1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 82/2003 WITH CROSS OBJECTION IN FIRST APPEAL NO.82/2003 AND FIRST APPEAL NO.83/2003 WITH CROSS OBJECTION IN FIRST APPEAL NO.83/2003. FIRST APPEAL NO.82 OF 2003 1. Special Land Acquisition Officer (South Goa) Konkan Railway Corporation Limited, Amey Guest House, P.O.Navelim, Salcete Goa, 403 707. 2. Chief Engineer, Konkan Railway Corporation Ltd., Rawnfond, near Margao Railway Station, Margao-Goa. ..... Appellants. Versus 1. Vithal G. Kamat, Block No.2 Bldg. B-I Paradise Apartments, Aquem Alto Margao-Goa ..... Respondent Mr. E.Afonso, Advocate for the appellants. Mr. Sudin M.S.Usgaonkar,Advocate for the respondent WITH CROSS OBJECTION IN FIRST APPEAL NO.82/2003. AND FIRST APPEAL NO.83 OF 2003 1. Special Land Acquisition 2 Officer (South Goa) Konkan Railway Corporation Limited, Amey Guest House, P.O.Navelim, Salcete Goa, 403 707. 2. Chief Engineer, Konkan Railway Corporation Ltd., Rawnfond, near Margao Railway Station, Margao-Goa. ..... Appellants. Versus 1. Vithal G. Kamat, Block No.2 Bldg. B-I Paradise Apartments, Aquem Alto Margao-Goa ..... Respondent Mr. E.Afonso, Advocate for the appellants. Mr. Sudin M.S.Usgaonkar,Advocate for the respondent WITH CROSS OBJECTION IN FIRST APPEAL NO.83/2003. Coram :- A. P. LAVANDE, J. Date of reserving the judgment :- 2 th Dece mber, 2008. Date of pronouncing the judgment:- 16 th December,2008. COMMON JUDGMENT : 1. Both these appeals are being disposed of by common order since the parties are the same and the appeals have been preferred against the common award dated 27.04.2001 passed by the District 3 Judge, South Goa, Margao. 2. First Appeal No.82/2003 is preferred against the award dated 27.04.2001 passed by the District Judge, South Goa, Margao in Land Acquisition Case No.489/1995 and First Appeal No.83/2003 is preferred against the award dated 27/04/2001 passed in Land Acquisition Case No.291/1994. 3. By the notification dated 30.07.1991 issued under Section 4 of the Land Acquisition Act (“The Act” for short), the respondent sought to acquire an area of 28975 square metres bearing Survey Nos.62/3, 62/4, 64/3, 64/5, 64/6 of Balli village of Quepem Taluka. The respondent is entitled to compensation in respect of 20014.58 square metres out of the total area of 28975 square metres.. The Special Land Acquisition Officer made the award on 07.12.1993 and awarded Rs.12/- per square metre towards the value of the land and in respect of fruit value an amount of Rs.1,16,200/- and for wood value Rs.33,839.78/- were awarded. The respondent sought reference claiming Rs.300/- per square metre. 4. In Land Acquisition Case No.489/1995, an area of 1323 square metres of property bearing Survey No.62/3 and 62/4 of Balli Village, Qupem Taluka, was sought to be acquired by the respondents 4 vide notification dated 29.08.1994 issued under Section 4 of The Act. The respondents claimed compensation @ Rs.400/- per square metre. The Land Acquisition Officer made award on 11.09.1995 and awarded compensation @ R.4/- per square metre. Towards the fruit and wood value, the Special Land Acquisition Officer awarded Rs.20,105/- and Rs.4428.71/- respectively. 5. Being dissatisfied, the defendants sought reference claiming Rs.400/- per square metre. The reference Court increased the compensation to Rs.30/- per square metre in respect of the first acquisition and to Rs.40/- per square metre in respect of the second acquisition. 6. In Land Acquisition Case No.291/1994 which was in respect of first acquisition and in Land Acquisition Case No.489/1995 which was in respect of second acquisition, common evidence was led by the parties. On behalf of the respondent, four witnesses were examined namely Vithal Kamat A.W.1, Suryakant Lotlikar A.W.2, Manguesh Ambo A.W.3 and Vikas Dessai A.W.4. On behalf of the appellants, two witnesses were examined namely Babu Kolekar R.W.1 and Rajesh Naik R.W.2. The Reference Court, upon appreciation of the evidence, oral and documentary, led by the parties, fixed the compensation payable in respect of first acquisition @ Rs.30/- per 5 square metres and in respect of second acquisition @Rs.40/- per square metre. The Reference Court adjusted the compensation awarded towards the fruit value in both the references towards the compensation awarded, in as much as the respondent was awarded compensation on the basis of valuation of the land in both the cases and therefore, was not entitled to separate compensation towards fruit value. 