1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 59 OF 2003 WITH CROSS OBJECTION 1) The Deputy Collector and Land Acquisition Officer, Panaji. 2) Executive Engineer, Works Div XVII, (PHE) PWD, Porvorim-Goa .. Appellants Versus 1) Rajendra Vassudev Deshprabhu (expired) Namerwada, Pernem-Goa represented by legal representatives 1a) Dr. Vasudeo Rajdenra Deshprabhu 1b) Smt.Aparna R. Deshprabhu 1c) Miss Nayantara Rajendra Deshpurabhu 1d) Dr. Pavitra V. Deshprabhu All resident of Namerwada, Pernem-Goa .. Respondents. Mr. Amey Kakodkar, Additional Government Advocate for the Appellants. Mr. Shivan Dessai, Advocate for the respondent No.1. WITH CROSS-OBJECTION Rajendra V. Deshprabhu (expired) Through L.Rs. .. Appellants/ cross- objectioner. Vs. The Deputy Collector,L.A.O. Panaji-Goa and Anr. .. Respondents. Mr. Shivan Dessai, Advocate for the Appellants/ cross- objectioner. 2 Mr. Amey Kakodkar, Additional Government, Advocate for the respondents. CORAM :- A. P. LAVANDE, J. DATE : 16 th September, 2010. ORAL JUDGMENT : The appellants have filed the above appeal challenging the judgment and award dated 18th February, 2002 passed by the IInd Additional District Judge, Panaji in Land Acquisition Case No.98/1994 partly allowing the reference and granting compensation at the rate of Rs.83/- per square meter in respect of the land belonging to original respondent Rajendra Deshprabhu. The respondents are the legal representatives of Rajendra Deshprabhu. The respondents have filed cross-objections claiming compensation at the rate of Rs.500/- per square meter. 2. Vide notification issued under Section 4 of the Land Acquisition Act ('The Act' for short), which was published in official gazette dated 21st April, 1988, the government acquired lands belonging to several persons for public purpose. The area admeasuring 8900 square meters from survey No.55/2 at Pernem belonging to the original respondent, was part of the acquired land. The original respondent claimed Rs.500/- per square meter in respect of 3 the acquired land and also claimed compensation towards trees existing in the acquired land. The Land Acquisition Officer (The LAO) made award dated 16th January, 1991 and fixed the market rate of the acquired land at the rate of Rs.15/- per square meter and also awarded Rs.7980/- towards trees. Aggrieved by the inadequacy of the compensation granted, the original respondent sought reference claiming compensation at the rate of Rs.500/- per square meter. During the pendency of Land Acquisition Case No.98/1994, the original respondent expired and the respondents herein, who are the legal representatives of the original respondent were brought on record. 3. In Land Acquisition Case No.98/1994, the respondent/ claimant examined 7 witnesses namely Shri Vasudev Deshprabhu, AW1- power of attorney of respondents, Shri Suresh Mayekar – AW2, Shri Manuel Mascarenhas – AW3, Shri Anil Arobekar – AW4, Shri Vithal Deshprabhu-AW5, Shri Laxman Dessai- AW6 and Shri Budhaji Parab- AW7 and produced several sale deeds and awards in support of the claim. The appellants herein did not lead any evidence. The Reference Court held that the Land which was the subject matter of Land Acquisition Case No. 114/1992, was comparable land and on the basis of market 4 rate fixed by the High Court in First Civil Appeal No.77/1997 (exhibit 32,) fixed the market rate of the acquired land at Rs.75/-. 4. Mr. Kakodkar, learned Additional Government Advocate appearing for the appellants submitted that the Reference Court ought not to have relied upon the judgment in F.A. No.77/1997 since the land forming subject matter of the said appeal was not comparable to the acquired land. He further submitted that in any case, the Reference Court erred in deducting Rs.1/- only on the ground that the acquired land was sloppy. He further submitted that the Reference Court also ought to have made further deduction on the ground of largeness of the acquired land since the land in exhibit 32 was admeasuirng 1100 square meters. 