1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 170 OF 2000 1. Shri Gopal V. N. Panvelkar, 2. Ganesh V. N. Panvelcar, 3. Narcinv V. N. Panvelcar, 4. Dr. Vithoba V. N. Panvelcar, “Vishnu Smruti” Verem Reis Magos-Goa. .... Appellants V e r s u s 1. Deputy Collector and Land Acquisition Officer, Panaji. 2. Executive Engineer, W.D.II, PWD, Panaji Goa. ... Respondents Mr. Shivan Dessai, Advocate for the appellants. Mr. M. Salkar, Additional Government Advocate for the respondents. 2 CORAM : B. P. DHARMADHIKARI, & U. D. SALVI, JJ DATE : 6TH MAY, 2009. ORAL JUDGMENT ( Per B. P. DHARMADHIKARI, J) By this appeal filed under Section 54 of the Land Acquisition Act, the appellants – land owners challenged the rejection of their application under Section 18 thereof by District Judge, Panaji Goa, vide Judgment and Order dated 15.1.2000. 2. The basic facts are not in dispute between the parties. The Notification under Section 4 of the Land Acquisition Act came to be published on 12.10.1982 and the area of about 4075 square metres has been acquired by State Government for construction of a road from Verem Church to Kegdiveli at Reis Magos. The properties of the appellants acquired are surveyed under survey No.95/1 (part) and 96/28 (part). The said lands were having coconut trees and also 3 a nallah i.e. water drain. The Land Acquisition Officer in Award made on 11.5.1984 has granted compensation at the rate of Rs. 15/- per square metre for the land of coconut garden and Rs.3/- per square metre for nallah and Rs. 998/- per coconut tree. It is not in dispute that land occupied by nallah was not more than 15 square metres and that the Land Acquisition Officer has not adopted income capitalization method for determining the market value. The appellants filed proceedings under Section 18 of the Land Acquisition Act which came to be registered under Land Acquisition Case No. 2/1995. They claim the compensation at the rate of Rs. 300/- per square metre for garden land and Rs. 3000/- per tree for coconut trees. They examined the appellant no.2 Ganesh V. N. Panvelkar as their first witness and one Cleusa Naik as their second witness. They relied upon Sale Deed at Exhibit 16 whereby they sold their own land i.e. Survey no.77 admeasuring an area of 17,495 square metres for Rs. 56,15,895/- to M/s Alcon Real Estate Pvt. Ltd. The State Government did not adduce any evidence. In 4 this background, the reference Court by impugned order dismissed the application after holding that appellants could not establish the market value and also valuation of the coconut trees as claimed. 3. We have heard learned Advocate Shri S. Dessai for the appellants and learned Government Counsel Shri Salkar for the respondents. 4. Learned Advocate Shri Dessai has contended that the reference Court has ignored the Sale Deed at Exhibit 16 merely because the vendors or the purchasers have not been examined as witnesses though certified copy thereof was produced on record. He further contended that the authorized representative of the purchasers M/s Alcon Real Estate Pvt. Ltd., has also entered the witness box to confirm the fact of purchase and also invited attention to the order passed by Income Tax Authority dropping the proceedings under Section 269(D) of Income Tax Act. According 5 to him, this evidence along with documents on record was more than sufficient to show the market price. He has relied upon the judgment of the Hon'ble Apex Court reported in the case of State of Haryana vs. Ram Singh, reported at (2001) 6 SCC 254, to show that certified copies of registered sale deeds are held to be admissible in evidence though parties thereto are not examined. He further states that the reference Court has found the said transaction is subsequent to Section 4 Notification and therefore the same is not admissible. He argues that merely because the transaction is subsequent, that by itself is not sufficient to discard it and evidence has to be brought on record to show that transaction was not genuine or that there was sharp increase in price at the relevant time and hence the price as mentioned in that Sale Deed was the artificial. He contends that though appellant no.2 has entered the witness box and has proved the Sale Deed, no such suggestions were given to him and no such plea has been taken on record. He therefore argues that the said Sale Deed at Exhibit 16 ought to have 6 been considered by reference Court. He also argues that survey no. 77 was sold for non-agricultural purpose i.e., for development and land in question has been acquired also for similar purpose i.e., construction of houses. Both the lands are admittedly situated in the very same village and