... 1 ... IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO.154 OF 2005 1. Shri Sawaivir Sadassiva Rajendra Bassavaling Raje Wadiyar since deceased through Legal representatives: 2. Smt. Umadevi Raje Wadiyar, 3. Shri Bassavaling Sadashiva Rajendra Wadiyar Raja 4. Smt. Vasundhara Raje Wadiyar, 5. Shri Madhuling Naguesh Rajendra Wadiyar, 6. Smt. Anagha Raje Mavamari, major, married, housewife, r/o II nd Main II nd stage, 'c' block, Hanuman Nagar, Belgaum. … Appellants v e r s u s 1. Special Land Acquisition Officer, South Goa, K.R.C.L. Amey Guest House, Davorlim road, P.O. Navelim, Salcete, Goa 403 707 2. The Chief Engineer, Konkan Railway Corporation, 4 th floor, Souza Towers, Church School, Panaji, Goa. 403 001 … Respondents ... 2 ... Mr. R. G. Ramani, Advocate Advocate for the appellants. Mr. A. D. Bhobe, Advocate for the respondents. CORAM: SHRI S. B. DESHMUKH & SHRI U. D. SALVI, JJ JUDGMENT RESERVED ON :28.07.20099. JUDGMENT PRONOUNED ON: 16.09.2009. JUDGMENT (PER U.D. SALVI, J) This First appeal questions the quantum of compensation arrived at by the learned IIIrd Additional District Judge, South Goa, Margao while passing the judgment and award dated 13.01.2005 in respect of the acquisition of two lands, namely; portions of land surveyed under no.189/1 admeasuring 48,895 sq.mtrs. and under survey no.169/9 admeasuring 16,951 sq.mtrs. of village Poinguinim, Taluka, Canacona, District South Goa belonging to the appellants. 2. Acquisition for construction of new broad gauge line of Konkan Railway encompassing an area ... 3 ... of 8,29,975 sq.mtrs. in Poinguinim and Loliem villages, situated in Taluka Canacona, District South Goa including the said lands was proposed with the publication of Preliminary Notification under section 4 of the Land Acquisition Act, 1894, (hereinafter referred to as the 'said Act') in the Official Gazette dated 27.06.1991 vide Notification No.22/99/91-RD dated 10.06.1991. The respondent no.1/Special Land Acquisition Officer, South Goa proceeded in accordance with law and after hearing the claimants/appellants made an award under section 11 of the said Act determining the compensation for the said land at Rs.4/- per sq.mtr. besides compensation for the value of the trees in the said lands on 31.03.1994. The appellants being dissatisfied by the award so made by the respondent no.1/S.L.O. moved an application under section 18 of the said Act seeking compensation at the rate of Rs.75/- per sq.mtr. for the land acquired and Rs.4,06,100/- and Rs.3,30,300/- as compensation for the trees in survey no.189/1 and 169/6 respectively before the the respondent no.1/S.L.O., South Goa, and consequently a reference was made to the District ... 4 ... Court, South Goa, for adjudication of the claim for compensation made by the appellants in respect of the said lands. 3. Before the Referral Court, the issues casting onus on the appellants to prove the market value of the acquired land as well as the trees therein were framed. The appellants examined their constituted attorney Aw.1/Venkatesh Sawkar, valuer Aw.2/Vikas Dessai and the purchaser of the land Aw.3/Prahlad Naik, under Sale deed dated 16.08.1988 Exh.Aw.1/B and produced another sale deed dated 28.03.1988 Exh.Aw.1/C as well as valuation report dated 15.12.1997 Exh.19 in support of the claim. One RW1 Vinod Kumar, Deputy Town Planner was examined on behalf of the respondents. 4. The Referral Court rejected the evidence of the valuer Aw.2/Vikas Dessai as his word was not found trustworthy particularly for lack of objectivity,professional skill and diligence in preparing the valuation report. The Referral Court on considering the comparative worth of the ... 5 ... said sale deeds chose to accept the market value of the plots sold under the said sale deeds with the deduction made therefrom for comparative drawbacks vis-a-vis the acquired lands as a yardstick for determining the market value of the acquired lands at the rate of Rs.15/- per sq.mtr. and computed therefrom the quantum of compensation due to the appellants upon amalgamation of the market value of the land so arrived at with the compensation given for the trees standing on the said lands at the time of taking over of the possession in the year 1992. 5. The evidence of Aw.1/Sawkar read in conjunction with the sale deed Exh.Aw.1/B and Aw.1/C reveals that the landed properties admeasuring about 616 sq.mtrs. and 887 sq.mtrs. respectively from survey no.189/1 of village Poinguinim were sold in the open market for valuable consideration of Rs.50/- per sq.mtr. in the year 1988. Evidence of Aw.1/Sawkar further reveals that both the landed properties were not barren lands but had growth of trees such as coconut, mango thereon and the lands were levelled ... 