1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEALS NOS.39 & 232 OF 2006 FIRST APPEAL NO.39 OF 2006 1. Smt. Maria Manuela S. de Sequeira 2. Joana Maria Geeta de Sequeira. 3. Shri Jose Manuel J. de Sequeira …. appeal stands abated All r/o. Campal, Panaji, Tiswadi, Goa. … Appellants V/s 1. Special Land Acquisition Officer, North Goa District, (K.R.C.), Panaji-Goa. 2. Konkan Railway Corporation Ltd. …. Respondents Mr. S.D. Lotlikar, Senior Advoctae with Ms. G. Xettigar, Advocate for the Appellants. Mr. A.D. Bhobe, Advocate for the Respondents. AND FIRST APPEAL NO.232 OF 2006 Konkan Railway Corporation Limited, Margao-Goa. …. Appellant V/s 1. Smt. Maria Manuela S. de Sequeira, 2. Joana Maria Geeta de Sequeira, 3. Shri Jose Manuel J. de Sequeira (since deceased through LR's) 3(a) Col. G.S. Gill, 3(b) Depinder Gill 3(c) Reminder Gill 3(d) Sandeep Gill All residing at House No.Sector 2A, Chandigarh. 3(e) Mrs. Maria Margarida de Sequeira Fernandes, 3(f) Mr. Jorge Renato Fernandes Both residing at Campal, 2 Panaji-Goa. 3(g) Mrs. Maria Lillia de Sequeira Sukhija, 3(h) Mr. Ajit Sukhija, Both residing at Campal, Panaji-Goa. 3(i) Mrs. Maria Teresa de Sequeira Mehta 3(j) Adm (Rtd.) Sureesh Mehta Residing at India House, 128, Knight road, lower Hutt Wellington 5010 Newzeland. 3(k) Miss Joana Maria de Sequeira 3(l) Miss Manuela Maria de Sequeira Both residing at Campal, Panaji-Goa. 3(m) Amita de Sequeira 3(n) Anil de Sequeira 3(o) Ayesha de Sequeira C/o. Maureen de Sequeira Campal, Panaji-Goa. 4. Special Land Acquisition Officer, Margao-Goa. …. Respondents Mr. A.D. Bhobe, Advocate for the Appellant. Mr. S.D. Lotlikar, Senior Advocate with Ms. G. Xettigar, Advocate for the Respondents Nos.1 to 3(o). CORAM : F. M. REIS, J. DATE : 31st MARCH, 2011 JUDGMENT : Both the above appeals were taken up together for final hearing as they challenge the same judgment and award dated 10/11/2005 passed by the learned Additional District Judge, North 3 Goa, Panaji in Land Acquisition Case No.230/1996. 2. Parties shall be referred to in the manner they so appear in the impugned judgment. 3. The land belonging to the applicants was sought to be acquired pursuant to a notification under Section 4 of the Land Acquisition Act, 1894 hereinafter referred to as 'the said Act', dated 13/06/1991, for the construction of a new broad gauge line between Roha and Mangalore in the village of Ella and Carambolim in Tiswadi Taluka. By an award passed under Section 11 of the said Act dated 3/01/1984, the Land Acquisition Officer offered compensation at the rate of Rs.18/- per square metre for the land acquired. Being dissatisfied with the said amount, the applicants sought a reference under Section 18 of the said Act for enhancement of compensation and claimed an amount of Rs.400/- per square metre. The Reference Court by the impugned judgment and award dated 10/01/2005 partly allowed the said reference and fixed the market value of the land acquired at the rate of Rs.76/- per square metre. Being aggrieved by the said judgment, the applicants as well as the respondents have preferred the above appeals. 4 4. The applicants are the appellants in First Appeal No.39/06 whereas the respondent no.2 is the appellant in First Appeal No.232/2006. 5. Shri A.D. Bhobe, the learned Counsel appearing for the respondent no.2/acquiring body has assailed the impugned judgment and submitted that the amount fixed by the Reference Court is much higher than the one prevailing in the locality as on the relevant date. The learned Counsel further submitted that the Reference Court has erroneously relied upon the compensation fixed in the compromise proceedings arrived at between the parties in another acquisition proceeding wherein the amount was fixed at the rate of Rs.51/- per square metre. The learned Counsel further pointed out that as the amount fixed was in view of a compromise, the same cannot form the basis for the purpose of fixing the market value of the acquired land. The learned Counsel further took me through the evidence on record and pointed out that the Reference Court has rightly rejected the sale instance produced by the applicants for the purpose of fixing the market value of the acquired land and, as such, the question of granting enhancement in the compensation to the applicants would not arise. The learned 5 Counsel further submitted that the Reference Court has not at all appreciated the evidence on record in a proper perspective and, consequently, the impugned judgment and award passed by the Reference Court deserves to be quashed and set aside. 