1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.90 of 2001 & CROSS OBJECTION NO.1/2002 FIRST APPEAL NO.90 of 2001 1. Special Land Acquisition Officer (South Goa), Konkan Railway Corporation Limited, Amey Guest House, Davorlim Road, P.O. Navelim, Salcete,Goa, 403 707. 2. Chief Engineer, Konkan Railway Corporation Ltd., Rawnfond, Near Margao Railway Station, Margao – Goa. ...... Appellants. V/s. 1. Narendra Voikunt Raikar, Palolem-Canacona, Goa. 2. Annapurna Gurnath Raikar, Palolem-Canacona, Goa. ...... Respondents. Mr. E. Afonso, Advocate for the appellants. Mr. A. Borkar, Advocate for the respondents. CROSS OBJECTION NO.1/2002 1. Narendra Vaikunt Raikar, Palolem-Canacona, Goa. 2 2. Annapurna Gurunath Raikar, Palolem-Canacona, Goa. ...... Appellants. V/s. 1. Special Land Acquisition Officer (South Goa), Konkan Railway Corporation Limited, Amey Guest House, Davorlim Road, P.O. Navelim, Salcete,Goa, 2. Chief Engineer Konkan Railway ........ Respondents. Mr. A. Borkar, Advocate for the appellants. Mr. E. Afonso, Advocate for the respondents. CORAM :- D.G. KARNIK, J. Date :- 7th/8th October, 2010. ORAL JUDGMENT : 1. Heard learned Counsel for the parties. This appeal is directed against the Judgment and Award dated 20th February, 2001 passed by the learned Addl. District Judge, South Goa, Margao partly allowing the land reference bearing Land Acquisition No.337/1995 filed by the respondents No.1 and 2. 3 2. The respondents are the owners of the land bearing Survey No. 57/15 admeasuring 100 sq. metres, survey No.57/16 admeasuring 230 sq. metres, survey No.58/2 admeasuring 412 sq. metres, and survey no.58/6 admeasuring 400 sq. metres, of Nagorcem-Palolem Village of Canacona Taluka. By a notification dated 27th June, 1991, issued under Section 4 of the Land Acquisition Act, 1894, the aforementioned lands of the respondents were proposed to be acquired for the purpose of construction of B.G. line of the Konkan Railway Corporation. The Land Acquisition Officer passed an award awarding compensation at the rate of Rs.9.45 per sq. metre for the paddy fields bearing survey Nos. 58/2 and 58/6. As regards survey Nos. 57/15 and 57/16 which were coconut bunds, the Land Acquisition Officer awarded compensation at the rate of Rs.4/- per sq. metre. Aggrieved by the award of the Land Acquisition Officer, the respondents filed an application for enhancement of the compensation under Section 18 of the Land Acquisition Act. The application was referred to the District Court, Margao for decision by the Collector. By the impugned Award, the reference Court enhanced the compensation at the rate of Rs. 24/- per sq. metre for the paddy fields bearing survey Nos. 58/2 and 58/6 , but rejected the reference so far as the coconut bund lands bearing 4 Survey Nos. 57/15 and 57/16 were concerned. Aggrieved by the enhancement of the compensation in respect of the paddy fields bearing Survey No. 58/2 and 58/6, the appellant, Konkan Railway Corporation Ltd., has filed this appeal. Aggrieved by the rejection of the reference in respect of the coconut bunds bearing Survey No.57/15 and 57/16, the respondents have filed the cross objection No.1/02, claiming enhancement of compensation . 3. The respondents examined three witnesses (AW.1 to AW.3) including the respondent No.1. AW.1 has stated that the acquired lands were about 1 km. away from Chaudi Bazar which is the main market in Canacona Taluka. While lands bearing Survey nos. 58/2 and 58/6 were used as paddy fields, the lands bearing Survey Nos. 57/15 and 57/16 were used as bunds in the paddy fields. There were about 15 coconut trees in survey No.57/15 and 6 coconut trees in survey No.57/16. AW.1 further stated that yearly yield from each of Survey No. 57/15 and 57/16 was about 400 to 500 coconuts and the yearly expenditure for each of the survey numbers was about Rs.200/- to Rs.300/-. Since these lands were used as a bund, there would be no other income other than the yield from the coconut trees on the bunds. 5 The applicant did not state in his examination-in-chief what was the price fetched per coconut at the relevant time, so as to enable the Court to calculate the net yield, after taking into account the expenditure. He claimed an amount of Rs.3000/- as compensation per coconut tree. However, he did not give any justification for the valuation on the basis of the yield, income or otherwise. 