- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 194 OF 2004. The Executive Engineer, W. D. VI, P.W.D., Fatorda, Margao. .......... Appellant. Versus Caetano Faleiro alias Caetano Lorenco Faleiro(Advocate), R/o. St. Joaquim Road, Borda, Margao Goa. .......... Respondent. Ms. S. Linhares, Additional Government Advocate for the Appellant. Mr. R. G. Ramani, Advocate for the Respondent. CORAM:-F. M. REIS, J. DATE:-30 th SEPTEMBER, 2010. ORAL JUDGMENT The above Appeal challenges the Judgment and Award dated 16.4.2004 passed by the learned District Judge, South Goa Margao, in Land Acquisition case no.6/1995. 2. By notification under section 4 of the Land Acquisition Act( hereinafter referred to as 'the said Act') dated 16.8.1988 - 2 - published in the Official Gazette dated 16.1.1989 several lands were acquired for the construction of the Mugale road in village Panchayat of Curtorim in Salcete Taluka, and amongst the land which were acquired the land of the Respondent admeasuring an area of 280 square metres from the property surveyed under no. 294/451; 1025 square metres from the property surveyed under no. 294/12 were acquired. Apart from the said land portions of the property surveyed under different numbers comprising of an area of 214 square metres were acquired from different survey numbers. The Land Acquisition Officer by an Award dated 29.11.1991 awarded compensation at the rate of Rs.12/- per square metres for the acquired land which were paddy land and partly bharad mixed garden land. In respect of the property surveyed under no. 294/451 and 294/12 admeasuring an area 1305 square metres entire compensation was paid to the Respondent as owners. With regards to the remaining land 50% was paid to the Respondent and the remaining 50% to the tenants. 3. Being dissatisfied with the said Award, the Respondent preferred a reference under section 18 of the said Act, for enhancement of the compensation and claimed a compensation at the rate of Rs.80/- per square metre for the land acquired. - 3 - 4. The Reference Court by Judgment and Award dated 16.4.2004 has fixed the compensation at the rate of Rs. 24/- per square metre for an area of 1305 square metres. With regards to the claim in respect of the remaining land, the reference came to be rejected. 5 Being aggrieved by the said Judgment and Award, the Appellant has preferred the present appeal. The learned Additional Government Advocate appearing for the Appellant has assailed the impugned judgment and submitted that the land acquired is a tenanted land and as such the question of awarding any compensation to the Respondent would not arise at all. She further submitted that the Award at Exh.16 is not comparable to the land acquired and as such the Reference Court has erred in enhancing the compensation as awarded by the Land Acquisition Officer. She has pointed out that the Respondent has failed to adduce any evidence to substantiate his claim that the compensation awarded was inadequate and as such the reference filed by the Respondent deserves to be dismissed. The learned Counsel further submitted that the Reference Court has failed to apply the well settled principles of law in determining the market value of the land acquired. - 4 - 6. Shri R. G. Ramani, the learned Counsel appearing for the Respondent has supported the impugned Judgment. Learned Counsel pointed out that the evidence discloses that the Award at Exh.16 is adjoining to the land acquired. Learned Counsel further submitted that the Reference Court has failed to enhanced any compensation with regards to the tenanted land and in fact the compensation was enhanced only in respect of the land which was untenanted. He further submitted that in fact the Reference Court ought to have given an escalation for a period of 3 years to the Respondent, as the Award relied upon by the Respondent at Exh. 16 was in respect of acquisition which had taken in the year 1986 while notification in the present case came to be published in the year 1989. He further submitted that there is no infirmity committed by the Reference Court in enhancing the compensation as awarded in the impugned Judgment. 7. Having heard the learned Counsel for the Appellant and the Respondent and on perusal of the records, the following point for determination arise in the present appeal:- POINT FOR DETERMINATION Whether the Reference Court was justified to fix the compensation at the rate of Rs.24/- - 5 - per square metre in respect of the land admeasuring 1305 square metres? 9. The Reference Court while passing the impugned Judgment and Award, has bifurcated the land acquired into two parts namely the land which was tenanted and land which has been untenanted. On the basis of the evidence on record and on perusal of the Award passed by the Land Acquisition Officer, the Reference Court came to the conclusion that the land which was acquired from property surveyed under nos. 294/451 and 294/12 was untenanted as the same was bharad land. In fact the Award passed by the Land Acquisition Officer itself suggests that the compensation as fixed by the Land Acquisition Officer in respect of the said portion of land was ordered to be paid to the Respondent as owner thereof. This establish that there was no claim or that there was no tenant in respect of the said portion of the land acquired. In fact the Additional Government Advocate appearing for the Appellant was unable to demonstrate any infirmity in the said findings arrived at by the Reference Court. As such I find that the Reference Court was justified to come to the conclusion that the portion of the land in survey nos.294/451 and 294/12 was untenanted which belonged exclusively to the Respondent. Dealing with the amount of compensation payable to - 6 - the Respondent in respect of said portion of the land acquired, I find that AW1 Caetano Faleiro, in his deposition has stated that in the vicinity of the acquired land there were many houses which are more than 50 years old lying in the predominantly residential area. He has further stated that the acquired land was ideal for construction of residential houses, cottages etc. He has produced the Award passed in Land Acquisition case no. 219/1994/I, wherein the land in question was acquired for the construction of the balance link road from Margao-Chandor-Curchorem and the notification therein was issued on 29.5.1986. He has further stated that the acquired land and the land under the Award is situated at a distance of 3 metres from the acquired land and that both the land are similar in nature and both are suitable for construction. 10. The next witness who has been examined as AW2 Alex Lourenco, has stated that part of his property was acquired by the Government by notification dated 29.5.1986 for the construction of balance link road between Margao-Chandor-Curchorem road. He has further stated that by the Award passed in the LAC case no. 9/91, the compensation was fixed for the said land at the rate of Rs.24/- per square metre. He has further stated that the part of the property of the - 7 - subject matter of the said award is a paddy field and part is a bharad land. He has further stated that the bharad portion of the land acquired is similar to the land which was acquired by the Government situated at a distance of 250 metres from the acquired land. In his cross examination he has stated that prior to the acquisition there was kachha road going from Margao to Chandor. He has further stated that close to the property there are many houses and bungalow which have come up and that one part of his property is a paddy field. The Reference Court on the basis of appreciation of the evidence on record has come to the conclusion that the said Award at Exh.16 is comparable sale instance for the purpose of determining the market value of the acquired land. 11. On perusal of the evidence on record, I find that the land acquired and the land which was the subject matter of the said Award at Exh.16 are similar in nature. Apart from that the same are at a distance of 250 metres from one another. Both the lands are partly paddy field besides being located in predominant residential area. This fact discloses that the findings of the Reference Court to the effect that the land which was the subject mater of the Award at Exh. 16 is comparable to the land acquired cannot be faulted. There is no - 8 - dispute that the land acquired which was subject matter of the Award at Exh. 16 was of the year 1986 and the land which was acquired in the present case is of the year 1989. In fact, the Reference Court ought to have given an escalation in the said price for a period of 3 years. Thus any negative factors claimed by the learned Additional Government Advocate have been duly taken care of as no such escalation has been granted by the Reference court. 12. In view of the above, I find no infirmity committed by the Reference Court while determining the market value in the present case at the rate of Rs.24/- per square meter. Point for determination is answered accordingly. 13. There is no merits in the appeal and as such the appeal stands dismissed with no order as to costs. F. M. REIS, J. vn*