1 IN THE HIGH COURT OF BOMBAY AT GOA First Appeal no.220 of 2004 1. Special Land Acquisition Officer, I.D. Complex, (SIP), Gogol, Margao, Goa. 2.The Executive Engineer, W.D. XI, Irrigation Department, Gogol, Margao, Goa. ....... Appellants. V e r s u s 1. Puttam Rama Naik Gaunkar, Kindlem, Canacona, (since deceased represented through legal representatives) 1.a (i) Smt. Vimal Ramesh N. Gaonkar 1.a. (ii) Miss Shilpa Ramesh N. Gaonkar 1.a (iii) Miss Chatura Ramesh N. Gaonkar 1.a (iv) Miss Devayani Ramesh N. Gaonkar 1.a (v) Mr. Sagar Ramesh N. Gaonkar. 1.b. Shri Shantaji Rama Naik Gaonkar 1.c. Shri Chandrakant Rama Naik Gaonkar .... Respondents Shri S. Vahidulla, Additional Government Advocate for the Appellants. Shri Mahesh Amonkar, Advocate for the Respondent. Coram: A.S. Oka & F. M. Reis, JJ. Date: 9th June, 2010. Oral Judgment (Per A.S. Oka,J ): 1. We have heard the Learned Government Advocate in support of the appeal. The appellants have taken an exception to 2 the Judgment and Award dated 02/06/2004, passed by the Learned Additional District Judge, Margao in a reference under Section 18 of the Land Acquisition Act, 1894 (for short hereinafter referred to as the said Act). The Respondents are the claimants in the said reference. 2. The lands subject matter of acquisition is bearing survey no.200/4 admeasuring 600 square metres and survey no. 201/1 admeasuring 17,400 square metres situated at Nagorcem- Palolem villages. Notification under Section 4 of the said Act was issued on 27.01.1989 and was also published in the Official Gazette dated 2/2/1989. Award was made by the Land Acquisition Officer fixing the market value of the paddy field at the rate of Rs. 8/- per square metre and Rs.5/- per square meter in respect of bharad land. By making an application under Section 18 of the said Act the respondents/claimants claimed market value at Rs.20/- per square metre. The respondents also claimed compensation of Rs.10,000/- towards market value of the trees on the acquired land. 3. The Respondents placed reliance on two documents. The first is Judgment and Award dated 6/4/1998 in Land 3 Acquisition Case No.90/93 which was produced at exhibit Aw.1/A. This was a case where compensation awarded at the rate of Rs.6/- per square metre in respect of paddy land admeasuring 20,950 square meres was enhanced by the Reference Court to Rs.41/- per square metre. This was a case where Notification dated 19.2.1988 under Section 4 was issued. Reliance was placed on the award on the ground that the said land is only at a distance of 200 to 300 metres from the present acquired land. The second document relied upon is the Sale Deed dated 25/9/1985 executed between Balkrishna Shivram Naik Gaonkar and others in favour of Margareta Fernandes, which was produced and was marked Exhibit AW.1/B. It was contended that the land subject matter of the appeal was situated at a distance of 1.5 – 2 kms. from the acquired land and the land was a paddy land. 4. In the present case the Learned Reference Court accepted both the documents as relevant and held that the documents related to comparable lands. Though the Reference Court came to a conclusion that the respondents were entitled to market value of Rs.41/- per square metre, as the claim made was at the rate of Rs.20/- per square metre, the said amount was awarded by the Reference Court. 4 5. The Learned Government Advocate has relied upon a decision of this Court dated 20/11/2008 in First Appeal no.105 of 1998 by which the Judgment and Award in L.A.C NO.90/93 has been set aside. He submitted that in view of the said judgment of this Court no reliance can be placed on the said award. He also placed reliance on another decision of the Division Bench of this Court in the case of State of Goa and another Versus Kissan V. Gaonkar in First Appeal No.89 along with Cross Objections. By the said Judgment dated 29/6/2004, this Court allowed the appeal. The Learned Counsel for the appellants submitted that the lands which are subject matter of the said appeal were similarly situated land and this Court held that the Sale Deed dated 25/9/1985 was not of a comparable lands. His submission is that in view of the above two decisions of this Court, the impugned judgment and award dated 2.6.2004 should be set aside. 6. The learned Counsel for the Respondents supported the impugned judgment and award. 7. We have given careful consideration to the submissions. The impugned judgment and award is based on two documents. The first is the award in LAC no.90/93 and the second 5 is the Sale Deed dated 25/9/1985. As far as the award in LAC no. 90/93 is concerned the same has been set aside by judgment and order dated 20.11.2008 passed in First Appeal No.105 of 1998. Therefore, the said award in LAC NO90/93 cannot be considered now. 8. The learned Counsel for the appellants has relied upon the decision dated 29/6/2004 of the Division Bench in F.A. NO.89 of 1999 of this Court. In the said decision, this Court has not accepted the said sale deed dated 25/09/1985 at a comparable sale instance. This Court has assigned mainly two reasons for rejecting the Sale Deed dated 25.9.1985. This Court found that the acquired land which was subject matter before the appeal was situated at a distance of 2-1/2 kms from the National Highway and whereas the land subject matter of the sale deed dated 25/9/1985 was not only adjoining to the National Highway, but was within the municipal limits. The acquired land which is the subject matter of the said appeal was not within the municipal limits. 9. Therefore, it will be necessary to consider the facts of the present case. The case made out by AW1, Shantagi Naik Gaonkar in his deposition is that the acquired land is at a distance of about 800 metres from the highway. In the cross examination of 6 the said witness it is brought on record that the acquired land is situated within the municipal area even on the date of acquisition. It is brought on record that there was electricity connection in the village on the date of acquisition. It is also brought on record that there are shops,garages, bars and restaurants by the side of the highway at a distance of 800 metres from the acquired land. The witness stated that the land which is the subject matter of Sale Deed dated 25/9/1985 was at a distance of 1.5 kms from the acquired land. He stated that the land which is subject matter of the sale deed was also a paddy land. Thus, the negative factors which are found to exist in F.A No.89 of 1999 are not in existence in the present case. It must be noted that the sale deed is a pre-notification sale deed. It is executed nearly four years prior to the date of the notification under Section 4. Moreover, the market value in respect of the paddy land subject matter of the sale deed is Rs.80/- per square metre. 10. Considering the evidence on record, no fault can be found with the approach of the trial court, when the trial court considered the sale deed as a relevant piece of document which has some bearing on the determination of the market value of the acquired land. The said sale deed was sufficient to discharge the 7 burden on the claimants to show that the market value of the paddy field at the rate of Rs.8/- per square metre and Rs.5/- in respect of bharad land was inadequate. It may be noted that what is awarded by the Reference Court is market value at the rate of Rs.20/- per square metre. Though award in LAC no.90/93 cannot be relied upon, the finding as regards market value awarded by the Reference Court can be supported by the sale deed dated 25/9/1985. 11. Therefore, the market value determined by the Reference Court is reasonable and no interference is called for by this Court. There is not merit in the appeal and the same is dismissed with no order as to costs. A. S. Oka, J F. M. Reis, J Ap/-