4. The applicants (respondents herein) strongly relied upon a sale deed dated 26th December, 1989 (Exhibit AW.1/C) in respect of the land bearing survey No.44/3. Under the sale deed, land admeasuring 31 sq. metres of Survey No.44/3 at Xeller, Canacona was sold for Rs.3500/-. The Reference Court did not rely upon this sale deed as relevant and in my view rightly. AW.1 as well as AW.2 have stated that the land covered under the sale deed Exhibit AW.1/C was situated 1 km. away from the acquired land. AW.2 who was the purchaser under the sale deed has stated that he had purchased the plot for construction of a “loja”. He further stated that instead of constructing a “loja” he sold it to one Acharya who subsequently sold it to another person and the last purchaser of the plot constructed on the said land a structure which was used as a liquor bar. The area of the 6 plot covered by the sale deed Exhibit AW.1/C is only 31 sq. metres, which indicates that it was rather a building plot than a paddy field. The land under sale deed Exhibit AW.1/C was close to Margao-Karwar Highway and also close to the Primary Health Centre. Considering that the plot under the sale deed Exhibit AW.1/C was a very tiny plot, close to the National Highway and was actually used by the ultimate purchaser for the purpose of building a structure thereon wherein a liquor bar was being run, it must be held to be a plot which not only had the building potential, but was actually used for construction of a building. As against that, the acquired lands bearing survey Nos. 57/15 and 57/16 had no building potential and were purely used as a bund between the paddy fields. They were longish strips, with narrow breadth and were used as bund and had no building potential. Sale Deed Exhibit AW.1/C is of no assistance for the purpose of determining the value either of Survey No.57/15 and 57/16 or the other two paddy fields bearing Survey Nos. 58/2 and 58/6. 5. Though the Land Acquisition Officer has awarded compensation at low rate of only Rs.4/- per sq. metre for survey No.57/15 and 57/16, he has awarded additional compensation 7 separately for the trees and value of the construction of the bund. He has awarded a compensation of Rs.17,250/- for 13 coconut trees. He has further awarded Rs.1189/- towards the reenforcement of the edges of the bund with laterite stones. If this amount of compensation is taken into consideration, the rate of compensation for the acquired lands bearing Survey No.57/15 and 57/16 works out to Rs.60/- per sq. metre or thereabout. The learned Counsel for the applicants was unable to show that this compensation of Rs.60/- per sq. metre for the lands which were used purely as a bund, and which were of no use other than the bund for the purpose of protecting erosion of land calculated on the basis of yield of some coconut trees standing on the said lands was, in any way, inadequate. The burden of proving that the compensation was inadequate was on the appellants and they have not discharged the burden by any reliable evidence. As stated earlier, the sale deed Exhibit AW.1/C is not relevant and there was no other sale deed or other material produced on record to show that the compensation was inadequate. In my view, therefore, the Reference Court has rightly rejected the claim for enhancement in respect of the lands bearing survey Nos.57/15 and 57/16 which were used as a bund. 8 As regards the compensation for survey No.58/2 and 58/6. 6. The lands bearing survey No.58/2 and 58/6 were used as paddy lands. For determining the compensation of these lands, the appellants herein relied upon an award in respect of another acquisition of the year 1986. Though actual award was not produced on record, it is common ground that the land out of the same survey No.58/6 was acquired under a Notification dated 12th June, 1986. This award, therefore, can be taken as a reference for the purpose of determining the market value of survey Nos. 58/2 and 58/6. Under the said award, a compensation at the rate of Rs.15/- per sq. metre was awarded. That was an acquisition of another part of survey No.58. Taking this into consideration, in my view, rate of Rs.9.45 per sq. metre awarded by the Land Acquisition Officer was too low and the Reference Court has rightly enhanced it. The question, however, is how far the Reference Court was justified in enhancing the rate to Rs.24/- per sq. metre on the basis of the acquisition of the year 1986. Undisputedly, the prices of immovable properties increase with the passage of time. The Reference Court has held that the market prices increased at the rate of 10% every year and, therefore, adopting the formula of 10% increase, the Reference Court came to the conclusion that the rate of the 9 acquired land would be Rs.24/- per sq. metre, by granting compound increase of 10% for a period of 5 years. 