hence the findings of Court below that appellants have not established parity between these two lands therefore cannot be sustained. According to him, the lands of the appellants therefore ought to have been valued as per the price fetched by them in Exhibit 16 by effecting 10% deduction therefrom for each subsequent year as per the settled law. 5. He has also invited our attention to the communication dated 26.10.1984 sent by Acquiring Department through its Assistant Engineer to appellant no.3 to point out that while seeking no objection from the appellants to undertake construction work in survey no.97 in advance, price of Rs. 3000/- per coconut tree was unilaterally offered by the Department. He contends that in view of 7 this document which has been produced on record and about which there is no cross examination, the reference Court erred in not granting the amount of Rs. 3000/- per coconut tree as compensation to the present appellants. 6. Learned Government Counsel Shri Salkar has contended that the order passed by Income Tax Authority at Exhibit 18 is dated 17.7.1987 and it mentions April, 1985 as the date on which the sale was registered. He points out that the Sale Deed at Exhibit 16 is registered on 25.5.1990 and M/s Alcon Real Estate Pvt. Ltd., are only confirming party in the Sale Deed while one Mr. Thomas D'Mello is the purchaser. According to him, therefore, there was no legal and valid material before trial Court to enable it to apply rate fetched in Exhibit 16 to the lands acquired. He further argues that the evidence on record established that the acquired lands are situated at a distance of about 2.5 kms from the survey No. 77 which forms subject matter of Exhibit 16. He points out that survey 8 No. 77 is bounded on its one side by public road, on one side by another land and on remaining two sides by sea and river. He contends that thus the land had direct access from the public road while the evidence on record shows that the lands acquired are situated at a distance of about 400 metres from the public road. According to him, thus the lands acquired cannot be treated as similarly situated and Sale Deed at Exhibit 16 therefore cannot be accepted as comparable sale instances. He has therefore urged this Court not to interfere in the order of reference Court in this respect. 7. He further states that in so far as letter written by Assistant Engineer at Exhibit 19 is concerned, it was only for 12 coconut trees in survey No. 97. The age or life of those trees has not been brought on record and similarly the age and life of coconut trees in acquired lands has not come on record. He contends that the annual yield from the coconut trees has not brought on record by the appellants and therefore the said letter ipso facto cannot be made 9 applicable to coconut trees standing in acquired lands. 8. In view of the arguments advanced, the following questions arise for consideration before us. (1)Whether the compensation awarded at the rate of Rs. 15/- per square metre by Land Acquisition Officer for land occupied by coconut garden is just and sufficient ? (2)Whether the appellants are entitled to amount of Rs. 3000/- as compensation per coconut tree ? 9. We take up the second question first. As rightly pointed out by learned Government Counsel that there is no evidence brought on record by the appellants to show that the coconut trees standing in the survey No. 95/1 (part ) or 96/28 (part ) were of same age and life as the coconut trees in survey No. 97. It is to be noted that the letter at Exhibit 19 expressly mentions that there were only 12 coconut trees in relation to which permission was sought. It also 10 discloses that the said permission was being sought in advance. The rate of Rs. 3000/- per tree as offered therefore needs to be looked into in the background of these facts which are apparent from the perusal of the said letter. If the appellants wanted the said rate to be extended even to other coconut trees standing in the acquired lands, the evidence as to the age of those trees and their life expectancy and the annual yield ought to have been brought on record. As there is nothing in the entire evidence of appellant no.2 in this respect, we are unable to record any other finding on question no.2. We, therefore, agree with the findings reached by the reference Court on issue no.1(A) as framed and answer the said question in negative i.e., against the present appellants. 10. In so far as the claim of the appellants for enhancement of the compensation for the lands acquired is concerned, in arguments before us there is no dispute about the area of nallah portion i.e., 15 square metres and as no arguments has been advanced for seeking 11 any additional price for that land, we maintain the compensation awarded at Rs. 3/- per square metre for the said land occupied by the nallah. 