... 1 ... IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO.57 OF 2000 and CROSS OBJECTION NO.7/2000 FIRST APPEAL NO.57 OF 2000 1. Deputy Collector, Sub-Divisional Officer, Ponda Sub Division, Ponda, Goa. 2. Executive Engineer, Works Division XV (NH), Public Works Department, Ponda, Goa. ... Appellants v e r s u s Shri Premanand S. Verenkar, House No.32 (1), Ward V, Shantinagar, Ponda, Goa. ... Respondent ... 2 ... Mr. G. Shirodkar, Additional Government Advocate for the appellants. Mr. R. G. Ramani, Advocate for the Respondents. ************ CROSS OBJECTION NO.7/2000 Shri Premanand S. Verenkar, House No.32 (1), Ward V, Shantinagar, Ponda, Goa. ... Appellant v e r s u s 1. Deputy Collector, Sub-Divisional Officer, Ponda Sub Division, Ponda, Goa. 2. Executive Engineer, Works Division XV (NH), Public Works Department, Ponda, Goa. ... Respondents Mr. R. G. Ramani, Advocate for the Appellant. Mr. G. Shirodkar, Additional Government Advocate for the Respondents. ... 3 ... CORAM: S. C. DHARMADHIKARI R. C. CHAVAN, JJ. DATED: 6th August, 2008. JUDGMENT: PER R. C. CHAVAN, J. First Appeal No.57/2000 and Cross Objection No.7/2000 are directed against award by the learned District Judge, Panaji, Goa, upon a reference under section 18 of the Land Acquisition Act by the respondent, owner of 3725 sq.mtr. of land out of survey no.75/2 of village Ponda, acquired by the State for constructing a bye pass for National Highway passing through Ponda town. 2. The land was acquired under a Notification under section 4 of the Land Acquisition Act dated 14.2.1991 which was last published on 2.11.1991. There is no dispute that the land is in settlement zone, though it was agricultural land having ... 4 ... several trees standing thereon. The Land Acquisition Officer granted compensation at the rate of Rs.55/- per sq.mtr. 3. Upon considering evidence tendered before him, the learned District Judge enhanced the compensation to Rs.154/- per sq.mtr. relying on an instance of sale of a nearby developed plot admeasuring 315 sq.mtrs. sold for Rs.90,000/- (i.e. @ Rs.285/- per sq.mtr.) on 18.6.1990. While arriving at the rate of Rs.154/- per sq.mtr., the learned District Judge deducted 40% from the rate in sale instance towards development expenses and a further 10% of rate so arrived at was reduced towards the period for which the claimant would have been required to wait for actually selling the land. 4. Aggrieved thereby, both the State as well as claimant are before us. On behalf of the State, it is contended that though the land had non agricultural potential, it was actually agricultural land and therefore, the learned District ... 5 ... Judge should not have relied on the sale instance dated 18.6.1990. On behalf of cross objector/claimant it is contended that the learned District Judge was not justified in deducting almost 50% from the rate disclosed in the sale instance. 5. We have heard Advocate Shri Shirodkar for the State and Advocate Shri Ramani for the claimant. Only point that arises for our determination is what ought to be the appropriate compensation for the acquired land. We hold that proper compensation ought to be Rs.200/- per sq.mtr. for the reasons that follow. 6. Advocate Shirodkar, the learned counsel for the State strenuously contended that no evidence was led by the claimant to show that the land acquired was similar to the land which was subject matter of sale instance dated 18.6.1990. As rightly pointed out by Advocate Ramani, the learned counsel for the claimant, the claimant had tendered adequate evidence in ... 6 ... form of testimonies of AW.2/Pandurang Verenkar, the vendor of the land under the sale instance, and AW.4/Vikas Dessai, valuer, who have deposed about similarities. Apart from this even RW.1/Dilip Dhavalikar, State's own witness, was unable to show as to how the lands are not similar. A sketch proved by AW.4/Vikas Dessai at Exh.AW.4/A give the relative locations of the land acquired and the one under sale instance, as also other landmarks in the town. In view of this evidence, the learned District Judge rightly relied on the sale instance. 7. Apart from this since it would be impossible to find an instance of sale of an exactly similar land in dimensions of time and space, the instance could be relied on and dissimilarity could be dealt with by appropriate adjustment. In Shaji Kuriakose and anr. v. Indian Oil Corporation Ltd. and ors. reported (2001)7 SCC 650, on which the learned counsel for appellant placed reliance it is so held. ... 7 ... 