first appeal no.185 of 2006 1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 185 OF 2006 1. Shri Laxmikant D. Naik, Karmali, son of late Damu Datta Naik Karmali, 67 years of age, Civil Engineer, resident of near Joaquim Chapel, Borda, P.O. Fatorda, Margao, Goa, 403 602. 2. Shri Bhaskar D. Naik Karmali, son of late Damu Datta Naik Karmali, 65 years of age, businessman, resident of Cacora, P.O. Curchorem, Goa, 403 706. 3. Shri Narendra D. Naik Karmali, son of late Damu Datta Naik Karmali, 61 years of age, medical practitioner, residing in the United State of America, represented herein by his power of attorney holder Appellant No.1. ... Appellants versus 1. The Deputy Collector, Sub-Divisional Officer and Land Acquisition Officer, Quepem, Goa. 2. The Executive Engineer, Works Division XVIII (Roads-Central), Public Works Department, Ponda, Goa. ... Respondents first appeal no.185 of 2006 2 Shri P. A. Kholkar, Advocate for the Appellants. Ms. S. Linhares, Additional Government Advocate for the Respondents. CORAM : F. M. REIS, J. DATE : 22ND JULY, 2011. ORAL JUDGMENT The above appeal challenges the Judgment and Award dated 8-3-2006 passed by the learned Additional District Judge, South Goa, Margao in Land Acquisition Case No.19 of 2001. 2. Pursuant to a notification under Section 4 of the Land Acquisition Act, 1894(hereinafter referred to as the said Act) land was intended to be acquired for improvement of black topping of Sonafator and Voilowada road in Village Panchayat of Xeldem of Quepem Taluka vide notification published in the Official Gazette on 24-3-1994. The land acquired was belonging to the Appellants of an area of 725 sq. meters from the property surveyed under No.127/1 and an area of 1550 sq. meters from the property surveyed under No.125/1. The Land Acquisition Officer whilst passing the award under Section 11 of the said Act offered compensation for the land acquired at the rate of Rs.18/- per first appeal no.185 of 2006 3 sq. meter. Being dissatisfied with the said amount the Appellants preferred a reference under Section 18 of the said Act for enhancement of compensation and claimed an amount of Rs.300/- per sq. meter besides compensation of a sum of Rs.10,000/- towards forest trees and alleged that an error crept up in the area of the land acquired. After recording of evidence and hearing the parties, the Reference Court by the impugned Judgment dated 8-3-2006 rejected the reference. Being aggrieved by the said Judgment, the Appellants have preferred the said appeal. 3. Shri P. A. Kholkar, learned Counsel for the Appellants has assailed the impugned Judgment and pointed out that the Reference Court was not justified to come to the conclusion that the acquisition was only for improvement of the road and as such, the Appellants were not entitled for any compensation. Learned Counsel further pointed out that the Appellants are not pressing Issue Nos.1 and 2 of their claim to the effect that there was difference in the area. Shri Kholkar further pointed out that the Appellants are not pressing for their claim of Rs.10,000/- towards forest trees existing in the said portion of the land. Learned Counsel pointed out that the sale instances produced by the Appellants first appeal no.185 of 2006 4 were within the vicinity of the land acquired whereby developed land was sold at the rate of Rs.300/- per sq. meter. Learned Counsel submitted that there was sufficient evidence on record to establish that the Appellants were entitled for enhancement of compensation. Learned Counsel took me through the impugned Judgment and pointed out that the findings of the Reference Court to the effect that the acquired land was narrow and the suit plots are developed plots cannot be a ground to refuse enhancement of compensation. Learned Counsel further submitted that the Appellants were owners of the said land and as such, the question of ascertaining whether there was an existing road in the portion acquired and find out the public purpose is totally erroneous. Learned Counsel further submitted that the Appellants were entitled for compensation as claimed by them in the reference preferred under Section 18 of the said Act and as such, the impugned Judgment deserves to be quashed and set aside and the appeal be allowed and the compensation awarded to the Appellants be enhanced accordingly. 4. On the other hand, Ms. Susan Linhares, learned Additional Government Advocate has supported the impugned Judgment. Learned Counsel has fairly conceded that the question of the Reference Court first appeal no.185 of 2006 5 interpreting the public purpose for which the land was acquired is not at all justified as the State Government was acquiring the land belonging to the Appellants and as such compensation was offered to the Appellants by the Land Acquisition Officer whilst passing the award. Learned Additional Government Advocate further submitted that there is no evidence on record to establish the comparability of the sale instances and the land acquired and as such the question of granting any compensation to the Appellants would not arise. Learned Additional Government Advocate further submitted that the sale instances are not at all comparable with the land acquired as the sale deed plots are at a distance of 200 meters having many dissimilarities. Learned Additional Government Advocate took me through the evidence on record and pointed out that the findings of the Reference Court cannot be faulted. Learned Additional Government Advocate as such pointed out that the above appeal deserves to be rejected. 