1 IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 262/2004. 1. Dy. Collector ( LA) & Land Acquisition Officer, Panaji. 2. The Executive Engineer, Works Division -II (R & B), PWD, Panaji, Goa. … Appellants. V/s 1. Shri Victor alias Vitorina Jose D'Souza, 2. Smt. Proxodes D'Souza, 3. Smt. Leena Nagvenkar, alias Leena D'Souza. 4. Shri Suhas Nagvenkar, 5. Smt. Luiza D'Souza (since deceased through her legal heirs) 5-1. Favean Fernandes, son, major in age, 5-2. Clefored Fernandes, son, major in age, 5-3. Charal Fernandes, daughter, major in age, 2 5-4. Mr. Flora Vaz (son in law) 6. Shri Erico Fernandes, 7. Shri Apolinaris D'Souza, All r/o Merces, Molaco, Post; St. Cruz, Ilhas, Goa. … Respondents. Ms. Susan Linhares, Addl. Government Advocate for the Appellants. None for the Respondents. CORAM : F. M. REIS , J. DATE : 15 th October 2010 . ORAL JUDGMENT The above appeal challenges the judgment and award dated 5.8.2004 passed by the learned Ist Adhoc Addl. District Judge, North Goa, Panaji in LAC No. 74/1999. 2. The land belonging to the respondents was sought to be acquired pursuant to the notification under section 4 of the Land Acquisition Act (hereinafter referred to as the said Act) dated 1.12.1992 which was published in the Official Gazette on 10.12.1992 for the construction of left out road at Merces Murda village. The 3 land belonging to respondents which has been acquired was part of the property surveyed under No. 10/7 admeasuring 168 sq. metres. Pursuant to the said notification, by award dated 18.2.1994 passed by the Land Acquisition Officer (LAO for short) the compensation was fixed at Rs. 60/- per sq. metre. Being dissatisfied with the said amount the respondents sought reference for enhancement of compensation and claimed a sum of Rs. 800/- per sq. metre for the land acquired. By judgment and award dated 5.8.2004, the Reference Court fixed the market value of the acquired land at the rate of Rs. 265/- per sq. metre besides statutory benefits. Being aggrieved by the said judgment, the Appellants have preferred the present appeal. 3. The learned Addl. Government Advocate appearing for the appellants has assailed the impugned judgment and submitted that the Reference Court has totally misdirected itself in fixing the market value of the acquired land. She further submitted that the Reference Court has failed to consider that the sale deed at exhibit 22 was not comparable with the land acquired. She further submitted that the land acquired was a strip of land which was located between residential houses and which had no potentiality of being used for any 4 construction purpose. She further submitted that there was no evidence adduced by the respondents to disclose that the land acquired had any potentiality. The learned Addl. Government Advocate further took me through the evidence on record and pointed out that there is no comparability between the sale instance and the land acquired and as such submitted that the appeal be allowed and the award be quashed and set aside. 4. The respondents though served failed to remain present at the time of hearing of the said appeal nor they were represented by any Counsel. 5. Having heard the learned Counsel and on perusal of the record, the following point arises for my determination in the present appeal: POINT FOR DETERMINATION 1. Whether the Reference Court was justified to fix the compensation for the land acquired at the rate of Rs. 265/- per sq. metre? 6. In support of the claim for enhancement, the respondents 5 have examined Leena Nagvenkar as AW1. She has deposed that the acquired land is in the vicinity of residential houses. She has stated that there was water supply pipe line and electricity poles adjacent to the acquired land. She has produced the sale deed dated 3.2.1984. She has further stated that the market at Santa Cruz was at a distance of 500 metres and play ground at a distance of 100 metres from the acquired plot. In cross examination she has admitted that the plot of the sale deed produced by her is at a distance of one and half kms. from the acquired land. 7. The next witness examined is AW2, Anand Kulkarni who is a Chartered Engineer. He has stated that he had inspected the property on three occasions i.e. on 15.4.1992, 16.4.1992 and 23.4.1992. He has further stated that the land is situated at Murda at Merces to the left of the National Highway leading from Panaji to Margao at a distance of 1 km. from the Cuzira Calapur junction. He has stated that the property is surrounded by residential houses and the topography of the land is flat, sandy with coconut orchards . He has stated that the land admeasuring 1395 sq. metres was sold at the rate of Rs. 265/- per sq. metre by sale deed in the year 1984. He has stated that the distance from the acquired land is 1 km. from Merces 6 market and is of similar nature as of the acquired land. He has evaluated the land by giving escalation of 10% and fixed the price at Rs. 585.83 per sq. metre for the land acquired. In cross examination he has stated that he relied upon the sale deed of 1984 for fixing the market value in the year 1991 as the lands were comparable and the other factors like topography, location and developmental parameters were the same. 8. The next witness examined is AW3, Ashok Bhat who has stated that the acquired land is surrounded by residential houses. He has further stated that the transport facility is easily available to go to Panaji, Margao and Vasco because of main highway which is located 500 metrs from the acquired land. In cross examination he has stated that the acquired land is within a distance of 100 metres from his house. He has further stated that there are 4 houses surrounding the acquired land excluding his house. He has further stated that there is no division of land on account of acquisition as the road is passing from one side of the property. 