6 ... lands with sandy soil. He added that there was a house existing in the plot of land sold under the sale deed Exh.Aw.1/B and the other plot did have a small hut made of palm leaves and tiles. His evidence further shows that the acquired land on the other hand was situated at a distance of about 600 mtrs. from Galgibhag beach i.e. Arabian sea and there were no houses in survey no.169/6. He further admitted that the acquired land, particularly survey no.169/6 was sloppy type land forested with jungle trees. This factual aspect is irrefutable. 6. The Referral Court, relying on the judgments of the Apex Court in Shakuntalabai and others v. State of Maharashtra (1996) 2 Supreme Court Cases 152 and Panna Lal Ghosh v. Land Acquisition Collector (2004 AIR SCW 66) took the market value of the said sale deeds plots as a base for working out the compensation due to the appellants/applicants. The Referral Court determined the market value of the sale deed plots at Rs.65/- per sq.mtrs. as on 27.06.1991 (date of ... 7 ... publication of the Notification) on taking 10% increase per annum on the rate of Rs.50/- per sq.mtr. from 16.08.1998 (date of the earlier sale deed Exh.Pw.1/C) on the compounding basis. 7. The referral Court considering the nature of the acquired lands, in the words of the Referral Court 'the draw back of the acquired lands', made deductions of Rs.50/- from the market value of the sale deed plots, in order to arrive at the real market value of the acquired lands and thereby determined the market value of the acquired lands at the rate of Rs.15/- per sq.mtr. The draw backs of the acquired land, in view of the Referral Court were (I) hilly and sloppy topography (ii) huge size of the acquired lands as compared to the sale deed plots (iii) forest land unlike coconut garden plots referred to in the said sale deed and (iv) requirement of development costs and conversion charges in order to render the acquired land suitable for the proposed use. Learned Advocate Mr. Ramani for the appellant submits that the appellants did not see any mathematical error in computation of the market ... 8 ... value of the sale deed plots but certainly were not in a position to see rationale behind the deduction of Rs.50/- from the market value of the sale deed plots made by the Referral Court for arriving at the market value of the acquired lands. He submitted that the purpose for which the lands were acquired was relevant for deciding whether deduction by way of development charges was required or not. In this context he cited a judgment reported in (2007) 9 Supreme Court Cases 447 Nelson Fernandes and ors. v. Special Land Acquisition Officer, South Goa and ors. He further submitted that the judgment in the case cited by him squarely applies to the fact and circumstances of the present case, it being a case concerning adjudication of the compensation due to the owners whose lands were acquired for laying railway line in the State of Goa by the respondent no.2/Chief Engineer, Konkan Railway Corporation. He further submitted that the valuer's report had its own importance in arriving at the quantum of compensation due in respect of the land acquisition as it constituted expert's opinion, ... 9 ... necessary to be taken into consideration for such purpose. 8. In the instant case, the learned Referral Court rightly observed that the valuer's report at Exh.19 has an air of suspicion around it as it was made after a gap of six years from the date of inspection of the acquired lands made for evaluating its worth. His evidence fails to bring forth any handwritten notes which could have possibly formed the basis of typed report - Exh.19. Report Exh.19 also fails to show the comparative study of the sale deed plots and the acquired land if any, made by the valuer. The learned referral court therefore, rightly observed that the valuer's report lacked objectivity and professional skill, normally expected of a valuer. 9. The Hon'ble Apex Court, while setting aside the decision to make deduction of atleast 85% from the market value of the acquired land, computed by the District Judge, observed that the High Court had adopted a rough and ready method for making deductions and there was no basis ... 10 ... whatsoever therefor as such decision was not supported by cogent reasons. With reference to the judgment in Viluben Jhalejar Contractor v. State of Gujarat, the Apex Court found it prudent to take into consideration the purpose for which the land was acquired in fixing its market value and quantum of deduction of development charges. The Hon'ble Apex Court made pertinent observations as under: “We are not, however, oblivious of the fact that normally one third deduction of further amount of compensation has been directed in some cases. However, the purpose for which the land is acquired must also be taken into consideration. In the instant case, the land was acquired for the construction of new BG line for the Konkan Railways. This Court in Hasanali Khanbhai and sons v. State of Gujarat and Land Acquisition Officer, v. Nookala Rajamallu had noticed that where lands are acquired for specific purposes, deduction by way of development charges is permissible. In the instant case, acquisition is for laying a railway line. Therefore, the question of ... 