:1: IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 163 OF 2004 Communidade of Cortalim Cortalim Goa. ... Appellant V e r s u s 1. Special Land Acquisition Office, SIP, Gogol, Margao. 2. The Executive Engineer W.D. XXIV PWD, Margao. ... Respondents Mr. Iftikhar Agha, Advocate for the Appellant. Mr. M. Salkar, Additional Government Advocate for the Respondents. CORAM : F. M. REIS, J. DATED : 24 th SEPTEMBER, 2010. ORAL JUDGMENT : The above Appeal challenges the judgment and award dated 10th March, 2004 passed by the learned Additional District Judge, South Goa, Margao, in Land Acquisition Case No. 137/1993. The Respondents sought to acquire the land belonging to the Appellant for sump pump house and M.B.R., at Cuelim-Cortalim village ( additional area ) under a notification under Section 4 of the Land Acquisition Act, 1894 ( hereinafter referred to as 'the said Act') dated 11th October, 1989 published in the Official Gazette dated 2nd November, 1989. The area belonging to the Appellant sought to be acquired was admeasuring 1274 :2: square metres from the property surveyed under survey No. 183 of village Cortalim. By an award passed by the Land Acquisition Officer, an amount of Rs.13/- was offered by the Land Acquisition Officer in respect of the property surveyed under survey No. 183. Being dissatisfied with the said amount, the Appellant sought a reference for enhancement of a compensation under Section 18 of the said Act and claimed an amount of Rs.150/- per square metre for the land acquired. By judgment and award dated 10th March, 2004 the Reference Court answered the reference in negative. 2. Being aggrieved by the said judgment, the Appellant have preferred the present appeal. Mr. I. Agha, the learned Counsel appearing for the Appellant has assailed the impugned judgment and submitted that the Reference Court has totally misinterpreted the evidence on record and came to the erroneous conclusion that there was no access to the acquired land. The learned Counsel further submitted that there was an access which was serviceable to the acquired land as can be found from the award passed by the Land Acquisition Officer. The learned Counsel further submitted that the Reference Court failed to appreciate the evidence on record which establishes that all the amenities were available to the acquired land and the acquired land was a flat and rocky land. The learned Counsel further took me through the evidence on record and pointed out that the Reference Court erroneously discarded the sale :3: instances produced by the Appellant which also include awards passed in other land acquisition proceedings. The learned Counsel further submitted that the distance between the sale deed plot dated 1st October, 1986 and the acquired land was around 500 metres and the same forms the basis for fixing the market value of the acquired land. The learned Counsel further submitted that the Appellant have also produced a sale deed dated 6th November, 1989 which also did not have any motorable access and accessible by a foot path wherein the price was fixed at Rs.225/- per square metre. The learned Counsel further submitted that the electricity lines were passing through the acquired land and the electronic city at Verna was in the vicinity of the acquired land. The learned Counsel further submitted that the land of the Appellant had potentiality of being used for non-agricultural purpose and as such the Reference Court totally misconstrued the evidence on record and erroneously rejected the reference filed by the Appellant. The learned Counsel as such submitted that there was ample evidence on record to substantiate the claim of enhancement and the Appellant should be awarded a sum of Rs.100/- per square metre for the land acquired. 3. On the other hand, the learned Additional Government Advocate for the Respondents has supported the impugned judgment. He submitted that the Appellant has totally failed to adduce any evidence to substantiate that the price offered by the Land Acquisition Officer was :4: inadequate. The learned Counsel further submitted that the sale instances produced by the Appellant are not comparable to the land acquired and as such the same have been rightly rejected by the Reference Court. The learned Counsel further submitted that the land which was acquired was on the higher level as the same was sought to be acquired for the purpose of putting a sump pump house and as such had no potential value. The learned Counsel further submitted that there was no means of access to the acquired land and as such the amount offered by the Land Acquisition Officer at the rate of Rs.13/- per square metre was just and proper. The learned Counsel took me through the evidence on record and pointed out that the material produced by the Appellant cannot be relied upon for enhancing the compensation as offered by the Land Acquisition Officer. The learned Counsel as such submitted that there was no infirmity committed by the Reference Court in rejecting the reference and as such the Appeal deserves to be dismissed. 4. Having heard the learned Counsel for the Appellant and the Respondents and on perusal of records, the following point for determination arise in the present Appeal : POINT FOR DETERMINATION Whether the Reference Court was justified to answer the reference under Section 18 of the said Act in negative ? :5: 5. In support of the claim for enhancement of a compensation the Appellant have examined Peter Carvalho who is stated to be Special Attorney of the Appellant. He has stated in his deposition that the land surveyed under survey No. 183/1 was acquired by the Government for constructing a sump pump house at Cuelim-Cortalim and a notification was issued on 2nd November, 1989. He has further stated that the acquired land forms a part of the plot no. LXIL. The said property is situated at Quelim Nagoa and Cortalim and it is bounded on one side by a national highway 17-A ( Airport road ). He has further stated that the said plot is also accessible by a tar road leading from Consua to the said land. The acquired land is at a distance of 150 metres from the national highway 17- A and it is a flat levelled rocky land and it is at the level of