:1: IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 186 OF 2000 1. Shri Siddhesh Guno Naik Chopdekar, major, unmarried, 2. Miss Nisha Guno Niak Chopdekar, major, unmarried, 3. Miss Seema Guno Naik Chopdekar, major, unmarried, All residing at Flat No.V-5, Vrindavan Chambers, Patto, Panaji Goa. 4. Smt.Sweta Tarachandra Naik nee Sugandha Guno Naik Chopdekar, major, married, and her husband, 5. Shri Tarachandra Pundalik Naik, major, married, Both residing at House No. 198, Ward No. 3, Fondvem, Ribandar Goa. 6. Smt. Sulochana G. Naik, resident of Patto, Panaji Goa. ... Appellants V e r s u s 1. The Deputy Collector and Land Acquisition Officer, Panaji Goa. 2. Executive Engineer, Works Division III (PHE), P.W.D., Panaji Goa. ... Respondents :2: Mr. M. S. Sonak with Mr. J. Supekar, Advocates for the Appellants. Mr. G. Shirodkar, Government Advocate for the Respondents. CORAM : A. S. OKA, J DATED : 30 th JULY, 2010. ORAL JUDGMENT This is an Appeal preferred by the Applicants in a reference under Section 18 of the Land Acquisition Act, 1894 ( hereinafter referred to as the said Act ). By the impugned judgment and award, the reference has been rejected by the learned District Judge. 2. The acquisition relates to the land surveyed under survey No.64/ part situated at Village Corlim, Ilhas Goa. The area of the acquired land is 6450 square metres. The date of the publication of Notification under Section 4(1) of the Land Acquisition Act, 1894 is 19th April, 1983. The Land Acquisition Officer offered the market value at the rate of Rs.20/- per square metre. The claim made by the Appellants in the reference was at the rate of Rs.150/- per square metre. 3. The learned Counsel appearing for the Appellants has taken me through the impugned judgment, notes of evidence and other documents on record. He submitted that the learned Reference Court has committed an error :3: by not considering the prayer for grant of enhancement in the compensation on the ground that the acquired land is a strip of land on which no construction could be carried out as it forms a part of the set back area. He relied upon a decision of the Apex Court in the case of State of Goa and another V/s Gopal Baburao Gaudo and Others [(2009) 10 SCC 686]. He invited attention of the Court to the various sale instances. He placed reliance on an award in Land Acquisition Case No. 26/87 (Exhibit 20). He submitted that in respect of a part of the same acquired land, under the said award, the market value was fixed at the rate of Rs.80/- per square metre. He also relied upon the judgment and award in Land Acquisition Case No. 24/90 by submitting that the said judgment and award relates to a land in the close vicinity of the acquired land wherein the market value at the rate of Rs.80/- per square metre has been fixed. He also relied upon the judgment and award in Land Acquisition Case No. 22/90 as well the judgment and award in Land Acquisition Case No.74/94. He submitted that at least the first three awards relate to comparable lands which reflect the market value at the rate of Rs.80/- per square metre. In the present case, the market value ought to have been fixed at the minimum rate of Rs.80/- per square metre. 4. The learned Government Advocate relied upon the decision of the Apex Court in the case of Karan Singh and others V/s Union of India [(1997) 8 Supreme Court Cases 186]. He pointed out that the Appellants have not :4: discharged the burden of proving that the market value offered was inadequate. He invited attention of the Court to the deposition of the first witness examined by the Appellant. He pointed out that there is no evidence adduced as regards the comparability of the acquired land with the lands subject matter of various judgments and awards relied upon by the Appellants. He pointed out that as regards the acquired land subject matter of the Land Acquisition Case No. 26/87, the witness examined by the Appellants has admitted that the acquired land is below the level of 1.5 metres from the level of the road. He pointed out that considering the fact that the acquired land is below the road level, extensive filling up was required to bring the land to the level of the road. He pointed out that the land subject matter of Land Acquisition Case No. 24/90 was acquired for the construction of approach road to the new Banastarim bridge. He pointed out that the said land is not in close proximity of the acquired land. He pointed out that the land subject matter of Land Acquisition Case No. 74/94 was valued at the rate of Rs.60/- per square metre. He pointed out that as none of the sale instances relate to the lands comparable to the acquired land, the Reference Court was justified in rejecting the reference as the Appellants have not discharged the burden on them. On a query made by this Court as regards the cost which may be incurred on the filling work of the acquired land for bringing it to the level of the road, he has tendered on record the Goa Schedule of Rates of 1980 published by the Public Works Department which discloses :5: that the cost of such work would be at the rate of Rs.22.25 cubic metres. 