11 ... development thereof would not arise. Therefore, the order passed by the High Court is liable to be set aside and in view of the availability of basic civic amenities,..... the claim of compensation should reasonably be fixed at the rate of Rs.250/- per sq.mtr. with the deduction of 20%.” 10. Taking cue from the judgment reported in 1998 (2) SCC 385 L.A.O., Revenue Division, Chittor v. L. Kamalamma (Smt.) dead by L.R.s and ors. cited by the appellants, it can be seen that the classification of the portions of the acquired lands into different categories on the basis of its accessibility to the main road does not stand to reason and appropriate deductions such as those for development of the acquired land as also the waiting period required for selling the site carved out from the huge body of the acquired lands can be made while computing the market value of the acquired land on the basis of the market value of the smaller sale deed plots. 11. It can also be seen from the evidence ... 12 ... that the land acquired had the potentiality of being developed into an urban land. This can be seen from the evidence of Rw.1/Vinod Kumar. He deposed that survey no.189/1 of Poinguinim was earmarked as orchid zone and survey no.169/6 in the same village was earmarked as partly settlement and partly orchid zone. He further clarified that 50% of the acquired portion of survey no.169/6 was in the orchid zone and rest was in settlement zone. In the cross examination he deposed that the land under orchid zone can be converted into settlement zone, i.e. land having potentiality of being developed into urban land. 12. On this back ground what is of material importance for assessing the market value of the acquired land is its hilly and sloppy topography. The evidence of Aw.1/Sawkar confirms the fact that the acquired land lies on the southern side of Talpona river and to lay the Konkan railway tracks, the Government had to construct a bridge over river Talpona at a height of about 10 mtrs. and cutting of the hillock to the height of 2 mtrs. had to be done in order to ... 13 ... put the acquired land to the desired use. Considering these facts and circumstances normally accepted deductions to the extent of one third of the total market value from the market value of the sale deed plots needs to be made. Deduction of Rs.50/- from the sale deed price of Rs.65/- made by the learned Referral Court therefore, appears to be irrational. One third of the sale deed price of Rs.65/- works out to roughly Rs.22/-. Deduction of Rs.22/- from the sale deed price of Rs.65/- would therefore be appropriate deduction in the given facts and circumstances. The market value of the acquired land thus can be worked out to Rs.43/- per sq.mtr. 13. The next bone of contention is the amalgamation of the market value of the acquired land and the value of the trees in the acquired land as done by the Referral Court. Relying on the judgment of the Apex Court delivered in State of Haryana v. Gurucharan Singh anr. (AIR 1996 SC 106), the Referral Court proceeded on the premise that the amount paid towards the value of the ... 14 ... trees in the acquired land is part of the value of the land paid to the applicants. This approach in the view of the learned Advocate Mr. Ramani for the appellants is totally erroneous and contrary to the dictate of Section 23 of the Land Acquisition Act 1894. According to him, the compensation for the land acquired has to be firstly given for the market value of the land on the date of publication of the Notification under section 4 (i) of the said Act and secondly for the damage sustained by the person interested, by reason of taking of trees on such lands at the time of Collector taking possession thereof. With regard to the judgment in the case of State of Haryana, he argued that separate compensation for land and fruit bearing trees was not awarded in the said case as the market value of the land in question in that case was computed on the basis of the yield from the fruit bearing trees. While in the present case, the Special Land Acquisition Officer had computed the market value of the land and the value of the trees under two different heads and the amalgamation as envisaged by the learned Referral Court tampered with the market ... 