1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.101 OF 2003. 1) Special Land Acquisition Officer (N), P.O.Tivim Industrial Estate, Karaswada, Mapusa, Bardez-Goa. 2) Executive Engineer, Works Division VIII, Irrigation Department, Now under G.T.I.D.C., W.D. VIII, T.I.P. Complex, P.O. Tivim Industrial Estate, Karaswada, Mapusa, Bardez-Goa. .. Appellants. Versus. Mr. Rameshchandra Govind Pawaskar, r/o. Bucha, Alto-Porvorim, Bardez, Goa .. Respondent Ms. W.Coutinho, Government Advocate for the Appellants. Mr. R. Dada, Senior Advocate with Mr. Sudin Usgaonkar, Advocate for the respondent. Coram :- S. C. DHARMADHIKARI & R. C. CHAVAN, JJ. Date of reserving the Judgment : - 24 th September, 2008. Date of Pronouncing the Judgment :- 26 th September, 2008. 2 ORAL JUDGMENT : ( PER S. C. DHARMADHIKARI) 1. This first appeal is by the appellants, namely Special Land Acquisition Officer (North) and Executive Engineer, Works Division VIII, Irrigation Department. Both officers of the State are in appeal against a judgment and award dated 6.1.2003 made by the learned Additional District Judge, Mapusa in Land Acquisition Case No.70/1995. By the impugned judgment and award the Additional District Judge has allowed a reference made by the respondent original applicant under section 18 of the Land Acquisition Act, 1894 (for short 'Act'). The reference is partly allowed and the rate fixed by the L.A.O. is enhanced to Rs.140/- per Square Metre, which is determined as the market value of the land on the date of the acquisition. The statutory benefits are also awarded. 3. The undisputed facts are that the Government of Goa acquired the land of the respondent admeasuring 9153 Square Metres forming part of Survey No.102/1 situated at Colval village, Bardez for construction of Rest House and Staff Quarters of Tillari Irrigation Project. The notification under section 4 of the Act was published on 26.8.1991. The award made by the L.A.O. on 19.8.1993 offered the applicant/respondent a sum of Rs. 15 per Square Metre and the respondent applicant being aggrieved by the same, applied for 3 enhancement under section 18(1) of the Act, which reference was made over to the Reference Court. The respondent applicant had claimed Rs.300 per Square Metre before the Land Acquisition Officer and in the reference he claimed this very sum. The same was done before the Reference Court vide his reference application dated 13.5.1994. 4. Upon reference being made over the Reference Court framed an issue on 21.6.1996 to the effect that whether the respondent has proved that market value of the land acquired by the Government was Rs.300 per Square Metre as on the date of the notification under section 4 of the Land Acquisition Act. 5. The respondent applicant examined himself and Civil Engineer/Valuer so also an Architect Desai, whereas the appellants examined Executive Engineer Patil as their witness. They also filed an affidavit of the Special Land Acquisition Officer. 6. The respondent deposed in examination-in-chief that notification under section 4 was published as above. A declaration under section 6 was issued on 9.1.1992 and possession of the land was taken on 19.4.1994. He pointed out that L.A.O. awarded compensation of Rs.1,37,295/-. 4 7. He deposed that the acquired land is situated just by the side of the office of Irrigation Department. It has potentiality of development as commercial complex. Its situation is such that it is located about 300 metres away from the border of the city of Mapusa. It is at the right hand side of the road, if one goes to Mapusa from Colvale from the National Highway No.17. It has all infrastructural facilities such as electricity, water pipeline as well as telephone. The building of the Irrigation Department was erected about 3 years before the acquisition of land. There are number of residential houses near the acquired land closest being 300 metres away. Tivim Industrial Estate is just about 300 metres away. The respondent produced a blue print sketch drawn by Architect Lakshman Desai showing the acquired land. The sketch was taken on record as Exh.AW.1/A. The respondent pointed out that there are amenities available such as Bank of Goa, Petrol Pump, Post Office, Telephone Exchange, Primary School, P.W.D. Reservoir, Market, Residential Colony and they are within the radius of 300 metres from the acquired land. 8. The respondent produced allotment order by the Industrial Development Corporation and pointed out that rate of lease in the year 1987 was Rs.60 per Square Metre. The allotment orders were produced with regard to plots in the Industrial Estate, which were given on lease by the Corporation. He contended that the acquired land is levelled land 5 and