- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 20 OF 2004. Smt. Sacramenta Piexato alias Sacramental Niasso, since deceased thorugh legal heirs, 1a. Shri Silvestre Niasso, major of age, R/o. 31/A, Davorlim, Salcete-Goa. 1b Smt. Paulina Niasso, major of age, H. No. 144, Arlem, Raia, Salcete-Goa. .......... Appellants. Versus State of Goa, Through Executive Engineer, P.W.D. VI( R & B), P.W.D., Fatorda, Margao. .......... Respondent. Mr. J. Godinho, Advocate for the Appellants. Mr. S. Vahidulla, Government Advocate for the Respondents. CORAM:-F. M. REIS, J. DATE:-3 rd SEPTEMBER, 2010. ORAL JUDGMENT The above Appeal challenges the Judgment and Award - 2 - dated 22nd October, 2003 passed by the learned additional District Judge, South Goa, Margao in the Land Acquisition case no.16/1994. 2. By notification under section 4 of the Land Acquisition Act( hereinafter referred to as 'the said Act') dated 26th December, 1988 published in the Official Gazette dated 19th January, 1989, the Respondent intended to acquire a portion of the property belonging to the Appellants for the construction of Ghantmorod road in Village Panchayat Aquem Baixo Davorlim admeasuring an area of 1275 square metres out of the property surveyed under no. 59/5. 3. By an Award passed under section 11 of the said Act dated 5th June, 1992, the Land Acquisition Officer awarded compensation at the rate of Rs.32/- per square metre for the land acquired. 4. Being dissatisfied with the said amount, the Appellants preferred a reference for enhancement of the compensation under section 18 of the Act and claimed a compensation at the rate of Rs.125/- per square metre. - 3 - 5. By Judgment and Award dated 22nd October, 2003, the learned Judge answered the reference in the negative. 6. Being aggrieved by the said Judgment and Award, the Appellants have preferred the present appeal. 7. Shri J. Godinho, learned Counsel appearing for the Appellants has assailed the impugned Judgment and submitted that the Reference Court has totally misdirected itself in refusing to enhance the compensation for the land acquired as claimed by the Appellants. He further submitted that all the amenities available in the vicinity of the acquired land was established through evidence of AW1 to the effect that the panchayat office is at a distance of 500metres from the acquired land and that Margao city is at a distance of 4 kms and there are factories located within a radius of 1 kms from the acquired land. He further submitted that the electricity and the water supply was also available around the acquired land and the main road was at a distance of 1 km from the acquired land. Learned Counsel further submits that the Appellants has produced sale deed dated 24th March, 1988 which is a comparable sale instance and located at 1/2 km from the acquired land wherein plot of the land - 4 - admeasuring 388 square metres was sold for a sum of Rs.100/- per square metre. He further submitted that the land acquired was suitable for construction purpose and that the sale deed plot and the acquired land were similar in nature. Learned Counsel further submitted that the Reference Court has failed to consider the escalation prevailing in the locality at the rate of 15% per annum for the purpose of determining the market value of the acquired land. Learned Counsel took me through the impugned judgment and pointed out that the Reference Court erroneously took an adverse inference of non production of the sale deed wherein the husband of the Appellants had purchased the property in the year 1984 when the same was irrelevant for the purpose of determining the market value of the land. He further submitted that the Reference Court totally erred in not relying upon the report of the expert which is at exhibit 20 on totally unfounded ground. The learned Counsel as such submitted that the Appellants are entitled for enhancement of compensation as prayed in their application. 8. On the other hand Shri S. Vahidulla, learned Government Advocate appearing on behalf of the Respondent has supported the impugned judgment. He submitted that the Reference Court has - 5 - minutely assessed the evidence produced by the Appellants and came to the conclusion that the Appellants have failed to discharge the burden cast on them to establish that the price offered by the Land Acquisition Officer was inadequate. He further submitted that the sale deed plot is not comparable with the acquired land and as such the Reference Court was justified to refuse to rely upon the sale deed. Learned Counsel further submitted that the Appellants have deliberately fail to produce the sale deed pursuant to which the acquired land was purchased by the husband of the Appellants. Learned Counsel as such submitted that there is no infirmity committed by the Reference Court in rejecting the reference filed by the Appellants. 