1 IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 138/2008. Goa Industrial Development Corporation through its Dy. Chief Executive Officer. … Appellant. V/s 1. Comunidade of Cortalim, represented by its Power of Attorney, Shri Tome Carvalho resident of House No. 116, Nauta, Cortalim, Goa. 2. Dy. Collector & S.D.O., Quepem. … Respondents. Mr. M. S. Sonak, Advocate for the Appellant. Mr. S. D. Padiyar, Advocate for Respondents. Coram : A. S. OKA & F. M. REIS, J.J. Judgment Reserved on: 09.08.2010 Judgment Pronounced on: 26.11.2010. JUDGMENT ( Per F. M. Reis, J ). The above appeal challenges the judgment and award passed by the learned District Judge, South Goa, Margao in Land 2 Acquisition Case No. 73/2000 dated 12.9.2007. 2. The Government pursuant to the Notification dated 5.10.1987 published under Section 4 of the Land Acquisition Act intended to acquire an area of 18,668 sq. metres from the property bearing survey No. 158, an area of 19,707 sq. metres from the property bearing survey No. 159, an area of 5,875 sq. metres from the property bearing survey No.159 and an area of 1,625 sq. metres from the property bearing survey No. 160 for the benefit of the appellants, belonging to the respondent No. 1 for setting up an Industrial Estate at Verna Plateau . By an award passed under Section 11 of the Land Acquisition Act (hereinafter referred to as the said Act), the Land Acquisition Officer awarded compensation at the rate of Rs. 8/- and Rs. 3/- per sq. metre depending upon the nature of the property. Being dissatisfied with the said amount, the respondent No. 1 sought a reference under Section 18 of the said Act for enhancement of the compensation and claimed a compensation at the rate of Rs. 200/- per sq. metre for the land acquired, besides a sum of Rs. 500/- towards the trees. By judgment and award dated 12.9.2007 the Reference Court partly allowed the said reference and awarded compensation of Rs. 54/- per sq. metre for the land acquired besides statutory benefits. 3 Being aggrieved by the said award, the appellants who are the acquiring body, preferred the present appeal. 3. Shri M. S. Sonak, learned Counsel appearing for the appellants has assailed the impugned judgment and submitted that the Reference Court has totally erred in enhancing the compensation to Rs. 54/- per sq. metre for the land acquired. He further submitted that there was absolutely no material on record for the Reference Court to enhance the compensation as awarded by the LAO. The learned Counsel has further submitted that the Reference Court has totally misdirected in coming to the conclusion that the acquired land was similar to the land which was subject matter of the acquisition in Land Acquisition Case No. 23/1987. He further submitted that the Reference Court has erred in coming to the conclusion that the land in the present case was superior to the land purchased by one Bepari involving 559 sq. metres. The learned Counsel has further submitted that the Reference Court has erred in relying upon the award dated 28.2.1989 passed in case No. 99/43/L.A./85-86. The learned Counsel further submitted that the awards produced at exhibit 24 and 25 could not even be relied upon by the Reference Court to determine the market value of the acquired land. The learned Counsel had 4 further submitted that the belting method resorted to by the Land Acquisition Officer was not even challenged by the respondent No. 1 and as such, the Reference Court has totally misdirected in refusing to rely upon the said belting method which had bifurcated the properties in the manner of its respective nature. The learned Counsel further submitted that the lands acquired were Communidade lands which were restricted properties for transferring to third parties and as such, the question of relying upon the sale instances of free hold land would not arise at all. The learned Counsel further submitted that the lands acquired were in remote place wherein no development was seen as on the date of notification and as such, the Reference Court had erred in enhancing the compensation to Rs. 54/- per sq. metre. The learned Counsel further submitted that the Division Bench of this Court in First Appeal No. 318/2003 had occasion to decide the compensation for the land belonging to respondent No. 1 located in one of the survey numbers, which is subject matter of the land acquisition bearing survey No. 158 (part), wherein an area of 3140 sq. metres was acquired for the Verna Industrial Estate (Phase II) in respect of the notification issued under Section 4 on 22.3.1990. 