7. Mr. Afonso, learned Counsel appearing for the appellants submitted that the Reference Court has erred in enhancing the compensation although the respondent has not led cogent evidence to prove that they were entitled to any enhanced compensation. He further submitted that the Reference Court ought to have relied upon the consideration, mentioned by Mr. Suryakant Lotlikar A.W.2 for which he had purchased the land in the year 1987, for fixing the market rate of the acquired land. According to Mr. Afonso, the Reference Court ought not to have relied upon the sale deed dated 7.3.1991 Exh.Aw1/H by which Manguesh Ambo A.W.3 had sold an area of 896 square metres @ Rs.150/- per square metre. According to the learned Counsel, the Reference Court ought to have rejected all the sale deeds produced by the respondent as the lands sold by the said sale deeds, were not comparable to the acquired lands. The learned Counsel further submitted that the Division Bench of this Court has discarded all the sale deeds produced by the respondent in First Appeal No.37/2001 6 which was disposed of by the judgment and order dated 03.08.2004. He, therefore, submitted that the Reference Court could not have been relied upon the sale deed dated 07.03.1991 upon which reliance has been placed by the Reference Court. According to the learned Counsel, none of the sale deeds are comparable sale deeds and, therefore, could not have been relied upon for the purpose of fixing the market rate of the acquired lands. The learned Counsel further urged that the impugned award has been passed in breach of settled principles governing the grant of compensation in land acquisition matters. 8. In so far as the land admeasuring 1323 square metres acquired by second notification is concerned, the learned Counsel submitted that the said land was acquired at the instance of the respondent himself and since the same was touching the railway line, the same did not have any building potential and as such the compensation granted @ Rs.40/- cannot be sustained. 9. Per contra, Mr. Usgaonkar,learned Counel appearing on behalf of the respondent, at the outset, submitted that he is restricting his claim in respect of both the acquisitions to Rs.175/- per square metre. According to Mr. Usgaonkar, the deductions made by the Reference Court for fixing the market rate of the acquired land on the basis of sale deed dated 07.03.1991, are highly excessive and, therefore, cannot be 7 sustainable. According to the learned Counsel, the land involved in First Appeal No.37/2001 filed by Anjani Molu Dessai Versus SLAO's case, cannot be compared with the acquired land and merely because the sale deeds relied upon by the respondents were not relied upon in another reference on the ground that the same was not comparable land, by itself, would not be sufficient to disentitle the respondent from establishing his claim for higher compensation on the basis of the said sale deeds. According to Mr.Usgaonkar, the lands sold by sale deeds dated 07.03.1991 and 03.04.1991, are comparable to the acquired land, therefore, the respondent is entitled to compensation @ Rs.175/- per square metre. Mr. Usgaonkar urged that deduction of 80% made by the Reference Court vis-a-vis the sale deed dated 07.03.1991, is on the higher side and in no case the deduction should exceed 60 %. 10. In support of his submissions, Mr. Usgaonkar placed reliance on the judgment delivered by the learned Single Judge of this Court in Madhusudan Mahambre Versus Special Land Acquisition Officer and another reported in 2002(2) Goa L.T. 127. Mr. Usgaonkar, therefore, urged that both the appeals be dismissed and cross objections be allowed. 11. I have carefully considered the submissions made by the learned Counsel for the parties, perused the record and the judgments 8 relied upon. 12. In view of the rival submissions, following points arise for determination in the appeal : i) Whether the market rate fixed by the Reference Court in respect of the acquired lands @ Rs.30/- and 40/- per square metre, is excessive ? ii) Whether the respondent is entitled to the compensation @ Rs.175/- per square metre in respect of the acquired lands ? 