the road. In support of his claim for enhancement, he has produced the judgment passed in Land Acquisition Case No. 116/89 which is at Exhibit AW1/C. The said land is stated to be two and half kilometres from the acquired land and a notification thereon was issued on 9th December, 1985 and in the said case the compensation was fixed by the Reference Court at the rate of Rs.79/- per square metre. He has also produced another award which is dated 9th February, 1988 wherein the Land Acquisition Officer has awarded a sum of Rs.60/- per square metre. Another acquisition in respect of survey No. 40/0 of village Nagoa was published in Official Gazette dated 8th August, 1985 wherein he has stated that the owners were Communidade of Nagoa and the Reference Court has fixed the :6: compensation at the rate of Rs.40/- per square metre. He has further stated that the total area of the survey No.183 was about 15000 square metre. He has also produced a sale deed dated 1st October, 1986 which is at Exhibit AW1/G. The said sale deed land was sold at the rate of Rs.95/- per square metre and this sale deed plot is located at Cortalim and along the national highway 17-A and at a distance of about 500 metres from the acquired land. He has stated that the nature of the land in the sale deed is an agricultural land and is similar to the acquired land as it is rocky land. The sale deed plot is stated to be suitable for construction purpose. He has produced another sale deed dated 21st September, 1989 which is at a distance of 1 Km from the acquired land and was touching the highway and the price fixed therein was Rs.275/- per square metre. In cross examination, he has stated that the whole property surveyed under survey No. 183/1 is surrounded on three sides by the Communidade of Cortalim and on the southern side by the village Coelim. He denied the suggestion that the acquired land was at a distance of more than 500 metres from the national highway. He has further stated in his cross examination that he had seen the O.D.P. plan and the acquired land was shown in settlement zone. He has denied the suggestion that the said land was not in settlement zone. He further stated that the survey records discloses that the said land is shown as bharad land and he has admitted that the land which was subject matter of Land Acquisition Case No. 116/89 is abutting the national highway 17-A. As far as sale deed at Exhibit AW1/G is :7: concerned, he has stated that the sale deed plot is abutting the national highway 17-A and that the sale deed land is by the side of national highway 17-A on other side. He has also admitted that the sale deed plot is closer to the Verna industrial estate and that the electronic city at Verna started in the year 1988. On perusal of the award at Exhibit 15 produced by the Appellant in Land Acquisition Case No. 116 of 1989, I find that the land is adjoining the main highway besides being quite a distance from the acquired land in the present case. 6. Next witness examined in support of the claim of enhancement is Eufemiano Miranda who has stated that by a sale deed dated 6th November, 1989 one Shri Jose Manuel Souza and his wife Smt. Artimiza Souza has sold 150 square metres of land at the rate of Rs.225/- per square metre which is at a distance of two and half kilometres from the acquired land. He has stated in his cross examination that he does not know the survey number of the acquired land. Next witness examined is John Philip Pereira. He has stated that he was aware about the land which was acquired for by-pass road which was the subject matter in Land Acquisition Case No. 116/1989. 7. The Reference Court while passing the impugned judgment has found that there was no plan disclosing the manner in which the acquired land was accessible as on the date of Section 4 notification. The :8: Reference Court has considered the inspection report of the Land Acquisition Officer as mentioned in the award and has come to the conclusion that the acquired land was not accessible. The Reference Court has rejected the contention of AW1 about the existence of a road from Consua up to the land of Communidade as no plan was produced with that regard. The Reference Court therefore rejected the award at Exhibit AW1/C as it is at a distance of about 2.5 kms from the acquired land and the said land had infrastructural facilities for development. The Award passed in Land Acquisition Case No. 99/38/LA/86 was rejected as it was on the basis of the said award passed in Land Acquisition Case No. 116 of 1989. As far as sale deeds produced by the Appellant at Exhibits AW1/F, AW1/G and AW1/H, the Reference Court has found that the sale deed at Exhibit AW1/F was in respect of an area of 175 square metres. Next sale deed at Exhibit AW1/G was in respect of an area of 325 square metres. The Reference Court found that the sale deed at Exhibit AW1/G could not be considered as it was adjoining the national highway 17-A and at a distance of 500 metres from the acquired land. The Reference Court has found that the nature of the sale deed land is an agricultural land and it is similar to the acquired land. Next sale deed at Exhibit AW1/H was in respect of an area of 34 square metres which is at a distance of 1 Km from the acquired land. The Reference Court found that the sale deed at Exhibit AW1/G is abutting the national highway 17-A and close to the Verna industrial estate. The Reference Court has considered the sale deed :9: plots were soft soil formation as against the land acquired which is on the top of the hillock and rocky land and did not consider them to be viable for assessing the market value of the acquired land. The Reference Court as such found that the evidence adduced by the Appellant was not sufficient for enhancing the compensation awarded by the Land Acquisition Officer. On perusal of records and evidence adduced by the Appellant, I find that the sale deed at Exhibit AW1/G is at a distance of 500 metres from the acquired land. The Reference Court in fact in the impugned judgment has come to the conclusion that the land acquired was similar to the said sale deed plot. Apart from that the only reason for rejecting the said sale instance is on the ground that the plot therein was abutting the national highway, while with regard to the land acquired, it did not have a motorable access. 