4. On the other hand, Mr. S. D. Padiyar, learned Counsel 5 appearing for respondent No. 1 has supported the impugned judgment. The learned Counsel submitted that in the evidence adduced by respondent No. 1 it is established that the price awarded by the L.A.O was inadequate. He further pointed out that the Reference Court has minutely considered the evidence adduced by respondent No. 1 and has enhanced the compensation to Rs. 54 per sq. metre. The learned Counsel further submitted that the Reference Court had relied upon the comparable sale instance which included the award passed in land acquisition case for arriving at the market value of the land acquired as on the date of notification. Learned Counsel further submitted that the appellants have failed to adduce any evidence to substantiate their contention that the price offered by the Land Acquisition Officer was just and proper. The learned Counsel in support of his submission has relied upon the judgment of the Apex court reported in (2008) 14 SCC 745 in the case of General Manager, Oil and Natural Gas Corporation Ltd. Vs. Rameshbhai Jivanbhai Patel and anr. He also relied upon the judgments of the Apex Court in AIR 1971 SC1253 in the case of M/s The All India Tea & Trading Co. Ltd. Vs. The Collector of Darrang and anr., (2009) 10 SCC 686 in the case of State of Goa and anr. Vs. Gopal Baburao Gaudo and ors., (2006) 12 SCC 87 in the case of Dy. Director, Land Acquisition Vs. Malla 6 Atchinaidu and ors. And AIR 1992 SC 2298 in the case of Bhagwathula Samanna and ors. Vs. Special Tahsildar and LAO Visakhapatnam Municipality. He as such submitted that there is no infirmity committed by the Reference Court while enhancing the compensation and as such no interference is called for by this Court in the judgment and award passed by the Reference Court. 5. After hearing the learned Counsel and on perusal of the record, we find that the following point for determination arises in the present Appeal: POINT FOR DETERMINATION 1. Whether the reference court was justified to come to the conclusion that the market price of the land was Rs. 54/- per sq. metre? 6. A.w.1 Peter Carvalho has deposed on behalf of respondent No. 1. He has stated in his affidavit that a total area of 45,875 sq. metres was acquired belonging to respondent No. 1 from the property surveyed under No. 158/1, 159/1 and 160/1 for setting up an Industrial estate at Verna Plateau. He further stated that the land 7 was flat land ideal for construction and it was 500 metres away from Nagoa market; besides there were three schools within a radius of 1500 metres and the post office was at a distance of 2 kms from the acquired land. He has further stated that in Land Acquisition Case No. 116/1989 property of one Grenville Pereira was acquired admeasuring 3500 sq. metres situated at Verna for the Verna bypass road wherein the amount was awarded of Rs. 79 per sq. metre. He has also stated that by sale deed dated 1.10.1986 land touching the high way was sold for Rs. 95/- per sq. metre and such land was touching the opposite side of the highway and was just 25 metres away and similar to the land acquired. He has also produced an award dated 5.1.1994 of the learned District Judge wherein an area of 25,000 sq. metres was valued at the rate of Rs. 40/- per sq. metre in L.A.C. No. 23/1987. He stated that the said land was at a distance of 300 metres and was hilly and sloppy. He has also produced an award in LAC No. 269/1988 in respect of the property of one Agnelo Machado and another pertaining to property surveyed under No. 48/2 and 46/6 acquired for the construction of Verna bypass and was situated at a distance of 700 metres from the acquired land. He further stated that the land which was the land acquired was superior to the subject matter of the land acquired in LAC No. 23/1987. He 8 further stated that the Kesarval Motel which is a three star hotel had come up in the year 1996 which was in the vicinity of the acquired land. He has further relied upon a sale deed of one Ismael Bepari of Quelossim village which is 2 kms. away wherein a plot was sold at Rs. 87/- per sq. metre. He has also relied upon the award in case No. 99/43/L.A/85-86 wherein by award dated 28.2.1989 the Land Acquisition Officer awarded Rs. 65/- per sq. metre for an area admeasuring 5350 sq. metres from survey No. 5 of Sancoale village. 