similar to above plots. It can be utilised for industrial purpose by raising a structure such as a shed for industrial activities. It can also be used for construction of residential bungalows. All amenities are available as the Industrial Estate is close by. Further, he relied upon a sale deed dated 27.10.1986, which was marked as Exh.AQ.1/D and rate of land sold thereunder is Rs.150 per Square Metre. He also produced another sale deed of identical rate dated 23.3.90. The land in the sale instance of 27.10.86 is situated about 1 and half Kilometres away from the acquired land. He pointed out that amenities available at the acquired land are similar to the land in the sale instance. The sale instance land is situated within Mapusa Municipal area. The sale instance land was about 100 metres away from the National Highway. 9. The sale instance land in the second sale deed of 1990 is about 400 metres away behind the Petrol Pump mentioned by the respondent. There also amenities are available on par with the acquired land and it is about 200 metres away from the National highway. 10. The respondent relied upon an offer made to him by one Plastic Crafts to purchase the acquired land for Rs.150 per Square Metre, but the project being abandoned, the sale could not go through. 11. He pointed out that the acquired land has been declared as 6 industrial area as per the Revised Town Planning plan dated 12.3.1990, which was published in the official gazette on 15.4.1990. A letter was produced on record and marked as Exh.8, which evidences the same. 12. In the cross-examination of this witness, he stated that he is the owner of the acquired land. A Sanad has been issued to him by Mamlatdar of Mapusa. Exh.9 is the Sanad. The suggestions given to him would demonstrate that there were houses constructed in the vicinity of the acquired land prior to acquisition. Industrial Estate is 300 metres away approximately from the acquired land. The land in the first sale instance is about 1 Kilo Metre away and land in second sale instance is 400 metres away from the acquired land, behind Petrol Pump. He denied that two lands are better developed as compared to the acquired land and he denied the suggestion that amenities referred by him in his deposition were not in existence as far as the acquired land is concerned. He clarifies that the facilities including Bank of Goa were in existence prior to acquisition of his land. The Bank was of Goa was earlier known as Mapusa Urban Co-operative Bank Ltd. All that, he admits is that the Communidade was the owner of the land at one time. This is the only cross-examination of the respondent claimant. 13. As far as Ravindra Tamba Civil Engineer/ Valuer is concerned, his deposition is more or less on same lines as far as 7 amenities and potential of land under acquisition. In his cross- examination there are suggestions, which are general in nature. Even the Architect Lakshman Desai's deposition corroborates and confirms the availability of the amenities and infrastructure facilities. His cross- examination also is containing certain suggestions. However, he states that a Bus Stop is also located within the close vicinity of the acquired land. 14. As far as appellants' witness Shrikant Dattatray Patil, who was working as Executive Engineer, Works Division of G.T.I.D.C. is concerned, in his examination-in-chief itself, he says that Industrial Estate was in existence at the relevant time and the distance is about 500 metres although he does not confirm location of any residential house in the vicinity. He states that from the land under acquisition a Hospital is located at a distance of 3 Kilometres, Mapusa Police Station is at a distance of 5 Kilometres and a Bus Stop was 400 Metres from the acquired land. He states that the acquired land is closest to National Highway No.17. The nearest market is Mapusa and the office building is 50 Metres away from the acquired land, the same was under construction. The acquired land according to him was uneven. He confirms the location of a Government Primary School at about 3 Kilometres away from the acquired land. He confirms that the Mapusa town is 3 Kilometres away from the land under acquisition. 