-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NOS.345 OF 2003, 10 OF 2004, 293 OF 2003 AND 55 OF 2004. FIRST APPEAL NO.345 OF 2003 Communidade of Nagoa, Having its office at Nagoa, Verna, Salcete, Goa, Through its Attorney Shri Antonio Pereira, major, married, landlord, resident of Nagoa, Verna, Salcete, Goa. …... Appellant. V e r s u s 1. Deputy Collector (L.A.), Margao, Goa. 2. The Administrative Officer, Goa, Daman and Diu Industrial Estate Corporation, Panaji, Goa. …... Respondents Mr. F. E. Noronha, Advocate for the Appellant. Ms. S. Linhares, Additional Government Advocate for the Respondents. WITH FIRST APPEAL NO.10 OF 2004 1. Deputy Collector (SDO) Sub-Division, Margao, Goa. 2. The Executive Engineer, Works Division, XIV, (NH), Fatorda, Margao, Goa. …... Appellants V e r s u s 1. Communidade of Nagoa, C/o procurador, Shri Antonio Pereira, R/o Nagoa, Salcete – Goa. …... Respondent Mr. S. Vahidulla, Government Advocate for the Appellants. Mr. F. E. Noronha, Advocate for the Respondent. -2- A N D FIRST APPEAL NO.293 OF 2003 Communidade of Verna, Through its Attorney Shri Savio Correia, Verna, Salcete, Goa. …... Appellant. V e r s u s 1. The Deputy Collector (SDO), Sub Division, Margao, Goa. 2. The Executive Engineer, Works Div. XIV (NH), Fatorda, Margao, Goa. …... Respondents Mr. J. A. Lobo, Advocate for the Appellant. Mr. G. Shirodkar, Government Advocate for the Respondents. WITH FIRST APPEAL NO.55 OF 2004 1. Deputy Collector (SDO) Sub-Division, Margao, Goa. 2. The Executive Engineer, Works Division, XIV, (NH), Fatorda, Margao, Goa. …... Appellants V e r s u s Communidade of Verna, C/o procurador, Shri Alvaro Abranches, R/o Nagoa, Salcete – Goa. …... Respondent Mr. G. Shirodkar, Government Advocate for the Appellants. Mr. J. A. Lobo, Advocate for the Respondent. Coram :- A. S. OKA F. M. REIS, JJ. -3- Judgment Reserved on : 10 th August, 2010. Judgment Pronounced on : 26 th November, 2010. JUDGMENT : (Per F. M. Reis, J.) All the above Appeals are taken up together for final disposal in view of the Order passed by this Court to hear the Appeals together as they pertain to an acquisition of land by the same Notification. The parties shall be referred to as they so appear in the impugned Judgment. FACTS AND SUBMISSIONS IN FIRST APPEAL NO. 345/2005 AND 10/2004. 2. The Appellants in First Appeal no. 345/2003 are the Applicants in the impugned Judgment. The Appellants in First Appeal no. 10/2004 are the Respondents in the impugned Judgment. 3. Both the above Appeals challenge the Judgment and Award dated 8th August, 2003, passed by the learned District Judge, South Goa, Margao, in Land Acquisition Case no. 125/1997. By Notification dated 17th August, 1993, published in Official Gazette dated 6th January, 1994, under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the 'said Act') the Respondents acquired the land belonging to the Applicants for the construction of Verna-Rassaim road (Part I). An area admeasuring 14,950 square metres from the property surveyed under no. 33/part of Village Nagoa was acquired for the said purpose. The Land Acquisition Officer, by an Award under Section 11 of the said Act, dated 10th October, 1996, awarded compensation for the land acquired at the rate of Rs.5/- -4- per square metre in respect of rocky land and Rs.10/- per square metre for tenanted paddy field and Rs.20/- per square metre for the cashew land. Being dissatisfied with the said amount, the Applicants preferred a reference under Section 18 of the said Act for enhancement of compensation and claimed a compensation to the tune of Rs.150/- per square metre. By the impugned Judgment and Award dated 8th August, 2003, the learned District Judge, South Goa, Margao, partly allowed the reference and the compensation was uniformly enhanced to Rs.25/- per square metre for the land acquired besides statutory benefits. 4. Being aggrieved by the said Judgment and Award, the Applicants as well as the Respondents have preferred the present Appeals. 