-1 - IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.217 OF 2006 AND FIRST APPEAL NO. 267 OF 2006 FIRST APPEAL NO.217 OF 2006 1. Deputy Collector and S.D.O., Land Acquisition Officer, Mapusa, Sub-division, Mapusa-Goa. 2. Goa Agricultural Marketing Board, Margao Main-Yard, Arlem, Raia, Salcete Goa. …. Appellants V e r s u s Shivram Anant Sinai Dessai (since deceased, through LR's) (a) Smt. Sumiba Shivram Sinai Dessai, (b) Shri Anand Shivram Sinai Dessai, (c) Shri Vinayak Shivram Dessai, (d) Mrs. Medha Anant Sinai Dessai, (e) Mrs. Veena Vinayak Sinai Dessai, (f) Mrs. Sunanda Satish Herekar, (g) Mrs. Supriya Prakash Pankar, (h) Mrs. Mzudula Mahesh Deshpande, (i) Mr. Satish Anand Herekar, (j) Mr. Vishnu Suryaji Mahatme, (k) Mr. Prakash Pundalik Pakla, (l) Mr. Mahesh Balchandra Deshprabhu, All r/o Mauswada, Pernem Goa. …. Respondents Mr. G. Shirodkar, Government Advocate for the Appellants. Mr. Shivan Dessai, Advocate for the Respondents. WITH FIRST APPEAL NO.267 OF 2006 Shri Shivram Anant Sinai Dessai R/o. Mouswada, Pernem, Goa. (since deceased, through LR's) (a) Smt. Sumiba Shivram Sinai Dessai, -2 - (b) Shri Anant Shivram Sinai Dessai, (c) Shri Vinayak Shivram Dessai, (d) Mrs. Medha Anant Sinai Dessai, (e) Mrs. Veena Vinayak Sinai Dessai, (f) Mrs. Sunanda Satish Herekar, (g) Mrs. Supriya Prakash Pawar, (h) Mrs. Mzudula Mahesh Deshpande, (i) Mr. Satish Anant Herekar, (j) Mr. Vishnu Suryaji Mahatme, (k) Mr. Prakash Pundalik Pawar, (l) Mr. Mahesh Bhalchandra Deshprabhu, All r/o Mauswada, Pernem Goa. Appellants nos.(a), (c) to (d) through their power of attorney Shri Anant Shivram S. Dessai …. Appellants V e r s u s 1. Deputy Collector and S.D.O., Land Acquisition Officer, Mapusa, Sub-division, Mapusa-Goa. 2. Goa Agricultural Marketing Board, Margao Main-Yard, Arlem, Raia, Salcete Goa. …. Respondents Mr. Shivan Dessai, Advocate for the Appellants. Mr. Guru Shirodkar, Government Advocate for the Respondents. CORAM : F.M. REIS, J. DATE : 29 th JULY, 2011 JUDGMENT : Both the above Appeals were taken up together for final hearing as both challenge the same Judgment and Award passed by the learned Reference Court dated 29.04.2006 passed in Land Acquisition Case no. 117/1987. The parties shall be referred in the manner as they so appear in the cause title of the impugned Judgment. -3 - 2. Pursuant to a Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the ‘said Act’), dated 15.12.1994, the Respondents sought to acquire land belonging to the Applicants for establishment of regulated market yard at Pernem, admeasuring an area of 2440 square metres from the property surveyed under no. 499/6A. By an Award passed under Section 11 of the said Act dated 05.06.1997, the Land Acquisition Officer offered a compensation for the land acquired at the rate of Rs.55/- per square metre. Being dissatisfied with the said amount, the Appellants sought a reference under Section 18 of the said Act and claimed compensation at the rate of Rs.300/- per square metre. By Judgment and Award dated 29.04.2006, the learned Reference Court partly allowed the suit reference and fixed the compensation for the land acquired at the rate of Rs.200/- per square metre. 3. Being aggrieved by the said Judgment, the Applicants and Respondents have preferred the present Appeal. 4. Shri Guru Shirodkar, the learned Government Advocate appearing for the Respondents has assailed the impugned Judgment and submitted that the Reference Court has totally misdirected itself in awarding compensation at the rate of Rs.200/- per square metre and according to him, land acquired had no potentiality of being used for non-agricultural purpose. The learned Government Advocate Shri Shirodkar pointed out that considering the location of the land acquired and the sale instances produced by the Applicants, substantial deductions had to be made considering the Judgment of the Apex Court reported in 2010(1) SCC 444 in the case of Subh Ram & Ors. Vs. State of Haryana & -4 - Anr. The learned Government Advocate further submitted that the maximum deductions of two thirds had to be made on account of development charges considering the vastness of the land acquired and the instances relied upon by the Applicants. The learned Advocate further submitted that the land acquired had no potentiality for being used for any commercial purpose and considering the location of the land, there was no scope for any development in the vicinity of the land acquired. The learned Counsel has taken me through the impugned Judgment and pointed out that the learned Reference Court misdirected himself by accepting exhibit 23 as the basis for determination of the market value of the land acquired as it was a developed plot. The learned Counsel has lastly submitted that the impugned Judgment and Award deserves to be quashed and set aside. 