13. Before the Reference Court, the respondent relied upon the sale deeds dated (i) 03.04.1991 ( Exh.AW1/F ) (ii) 06.01.89 ( Exh.AW1/G ) (iii) 07.03.1991 (Exh.AW1/H.). The sale deed dated 06.01.1989, is in respect of 2000 square metres of land, sold by Suryakant Lotlikar to Surya Cold Retreads Private Ltd., of which Mr. Lotlikar was the director @ Rs.100/- per square metre. The Reference Court refused to place reliance on the ground that the Vendor had himself purchased the property @ Rs.3/- or 4/- per square metre in the year 1987, which was rocky land and after developing the same, he had sold it to the above Company of which he himself is the Director. The reason given by the Reference Court for not relying upon the said sale deed, cannot be faulted. 9 The next sale deed dated 07.03.1991 is in respect of 896 square metres of land, which was sold to Mr.Vinayak Fal Dessai @ Rs.150/- per square metre. The land involved in the sale deed dated 03.04.1991, was in respect of an area of 300 square metres, which was sold for Rs.66,500 that is @ Rs.221.66 per square metre. The said plot is situated at the distance of 2 ½ Kilometers from the acquired land and is more towards Cuncolim side as compared to the acquired land. The Reference Court held that even for fixing compensation of the acquired land on the basis of said sale deed, more than 80 % deduction would have to be made and accordingly, the price of the acquired land, would come to Rs.30/- per square metre. 14. The Reference Court primarily placed reliance upon the sale deed dated 07.03.1991 by which an area of 896 square metres was sold. The sale deed plot was a flat land and the said plot was sold after leaving out the land for road widening towards northern and western side and as such it had advantage of highway as well as roads on two sides. But the acquired land had no such facility. The sale deed plot was also touching the Primary Health Center and was in the heart of the city and more towards Cuncolim as compared to the acquired land. The Reference Court held that 80 % would be an appropriate deduction for fixing the market rate of the acquired land in respect of first acquisition 10 and, accordingly, fixed the market rate of the acquired land @ Rs.30/- per square metre. 15. As stated above, Mr.Afonso submitted that the Reference Court if at all was to rely upon any material, reliance ought to have been placed upon the valuation of the property which Suryakant Lotlikar had purchased in the year 1987, which was Rs.3/- to 4/- per square metre according to Mr. Lotlikar himself. I find myself unable to agree with Mr.Afonso in as much as the evidence on record clearly suggests that when Mr.Lotlikar purchased the property in the year 1987, the same was rocky land with few trees and the same was developed by spending a substantial amount towards development. As such, the price for which Mr.Lotlikar purchased the property in the year 1987, cannot be the basis for fixing the price of the acquired land since the land purchased by Mr. Lotlikar in the year 1987, cannot be termed as comparable land. 16. In so far as the arguments advanced by Mr.Afonso that since the sale deeds relied upon by the respondent having been rejected by the Division Bench of this Court in the appeal preferred by Anjani Molu Dessai, the same cannot be considered in the present appeal is concerned, I find myself unable to accept the same. The comparability of the land in the sale deed or the award, depends upon several factors, 11 such as the location, the nature of the property, etc. In Anjani Molu Dessai's case, the Reference Court as well as the Division Bench of this Court held that the appellant was not able to establish that the lands sold by the sale deeds, relied upon by the respondent herein, were comparable to the acquired land on the basis of the evidence led by the parties. It is well settled that each case must be decided on the basis of the evidence led in the case. This being the position, the real question which arises for consideration, is whether the Reference Court was justified in placing reliance upon the sale deed dated 07.03.1991 by which Manguesh Ambo A.W.3 had sold the property to Vinayak Fal Dessai. The evidence on record clearly suggests that the land in sale deed 07.03.1991, is at the distance of about 1 Kilometer from the acquired land. As stated above, the Reference Court has held that the acquired land and the land sold by the sale deed dated 07.03.1991, were agriculture lands and there were several advantages to the sale deed plot. The sale deed plot was a flat land whereas the acquired land was not levelled. The sale deed plot was also sold after leaving out some land for road widening towards northern and western side and it had advantage of highway as well as