8 15. It is better to reproduce the relevant part of his cross- examination by the respondent. “I have personally supervised the demarcation of the area we survey the surrounding area if necessary prior to demarcation. In the present case I have surveyed the neighbouring area in connection with another acquisition 50 mts. away for office purposes. This acquisition in the year 1984. It is true that the office of Tillari Irrigation Project is in land adjacent to the acquired land. The extension counter of Bank of Goa is recently set up in the Industrial area which is 500 mts. away from the acquired land. There is petrol pump 400 mts. Away from the acquired land. I cannot say if this petrol pump was in existence at the time of acquisition. There is post office set up in the Industrial area but I cannot say if it was in existence at the time of acquisition. There is telephone exchange set up in the Industrial area but I am not in position of it was in existence at the time or acquisition. There is a PWD Reservoir (overhead) in the way to Mapusa Bicholim road but I cannot say it was in existence at the time or acquisition. This reservoir is at distance at 1.5 Kms from the acquired land. I am not aware if there is any residential in the vicinity acquired land at the time of acquisition. It is true that NH17 is adjoining the acquired land. It is not true that all facilities as bank, post office, residential, petrol pump were available to the acquired land at the time of acquisition. I am not aware if there is any High School within 300 9 mts. of the acquired land. The nearest bus stop is 400 mts. is away from the acquired land. I have not heard any Mayur colony in the vicinity of the acquired land. I am not aware if this Mayur colony is located in the sales instance land dt.27.10.86. I cannot say anything to suggestions that Mayur colony is 1 kilometre away from the acquired land. It is not true that I have falsely stated that there were no residential colony in the vicinity of the acquired land at the time of acquisition. It is not true that I have falsely stated that there were no drinking water nor electricity nor telephone facilities at the time of acquisition. ” 16. The Special Land Acquisition Officer, who is examined took charge of the area on 12.3.2001 and, therefore, deposed on the basis of the records. It is not necessary to refer to this deposition in details. 17. The learned Additional District Judge heard extensive arguments of learned Advocates appearing for the parties. She perused the oral and documentary evidence and after complete assessment of the same, held that the unrebutted testimony of the respondent vis-a-vis various amenities and the facilities is relevant and material. The first sale transaction may be with regard to smaller plot, but after appropriate deductions, the rate works out Rs.90 per Square Metres of the acquired land in the year 1986. If proportionate increase is taken into 10 consideration in land prices, the rate could work out at Rs.135/- per Square Metre. In the second instance, the land admeasuring 500 Square Metres and it was sold at Rs.150 per Square Metres in the year 1990. These were the plots situated at Cuchelim with old dwelling houses in it. The learned Judge did not consider this sale deed but referred to the allotment orders in respect of plots admesuring 2970 Square Metres and the allotment order shows a proportionate increase in the lease amount from 1979 to 1987. The Valuer's report and other material is referred to and the learned Judge held that on the basis of these calculations, the market value of the land under acquisition at the relevant time, would be Rs.140 per Square Metres. The learned Judge, accordingly, made the award. 18. It is this award, which is impugned in this first appeal. 19. Ms. Coutinho, learned Govt. Advocate appearing for the appellants while not seriously disputing the amenities, infrastructure facilities and potential of land under acquisition so also, its location in the close vicinity of Industrial area and other developments, contended that the amended grounds in the memo of appeal should be taken into consideration. She submits that, the amended pleas raise the question of applicability of Goa Land Use (Regulation) Act1991. She submits that notification under section 4 was published on 26.4.1991 and 11 according to her the correct date is 26.9.91. The respondent claimed that he was a tenant of the property and deemed purchaser having a Sanad under the Tenancy Act by paying the amount fixed by the Mamlatdar to the Communidade of Colval and he paid Rs.59,840/- for the entire Survey No.102/1. This was for the area admeasuring 374000 Square Metres. She submits that the learned Judge did not consider the fact that the land under Acquisition was an agriculture land. Provisions of the Goa Agriculture Tenancy Act, 1964 and the Land Use (Regulation) Act were applicable. They were in force prior to the acquisition and, therefore, the market rate could not have been the one determined by the learned Judge. The restrictions under the Land Use (Regulation) Act being in place, the learned Judge could not have been fixed the compensation on the basis of the market value arrived by her. In such