5. The learned Counsel appearing for the Applicants has submitted that the Reference Court has totally misdirected itself in determining the market value of the acquired land as on the date of Section 4 Notification. The learned Counsel submitted that the land adjoining to the acquired land was already acquired by the Government for Industrial purposes and, as such, the land had potentiality of being used for building purposes. The learned Counsel has further submitted that once the Reference Court had accepted that the land acquired was similar to the land which was subject matter of the Land Acquisition Case no. 23/1987 in respect of a Notification dated 8th August, 1985, after giving suitable escalation, the market value of the acquired land ought to have been Rs.180/- per square metre. The learned Counsel further submitted that the deduction of 60 percent done by the Reference Court was totally erroneous. The learned Counsel further submitted that -5- the Notification in the said case was much before the Industrial Estate was set up in the vicinity and, as such, the price fetched therein was much lower than the actual market price prevailing in the vicinity on the relevant date. The learned Counsel has further pointed out that the Applicants have also produced other Awards in the proximity of the acquired land which were comparable with the land acquired which have been erroneously discarded by the Reference Court. He further submitted that the Reference Court ought to have awarded a sum of Rs.150/- per square metre for the land acquired. 6. On the other hand, the learned Addl. Government Advocate appearing for the Respondents has submitted that the Reference Court was not at all justified in enhancing the compensation as awarded by the Land Acquisition Officer. He further submitted that the question of awarding any enhancement with regard to the land which was tenanted could not arise at all as such land had no potentiality of being used for non-agricultural purpose in view of Goa Land Use (Regulation) Act, 1991. He further pointed out that the paddy field portion of the acquired land had no potentialities of being used for non-agricultural purpose and, as such, the question of awarding compensation at the rate of Rs.25/- per square metre for such land would not arise at all. The learned Addl. Government Advocate further submitted that the question of granting any uniform rate for the land acquired does not arise considering the dissimilarities in different portions of the acquired land. The learned Addl. Government Advocate further pointed out that the land which was the subject matter of the Award in Land Acquisition Case no. 23/1987, is not at all comparable with the land acquired as the said land was adjoining the National Highway and was flat land. The learned Addl. Government -6- Advocate has further submitted that the Applicants have failed to adduce any evidence to discharge their burden that the price offered by the Land Acquisition Officer was inadequate. The learned Addl. Government Advocate has further submitted that considering the nature of the land, the deductions made by the Reference Court ought to have been much higher as substantial expenditure would have to be incurred for any development of the land acquired. He further pointed out that as such, the impugned Judgment passed by the Reference Court deserves to be quashed and set aside and the reference filed by the Applicants be dismissed. FACTS AND SUBMISSIONS IN FIRST APPEAL NO. 293/2003 AND 55/2004. 7. Both the above Appeals challenge the Judgment and Award dated 8th August, 2003, passed by the learned District Judge, South Goa, Margao, in Land Acquisition Case no. 127/1997. 8. By Notification dated 17th August, 1993, published in Official Gazette dated 6th January, 1994, the Respondents acquired the land belonging to the Applicants for the purpose of construction of Verna-Rassaim road (Part I), of which an area of 15,500 square metres was located in the property surveyed under no. 31/part and 1,300 square metres from survey no. 33/part. By an Award dated 10th October, 1996, passed under Section 11 of the said Act, the Compensation fixed by the Land Acquisition Officer was at the rate of Rs.5/- per square metre for the rocky land, Rs.10/- per square metre for the paddy field and Rs.20/- per square metre for cashew land. Being dissatisfied with the said Award, the Applicants preferred a reference under Section 18 of the said Act for enhancement of compensation and -7- claimed an amount of Rs.150/- per square metre for the land acquired. By the impugned Judgment and Award dated 8th August, 2003, the learned District Judge, South Goa, Margao, fixed the market value of the land at a uniform rate of Rs.20/- per square metre besides statutory benefits. 3. Being aggrieved by the said Judgment and Award, the Applicants as well as Respondents have preferred the above Appeals. 