5. Having heard the learned Counsel, the following point for consideration arises:- “Whether the Reference Court was justified to reject the reference”? first appeal no.185 of 2006 6 6. Considering the submissions of the Appellants to the effect that the Appellants are not pressing for the claims about the discrepancy in the area as well as the compensation of a sum of Rs.10,000/- on account of forest trees, I find that the finding of the Reference Court on Issue Nos.1, 2 and 4 cannot be faulted and as such the finding on such issues stand confirmed. The only aspect to be considered is regarding the finding on Issue No.3. The Reference Court while appreciating the evidence on record has refused to consider the comparability of the land acquired with the sale instance on the ground that the land acquired was narrow and which could not be compared with the land acquired. The Apex Court in the Judgment reported in 2009(10) S.C.C. 686 in the case of State of Goa and Anr vs. Gopal Baburao Gaudo and Ors. has held at paras 4 and 5 thus: “4. 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 m from the centre of the highway. All that was required to create or realise 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 first appeal no.185 of 2006 7 will become the “access” to the rear side land from the main road and will also become the 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. 5. 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 m margin) as having potential for development, is illogical and cannot be accepted.” 7. Considering the Judgment of the Apex Court to value the market value of the land acquired, as it is contended by the learned Counsel for the Appellants that the Appellants owned land beyond the said area acquired, there is no bar in relying upon sale instances of a developed plot for the purpose of fixing the market value of the acquired land. The Reference Court is not at all justified and has erroneously refused the compensation on the ground that the acquired land was a narrow strip of land. The Reference Court is also not justified to refuse compensation on the ground that the land which has been acquired was part of an earlier pathway which was used by the people from the locality. This Court in the Judgment passed in First Appeal No.275/2003 in the case of Mrs. first appeal no.185 of 2006 8 Leopoldina P. E. Mendonca (sin. Dec.) through L.R.s V/s The Dy. Collector and S.D.O. And Anr., dated 22/12/2010 has held at para 11 thus: “11. Mr. Menezes is right in placing reliance upon judgment of this Court in the case of Fabrica of the church of Benaulim (supra) in First Appeal No.170 of 2003. This Court has held that merely because the traditional access is passing through the acquired land, the same would not be a ground to hold that the acquired land had no building potential. This Court has held that appropriate deduction has to be made for the fact that the traditional access was passing through the acquired land. In the said case, this Court deducted 20%. Therefore, the approach of the Reference Court in rejecting the reference on the ground that the traditional access was passing through the acquired land is unsustainable in law.” Taking note of the said Judgment of this Court, I find that merely because a part of the land was a pathway would not disentitle the party for compensation to the land owner. No doubt this factor can always be considered for the purpose of determining the market value of the land as negative factors of the land acquired. It would be appropriate to re-appreciate the evidence on record and consider whether the Appellants are entitled for any enhancement to the compensation offered by the Land Acquisition Officer. Both the Counsel however pointed out first appeal no.185 of 2006 9 that instead of this Court appreciating the evidence on record, it would be appropriate that the matter be remanded to the Reference Court to decide the reference afresh by re-appreciating the evidence on record after hearing both the parties. At this stage, Shri Kholkar, learned Counsel pointed out that he may be permitted to lead further evidence in support of his claim. In case the Appellants are so advised, liberty is given to the Appellant to file a proper application before the Reference Court which shall be decided on its own merits after hearing both the parties. The Respondents will be at liberty to lead evidence in rebuttal to dispute any such evidence as adduced by the Appellants. The points for determination is answered accordingly. 8. In view of the above, I pass the following Order:- ORDER 1. The appeal is partly allowed. 2. The impugned Judgment and Award dated 8-3-2006 is quashed and set aside. 3. Land Acquisition Case No.19 of 2001 is restored to the file of the Reference Court. 4. The Reference Court is directed first appeal no.185 of 2006 10 to decide Issue No.3 afresh after hearing both the parties in the light of the observations made herein above in accordance with law. 5. Parties are directed to appear before the learned Judge on 5-9-2011 at 10.00 a.m. F. M. REIS, J. RD