5. Shri Shivan Dessai, the learned Counsel, appearing for the Applicants has joined issue with the contention of the learned Government Advocate and pointed out that the amount awarded by the Reference Court deserves to be enhanced as according to him, the land acquired was located in a developed area which had enormous potentiality for being used for non- agricultural purpose. The learned Counsel has taken me through the impugned Judgment and pointed out that the Reference Court has misdirected itself in making excessive deductions as considering the Sale Deed plot which was located in an inferior locality as against the land acquired, the question of making any such deductions by the Reference Court would not arise. The learned Counsel further submitted that the learned Judge ought to have appreciated the value of the land acquired considering the location of the land as well as the fact -5 - that the land of the Applicants had potentialities of being used for construction and commercial purpose. The learned Counsel further submitted that there was ample evidence on record to substantiate the claim of the Applicants that the market value of the acquired land as on the relevant date was at a maximum rate of Rs.300/- per square metre. The learned Counsel as such submitted that the Appeal preferred by the Respondents be rejected and the Appeal preferred by the Applicants be allowed and the compensation awarded by the Reference Court be enhanced accordingly. 6. Having heard the learned Counsel and on perusal of the records, the following point arises for my determination in the present Appeal: POINT FOR DETERMINATION (i) Whether the Reference Court was justified to fix the market value of the acquired land at the rate of Rs.200/- per square metre ? 7. In support of his claim for enhancement of compensation, the Applicants have examined the deceased Anant Dessai as Aw.1. In his deposition he has stated that the acquired land is located in the commercial area and that the adjoining plot was sold at the rate of Rs.2500/- per square metre. He has produced the Sale Deed dated 25.08.1992, wherein the rate of land sold thereby was at the rate of Rs.2500/- per square metre. He has also produced another sale instance dated 06.04.1994 and another sale instance where the price was fixed at the rate of Rs.300/- per square metre. He has further stated that the Sale Deed plot of the first two Sale Deeds is at a distance of 100 metres from the acquired land while the third sale instance plot is at a distance of 500 metres from the acquired land. He has also stated that the acquired land is next -6 - to Pernem market and the Government offices complex and Urban Health Centre are at a distance of less than 300 metres. He has also produced the valuation report. In the cross examination he has stated that Section 4 Notification was issued on 15.12.1994 and that a stall was erected in the first Sale Deed plot which was used for selling grocery. He has denied the suggestion that the sale deed plots are beyond the distance mentioned by him in the examination in chief. 8. Another affidavit was filed by the son of the deceased being Aw.2. He has stated in the affidavit that the acquired land is a bharad land and was suitable for construction purpose and it was partly in the settlement zone and partly in a commercial zone of Pernem town. He has further stated that the acquired land is centrally located within Pernem town and in the heart of Pernem. He has claimed that the market value of the acquired land is about Rs.3,500/- per square metre. He has further stated that by Sale Deed dated 06.04.1994, an area of 300 square metres was sold at the rate of Rs.300/- per square metre and that the land sold was at a distance of 100 metres from the acquired land. Another Sale Deed was produced dated 25.08.1992, whereby an area of 12.5 square metres was sold at the rate of Rs.2,500/-. Another sale instance was also produced wherein the land sold was at the rate of Rs.300/- per square metre. Another sale instance dated 28.05.1993 whereby land admeasuring 200 square metres was sold at the rate of Rs.200/- per square metre was also produced by Aw.2 which land was situated at a distance of three kilometres from the heart of Pernem. He has also produced Sale Deed dated 08.05.1996, wherein land admeasuring 200 square metres was sold for a price of Rs.600/- per square -7 - metre. An Award was also produced dated 20.02.1996 in respect of the property surveyed under no. 263 situated at Pernem Village at Exhibit 12. In his cross examination, he has confirmed that the land acquired is partly in the settlement zone and partly in commercial zone. He has admitted that the plot of the Sale Deed exhibit 23 was a sub-divided plot and that the sale deed plot was bounded on one side by a public road. He has also admitted that the sale deed at exhibit 24 is also a sub-divided plot. He has also admitted that the area was only 12.5 square metres. The Sale Deed plot exhibit 26 is also admitted to be bounded on one side by a road. He has denied the suggestion that all the Sale Deeds are not similar to the acquired land. 9. The next witness examined is Pramod Dessai, who was engaged to prepare a report. He has inspected the property in October, 1998 and produced the report. He has further stated that he has prepared the plan disclosing all the amenities available for the acquired land. He has further stated that the acquired land is in the commercial zone and that the soil of the land is of bharad type. He has valued the land acquired at the rate of Rs.900/- per square metre. He has stated that he is an Architect. He has denied the suggestion that he has not given the actual distance and has admitted that there is no fix formula for arriving at a valuation of land. 10. The learned Judge by the impugned Judgment, after appreciating the evidence on record, has come to the conclusion that the Awards produced by the applicants at exhibit 12 and 13 cannot be considered as there was no -8 - evidence produced with regard to the comparability of the land acquired and the land acquired therein. 