4. The learned Counsel appearing for the Applicants has assailed the impugned Judgment and submitted that the Reference Court was not justified to fix an uniform rate of Rs.20/- per square metre for the land acquired when the land of the Applicants had potentialities of being used for construction/building purpose as the Industrial Estate had already existed in the vicinity of the acquired land as on the date of Section 4 Notification. The learned Counsel further submitted that the Awards produced by the Applicants are prior to the Section 4 Notification which are comparable to the land acquired and after giving the well settled escalation of 10 percent on cumulative basis, the market value of the acquired land ought to have been to the minimum sum of Rs.150/- per square metre. The learned Counsel further submitted that the Applicants have produced evidence on record to show the potentialities of the land acquired considering that the Industrial Estate was located at a distance of 500 metres from the acquired land. The learned Counsel further submitted that the Applicants have produced even sale instances wherein the market value of the properties was ranging from Rs.50/- to Rs.79/- per square metre in the year 1985 and 1986. He further submitted that in Land Acquisition Case no. 23/1987, the Reference Court awarded compensation at the rate of -8- Rs.40/- per square metre in respect of land bearing survey no. 40/0, which is in the proximity of the acquired land wherein the Notification was published on 8th August, 1985. He further submitted that the Applicants were entitled to a minimum compensation at the rate of Rs.150/- per square metre for the land acquired. 5. On the other hand, the learned Addl. Government Advocate, has impugned the Judgment passed by the Reference Court and submitted that the Reference Court had erroneously enhanced the compensation of the land acquired as the compensation offered by the Land Acquisition Officer was just and proper. The learned Addl. Government Advocate further submitted that the Awards relied upon by the Applicants are not comparable with the acquired land. He further pointed out that the land which was subject matter of Award in 1985 was not at all comparable with the acquired land. He further pointed out that the land which was acquired from the Communidade of Nagoa was not at all comparable with the acquired land in the present case though both are in the same Notification, the land acquired in the present case is on the eastern side much beyond the National Highway. He further submitted that the land involved in Land Acquisition Case no. 125/1977 is not at all similar with the land acquired. He further submitted that the Applicants have failed to discharge the burden cast on them to establish that the price offered by the Land Acquisition Officer in the Award is inadequate and, as such, the question of granting any enhancement to the Applicants would not arise at all. The learned Counsel as such submitted that the Reference Court was not justified to enhance the compensation as there was no cogent evidence on record to come to the conclusion that the Applicants were entitled for any enhancement. He further submitted that the land of the Applicants was not accessible and, as -9- such, this by itself shows that such land had no potential value. The learned Addl. Government Advocate further submitted that the Communidade lands have no potential value for being used for non-agricultural purpose. CONSIDERATION OF SUBMISSIONS AND CONCLUSION IN FIRST APPEAL NO. 345/2005 AND 10/2004 6. Aw.1, John Filipe Pereira, who is the attorney of the Applicants, has stated that an area of 14,950 square metres was acquired by the Government from the land surveyed under no. 33, belonging to the Applicants. He has further stated that the said land was acquired for a totally new road for connecting the existing road from the Industrial Estate to go to Rassaim, Borim. He has further stated that Nagoa Village centre is at a distance of 1.5 kilometres from the acquired land and that the land was basically flat with scarce trees like cashew trees which were spontaneous growth. In support of his claim, he relied upon three Awards namely Award in Land Acquisition Case no. 23/1987, which is at exhibit 21, which acquisition was for a 20 Point Programme and is at a distance of 1 kilometre from the acquired land. He has also produced an Award at exhibit 22, in Land Acquisition Case no. 265/1990 in respect of land belonging to Communidade of Verna, which was acquired to go to the Old Mardol Temple near Verna Police Station, wherein the price was fixed at the rate of Rs.55/- per square metre and which land is located at a distance of 5 kilometres from the acquired land. He has also produced another Award at exhibit 23, in land Acquisition Case no. 116/1989 wherein the rate for the acquired land was fixed at Rs.79/- per square metre for the by-pass of National Highway from Verna to Nagoa. In the cross examination, he has stated that the acquisition was for -10- internal road going from Nagoa to Borim via Verna and Loutolim. He has further deposed that the acquired land does not touch the National Highway directly. He further stated that there was a mud road to the acquired portion of land. He further stated that on the northern side of the property of the Applicants, there was a factory known as Novartis. He has also admitted that prior to the acquisition, there was a high tension line passing through the land acquired. In the re-examination, he has admitted that the mud road was used by the people to walk to Rassaim. 