first appeal no.236 of 2006 1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 236 OF 2006 Shri Domnic Diniz, 9, St. Anthony's General Stores, Near Old Post Office, New Vegetable Market, Vasco-da-Gama, Goa. ... Appellant versus 1. The Executive Engineer, Works Division VI(R-S), P.W.D., Fatorda, Margao-Goa. 2. The Asst. Engineer, Works Div.VI, SD-III, P.W.D., Baina, Vasco-da-Gama, Goa. ... Respondents Shri A. Kansar, Advocate for the Appellant. Shri G. Shirodkar, Government Advocate for the Respondents. CORAM : F. M. REIS, J. DATE : 29TH JULY, 2011. ORAL JUDGMENT Heard Shri A. Kansar, learned Counsel for the Appellant and Shri G. Shirodkar, learned Government Advocate for the Respondents. first appeal no.236 of 2006 2 2. The above appeal challenges the Judgment and Award passed by the learned Additional District Judge, South Goa, Margao dated 12-1-2006 in Land Acquisition Case No.87 of 2004. 3. Pursuant to a notification under Section 4 of the Land Acquisition Act, 1894(hereinafter referred to as the said Act) an area of 615 sq. meters forming part of the property surveyed under Nos.139/8(Part), 139/9(Part), 139/10(Part), 139/11(Part) and 139/12(Part) was intended to be acquired for the construction of the 4- lane road from Verna NH-17 to Mormugao Harbour. By an award passed under Section 11 of the said Act dated 11-12-2002, a sum of Rs.30/- per sq. meter was offered by the Land Acquisition Officer as compensation for the land acquired. Being dissatisfied with the said amount, the Appellant filed a reference under Section 18 of the said Act for enhancement of the compensation and claimed a sum of Rs.500/- per sq. metre for the land acquired besides compensation on account of severance at the rate of Rs.250/- per sq. meter. 4. By the impugned Judgment and Award dated 12-1-2006, the learned Reference Court after appreciating the evidence and hearing the first appeal no.236 of 2006 3 parties rejected the reference filed by the Appellant. Being aggrieved by the said Judgment, the Appellant preferred the present appeal. 5. Shri A. Kansar, learned Counsel for the Appellant has assailed the impugned Judgment and pointed out that the Reference Court has erred in holding that the land acquired was coming within the road widening area and as such, the property of the Appellant had no potential value. Learned Counsel has further submitted that the Appellant has obtained permission from the Mormugao Authority way back in 1984 much before the notification was published for development of the said property which was acquired. Learned Counsel has submitted that the property was allowed to be developed after maintaining the road widening area. Learned Counsel has further submitted that the Appellant has produced sale instances which are comparable to the land acquired and that the Reference Court has rejected the sale instances on the specious ground that the land acquired which was belonging to the Appellant was coming within the road widening area. Learned Counsel has taken me through the evidence on record and pointed out that the observation of the Reference Court with regard to the fact that no construction could be put up in the remaining portion of the land is on first appeal no.236 of 2006 4 the assumption that a set back had to be maintained not only from the existing highway No.17A but also the road which was proposed to be constructed pursuant to the said notification. Learned Counsel has submitted that the alleged admission by AW2/Krishna Prabhudessai to the effect that the property of the Appellant was coming within the road widening area and the set back to be maintained from the National Highway has been misconstrued when in fact a licence was already obtained from the statutory authority. In any event, according to the learned Counsel, there was land available to the Appellant to put up a construction even assuming that such set back is to be maintained. Learned Counsel has further submitted that the Reference Court has misdirected itself in appreciating the evidence on record and as such has erroneously rejected the reference. Learned Counsel as such submitted that the impugned Judgment deserves to be set aside. 6. Shri G. Shirodkar, learned Government Advocate for the Respondents has supported the impugned Judgment. Learned Government Advocate has submitted that the entire property belonging to the Appellant was coming within the road widening area and as such, considering that, a set back had to be maintained the property of the first appeal no.236 of 2006 5 Appellant had lost potentiality. Learned Government Advocate has further submitted that the approval obtained by the Appellant has already lapsed and that the question of relying on such approvals would not arise. Learned Government Advocate has further submitted that the Reference Court has considered the evidence on record and has come to the correct conclusion that the sale instances produced by the Appellant cannot be considered to be comparable to the land acquired. Learned Government Advocate has further submitted that there is no merit in the above appeal and as such, the appeal deserves to be rejected. 7. Having heard the learned Counsel, the following point for determination arises:- Whether the Reference Court was justified to reject the reference filed by the Appellant? 