1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.225 OF 2004 WITH CROSS-OBJECTION NO.9 OF 2005 1. The Land Acquisition Officer, PWD (Cell), Altinho, Panaji. 2. The Executive Engineer, Works Division – XXV (R), PWD, Fatorda, Margao, Goa. …. Appellants V/s Shri Krishan Purshottam Prabhudessai, R/o. H.No.96, Opp. N.V. Kamat, Behind Pandavan Chapel, Aquem, Alto, Margao, Goa. …. Respondent Ms. Susan Linhares, Additional Government Advocate for the Appellants. Mr. Sudesh Usgaonkar, Advocate for the Respondent. CORAM : F.M. REIS, J. DATE : 10th DECEMBER, 2010 JUDGMENT : The above appeal challenges the judgment and award dated 25/05/2004 passed by the learned Additional District Judge, South Goa, Margao in Land Acquisition Case No.124/2001. 2. The parties shall be referred to in the manner they so appear in the cause title of the impugned judgment. 2 3. By notification issued under Section 4 of the Land Acquisition Act, 1894 (herein after referred to as “the said Act”) the portion of the property admeasuring 525 square metres from Survey No.114/8 of Village Loliem was acquired for the purpose of constructing a road from Shri Shankarsha Temple to National Highway No.17 at Daptamol. The said notification was dated 14/10/1996 and was published in Official Gazette on 20/02/1997. 4. By an award passed under Section 11 of the said Act, dated 5/01/2000, an amount of Rs.6/- per square metre was offered for the land acquired. Being dissatisfied with the said amount, the applicant sought a reference under Section 18 of the said Act and claimed compensation at the rate of Rs.150/- per square metre. By judgment and award dated 25/05/2004, the Reference Court has fixed the compensation in respect of the land acquired at the rate of Rs.42/- per square metre. Being aggrieved by the said judgment the respondents filed the present appeal. After giving notice, the applicant has preferred the cross-objections seeking enhancement of the amount as awarded in the impugned judgment. 5. Ms. Susan Linhares, the learned Additional Government 3 advocate appearing for the respondents/appellants herein has assailed the impugned judgment and submitted that there was no evidence on record for the Reference Court to come to the conclusion that the market value of the acquired land was Rs.42/- per square metre as the acquired land had no motorable access to the road and, therefore, the question of fixing the market value of the acquired land at Rs.42/- per square metre would not arise. Learned Additional Government Advocate pointed out that the land acquired was towards the eastern side of the entire property while the road is located towards the western side. The learned Counsel further submitted that the sale instances produced by the applicant are not at all comparable to the land acquired and, consequently, the applicant has failed to discharge the burden caste on them to establish that the price offered by the Land Acquisition Officer is inadequate. Learned Counsel, as such, submitted that the impugned judgment and award deserves to be quashed and set aside. 6. Shri Sudesh Usgaonkar, the learned Counsel appearing for the applicant has submitted that the Reference Court has totally erred in coming to the conclusion that the market value of the acquired land was Rs.42/- per square metre when according to him 4 the price should have been fixed at the minimum rate of Rs.100/- per square metre. Learned Counsel submitted that the applicant had produced sale deeds in the vicinity of the acquired land where the price was fixed at the rate of Rs.150/- per square metre. Learned Counsel further pointed out that the land acquired had potentiality for use of construction purposes and though the acquired portion of the land did not have motorable access, there was a public road which was on the western side of the acquired land. The learned Counsel further submitted that the land acquired in the present case survey no.114/8 is similar to the land which was subject matter of First Appeal No.224/2004 wherein this Court has fixed the market value of the land surveyed under no.116/4 at the rate of Rs.65/- per square metre. The learned Counsel further submitted that there was high demand for the land in the vicinity and, consequently, the Reference Court has erred in making such huge deduction while fixing the market value of the acquired land at the rate of Rs.42/- per square metre. The learned Counsel, as such, submitted that the cross-objection deserves to be allowed. 7. Having heard learned Counsel and on perusal of record following point for determination arises in the appeal: 5 POINT FOR DETERMINATION Whether the Reference Court was justified in fixing the market value of the acquired land in respect of survey no.114/8 at the rate of Rs.42/- per square metre. 