9. Having heard the learned Counsel for the Appellants 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 reject the reference filed by the Appellants for enhancement of the compensation under section 18 of the said Act? - 6 - 10. AW1 Mr. Sylvester Niassso, in his deposition has stated that the acquired land was levelled land which was suitable for construction purpose and was located at a distance of 4 kms from the Government office and the post office. He has further stated that there is a temple located at ½ km from the acquired land and that there is a tiles factory at a distance of 1 km and a Government Secondary School at about ½ km from the acquired land. He has produced a sale deed dated 24th March, 1988 between Krishnanand Shetty and his wife and M/s V. K. Engineers and Builders which is at Exh. AW1/A. By said sale deed an area of 388 square metres was sold at Rs. 100/- per square metre. The said land is at a distance of ½ km from the acquired land and the same is levelled and located at a distance of ½ km from the Margao Quepem road. In his cross examination he has stated that he cannot say anything to the suggestion that his father had purchased the land at the rate of Rs. 28/- to 30/- per square metre. He has further stated that if he remember correctly his father had purchased the land in the year 1984. He has also stated that the acquired land was not a paddy field and that the sale deed plot was developed plot. He has further admitted that shops and amenities are available within ½ km from the acquired land and that his father and others had purchased the property for construction of a house. But - 7 - however his father had not constructed the house. The sale deed at Exh. AW1/A suggests that the plot no. 4 admeasuring an area of 388 square metres was sold as a distinct independent unit and was bounded towards the east by a road. It further discloses that the property was sub divided into plots pursuant to the sanction granted by the statutory authority dated 4.4.1988. Price mentioned therein was Rs.38,800/- which works out to Rs.100/- per square metre. AW2 is one Ganapati Shetty who is one of the seller of the plot which is at Exh. AW1/A. He has confirmed the contents of the said sale instance. He has further stated that the acquired land and the land of the sale deed was similar in nature. In the cross examination he has stated that he does not know when the land of the Appellants was acquired. The expert Shri Vikas Dessai has also deposed and stated that according to him the market value of the acquired land is Rs. 125/- per square metre. He has further stated that he went to the property by foot path which was the only access. The learned Judge on appreciation of the evidence on record has rejected the reference filed by the appellants. 11. On perusal of the evidence on record and the deposition of the witnesses, I find that the sale deed at Exh. AW1/A is - 8 - comparable to the acquired land. Apart from the deposition of AW1, the vendor who is AW2 has also stated that the nature of the acquired land and nature of the sale deed plot is similar. There is no serious challenge to the said statement in the cross examination of the said witness. Evidence adduced as such establishes that the Appellants have been in a position to demonstrate that the price offered by the Land Acquisition Officer was inadequate. Respondent failed to discharge their burden to establish that the price offered by Land Acquisition Officer was just and proper as no evidence has been adduced by the respondent. The records further established that the sale instance at Exh. AW1/A was a sub divided plot while on the contrary the acquired land was undeveloped land. 12. The Apex Court in Subh Ram Vs. State of Haryana, (2010) 1 SCC 444 has held at para 15 thus:- Thus, if the valuation of a large extent of agricultural or undeveloped land is to be based on the sale price of a small developed plot in a private layout, then the standard deductions should be one- third (for roads, etc.) plus one-third (for expenditure of development), in all two-thirds (or 67%), as “development cost” from the value of small plot. The percentage of deduction may however vary between 20% to 75% depending on - 9 - several circumstances (see Lal Chand v. Union of India3, paras 8 and 9 for illustrations of such circumstances). 13. Considering the said Judgment of the Apex Court, deduction on account of development charges can extend from 20% to 75%. In the present case, sale deed plot is bounded by 8 metres wide road apart from that records suggest that it is closer to the main Margao Quepem Highway. As such on account of the open spaces and other statutory restrictions considering the area involved the deduction ought to be 30%. Besides that as the acquired land is not bounded by a motorable access and the sale deed plot is closer to the main road a further deduction of 25% would have to be effected. The aggregate deduction works out to 55% in the facts and circumstance of the case. The market value of the acquired land would be at the rate of Rs.45/- per square metre. The Reference Court was not justified in rejecting the reference filed by the Appellants on the ground that the sale deed pursuant to which the acquired property was purchased has not been produced by the Appellants. Even assuming that the suggestion put by the Respondents to AW1 that the property was purchased in the year 1984 at the rate of 25/- to 30/- per square metre is accepted, considering the appreciation at the rate of 10% - 10 - from 1984 to 1988 the price fixed at the rate Rs. 45/- per square metre is just and proper. Point for determination is answered accordingly. 14. In view of the above, I pass the following:- O R D E R i. The Appeal is partly allowed. ii The impugned Judgment and Award dated 22nd October, 2003 is quashed and set aside and the market value of the land acquired is fixed at the rate of Rs. 45/- per square metre. Needless to say that the Appellants would be entitled to statutory benefits as provided under section 23(1) )(A), 23(2) and section 28 of the said Act in accordance with law. iii. The Reference Court is directed to compute the amount payable by the Respondent after hearing both the parties within three months from the date of receipt of this Order. The Respondents are directed to deposit the amount so determined within three months thereafter before the 'Reference Court. - 11 - iv. The Appeal stands disposed of accordingly with no Order as to costs. Decree accordingly. F. M. REIS, J. vn*