7. The next witness is Savio Correia, who is the attorney of the Communidade of Verna, who has stated that the land of the Applicants was accessible by the existing road and that the present acquisition was for the same road. He further stated that earlier there was a footpath passing through the land of Communidade of Verna and Communidade of Loutolim up to Rassaim. In the cross examination he has admitted that the land in Land Acquisition Case no. 265/1990 is basically flat land which is touching the Highway. 8. The next witness examined is Grenville Pereira, who is a party to the Award in Land Acquisition Case no. 116/89 wherein the Reference Court had fixed the compensation at the rate of Rs.79/- per square metre by Award dated 3rd May, 1991. In the cross examination, he has admitted that his property is at a distance of 1.5 kilometres from the acquired land. He further submitted that the acquired land was barren at the time of acquisition but development was going on where factories were coming up in the locality of the acquired land. He further submitted that his land was slightly sloppy and that the land in the present case was flat. -11- 9. The next witness Shri Vishnu Amonkar, is the Civil Engineer, who has stated that the comparability of the land acquired with the Awards produced by the Applicants is similar in nature. In the cross examination he has admitted that he has not prepared any report and he has not assessed any particular value to the land. He has further admitted that the land which was acquired for 20 Point Programme was flat land. 10. The Reference Court after assessing the evidence on record, came to the conclusion that the land at Verna plateau is a fast developing industrial township which at one point of time was isolated land. The Reference Court has considered that the first acquisition had taken place pursuant to the Award in exhibit 21. The Reference Court as such held that the land which was subject matter of exhibit 21 could form a basis for the purpose of determining the market value of the acquired land. The Reference Court has rejected the Awards at exhibit 22 and 23 as they were not located in Nagoa Village. We find, that when there was an Award available at exhibit 21 in respect of the land acquired in Nagoa Village, the Reference Court was justified in discarding the said two Awards which are far away from the acquired land and in a different Village. The Reference Court has after escalating the amount by 10 percent for every year, on the price fixed in exhibit 21, arrived at the value of the acquired land at Rs.74/- per square metre and deducted 60 percent and fixed the compensation at the rate of Rs.29.60 per square metre and thereafter further deducted a sum of Rs.4.60 per square metre as the land acquired was much further than the National Highway and fixed the compensation at the rate of Rs.25/- per square metre. -12- 11. Considering that the Award at exhibit 21 can be accepted as a comparable sale instance, we find that the land which was subject matter of the said Award is closer to the National Highway. The land acquired was much beyond the National Highway and there was no motorable access to the acquired land as the acquisition was for the construction of a new road. The evidence discloses that the land acquired was accessible by a mud road which was a footpath. The witnesses of the Applicants themselves have admitted that there was a mud road which was used by the public as a pathway to proceed to Rassaim Village. This fact will have to be considered for the purpose of comparing the land acquired with the sale instance at exhibit 21, apart from the fact that the said land was a flat land while the acquired land was a rocky land. 12. This Court whilst disposing of First Appeal no. 300/2003 in respect of the land Acquired for the purpose of expansion of the Verna Industrial Estate, Verna Plateau Phase II, has fixed the compensation in respect of the property surveyed under no. 40/part admeasuring an area of 29,600 square metres, at the rate of Rs.48/- per square metre. The said amount was fixed relying upon the Award which is at exhibit 