8. In support of his claim for enhancement, the applicant has examined AW1/Krishna Prabhudessai who has stated that an area of 525 square metres was acquired from the property surveyed no.114/8. He has further stated that the said acquired land is at a distance of less than 400 metres from the main road leading from Canacona to Karwar which is the National Highway. He has further stated that the unacquired portion of the property is abutting the National Highway. He has further deposed that the acquired property is surveyed under No.116/13 and 114/8 and 116/12 is abutting the National Highway. He has further stated that the land is located in the settlement zone. He has further deposed that the infrastructure for development was available within the radius of about 500 square metres within the acquired land and that the acquired land was levelled and suitable for construction. He has produced sale deed dated 27/09/1995 which is at Exhibit 14 wherein the land surveyed under no.356/10 was sold at the rate of Rs.150/- per square metre for an area of 2140 square metres and 6 Rs.100/- per square metre for an area of 1500 square metres. He has also produced Sale Deed dated 27/09/1995 which is at Exhibit 15 which is property surveyed under No.356/10 and an area of 423 square metres was sold at the rate of Rs.150/- per square metre. He has further stated that both the said sale deeds were undeveloped lands. He has also produced the site map. On perusal of his cross- examination, I find that there are mere suggestions put to the said witness. He has further admitted that the property which is subject matter of Exhibit 15 was purchased for the purpose of putting up construction. The applicants have also produced a report of an expert who has given his report and stated that the market value of the land acquired is Rs.200/- per square metre. The said expert has been examined and he has also been duly cross-examined. 9. The Reference Court after appreciating the evidence on record has come to the conclusion that the property surveyed under no.114/8 and property surveyed under no.116/13 forms one single property. The learned Judge further held that the property surveyed under no.116/13 is adjoining the National Highway. The learned Judge further held that the property surveyed under no.116/13 belongs to the applicants and that the property surveyed under no.114/8 is towards the eastern side of the property of survey 7 no.116/13. The learned Judge has further held that considering the topography of the property surveyed under no.114/8, it is difficult to believe that there was an existing foot path in the property surveyed under no.114/8. But, however, the learned Judge came to the conclusion that that said land could be used for construction purposes. The learned Judge further held that the Sale Deed at Exhibit 14 is comparable to the land acquired and after effecting deductions on account of dissimilarities of the acquired land vis-a- vis the sale deed plots, has fixed the market value at the rate of Rs.38/- per square metre and after giving escalation of 10% fixed the market value at the rate of Rs.42/- per square metre. 10. From the evidence on record, I find that the whole property belonging to the applicant was abutting the National Highway. No doubt the land acquired was situated in the interior side of the property and, as such, substantial expenditure would have to be made for the purpose of constructing the road to the acquired portion of the property. Apart from that, the sale Deed produced by the applicant at Exhibit 14 and 15 which is property surveyed under no.356/10 was abutting the National Highway. The said sale deeds were executed after leaving substantial area towards the set back. No doubt as the property which was subject matter of the 8 sale deed had much higher value on account of its frontage to the National Highway, nevertheless as the land acquired was situated at a distance of about 400 metres from the sale deed plot, I find that the Reference Court was justified in relying upon the said sale deeds so as to fix the market value of the acquired land. The Reference Court has effected deduction of 75% on account of dissimilar factors while fixing the market value of the land. 11. This Court while disposing of First Appeal No.224/2004 with Cross-objection No.3/2005 has fixed the market value of the land acquired in respect of the property surveyed under no.116/4 at the rate of Rs.65/- per square metre. The said land is in close proximity to the land which is subject matter of the present acquisition and survey no.114/8. Both the lands are comparable to one another. In fact, the Reference Court had fixed the market value of the land in respect of the property surveyed under no.116/4 at the same rate of Rs.42/- per square metre, which after giving a deduction of 75% and the said amount came to be enhanced to Rs.65/- per square metre in the said judgment. As both the lands are similar and this aspect has not been disputed by the learned Additional Government Advocate, I find no reason not to award the same compensation for the land acquired in the 9 present case. 12. For the reasons stated in the judgment passed by this Court dated 10/12/2010 in the said First Appeal No.224/2004 with Cross- objection No.3/2005, I find that the market value of the acquired land is to be fixed at the rate of Rs.65/- per square metre. The point for determination is answered accordingly. 13. In view of the above, I pass the following order: O R D E R (a) The appeal filed by the respondents is dismissed and the cross-objections are partly allowed. (b) The impugned judgment and award dated 25/05/2004 is modified and the compensation of the land acquired in respect of the property surveyed under no.114/8 is fixed at the rate of Rs.65/- per square metre. (c) Remaining part of the award granting statutory benefits is confirmed. (d) Appeal and cross-objections stand disposed of accordingly with no order as to costs. F.M. REIS, J. NH/-