7. In his cross examination he has stated that the acquired land was touching the National Highway proceeding from Margao to Panaji for a length of 350 metres. He further stated that apart from one structure, there was no construction activity in the acquired land. He did not agree with the suggestion that the acquired land was earmarked as Export Promotion Zone and yet it was only the Industrial Development Corporation who could deal with the said land. He has voluntarily stated that the zone can be changed by the authorities at any time. The remaining cross examinations are merely denying the suggestions put forward by the appellants. 8. The next witness examined is Shri Krishna P. Prabhu 9 Dessai who is a Civil Engineer. He has stated that he had visited the acquired land on 7.4.1988. He has stated that the length along the highway of the acquired land was 340 metres and the right of way was 30 metres. He has further stated that there was heavy demand for land within 500 metres from the highway. He has stated that there was heavy demand for properties for erecting the advertisement hoardings. He has further stated that the land coming under the unacquired road widening area was undevelopable/Economic Processing Zone which was very much useful as a infrastructural asset towards parking facilities for any sort of developments in the area. He has further stated that the land beyond the Communidade land belongs to V. M. Salgaonkar and others and as such, the land of the owners abutting the highway had high demand for providing major access to the larger land located beyond the road widening area. He has further stated that the acquired land is flat in its entire stretch and is suitable for construction purpose. He has further stated that the land acquired under the 20 Point Programme is situated nearby. He has further stated that the acquired property is in Economic Processing Zone. He has confirmed the distance from the civic amenities to the acquired land. He has further stated that Kesarval spring is located 500 metres distance from the acquired land. He has 10 further stated that the acquired land is having free planning advantage and has confirmed the similarities of the acquired land vis a vis the sale instances produced by respondent No. 1. He has commented upon the award passed by the Land Acquisition Officer in his affidavit. He has further stated that the acquired land does not have any tenanted paddy fields or quarry or valley. He has further stated that the Buffer zone can extend only upto 30 metres in view of the restrictions imposed due to the road widening for the National Highway. He as such valued the acquired land at the rate of Rs. 100/- per sq. metre. He has produced the Valuation Report which is at exhibit 30. 9. In his cross examination he has stated that only 10 to 20 hectares of land is available for development in the area. He has stated that the land of V. M. Salgaonkar is located on the eastern side and is in Quelossim village and is adjacent to the acquired land. He has denied the suggestion that there were stone quarries and paddy fields in the acquired land. He has further stated that the acquired land is at a distance of 300 metres from the land acquired in 20 Point Programme, admeasuring 25,000 sq. metres and that there was a distance of 70 metres between the National Highway and the land 11 which was acquired for 20 Point Programme. He has further admitted that the sale deed dated 25.9.1984 is much smaller plot as compared to the acquired land and the distance is 2.5 kms. towards Quelossim side. He has further stated that the sale deed dated 1.10.1986 is at a distance of 30 metres from the acquired land. He has further stated that there are 4 high schools within a distance of 3 kms. from the acquired land and the remaining part of the cross examination is denying the suggestions put forward by the appellants. 10. The Next witness, Edmundo Carvalho is A.w.3 who is an Architect. He has stated that the land of respondent No. 1 is flat and bharad land ideal for construction having a structure therein and was touching the National Highway with a frontage of about 350 metres. He has stated about the similarities between the acquired land and the sale instances produced by respondent No. 1. In his cross examination he has stated that he is the brother of A.w.1. He has further stated that he does not know the area which is acquired of Francis Almeida. The remaining part of the cross examination is denying the suggestions put to the said witness. 