roads on two sides. The sale deed plot was touching the Primary Health Center and is in the heart of the city. The Reference Court held that the acquired land was about 100 to 200 metres away from the highway. This finding does not appear to be correct in as much as the applicant, after stating that the acquired land 12 is at the distance of about 100 to 200 metres, corrected himself stating that the acquired land touches highway road and the bus stop is about 200 metres away. This statement of the respondent, is corroborated by the evidence of Babu Kolekar R.W.1. Therefore, the finding given by the Reference Court that the acquired land is 100 to 200 metres away, is factually incorrect. The Reference Court deducted 80 % from the sale consideration mentioned in the sale deed dated 07.03.1991 on the grounds that (i) the acquired land is a vast land as compared to the sale deed dated 07.03.1991, (ii) the acquired land had moderate ups and downs whereas the sale deed plot was a flat land and (iii) the sale deed plot was located in the heart of the city touching the Primary Health Center and had the advantage of road on two sides. Considering all these factors, the Reference Court has deducted 80 % in the price of Rs.150/- and arrived at the market rate @ Rs.30/- per square metre. 17. I do not find any infirmity in the approach of the Reference Court. It is well settled that while fixing the market rate of acquired land on the basis of comparable sale instances, the location, the size, the nature and several other factors, which are relevant for determining the market rate of the land, have to be considered. Having regard to the evidence led by the parties, the market rate fixed by the Reference Court in respect of first acquisition @ 30/- per square metre, cannot be faulted. In so far as judgment in Madhusudan Mahambre's 13 case (supra) is concerned, the same also does not advance the case of the respondent to establish claim for higher compensation in as much as the learned Single Judge of this Court has deducted 60% towards development costs for providing roads,electricity, water connection, etc. In the present case, besides largeness of the acquired plot, the location, the nature of the land, have also to be considered for making appropriate deductions. Considering all the permissible deductions on the basis of the above sale deeds, I am of the considered opinion that the deduction of 80 % made by the Reference Court, is just and proper and cannot be faulted. Therefore, the compensation fixed by the Reference Court in respect of first acquisition @ Rs.30 per square metre, cannot be faulted. 18. In so far as the second acquisition is concerned, the appellants have filed First Appeal No.82/2003 in respect of the same. Admittedly, the second acquisition is almost after 3 years and, therefore, in view of the judgments of the Apex Court granting enhancement of 10% in the price, the respondent is entitled to Rs.40/- per square metre in respect of land acquired by the Section 4 notification dated 29.08.1994. I find myself unable to accept the argument of Mr. Afonso that since the said land was not fit for development, the respondent was not entitled to higher compensation. Although the said acquisition was done at the instance of the respondent himself, the fact remains that the said land was rendered useless in view of the first acquisition. 14 Therefore, it would be unjust to accept the argument of Mr.Afonso that the respondent is not entitled to higher compensation in view of the first acquisition although the second acquisition was after a period of 3 years. Increase in the rate by 10 % on the basis of the first acquisition, cannot be said to be unsustainable warranting interference by this Court. 19. In so far as the claim made by the respondent towards severance charges on the ground that an area of 4500 square metres has been rendered useless on account of the acquisition is concerned, I find that the Reference Court is justified in rejecting the claim. The respondent has not led any cogent evidence to prove that by the two acquisitions, the said area has been rendered useless. Therefore, in my considered opinion, the respondent is not entitled to any compensation on the basis of severance. 20. For the reasons aforesaid, both the appeals as well as cross objections filed in both the appeals, are dismissed. Considering the facts and circumstances of the case, there shall be no order as to costs. A.P. LAVANDE, J. SMA