15 ... value of the land awarded by the Collector i.e. Special Land Acquisition Officer, in violation of Section 25 of the said Act. 14. Learned Advocate Mr. Bhobe for the respondent countered these submissions made on behalf of the appellants by adverting to the definition of land under section 3 (a) of the said Act. He submitted that the expression “land” includes benefits to arise out of land and things attached to the earth i.e. the trees and therefore, no wrong was done by the Referral Court in amalgamating the market value of the acquired land with the value of the trees standing thereon as determined by the Special Land Acquisition Officer. In this context, he cited judgment of this Court reported in 2009 (1) ALL M.R. 186 State of Maharashtra v. Sahadu Aba Shete and ors. which in clear terms held that the trees are integral part and the claimants cannot claim separate rate therefor. 15. This controversy calls for careful ... 16 ... scrutiny of the Land Acquisition Act. Section 3(a) of the Act does give meaning to the expression 'land' as the one which includes benefits to arise out of land and things attached to the earth i.e. trees, but at the same time such meaning can be read into the statute when there is nothing repugnant in the subject or context referred to in the statute. Coming to Section 23 of the said Act, it is not difficult to see therefrom that it postulates various factors that the Court has to take into consideration while determining the amount of compensation to be awarded for the land acquired and those are, with particular reference to this instant case: (1) The market value of the land on the date of publication of the notification under section 4 of the Act and (2) The damage sustained by the person interested by reason of taking of any standing crops or trees which may be on the land at the time of the Collector taking possession thereof. Obviously these two distinct factors are required ... 17 ... to be taken into consideration by the Court determining the amount of compensation under the said Act. A question therefore, arises whether the Referral Court committed an error in amalgamating the market value of the acquired land with the value of the trees standing thereon for the purpose of determining the amount of compensation. The judgments of the Apex Court in Gurucharan Singh's case (supra) as well as the judgment of this Court in Sahadu Aba Shette's case (supra) following the foot steps of the Apex Court are in the cases wherein the computation of the market value of the acquired land was done after taking into consideration both these vital factors particularly the yield from the trees and therefore, the claimants were barred from raising a statutory claim for trees as it was a part of consolidated value arrived at by the Court concerned. In the instant case also the sale deed plots forming the basis for computation of the compensation was not a barren land and in fact the evidence shows those were orchid lands with coconut trees. The evidence further shows that ... 18 ... the Special Land Acquisition Officer did not take the sale deed plot as a guide for arriving at the amount of compensation and instead added the value of the trees to the estimation of market value of the acquired land for coming to the figure of consolidated compensation. In re-assessing such consolidated compensation, the Referral Court, simply speaking, considered both the factors and arrived at consolidated compensation amount. In the considered opinion of this bench, the Referral Court, therefore, committed no error in amalgamating the market value of the land with the value of the trees standing thereon for arriving at the rationale figure of consolidated compensation as follows: Rs.4/- per sq.mtr. land price plus Rs.5/- per sq.mtr. value of trees (value of the trees Rs.3,55,448.91 divided by 65,826 sq.mtrs. of acquired land = Rs.5/- per sq.mtr.) Thus the Referral Court was right in holding that the appellants were paid the cost of compensation of the acquired land at the rate of Rs.9/- per ... 19 ... sq.mtr. 16. Considering the market value of the acquired land as worked out herein above, the appellants remain entitled for the balance compensation of Rs.34/- per sq.mtr.(market value of the acquired land Rs.43/- per sq.mtr. minus payment made @ Rs.9/- per sq.mtr =Rs.34/-) 17. There is no dispute about the other things governing the computation of the compensation that is due to the appellants. The appeal is therefore, partly allowed with the modification in terms of additional compensation that becomes due to the appellants i.e. Rs.34/- per sq.mtr. for 65826 sq.mtrs. of acquired land. The remaining award shall remain undisturbed with no order as to costs. S. B. DESHMUKH, J U. D. SALVI, J lh/.