circumstances and when the building potentiality of the land was not relevant factor considering the applicability of the Land Use (Regulation) Act, the claim for enhanced compensation should not have been granted and the learned Judge seriously erred in making the impugned award. She invites our attention to Goa Land Use (Regulation) Act and relevant provisions of Agriculture Tenancy Act. 20. On the other hand, Shri Dada, learned Senior Counsel appearing for the respondent contended before us that the amended pleas cannot be taken into consideration. This is not a case of a pure 12 question of law being allowed to be included and pleaded by the appellants. This is a case, where all throughout before the Reference Court, the appellants proceeded on the basis that the building potential of the land so also its capability of being developed as a industrial plot is undisputed. That is a relevant factor. They have cross-examined respondent applicant on that basis. It is not as if that the appellants were unaware of the lands being granted to the respondent under a Sanad. That Sanad is very much exhibited on record. Despite the Sanad being exhibited, the respondent was allowed to depose and place on record the sale transactions for the relevant period. The learned Judge even permitted cross-examination by the appellants so also gave opportunity to lead their own evidence insofar as the potentialities of the land under acquisition. Extensive cross-examination shows that all that the appellants put in issue was the availability of the amenities and facilities, while not disputing the location of industrial area and office building in the close vicinity. They examined their own Executive Engineer, but he also neither deposed nor placed on record anything with regard to applicability of the Land Use (Regulation) Act He submits that the question of the applicability of the Land Use (Regulation) Act cannot be, therefore, raised for the first time in these peculiar facts and circumstances of the case before us. This is a mixed question and, therefore, the award cannot be impugned by relying upon something, which was never an issue before the Reference Court. 13 21. Since Ms. W. Coutinho relied upon Division Bench Judgment of this Court delivered in First Appeal No.221/2003 dated 9.2.2005 in support of her contentions, Mr. Dada replied to the same by pointing out that the Division Bench was considering a case, where the land under acquisition belonged to a Communidade and the applicant before the Reference Court was a tenant of the Communidade. Further, the evidence on record was considered and when it was admittedly a case of agricultural tenancy that the Court concluded that the Land Use (Regulation) Act would be applicable. That apart, Mr Dada submits that the Division Bench Judgment would require reconsideration as several aspects pertaining to the applicability of the Land Use (Regulation) Act to acquisition proceeding under Land Acquisition Act were not projected and highlighted before the Division Bench. The Division Bench failed to note that Section 3 of the Land Use (Regulation) Act made it very clear that same would not apply to the acquisition of any land vested in a tenant under the Tenancy Act, by the State for a public purpose under the Land Acquisition Act. It is exempted from the purview of the Act. Once the land was acquired for public purpose under the Land Acquisition Act, then, provisions of the Land Use (Regulation) Act could not have been applied at all. Further, the Division Bench erred in its conclusion that no compensation can be awarded on account of restricted user. He submits that there are several 14 decisions of the Hon'ble Supreme Court in the field which take a view that in the case of agricultural land, market value has to be determined for awarding compensation by making appropriate deductions. In other words, while considering sale transactions in respect of lands with building and development potential, appropriate deductions will have to be made in case of agricultural lands, but in no case, the Supreme Court holds that the potentialities for development of agricultural land cannot be considered and market value determined on that basis. He submits that the Division Bench Judgment is contrary to several decisions in the field and could be termed as pre incuriam. 