7. Learned Counsel for the appellants submitted that the Reference Court erred in considering the increase at the rate of 10% per year and the rate of increase should have considered only 5% per year. Per contra, the learned Counsel for the respondents (original applicants) submitted that the Reference Court erred in considering the increase only at the rate of 10% per year and the rate of increase should have been held to be atleast 15% per year and accordingly, the compensation should have been enhanced. In my view, no fixed formula can be applied for determining what should be the increase in the prices of land per year. The increase would depend upon the nature of land, its location, and the development in the surrounding areas. In fast developing urban areas, the rates of lands increase very rapidly. More the development more rapid is the rate increase in the price. In respect of pure agricultural lands having no building potential or no potential of non-agricultural activity, the rate of increase is usually low. In respect of urban lands, the Courts have even considered rate of increase in the price to be between 10 to 15% per year on 10 compounding basis; whereas in respect of agricultural lands, the Courts have often held the rates to be 5% to 10% per year. 8. While considering the rate of increase in respect of the acquired lands bearing Survey No.58/2 and 58/6, it must be borne in mind that they were purely agricultural lands in an agriculture belt. It has come in evidence that the lands bearing survey Nos. 58/2 and 58/6 were situated 1 to 1.5 metres below the road level. The lands had no non-agricultural potential and were to be used purely as paddy fields. The rate of increase in the price would, therefore, be modest. 9. The learned Counsel for the appellants invited my attention to several decisions of this Court in related appeals. It may be noted that several lands were acquired for the purpose of establishing a railway line for the Konkan Railway. Most of the owners of the lands whose lands were acquired were dissatisfied with the amount of compensation awarded and had filed land references to the District Court and had filed appeals in this Court against the decisions of the Reference Court. First Appeals No. 5, 12, 62, 142, 143, 148, 149, 152, 154 and 158 of 2000 arising out of the acquisition of lands under the 11 same notification came up for consideration before this Court. Therein, by a Judgment and Order dated 1st April, 2005, this Court again relied upon the award of 1986 for reference and considered what should be the increase that should be considered appropriate with reference to the acquisition of the year 1991 qua the acquisition of the year 1986. This Court specifically rejected the contention that the rate of increase should be considered at 10% per year but limited the increase to 5% per year and awarded compensation at the rate of 19/- per sq. metre. Following its earlier decision in First Appeal No.5/2000 and others referred to above, in another decision in First Appeals No. 29, 65, 160, and 221/2000 this Court applied the same rate of Rs.19/- per sq. metre. Yet another Bench of this Court (Presided over by Hon'ble R.M. Lodha, J, as His Lordship then was), in First Appeal No. 24/2000 awarded compensation at the same rate viz. Rs.19/- per sq. metre for the lands acquired under the very notification. In view of the fact that this Court has held that the price of land increased at the rate of 5 % per annum between 1986 to 1991 and has awarded the compensation at the rate of Rs.19/- per sq. metre for the neighbouring lands acquired under the same notification, I see no justification for taking a different view. I, therefore, hold that the market value of the acquired lands 12 bearing Survey Nos. 58/2 and 58/6 on the date of notification under Section 4 was Rs.19/- per sq. metre. 10. For these reasons, the appeal is partly allowed. The Award passed by the Reference Court is modified to the extent that the respondents shall be entitled to compensation at the rate of Rs.19/- per sq. metre for the lands bearing survey Nos. 58/2 and 58/6, admeasuring 412 sq. metres and 400 sq. metres respectively. In addition to the compensation, the respondents will also be entitled to solatium at the rate of 30% per annum, as also the interest at the rate of 9% per annum for the first year and at the rate of 15% per annum on the amount of enhanced compensation from the date of compensation till the date of payment of enhanced compensation. The office shall compute the total amount of compensation and pay to the respondents the due amount out of the amount deposited in this Court by the appellants. The balance, if any, remaining upon the payment to the respondents, shall be refunded to the appellants. If the amount deposited by the appellants together with the interest, if any, accrued thereon falls short of the total amount of compensation, the respondents shall be entitled to recover the same 13 from the appellants. The Cross Objection dismissed. D.G. KARNIK, J. ssm.