6. On the other hand, Shri Lotlikar, the learned Senior Counsel appearing for the applicants/original claimants has pointed out that the amount of compensation fixed by the Reference Court is on the lower side, as according to him, the applicants have produced sale instances of comparable lands disclosing that the price in the vicinity of the acquired land was more than Rs.125/- per square metre. The learned Senior Counsel has relied upon the sale instance at Exhibit 26 wherein the developed plot was sold at the rate of Rs.75/- per square metre as on 2/09/1987. The learned Senior Counsel further submitted that the acquisition in the present case was in the year 1991 and after granting an escalation of 10% for a period of four years, the compensation to be fixed with regard to the acquired land would be at a minimum rate of Rs.125/- per square metre. The learned Senior Counsel has taken me through the evidence on record and pointed out that the respondents themselves have put a suggestion to the applicants in the cross- examination to the effect that the price mentioned in the 6 compromise at the rate of Rs.51/- per square metre was the market value at the relevant time. The learned Senior Counsel further pointed out that the compromise has been arrived at as the claimants therein who were examined in the above proceedings have clearly stated that in view of the delay in getting the compensation, he decided to settle the matter. The learned Senior Counsel pointed out that this itself shows that the amount arrived at by the applicants/claimants therein was much less than the actual market value prevailing in the locality at the relevant time. The learned Senior Counsel has further submitted that the land acquired was located in the better locality and the same was consisting of six developed plots which were belonging to the applicants, whereas the sale deed plots were located in the interior of the village and, consequently, the applicants are entitled for much higher compensation than the one awarded by the Reference Court and according to him the compensation is to be fixed at the minimum rate of Rs.125/- per square metre. 7. Having heard the learned Counsel and on perusal of the records, the following point for determination arises in the present appeal: POINT FOR DETERMINATION: 7 (i) Whether the Reference Court was justified to fix the market value of the acquired land at the rate of Rs.76/- per square metre. 8. On perusal of the records, the Reference Court has relied upon the instance produced by the applicants and fixed the compensation at the rate of Rs.76/- per square metre. In the course of the evidence before the Reference Court, the applicants have produced a Sale Deed at Exhibit 26 wherein the price as mentioned therein is Rs.75/- per square metre in respect of the plot of land which was located at a distance of about 500 metres from the acquire land. Whilst ascertaining the market value of the acquired land on the basis of the said sale instance, the Reference Court has considered the price at which the land was purchased in respect of the said property. Admittedly, such purchase had taken place more than five years prior to execution of the Sale Deed. The Apex Court in the judgment reported in 2008 (14) SCC 745 in the case of General Manager, Oil and Natural Gas Corporation Limited v. Rameshbhai Jivanbhai Patel has held at para 15 thus: “15. Normally, recourse is taken to the mode of determining the market value by providing appropriate escalation over the proved market value of nearby lands in previous years (as evidenced by sale transactions or acquisitions), where there is no evidence of any contemporaneous sale transactions or 8 acquisitions of comparable lands in the neighbourhood. The said method is reasonably safe where the relied-on sale transactions/acquisitions precede the subject acquisition by only a few years, that is, up to four to five years. Beyond that it may be unsafe, even if it relates to a neighbouring land. What may be a reliable standard if the gap is of only a few years, may become unsafe and unreliable standard where the gap is larger. For example, for determining the market value of a land acquired in 1992, adopting the annual increase method with reference to a sale or acquisition in 1970 or 1980 may have many pitfalls. This is because, over the course of years, the “rate” of annual increase may itself undergo drastic change apart from the likelihood of occurrence of varying periods of stagnation in prices or sudden spurts in prices affecting the very standard of increase.” 9. As such, relying upon the sale instance which is more than four to five years, for the purpose of fixing the market value of the acquired land, cannot be said to be justified. The Sale Deed at Exhibit 26 is a developed plot which is more proximate in time to the Section 4 notification in the present case and, as such, it is more than appropriate to rely upon the price as mentioned therein as the basis of fixing the market value of the acquired land in the present case. 10. Considering the evidence on record and in view of the fact that the Sale Deed plot at Exhibit 26 is at a distance of less than 9 500 metres from the acquired land, it would be necessary to ascertain the dissimilarities of the Sale Deed plot vis-a-vis the acquired