9. The appellants have examined Gajanand Narayan Naik as RW1 who has stated that he has personally inspected the property as 7 well as the sale instances relied upon by the respondents. He has further stated that the balance area of the property admeasuring 431.41 sq. metres can be conveniently used for the purpose of development and there are no PDA restrictions. He has stated that the plan prepared by the valuer is inaccurate and that the rate offered by the Lao is just and proper. In cross examination he has stated that the road has not divided the property into two parts. He has stated that the valuer has erroneously valued the land in view of the sale statistics relied upon by the LAO in his award. 10. The Reference Court whilst passing the impugned judgment has taken note of the observation of the LAO in the award which discloses that the land acquired is surrounded by residential houses. The Reference Court has further found that there are amenities available to the acquired land. The land acquired was at a distance of 3 kms. from Panaji City and was ideally situated for construction of residential houses. The Reference Court also found that the respondents have admitted that the acquired plot was fit for construction and there were no impediments for such construction activities. The Reference Court has considered the sale instance at exhibit 22 wherein an area of 1395 sq. metres was sold for a sum of 8 Rs. 3,70,000/- and the price works out to Rs. 265.23 per sq. metre. The Reference Court has further found that the sale deed plot was situated at a distance of 1 km. from Merces market and they had similar topographical features. The Reference Court has found that the land which is subject matter of exhibit 22 was similar to the land acquired. Though there was a time gap of 8 years between the sale deed plot and the land acquired, the Reference Court failed grant any escalation as no material was placed on record to assess such escalation. The Reference Court also considered the sale instance relied upon by the LAO in the sale statistics and observation therein that the plots of the sale instances are similar to the land acquired. The price in the said sale instances were ranging from Rs. 275/- per sq. metre to Rs. 489/- per sq. metre from the years 1989 to 1990. 11. From the evidence on record, there can be no doubt that the land acquired was ideally located at a distance of 1 km. from Panaji city. Land in the vicinity of the capital city of Goa has high potential value for the purpose of construction activity. The land acquired is located within the residential houses and there is no dispute that the said land can be used for non agricultural purpose. The sale deed plot is in the vicinity of acquired land and as such no 9 infirmity has been committed by the Reference Court in relying on the sale instance for fixing the market value of the acquired land. Though in normal course the escalation should have been given for fixing the market value of the acquired land after about 8 years, nevertheless the respondents have failed to adduce any evidence for fixing such escalation. The respondents have also not filed any cross objections claiming any higher amount then the one awarded by the Reference Court. The contention of the learned Addl. Government Advocate for a deduction as the land acquired is a strip of land which has no potential for non agricultural purpose is taken care of as the Reference Court has not granted escalation for a period of about 8 years. As such, based on the sale instance of the year 1984 when the price is at the rate of Rs. 265/- per sq. metre, the Reference Court has awarded a sum of Rs. 265/- per sq. metre for the land acquired in the present case. As the land acquired and the sale deed plot have similar features and located in the same village, I find no infirmity committed by the Reference Court in fixing the compensation on the basis of the said sale deed. The contention of the learned Addl. Government Advocate to the effect that the respondents have failed to establish comparability of the acquired land and the price awarded by the LAO is inadequate is not justified. No evidence has been 10 adduced by the appellants to substantiate their claim that the price offered by the LAO was just and proper. As such, I find that the amount fixed by the Reference Court at the rate of Rs. 265/- per sq. metre cannot be said to be excessive. The point for determination is answered accordingly. 12. In view of the above, I find no merit in the above appeal and as such the appeal stands dismissed with no order as to costs. F. M. REIS, J. MF/-