11. The land occupied by the coconut garden is the bone of contention in the present appeal. The evidence on record shows that the survey No. 77 which forms the subject of the Sale Deed at Exhibit 16 was belonging to present appellants only and it is also situated in very same village i.e., Reis Magos. It may be stated that the said village is at a distance of about 8 to 9 kms from Panaji. The production of certified copy of said Sale Deed at Exhibit 16 is also not in dispute. The perusal of judgment of the Hon'ble Apex Court reported in State of Haryana vs. Ram Singh (supra), particularly paras 4, 5, 6, 7, 8 and 9 show that merely because the purchasers were not examined or that none of the party to the said Sale Deed has been examined, the Sale Deed could not have been discarded. In the present fact, the appellant no.2 who entered the 12 witness box is one of the vendors and therefore party to the said document. Witness no.2 examined by the appellants is the employee of M/s Alcon Real Estate and at the relevant time she was working as Legal Executive with the said company and had a power of attorney in her favour. She has stated about the agreement of sale dated 23.1.1984 though she was not aware of the survey numbers and that after referring the documents she has mentioned that 17,495 square metres of land were agreed to be sold for Rs. 56,15,895/-. Said agreement is identified by her as Exhibit 15 and it is a registered agreement, duly proved by witness No.1 Ganesh. It appears that M/s Alcon Real Estate Pvt. Ltd., agreed to purchase the property from the appellants and in turn after developing, it was sold to various buyers. The lady has deposed that each villa was sold to one party along with undivided share in the land. She has identified one such Sale Deed at Exhibit 17. She has also stated that the cottages were sold to various parties. Extent of land sold, as also the total sale consideration agreed between the appellants 13 and M/s Alcon Real Estate Pvt. Ltd., is mentioned in the Sale Deed at Exhibit 16 and in the order passed by the Income Tax Authority, under Section 269-F(7) of the Income Tax Act, 1961. Though Government Counsel has objected to this document and contended that this document cannot be co-related with any Sale Deed, it is apparent at the relevant time i.e., since 17.7.1987 the Sale Deed at Exhibit 16 was not in existence. The registered sale deed mentions agreement dated 23.1.1984 and addendum dated 5.1.1985 and 24.3.1987 to it. The sale has been executed on 25.4.1990. But the location and the survey number has been mentioned and total sale consideration has been rightly mentioned in Exhibit 18 dated 17.7.1987. Thus, facts mentioned in registered Sale Deed ( as apparent from its certified copy ) are supported by oral evidence of appellant no.2 and witness examined by him. There is nothing in their cross examination to disbelieve this evidence. In the circumstances, we have to accept that the fact of selling of 17,325 square metres of land from survey No.77 for Rs. 14 56,15,895/- by appellants in 1985 has been established on record. It appears that earlier there was agreement between the parties and the appellants have executed various Sale Deeds in favour of purchasers of respective villas and the Income Tax order at Exhibit 18 mentions the month April, 1985 as the month in which one sale was registered. 12. In the judgment of the Hon'ble Apex Court mentioned Supra in para 6, it has been held that production of certified copies does not preclude Court from rejecting the transaction itself as being mala fide or a sham, provided such a challenge is laid before it. In present fact, the State Government has nowhere contended that the transaction between the appellants and M/s Alcon Real Estate Pvt. Ltd., was either mala fide or not genuine. The evidence on record shows that M/s Alcon Real Estate Pvt. Ltd., is an independent company in business of development of the properties and it purchased the property in the course of business 15 from the appellants and sold it to its customers after development. Looking to the area purchased and the price offered, it cannot be presumed that the agreement and arrangement was not genuine or that the appellants have prepared a bogus document to suit their purpose. The show cause notice issued by Income Tax Authority also lays credence to the genuine character of the transaction. In the other judgment of the Hon'ble Apex Court in the case of Mehta Ravindrarai Ajitrai (deceased) through his