21 in the present case. There is no dispute that the Notification in the subject matter of the said case was published on 22nd March, 1990, whereas in the present case, the Notification was published on 17th August, 1993, which has a gap of three and half years. No doubt after the industrial estate was established in 1987, there was demand for land in the vicinity of the acquired land. As such the escalation shall be considered at the rate of 10 percent per annum. At the said rate of 10 percent per annum on cumulative basis, the amount works out to Rs.65/- per square metre. The land which was subject matter of the -13- said First Appeal was accessible by an internal road and was very close to the National Highway. The land which is subject matter in the present acquisition is accessible by mud road which was being used as a pathway by the Villagers. The land is much further to the National Highway and is located in a rural area though there was potentiality of being used for industrial purpose as there were factories located in the vicinity of the acquired land. The land was also rocky land, besides paddy field and cashew land. and the contention of the learned Counsel for the Respondent that Communidade lands have no potential value cannot be accepted as this aspect has been considered while determining the market value of land in First Appeal No. 300/2003. 13. The Apex Court in the Judgment reported in (2008)17 SCC 436 in the case of CESC Ltd. v. Sandhya Rani Barik, has held at paras:- 16. The case of the appellant was that the plot which was acquired for their use was wholly landlocked. This forms a very important factual issue which is important while determining the compensation. 19. The armchair assessment of land value has to proceed with common sense and circumspection. One should attempt to find out the just and reasonable compensation without attempting any mathematical precision in that regard. For the purpose of assessing compensation, the efforts should be to find out the price fixed for the similar land in the vicinity. 20. The difference in the land acquired and the land sold might take on various aspects. One plot of land might be larger, another small, one plot of land might have a large frontage and another might have none. There -14- might be differences in land development and location. There might be special features which have to be taken note of and reasonably considered in the matter of assessing compensation. 21. Where a very large plot of land has been acquired and the comparison is sought to be made with a comparatively smaller piece of land which has been sold or otherwise dealt with, then in that event, a percentage of the price is to be knocked off because of the largeness itself of the acquired land. Accordingly, the High Court made the deductions. The High Court also dealt with the question of land locking and held that it was a special feature which had to be taken note of. In another Judgment reported in (2000) 10 SCC 609 in the case of Union of India v. Mangat, the Apex Court has held at para 8 thus:- 8. We see no warrant in law for the formula indicated above being applicable while finding the market value of acquired land as on the date of the said notification under Section 4. This mathematical formula completely disregards the location of the land which is acquired vis-à-vis the instance sale, the difference in the area acquired and the area of the sale instance and several other relevant factors in this regard. As has already been indicated hereinabove, the area which was acquired was 1130 acres and 4 marlas, only a small portion of which abutted on National Highway 8. Even if one was to disregard the quality of the land i.e. irrigated, semi-irrigated or barren, one cannot be oblivious of the fact that the market value of land which abuts on the national highway would be much more than the land which is -15- away from it. A price of the land which is landlocked and which is farther away from the national highway cannot be the same as that which abuts on the national highway. The formula which had been applied by the High Court, however, seems to indicate that the price of the entire land irrespective of the location of different parcels of land is the same. The formula which was applied by the learned Single Judge of the High Court is obviously incorrect. 14. Considering all the factors stated above and the dissimilarities vis a vis the land subject matter of the acquisition, we find that on account of the fact that the land acquired is farther than the National High Way and did not have a motorable access but only a footpath passing through the acquired land a