portion of the land so as to fix the market value of the acquired land. The evidence discloses that the Sale Deed plot is located in the interior of the village whereas the land acquired in the present case is adjoining the main road. Considering these factors an escalation of 10% per annum from the date of the Sale Deed up to the date of Section 4 notification would be appropriate and justified. There is a gap of four years between the date of Sale Deed and Section 4 notification in the present case and, as such, granting the said escalation the amount works out to Rs.105/- per square metre. The area of the Sale Deed plot is 425 square metres and as stated above it is a developed plot. Though it is stated that the plots which are subject matter of the acquisition were developed plots, nevertheless, the total area acquired admeasures an area of approximately 4,000 square metres. In view of the said largeness of the land vis-a-vis the Sale Deed plot, I find that the 15% deduction would be justified on account of such dissimilarity. The amount, as such, works out to Rs.90/- per square metre approximately. On the basis of the overall evidence on record and considering the location of the land and other factors for the purpose of determining the market value of the acquired land, I 10 find that the compensation for the land acquired at the rate of Rs.90/- per square metre would be just and proper. 11. The contention of the learned Counsel appearing for the respondent no.2 to the effect that the award cannot be considered to be comparable instance for fixing the market value of the land cannot be accepted in the facts of the present case. In the present case, considering that there was evidence to suggest advantages and disadvantages of the land acquired with the land which was subject matter in the said compromise, there is no reason not to consider such land for determining the market value of the acquired land. No doubt the compensation fixed by compromise by itself cannot form the basis for the purpose of fixing the market value of the acquired land. But, however, considering the suggestions put by the respondent to the applicants to the effect that the price fixed at the rate of Rs.51/- per square was the market value at the relevant time of the land acquired, I find that the price paid therein can be considered for the purpose of fixing the market value of the acquired land. The land which was subject matter of the said acquisition in the said matter was nearly six years prior to the Section 4 notification in the present case. Even assuming the price fixed pursuant to a said compromise at the rate of Rs.51/- per 11 square metre, after granting the escalation for the said period, the amount determined at the rate of Rs.90/- per square metre cannot be said to be exorbitant. In fact, the learned Single Judge had fixed the compensation at the rate of Rs.64/- per square metre. The said proceedings came to be compromised for a sum of Rs.51/- per square metre. 12. The Reference Court was not justified in fixing the market value of the land acquired at the rate of Rs.76/- per square metre on the basis of the Sale Instance which was more than five years prior to the acquisition, for the reasons stated above. The applicants have produced sale instances which are more proximate in time to Section 4 notification in the present case which can form the basis of the market value of the present acquired land. The said Sale Deed was comparable to the land acquired and, as such, the amount of compensation is fixed at Rs.90/- per square metre which is just and appropriate in the facts of the present case. In such circumstances, the impugned judgment of the Reference Court deserves to be modified and the compensation is to be fixed at the rate of Rs.90/- per square metre. 13. Shri Bhobe, the learned Counsel appearing for the 12 respondent no.2 is not justified to contend that the applicants have failed to establish that the amount offered by the Land Acquisition Officer was inadequate on the basis of material produced by the applicants. The applicants have established that such amount offered by the Land Acquisition Officer was inadequate and the respondents have failed to adduce any evidence to support the amount offered by the Land Acquisition Officer. Hence, the impugned judgment deserves to be modified to the extent stated herein above. The point for determination is answered accordingly. 14. In view of the above, I pass the following order: O R D E R (i) First Appeal No.232/2006 stands dismissed. (ii) First appeal No.39/2006 is partly allowed and impugned judgment and award dated 10/11/2005 is modified and the compensation for the land acquired is fixed at the rate of Rs.90/- per square metre. (iii) Needless to say that the remaining part of the award granting statutory benefits stands confirmed. (iv) Both the appeals stand disposed of accordingly with no order as to costs. F.M. REIS, J. NH/-