8. This takes us to the quantum of adjustment required to be made for arriving at proper rate for acquired land, taking the price of land under sale instance as base price. The learned counsel for the appellants relied on judgment in Lucknow Development Authority v. Krishna Gopal Lahoti and ors. reported in 2008 (1) ALL MR 475, where the Hon'ble Apex Court upon considering various factors influencing determination of price for land acquired, laid down the following criteria in paragraph 18 of the judgment for relying on a sale instance as a comparable instance. “18. It can be broadly stated that the element of speculation is reduced to minimum if the underlying principles of fixation of market value with reference to comparable sales are made: (i) when sale is within a reasonable time of the date of notification under section 4 (1); (ii) it should be a bona fide transaction; ... 8 ... (iii) it should be of the land acquired or of the land adjacent to the land acquired; and (iv) it should possess similar advantages.” 9. In paragraph 22, the Court indicates as to what ought to be the deduction, from compensation to be paid for agricultural lands with non agricultural potential, as under: “22. It is well settled that in respect of agricultural land or undeveloped land which has potential value for housing or commercial purposes, normally 1/3rd amount of compensation has to be deducted out of the amount of compensation payable on the acquired land subject to certain variations depending on its nature, location, extent of expenditure involved for development and the area required for roads and other civic amenities to develop the land so as to make the plots for residential or commercial purposes. A land may be plain or uneven, the soil of the land may be soft or hard bearing on the foundation for the purpose of making construction; may be the land is situated in the amidst of a developed area all around but that land may have a ... 9 ... hillock or may be low-lying or may he having deep ditches. So the amount of expenses that may be incurred in developing the area also varies. A claimant who claims that his land is fully developed and nothing more is required to be done for developmental purposes, must show on the basis of evidence that it is such a land it is so located. In the absence of such evidence, merely saying that the area adjoining his land is developed area, is not enough particularly when the extent of the acquired land is large and even if a small portion of the land is abutting the main road in the developed area, does not give the land the character of a developed area. In 84 acres of land acquired even if one portion of one side abuts the main road, the remaining large area where planned development is required needs laying of internal roads, drainage, sewer, water, electricity lines, providing civil amenities etc. However, in cases of some land where there are certain advantages by virtue of the developed area around, it may help in reducing the percentage of cut to be applied, as the developmental charges required may be less on that account. There may be various factual factors which ... 10 ... may have to be taken into consideration while applying the cut in payment of compensation towards developmental charges, may be in some cases it is more than 1/3rd and in some cases less than 1/3rd. It must be remembered that there is difference between a developed area and an area having potential value, which is yet to be developed. The fact that an area is developed or adjacent to a developed area will not ipso facto make every land situated in the area also developed to be valued as a building site or plot, particularly, when vast tracts are acquired, as in this case, for development purpose.” Such a deduction is to be made from the price fixed on the basis of sale instance of developed plots. Once such a deduction is made the lands would be treated as on par and no further deduction would be warranted. 10. In State of Maharashtra and ors. v. Punjab Trambak Lahamage (deceased through Lrs.) reported in 2008 (3) ALL MR 379 on which the learned counsel for ... 11 ... appellant placed reliance, this Court took a review of all relevant provisions and several judgments to conclude that owners of lands acquired must get a just compensation. 