8. On perusal of the impugned Judgment, I find that the Reference Court has rejected the claim of the Appellant mainly on the ground that the land acquired was coming within the road widening area. It is not disputed that towards the eastern side of the property of the Appellant there was the National Highway No.17. As such, any set back first appeal no.236 of 2006 6 which would have to be maintained is only from the National Highway. The question of considering the set back to be maintained on the basis of the new road proposed to be constructed through the property of the Appellant which was not existing at the relevant time would not arise at all. What is material is whether as per the existing situation at the relevant time, the acquired portion was coming within the road widening area from the existing road. The purpose for which the land is acquired is not relevant to determine the market value of the acquired land. As such, it was not open to the Reference Court to consider the set back to be maintained after the new road was constructed pursuant to the acquisition in the present proceedings. 9. Considering the submission of Shri Kansar, learned Counsel to the effect that a subsisting licence for development was valid at the relevant time, I find that this factor would have a bearing for the purpose of determining the market value of the land acquired. There is no conclusive evidence on record to establish whether land was available after the requisite set back is maintained for the road widening area, in view of the existing National Highway. The valuer examined by the Appellant has not at all done such exercise to assist the Reference Court first appeal no.236 of 2006 7 to decide the reference. Merely because part of the land acquired comes within the road widening cannot be a ground to refuse any compensation to the Appellant in case there was any land available for development. Apart from that, the Appellant has also claimed compensation on account of severance which would also have to be considered in case any such damages occurred to the Appellant. All these aspects have not been dealt with by the Reference Court whilst passing the impugned Judgment which resulted in the refusal of the reference filed by the Appellant. 10. The Apex Court in 2009(5) ALL MR 1022 in the case of State of Goa and Anr vs. Gopal Baburao Gaudo and Ors. has held at paras 3 and 4 thus: “3. A long strip of land measuring more than two-thirds of an acre lying alongside and adjoining the highway cannot be treated as a land without value or without any potential for development, merely on the ground that the law relating to highways prohibited construction on either side of the highway, up to a depth of 40 meters from the centre of the highway. All that was required to create or realize potential of such land was to annex or merge the said strip of land with the land to its rear. In that event, the strip of land will become the “access” to the rear side land from the main road and will also become the first appeal no.236 of 2006 8 frontage of the aggregate land, thereby enhancing the potential and value of the rear side land, as also creating a potential for its own use. The contention that a land adjoining the highway should be treated as having no development potential (and therefore as land without much value except as ordinary agricultural land), while considering the lands to its rear which are farther away from the road, or other adjoining lands of the same extent, but having more depth (so as to extend beyond the 40 meters margin) as having potential for development, is illogical and cannot be accepted.” 4. We may demonstrate the absurdity of such a contention with reference to an illustration. Let us take the example of a residential plot of land measuring 60' x 100'. Let us assume that the Municipal Bye-laws require a front (road side ) set-back of 20' for construction of houses in a plot of that size. Therefore, the owner would leave a twenty feet wide front strip in the said plot free of any construction while putting up the construction in the plot. Obviously, he cannot thereafter construct in that front strip. Let us further assume that the front strip is acquired for road widening. Can the acquiring authority deny compensation to that strip on the ground that the said 20' strip acquired for road widening could not in any event be used for any construction purpose and therefore, was not of any value?” Obviously not.” It is well settled now that merely because the portion comes within the road widening area that by itself does not disentitle the claim for enhancement of compensation. first appeal no.236 of 2006 9 11. Considering that land has been lost for acquisition, I find it appropriate in the interest of justice that the impugned Judgment and Award be quashed and set aside and the matter be remanded to the Reference Court to decide the reference afresh after giving an opportunity to the Appellant to lead evidence in support of his claim. Needless to say the Respondents would be entitled to lead evidence in rebuttal. The point for determination is answered accordingly. 12. In view of the above, I pass the following Order:- ORDER 1. The appeal is partly allowed. 2. The impugned Judgment and Award dated 12-1-2006 is hereby quashed and set aside. 3. Land Acquisition Case No.87 of 2004 is restored to the file of the Reference Court. 4. The Reference Court is directed to decide the reference afresh in the light of the observation made hereinabove in accordance with law 5. Appeal is disposed of first appeal no.236 of 2006 10 accordingly with no order as to costs. 6. Parties are directed to appear before the Reference Court on 5-9-2011 at 10.00 a.m. F. M. REIS, J. RD