5. Per contra, Mr. Dessai, learned Counsel for the respondent /claimant submitted that the Reference Court ought to have relied upon the sale deeds and awards produced by the claimant, which clearly established that the claimant was entitled to higher compensation. In the alternative, Mr. Dessai submitted that even if exhibit 32 is taken into consideration for the purpose of fixing market rate of the acquired land, the fact remains that the land in exhibit 5 32 was in Panchayat area; whereas the acquired land was in Municipal area at the time of publication of section 4 notification. He, therefore, submitted that this fact has to be taken into consideration while fixing the market rate of the acquired land. He, therefore, submitted that no deduction should be made on the ground of largeness of the acquired land considering that the acquired land is 8900 square meters; whereas the land in exhibit 32 was 1100 square meters. 6. I have carefully considered the rival submissions and perused the record. 7. As stated above, the claimant in support of his case examined 7 witnesses and produced following sale deeds and awards : No. Exh. Particulars 1 AW1/B Deed of Sale dt.28/11/1985, Plot A- 160 sq.mts. @ Rs.300/- at Pernem 150 mts away 2 AW1/C Deed of Sale Dt. 19/08/1985 Plot- 150 sq.mts @ 150/- at Malpem 1.5 to 2 Kms away 3 AW1/D Deed of Sale dt.22/12/1987 Plot -178 sq.mts @ Rs.100/- at Pernem 1Km away 4 AW1/E Award in LAC 1/1985, Sec.4 notifi- cation : 20/08/1983 200 sq.mts of Sy. No.207/6 Village 6 Korgao. 4.2 kms away Rs.60/- 5 AW1/F Award in LAC 114/1992 Sec. 4 not- ification:27/11/1986. 1200 sq. mts of Sy. No.469/6 of Village Poroskadem (Pernem) 300 mts away Rs.141/- 6 AW1/G Award in LAC 116/1990 Sec. 4 notification: 09/02/1984 530 sq. mts of Sy. No.72/1 of Village Pernem 3.7 kms away Rs.60/- 7 AW1/H Award in LAC 74/1992 and 75/1992, Sec. 4 notification : 22/06/1989, area 30,300 sq. mts from Sy. No.263 of Village Pernem, 1.7 km away, Rs.123/- 8 Exh.31 Award in LAC 76/1992, Sec.4 Noti- fication– 10/11/1988, 4200 sq.mts from sy. No.4/99/11 of Village Pernem, 500 mts. away, Rs.120/- 9 Exh.32 Judgment in First Civil Appeal No.7 7/1997 by Hon'ble High Court of Bombay at Goa 8. From the perusal of the record, I am satisfied that the Reference Court was justified in placing reliance upon exhibit 32, which was at a distance of about 300 meters from the acquired land. In the said case, Section 4 notification was issued on 27th November, 1986 and in the present case, the notification was published on 21st April, 1988. In my opinion, considering the two dates, the Reference Court was justified in granting escalation of 14 %, but has gone wrong in arriving at the figure of 84/- instead of 86/-. Therefore, as on the date of publication of Section 4 notification, the 7 market rate of the land in exhibit 32 works out to Rs.86/-. The land in exhibit 32 was a developed land; whereas in the present case, it was not developed land, but sloppy land. But the fact remains that the acquired land was in Municipal area; whereas the land in exhibit 32 was in Panchayat area. Therefore, this factor would go in favour of the claimant. Both the lands also are similar and, therefore, the same could be taken into consideration for fixing the market rate of the acquired land. Although the acquired land was slightly sloppy, the fact remains that the acquired land was in the Municipal area and, therefore, any deduction to be made on account of sloppy nature of the land, deserves to be adjusted against the factor that the acquired land was in the Municipal area. However, the fact remains that the compared land in exhibit 32 was only 1100 square meters and the land acquired in the present case was 8900 square meters. In my opinion, on account of largeness of the land, deduction of 10% would be appropriate. Accordingly, the market rate of the acquired land works out to 77.4 which is rounded off to 77/- per square meter. Accordingly, the claimant is held entitled to compensation at the rate of Rs.77/- per square meter in respect of the land admeasuring 8900 square meters. Needless to mention that the claimant/ 8 respondent is also entitled to all the statutory benefits under the Act. 9. In view of the above discussion, the appeal filed by the appellant in F.A.No.59/2003 is partly allowed. The cross-objection filed by the respondent is dismissed. Having regard to the facts and circumstances of the case, parties to bear their own costs. A. P. LAVANDE, J. SMA