8. The law is well settled that when comparable sale method is used for the purpose of determining the market value of the land, the Court will have to take into consideration all the merits as well as demerits of the acquired land vis-a-vis sale instances for the purpose of fixing the market value of the land. No doubt in cases in which the acquired land is higher level land, it will be a material aspect to be considered for the purpose of determining the market value. In the present case though the acquired portion of the land may not have a motorable access nevertheless the evidence adduced by the parties :10: discloses that the land of the Appellant out of which the acquired portion forms a part, was bounded on one side by a road. Taking that into consideration, the sale deed at Exhibit AW1/G can form the basis for the purpose of determining the market value of the acquired land. No doubt the necessary deductions will have to be given for the purpose of development expenses as well as the aspect as to the expenses to be incurred for providing a motorable access for the acquired land. Apart from that considering that the acquired land is on the higher side of the hill, substantial expenditure will have to be incurred on account of development expenses. The sale deed plot admeasuring an area of 335 sq. metres is also an agricultural land which is of the similar nature as the acquired land in the present case. The area which is the subject matter of the acquisition in the present case is 1274 square metres and the area of the property of the Appellant is 15,000 square metres. No doubt the Appellant had failed to establish the actual amount which would be incurred on account of development expenses as far as acquired land is concerned. AW1 has stated that the acquired land is in the settlement zone. No evidence has been adduced by the Respondents to rebut the said allegation of the Appellant. 9. The Apex Court in the judgment reported in Subh Ram v. State of Haryana,(2010) 1 SCC 444 has held at paras 15 and 16 as follows : :11: 15. Thus, if the valuation of a large extent of agricultural or undeveloped land is to be based on the sale price of a small developed plot in a private layout, then the standard deductions should be one-third (for roads, etc.) plus one- third (for expenditure of development), in all two-thirds (or 67%), as “development cost” from the value of small plot. The percentage of deduction may however vary between 20% to 75% depending on several circumstances (see Lal Chand v. Union of India, paras 8 and 9 for illustrations of such circumstances). 16. Therefore, when deduction is made from the value of a small residential plot towards the development cost, to arrive at the value of a large tract of agricultural or undeveloped land with development potential, the deduction has nothing to do with the purpose for which the land is acquired. The deduction is with reference to the price of the small residential plot, to work back the value of the large tract of undeveloped land. On the other hand, where the value of acquired agricultural land is determined with reference to the sale price of a neighbouring agricultural land, no deduction need be made towards “development cost”.” 10. Considering the said judgment of the Apex Court and as the Appellant has failed to adduce evidence about the actual deductions to be :12: effected as far as the acquired land is concerned, I find maximum deductions of 75% should be made for fixing of the market value of the acquired land in the present case as the total land of the Appellants admeasures 15,000 square metres and the sale deed plot is only 325 square metes. The sale deed plot is of the year 1986 wherein the price of Rs.95/- per square metre is mentioned. Considering that the land is located at a distance of 150 metres from the national highway 17-A and is in isolated rural locality on the hilly portion of the property of the Appellant, the appreciation should be 5% in view of the judgment of the Apex Court reported in 2008 (14) S.C.C. 745 in the case of General Manager, Oil and Natural Gas Corporation Limited V/s Rameshbhai Jivanbhai Patel and another. Considering the said escalation of 5% for three years, the amount works out to Rs.110/- per square metre. 11. The deductions effected above would be 25% considering that there is no motorable access to the acquired portion of the land and 25% on account of open space and further 25% as the acquired land is away from the national highway 17-A and as against the sale deed plot which is adjoining the national highway 17-A and closer to Verna industrial estate. The aggregate deductions as such would be 75%. The amount as such works out to Rs.27/- per square metre. The Reference Court as such was not justified in rejecting the reference. The Reference Court erred in not effecting appropriate deductions to arrive at the market :13: value of the acquired land after coming to the conclusion that the sale deed plot at Exhibit AW1/G is similar to the acquired land only because the sale deed plot was adjoining the national highway and did not have a motorable access. The market value of the acquired land is fixed at the rate of Rs. 27/- per square metre. The point for determination is answered accordingly. 12. In view of the above, I pass the following : O R D E R (i) The Appeal is partly allowed. The impugned judgment and award dated 10th March, 2004 is quashed and set aside. (ii) The Appellant are entitled to the compensation at the rate of Rs.27/- per square metre for the acquired land. (iii) The Appellant will be entitled to the statutory benefits as provided under Sections 23(1A), 23(2) and Section 28 of the said Act. (iv) The Reference Court is directed to calculate the amount payable by the Respondents in accordance with the above judgment within three months from the date of receipt of the judgment. :14: (v) The Respondents shall deposit the amount so determined within three months thereafter. (vi) The Appeal stands disposed of accordingly with no orders as to costs. Decree accordingly. F. M. REIS, J. at*