11. The learned counsel for the respondent/claimant placed for our perusal judgment of the Apex Court in Viluben Jhalejar Contractor (dead) by LRS v. State of Gujarat reported in (2005) 4 Supreme Court Cases 789. The observations in para 20 and 21 of the judgment, which read as under would be said to epitomize the course that Courts should follow: “20. The amount of compensation cannot be ascertained with mathematical accuracy. A comparable instance has to be identified having regard to the proximity from time angle as well as proximity from situation angle. For determining the market value of the land under acquisition, suitable adjustment has to be made having regard to various positive and negative factors vis-a-vis the land under acquisition by placing the two in juxtaposition. The positive and negative ... 12 ... factors are as under: Positive factors Negative factors (i) smallness of size. (i) largeness of area. (ii) proximity to a road. (ii) situation in the interior at a distance from the road. (iii) frontage on a road. (iii) narrow strip of land with very small frontage compared to depth. (iv) nearness to developed area. (iv) lower level requiring the depressed portion to be filled up. (v) regular shape. (v) remoteness from developed locality. (vi) level vis-a-vis land under acquisition. (vi) some special disadvantageous factors which would deter a purchaser. (vi) level vis-a-vis land under acquisition. (vi) some special disadvantageous factors which would deter a purchaser. (vii) special value for an owner of an adjoining property to whom it may have some very special advantage. 21. Whereas a smaller plot may be within the reach ... 13 ... of many, a large block of land will have to be developed preparing a layout plan, carving out road, leaving open spaces, plotting out smaller plots, waiting for purchasers and the hazards of an entrepreneur. Such development charges may range between 20% and 50% of the total price.” 12. In Tejumal Bhojwani (dead) through Lrs and ors. v. State of U.P. reported in (2003) 10 Supreme Court Cases 525 on which the learned counsel for claimant placed reliance, the Apex Court held that deduction for development charges would vary from place to place and approved a deduction of 25% in that case. 13. In the light of the principles emerging from these judgments, it may be seen that deduction of 40% made by the learned District Judge towards development expenses is on a higher side. The land of which acquired land forms part has ... 14 ... frontage on two sides. It was suggested to AW.2/Pandurang Verenkar in cross examination on behalf of the State that development expenditure for 5000 sq.mtrs. of land would have been Rs.5,00,000/- i.e. about Rs.100/- per sq.mtr. only. Considering that this is suggestion of the State, it could be said that it would be on a higher side. Even at this rate, the proper price after deduction of development expenses would have been Rs.285 – Rs.100 = Rs.185/- and not Rs.171/- per sq.mtr. which the learned District Judge arrived at. 14. Considering the frontage and other advantages available to the land, at best a deduction of 30% would have been justified, which would come to Rs.85.50. After deducting it from the base figure of Rs.285/- the rate would come to Rs.199.50, rounded off to Rs.200/- per sq.mtr. 15. The learned District Judge had made a further deduction of 10% towards the loss on account of the waiting ... 15 ... period for the claimant to sell the plots. The learned District Judge ought to have seen that this waiting period would have seen an appreciation in price and not a reduction. Hence this deduction was not warranted. 16. The learned counsel for the claimant also submitted that sale instance proved was itself of 18.6.1990 i.e. about one and half years before the relevant date, the last date of publication of section 4 Notification being 2.11.1991. Therefore, in fact the base price itself should have been jacked up by at least 10%, if not @ 15% per annum as held by the Apex Court in Krishi Utpadan Mandi Samiti, Sahaswan, District Badaum through its Secretary reported in (2004) 2 Supreme Court Cases 283. 17. Considering both these aspects, we hold that further deduction of 10% effected by the learned District Judge was not warranted. We hold that just compensation of land under the ... 16 ... acquisition would have to be worked out at the rate of Rs.200/- per sq.mtr. In the result, we dismiss the appeal, allow the cross objection and modify the award by the reference Court, by granting compensation to the claimant at the rate of Rs.200/- per sq.mtr. minus that already received. All the statutory additives to which the claimant is entitled shall be recalculated on this basis. S. C. DHARMADHIKARI, J. R. C. CHAVAN, J. lh/.