22. We are of the view that in the present facts and circumstances, we cannot permit the appellants to raise the issue of applicability of the Land Use (Regulation) Act. The memo of appeal is amended. The amended memo of appeal as far as ground (ai), reads thus: “(ai) That the Ld. Addl. District Judge has observed that point of tenancy was raised. However, the Ld. Addl. District Judge held that the controversy about the ownership right of the Applicants are laid to rest and the Sanad is brought on record. The Ld. Addl. District Judge failed to consider that Notification u/s.4 was published on 26.4.1991 (which in fact on 26.09.1991). it is also stated 15 that the Applicant (Respondent herein) claimed that he was the tenant of the property and a deemed purchaser having the Sanad under the Tenancy Act by paying the amount as fixed by the Mamlatdar to the Communidade of Colvale. That from the record (Exhibit 9) it is found that the value determined by the Mamlatdar was to the extent of Rs.59.840/- in respect of Survey No.102/1 for an area of 3,74,000 sq. mts. The Ld. Addl. District Judge did not consider the fact that it was a agricultural land and the provisions of the Goa Agricultural Tenancy Act, 1964 and the Goa Land Use (Regulation) Act, 1991 were applicable, which Acts came into force prior to the acquisition. In fact, the ld.Addl. District Judge directed to pay th entire compensation to the Respondent under the Sanad issued by the Mamlatdar. That being so, the Ld. Addl. District Judge went wrong in enhancing the market rate when in fact as a deemed tenant the Respondent purchased the same land at 16 paise per sq. mt.” 23. From bare perusal of the same, it is apparent to us that when Exh.9, according to the appellants, substantiates the case with regard to applicability of Land Use (Regulation) Act, then, there should be some explanation as to why no issue or plea was raised about the same. The appellants examined their own Executive Engineer, who also did not raise the issue or state anything on the basis of Exh.9. He produced no details. In such circumstances, merely by relying upon a 16 Sanad before us, it will not be fair to allow the appellants to raise the plea of applicability of the Land Use (Regulation) Act. More so, when during the course of evidence before the Court below, the respondent tendered a sketch map with regard to the location of the land under acquisition. Its location, situation, proximity to market, bank, petrol pump, telephone exchange and residential colony is not disputed. Further, the land being very close to National Highway is also a fact, which is proved by even witness examined by the appellants. We have reproduced the relevant part of his deposition only to emphasize the fact that the compensation in this case is based upon the market value of the land as on the date of the notification under Section 4. That, the land is within Industrial area and capable of being developed as Industrial plot as well, so also the Government notification being placed on record, everybody proceeded on the basis that the market value should be determined by considering the sale instances and other material without projecting the aspect of the user at the time of the acquisition or any restriction thereon. Further, this is a case where prior to the notification under section 4 of Land Acquisition Act, the land is earmarked for Industrial use in the plan of 1990. This is much prior to the date of section 4 notification. The Land Use (Regulation) Act has been brought into effect from 2.11.1990. This Goa Land Use (Regulation) Act came into force in March 1991 and published in gazette on 22.4.1991. Therefore, whether the provisions contained in section 2 17 would cover this plan and affect it,is not something which has been put in issue by the appellants by producing relevant material. The respondent had no opportunity to deal with this aspect as well. There is no argument on the applicability of the Act raised before the Reference Court and when the parties proceeded on the above agreed basis, allowing the appellants to raise the issue, now would not be fair,just and proper in the facts and circumstances of this case. We, therefore, decline to go into the aspects highlighted with regard to applicability of the Land Use (Regulation) Act. The rival contentions are kept open for decision in an appropriate case. 25. There is one more reason for not doing so in this appeal. The view taken consistently by the Hon'ble Supreme Court in such matters is that in estimating the market value of the land, all of the capabilities of the land and all legitimate purposes to which it may be applied or for which it may be adapted are to be considered and not merely the condition it is in and the use to which it is at the time applied by the owner. In Suresh Kumar Versus T. I. Trust, Bhopal reported in AIR 1989, Supreme Court, 1222, this is what the Supreme Court observed : “ 9. It is true that the market value of the land acquired has to be correctly determined and paid so that there is 18 neither unjust enrichment on the part