heirs and LRS., and ors. V/s. State of Gujarat, reported at (1989) Vol. 4 SCC 250, the sale transaction relied upon was entered into five months after publication of the said Notification. In this background, the Hon'ble Apex Court has found that there was nothing in evidence to show that there was any sharp or speculative rise in the price of land after the acquisition and hence only on the ground that it was post acquisition sale, High Court could not have rejected it. However, in the facts before it, the Hon'ble Apex Court noted that there was some rise in the price of the land in acquisition in question before it 16 for the purpose of construction of industrial estate and the agreement to sale was for the purchase of adjoining land by the purchaser and the said purchaser therefore might have paid some extra amount for the convenience of getting such neighbouring land. In para 4 the Hon'ble Apex Court has also stated that test to be applied is the price at which the property changes hands from a willing seller to a willing, but not too anxious a buyer, dealing at arms length. 13. As already observed above, in present fact there is nothing before us to show that because of proposed acquisition for construction of a public road, the prices of the lands at Village Reis Magos suddenly increased. However, the fact of development was known and hence some increased in price of land cannot be ruled out. Notification under Section 4 in this case was issued on 12.10.1982 and the order of Income Tax Authority at Exhibit 18 mentions April, 1985 as the date of sale. In the circumstances, 17 merely because the said sale was post acquisition, in absence of any plea or any sharp or artificial increased in the price of the land in the area by State Government, the reference Court could not have refused to take cognizance of the said Sale Deed. 14. The sale is three years after the Section 4 Notification. Judicially it has been recognized that prices of land increase 10% every year on an average. Thus, the price of survey No. 77 in 1982 needs to be worked out by discarding such appreciation. The said price roughly works out to Rs. 240/- per square metre. However, this rate also cannot be applied as such to the lands of the appellants. It has come on record that survey No. 77 was adjacent to the public road and nearer to Panaji when compared with location of acquired lands. The acquired lands though situated in same village in settlement area only, but at a distance of about 2.5 kms. Not only these acquired lands are not directly connected with public road but at a distance of about 400 metres from it. It has been brought on record that there was about two metres pathway which is 18 connected the acquired lands to the said public road and vehicles like motor cycle and scooters were using the said road. Learned Advocate Shri Dessai has attempted to contend that the said road was also motorable but we find that there is no such evidence on record. The contention of learned Government Counsel that the land surveyed under survey No. 77 has not been shown to be comparable with lands surveyed under survey No. 95/1 and 96/28 does not hold any water because the appellants' lands have been acquired for construction of public road i.e., for non-agricultural purpose. The survey No. 77 was also sold for undertaking construction activities i.e., for non-agricultural activities. Both lands are in settlement area. Hence, looking to the purpose, we find that the parity of lands except the facts mentioned above is not very relevant circumstances. In view of this position, we grant compensation at the rate of Rs. 100/- per square metre to the appellants for the lands occupied by the coconut garden. Question No. 1 is answered accordingly. 19 15. As a result, the appeal is partly allowed. The appellants are held entitled to receive the total amount of Rs. 100/- per square metre for the lands occupied by coconut garden from the survey No. 95/1 and 96/28 with statutory benefits. At this stage, learned Government Counsel has pointed out that the land acquired from the survey No. 96/28 constituted only nallah and hence the appellants are not entitled to increase in compensation for that survey number. If that be the position, we clarify while calculating the entitlements of the appellants, they will not be paid anything towards survey No. 96/28. After deducting the amount of compensation and statutory benefits already received by the appellants, the balance as per this judgment shall be paid to them by 31st August, 2009. Appeal is thus partly allowed. However, in the circumstances there shall be no order as to costs. B. P. DHARMADHIKARI, J U. D. SALVI, J at*