower side. It has been the case of the State that if the acquired lands are coconut gardens and are agricultural lands, then, even for developing them as tourist spot or a tourist resort, some work will have to be carried out. Further, they 5 would have to be converted for non-agricultural user. All this would entail efforts, time and expenses. In such circumstances, even the deductions have not been in accordance with law. For all these reasons, he submits that the Award of the Reference Court be set aside. 8. On the other hand, Mr. Pangam, appearing on behalf of the Respondents, submitted that the Learned Judge has applied the correct principles inasmuch as post-Notification Sale Deeds have value to a limited extent, namely, they can be utilized as guide for arriving at the market value of the land. In this case, proximity of the first Sale Deed to the Section 4 Notification is also established. Further, the vital part of the deposition has gone unchallenged. It has come on record that the land has immense potential inasmuch as Arambol Beach is about 1 km., away from the acquired land. The land in the sale instances was ideal for construction purpose, specially for commercial requirement and even the lands under acquisition have that potential, because they are close to the public road. The adjoining property is a primary school, and commercial place of Mandrem is about half a kilometer away. Thus, there is development all around and, therefore, the deductions have been also appropriate made, because from Rs.100/- 6 per sq. metre, learned Judge has brought down the value to Rs.50/- per sq. metre, bearing in mind the potential and after a proper comparative study and analysis. Therefore, the Award need not be disturbed. 9. After careful scrutiny of the material on record, the only point for determination is whether the Award requires any interference in my appellate jurisdiction ? 10. It has come on record that both the lands have building potentiality, as they are close to the public road, telephone lines and there is electricity and water supply available nearby. Adjoining properties are developed. If not for any great commercial venture, atleast for tourism purpose, the properties could have been developed straight away, because the Arambol Beach is about 1 km. away. There are tar-roads all around. In these circumstances, and the land is abutting the developed properties and has commercial and tourism potential, then, merely because they are coconut gardens and they are agricultural lands, does not mean that they cannot be developed. It is true that post-notification sale deeds can be considered for a limited purpose and precisely that exercise has been undertaken. Therefore, I 7 am not in agreement with Mr. Salkar that both Sale Deeds should have been discarded completely. However, there is some substance in his contention that while undertaking comparative analysis, appropriate deductions should have been made, since the land was a coconut garden and was agricultural and is required to be converted and made fit for non-agricultural purpose and deductions on that score should be made. The learned Judge has proceeded straight away on the basis that the acquired lands and the lands covered by the sale deeds had the same potentialities. While the acquired land can be developed as they are close to roads, yet, in the facts and circumstances of this case, the learned Judge should have deducted 60% of the amount from the value of the lands covered by the Sale Deeds and determined and fixed the market value of the acquired lands. Bearing in my the settled principles and the tests, I am of the view that 60% deduction was justified in this case. The learned Judge has deducted 50% already from the value of the land covered by the sale deeds. By providing for additional 10% deduction and reworking the compensation on that basis, this appeal can be allowed. 11. Accordingly, the appeal is partly allowed. From the sum of Rs.100/- per sq. metre, which is the price at which the land covered 8 by the sale deeds were sold, a sum equivalent to 60% shall be deducted and the market value arrived at will be Rs.40/- per sq. metre. The Judgment and Award under challenge, stands modified to this extent. 12. The appeal succeeds in part, but without any order as to costs. Registry to permit the Respondents to withdraw the amount deposited on the basis that the market value of the acquired land is Rs.40/- per sq. metre. Any excess amount deposited shall be refunded to the Appellant-State. Other benefits and the amounts awarded under the Judgment and Award, in question, shall remain intact and unaffected, save and except for the modification in the market value. However, that shall be computed on the basis of Rs.40/- per sq. metre. Registry to draw a decree and permit withdrawal. If there is a deficit that will be made good within a period of four weeks from today. S.C. DHARMADHIKARI, J. ssm.