5. I have given careful consideration to the submissions. The Appellants examined the 6th Appellant Sulochana Chopdekar as the first witness. It must be noted here that the purpose of acquisition is for laying of additional mains for supplying water to Panaji city. The witness stated that out of acquired land of 6450 square metres, the Appellants were claiming the compensation in respect of an area of 3581 square metres. The witness relied upon the consent award in Land Acquisition Case No. 113/87 which was a reference under Section 30 of the said Act. The witness stated that out of the acquired land, an area of 2869 square metres belongs to Sadanand Chopdekar in terms of the consent award. The witness produced survey record in Form I & XIV of the land surveyed under survey No. 64/1 which shows that the area of the larger land is approximately 2.58 hectare, out of which an area of 6450 square metres has been acquired. The witness stated that the acquired land constitutes a strip of land having width 8 to 10 metres and it was at a distance of about one metre or so from the Panaji- Banastari road. She has stated that the land was suitable for construction of house as it was levelled land and no filling of land was required for construction. She stated that the acquired land was at a distance of about 100 metres from the Ciba company and it is at a distance of about 18 Kms from the city of Panaji. She stated that there was a water pipe line passing along the said Panaji – Banastari road at the time of acquisition and :6: there was electricity line available by the side of the said road. The witness stated that there were some houses at a distance of about 4 to 5 metres away from the acquired land and the school was at a distance of about ½ Km. The witness stated that there was dispensary at a distance of about 100 metres from the acquired land. 6. The Appellants relied upon a sale deed dated 29th November, 1982 in respect of the area of 729 square metres. However, the witness stated that the land subject matter of the said sale deed was at a distance of 1.5 Km from the acquired land. Considering the distance of the land subject matter of the said sale deed from the acquired land and the date of the sale deed, the same will have to be kept out of consideration as the land subject matter of the sale deed cannot be said to be comparable. 7. As regards the judgment and award in Land Acquisition Case no. 26/87, she stated that the land subject matter of the acquisition in the said case is a part of the same survey number out of which the acquisition has been made in the present case. She stated that the land subject matter of the Land Acquisition Case No. 26/87 was contiguous to the acquired land in the present case. She stated that the Appellants were the Applicants in the said Land Acquisition Case No. 26/87 wherein the market value was fixed at the rate of Rs.80/- per square metre. The Appellants also relied upon an award in Land Acquisition Case No. :7: 24/90 by stating that the land subject matter of the said award was acquired for construction of road which was contiguous to the acquired land. In further examination in chief, the witness relied upon an award in Land Acquisition Case No. 74/94 where the compensation was awarded at the market value of Rs.60/- per square metre. 8. As far as the sale deed dated 29th November, 1982 is concerned, I have already held that the same will have to be kept out of the consideration. The Appellants examined Mr. Rui Reveiro Santan, a Civil Engineer as a witness who has stated that the land subject matter of the said sale deed was a sub divided rectangular plot adjacent to the National highway. Therefore, all the more it is necessary to hold that the land subject matter of the said sale deed was not at all comparable with the acquired land. 9. As far as award in Land Acquisition Case no. 74/94 is concerned, the Notification under Section 4(1) of the said Act was published on 24th March, 1983. The area of the acquired land is only 60 square metres, out of land surveyed under survey No. 136/10. Thus the said case relates to a very small plot admeasuring 60 square metres. As the area of the acquired land is too small, the same cannot be considered as comparable to the acquired land. 10. The Land Acquisition Case No. 26/87 relates to another portion :8: of the land surveyed under survey No. 64. In fact the present Appellants were the Applicants in the said Land Acquisition Case No. 26/87. In the deposition, the Appellant No.6 stated that the land subject matter of the said land acquisition case is also acquired for the same purpose and the same was similar in nature to the acquired land