11. On the basis of the evidence on record, I find that no such evidence has been adduced by the Applicants and, as such, the said findings of the learned Reference Court cannot be questioned. Apart from that, the evidence discloses that in the statement of Aw.1 he states that the land which is subject matter of exhibit 12, is at the distance of 2 kilometres from the acquired land and the land which is the subject matter of the land at exhibit 13 is at a distance of 1.2 kilometres from the acquired land. Unless the nature of the lands are established and the comparability of the lands is shown, no reliance can be placed on such awards to fix the market value of the acquired land. The learned Judge also rejected the report of the valuer as no particulars have been given by him to establish the basis on which the valuation has been arrived at by the valuer Shri Pramod Dessai. The valuer has assessed the value on the basis of the totality of the facts without mentioning the comparable sale instance on the basis of which such valuation has been made. The Learned Judge further held that the Applicants have sufficiently established that the land acquired fell in the Commercial and Settlement Zone and in the heart of Pernem Village. The Learned Judge has further found that the Sale Instance at Exh.23 is a comparable sale instance and after making a deduction of 1/3rd towards development changes, fixed the compensation at the rate of Rs.200/- per sq. metre. -9 - 12. The Learned Judge as such on the basis of the material on record as mentioned above was justified to come to the conclusion that the sale instance at Exh.23 was comparable to the land acquired as it was located in the vicinity of the land acquired. On perusal of the said Sale Deed at Exhibit 23, I find that the plot which was subject matter therein was admeasuring 355 square metre. The land acquired was admittedly admeasuring 2440 square metres which can be treated as a large area as compared to the Sale Deed plot. The said Sale Deed plot is also stated to be in the vicinity of the land acquired which has not been disputed by the Respondents. The Sale Deed plot at Exhibit 23 is a developed plot and it was a part of the sub-division. There is no dispute that as far as the acquired land is concerned, though the same was located partly in the commercial zone, nevertheless, no permissions were obtained for the purpose of granting the statutory sanction for any sub-division nor was permission obtained for conversion for non-agricultural use. As far as the Sale Deed plot is concerned, as it was a sub-divided plot, naturally, the plot was carved out after maintaining requisite open space and set backs. Apart from that, the Sale Deed plot was much smaller in size than the land acquired. Due to the said two similarities, deduction of 20% on each count would be just and appropriate. The total deduction as such would be 40% on account of development charges. The learned Counsel appearing for the Respondents Shri Shirodkar is not justified to contend that two third is to be deducted on account of developed charges. In the case of Subh Ram & Ors. vs. State of Haryana & Anr. (supra) the deduction to that extent was in cases wherein the market value of a large tract of land was sought to be fixed on the basis of a small developed plot. In the present case, it cannot be said that the land acquired was a very large chunk of land as was the -10 - case before the Apex Court. Considering the largeness of the land as well as the dissimilarities as stated hereinabove, I find that the deduction of 40% would be just and proper. The price fixed in the said Sale Deed is at a rate of Rs.300/- per square metre. After effecting such deduction of 40%, the amount works out to be Rs.180/- per square metre. In the facts and circumstances of the case, the Applicants are entitled for a compensation at the rate of Rs.180/- per square metre for the land acquired. Shri Dessai, the learned Counsel appearing for the Applicants was not justified to contend that the market value of the land has to be enhanced on the basis of the evidence on record. I find that the market value is to be fixed at the rate of Rs.180/- per square metre based on the sale instances produced by the Applicants which are comparable to the land acquired. On the overall evidence on record, compensation payable to the Applicants for the land acquired is to be fixed at the rate of Rs.180/- per square metre. The point for determination is answered accordingly. 13. In view of the above, I pass the following : ORDER (i) The Appeal no. 217/2006 is partly allowed and Appeal no. 267/2006 stands dismissed. (ii) The impugned Judgment and Award dated 29.04.2006 is modified and the compensation payable by the Applicants to the Respondents is at the rate of Rs.180/- per square metre for the land acquired. -11 - (iii) Needless to say that the Applicants would be entitled for statutory benefits as granted by the impugned Judgment in accordance with law. (iv) Both the Appeals stand disposed of accordingly with no order as to costs. F. M. REIS, J. arp/*