and it was contiguous to the acquired land. The Notification under Section 4(1) of the said Act in the said case was issued on 2nd May, 1985. As stated earlier, the Notification under Section 4(1) of the said Act in the present case is of 19th April, 1983. Thus, the award in Land Acquisition Case No. 26/87 reflects the market value of a part of the same land at the rate of Rs. 80/- per square metre as of May, 1985. The Appellant No.6 stated in her deposition that the said land was also required for the same purpose and the same was contiguous to the required land in the present case. There is hardly any cross-examination on this aspect. As the said award relates to a part of the same land of the Appellants and considering what is stated in the deposition of the Appellant No.6, the land subject matter of the said Land Acquisition Case will have to be taken as comparable. The area of the land subject matter of the said Land Acquisition Case No. 26/87 was 1575 square metres. As the said award relates to a part of the same property of the Appellants, the same will have to be accepted as the basis for determination of the market value in the present case. As far as award in Land Acquisition Case No. 24/90 is concerned, the Appellant No.6 has stated that the land subject matter thereof was :9: contiguous to the acquired land. The said award reflects the market value of Rs. 80/- per square metre. The award relates to a contiguous land where the date of Notification under Section 4 of the said Act is 11th April, 1985. Even the said award can form the basis for determining the compensation in the present case being of a comparable land. There is a time gap of two years between the material date in the present case and the material date in the said case. 11. However, there is one major negative factor in respect of the acquired land. The Appellant No.6 has admitted in her cross examination that :- “ The portion acquired for the road was levelled and was suitable for house construction. The portion acquired for laying the pipe line is below the road level by 1.5 metres.” Thus, the acquired land is below the road level by 1.5 square metres. As pointed out earlier, the acquired land, though is a strip of land, it forms a part of the larger land held by the Appellants. Therefore, in the light of the decision of the Apex Court in the case of State of Goa and another V/s Gopal Baburao Gaudo and others ( supra ), the potential of the acquired land for the purpose of construction of buildings will have to be taken into consideration in as much as the FAR of the acquired land could have been used for the construction of buildings on the remaining land. To that extent, the :10: Reference Court has committed an error by not considering building potential of the acquired land. 12. Though the market value of the lands comparable to the acquired land as of 1985 is shown to be Rs.80/- per square metre, a substantial deduction will have to be made firstly on account of the cost likely to be incurred for filling work of the acquired land for bringing it to the level of the road. The learned Government Advocate has pointed out that in the year 1980 as per the Goa Schedule of Rates of the Public Works Department, the cost of filling work was Rs.22.25 per cubic metres. Therefore, the cost of filling up of land will be substantial. Moreover, some deduction will have to be made as the market value reflected from the two awards is of 1985. 20% deduction will have to be made on account of the cost of filling up of the acquired land and 20% deduction will have to be made on account of escalation of price from 1983 to 1985. Thus, the total deduction of 40% will have to be made for determination of the market value. After making 40% deduction from Rs.80/- per square metre, the market value will be at the rate of Rs.48/- per square metre. 13. In the circumstances, the impugned award will have to be modified to that extent. Hence, the Appeal is disposed of by passing the following order :- :11: O R D E R (A) The Appellants are entitled to the market value at the rate of Rs.48/- per square metre for the area of 3581 square metres. (B) The Appellants shall be entitled to the statutory benefits under Section 23(1-A), 23(2) and 28 of the Land Acquisition Act, 1894. (C) The Appellants will be entitled to the proportionate costs throughout. (D) The Appeal is partly allowed in above terms. (E) The determination of the amount payable under the modified award shall be made by the Reference Court within a period of two months from the date on which a certified copy of the judgment is produced before the said Court. The determination of the amount will be made after hearing the Respondents. The Respondents shall pay the enhanced compensation to the Appellants within a period of eight weeks from the date on which the determination of the amount is made by the Reference Court. A. S. OKA, J at*