11. A.w.4, Grenville Pereira is one of the claimants in respect 12 of the land which was the subject matter of the acquisition, in Land Acquisition Case No. 116/1989 and he has confirmed the award passed therein. In his cross examination he has stated that there are no residential houses in the acquired land but such houses are at a distance of 2 kms. from the acquired land. 12. The appellants have examined Parmanand Gaonkar as R.w.1. In his affidavit he has stated that he is a Civil Engineer and he was posted at Verna in the year 1989 as Field Manager. He has stated that total land acquired admeasures 8,62,562/- sq. metres for setting up the Industrial Estate at Verna Plateau. The said land was undulating terrain and mostly rocky in nature. There were stone quarries and blasting depressions of sizable area and some low lying valleys varying from 3 to 4 metres which required substantial filling. He has further stated that there was no water supply arrangement at the site and the scheme to provide such water supply by the PWD was to cost Rs. 120 lakhs. He further stated that an area of 45,875 sq. metres belonging to respondent No. 1 was acquired from Nagoa village which was classified as barren land touching the National Highway. He has further stated that the acquired land was kept as open space as the same was not utilised for Industrial purpose. He 13 has further stated that the said land was earmarked as Export Promotion Zone in the Regional Plan for Goa and as such only the Goa Industrial Development Corporation could sell the said land. He further stated that there was no basic infrastructure available at the site and the closest market place was at a distance of 3 kms. from the acquired land. He has further stated that the land, subject matter in Land Acquisition Case No. 116/1989 was located in a developed zone which is a smaller developed plot having entire basic infrastructure. In the cross examination he has stated that in the year 1987 he was working at Bethora Industrial Estate and he had come to Verna only in the year 1989. He further stated that he was unable to state whether the quarries, pits and low lying areas were located in the property of respondent No. 1. He has admitted that the acquired land is in Cortalim village and not Nagoa. He has denied the suggestion that the land of respondent No. 1 was not kept as open space and could not be utilised for industrial purpose. He denied the suggestion that the Regional Plan was not finalised. He admitted that the acquired land was abutting the National Highway. He has admitted that a road was constructed leading to the land acquired for 20 Point Programme from the National Highway No. 17. 14 13. The Reference Court has relied upon the award in LAC No. 116/1989 wherein the compensation was fixed at Rs. 79/- per sq. metre after deduction towards development charges on non developed acquired land as well as the fact that the land was reserved for Export Promotion Zone and as such has fixed the compensation at the rate of Rs. 54/- per sq. metre. 14. On perusal of the judgment passed by the Division Bench of this Court in First appeal No. 318/2003, we find that the subject matter of the acquisition in the said case was part of the property surveyed under No. 158 which is also one of the properties which is the subject matter of the present acquisition. The area involved therein was 3140 sq. metres and the relevant date of notification was 22.3.1990. The lands which are subject matter of the present acquisition are surveyed under Nos. 158 admeasuring 18,668 sq. metres, 159 admeasuring 5,879 sq. metres, and 160 admeasuring 1,625 sq. metres. which have been classified in the award passed by the Land Acquisition Officer as Bharad Belt - I. The remaining portion of the land which is subject matter of the acquisition admeasuring an area of 19,707 sq. metres , located under survey No. 159 is classified as located in buffer zone. The buffer zone 15 according to the Land Acquisition Officer is the area which is reserved for the purpose of road widening in view of the National Highway towards the western side of the present acquired land. There is no dispute that apart from the land which was located within the road widening area, the respondent No. 1 was owning more land beyond the area earmarked for road widening. The Apex Court in the judgment of State of Goa and anr. (Supra) has held at para 5, 6 and 7 thus:- “5. The contention that a land adjoining the highway should be treated as having no development potential (and therefore as land without much value except as ordinary agricultural land), while considering the lands to its rear which are farther away from the road, or other adjoining lands of the same extent, but having more depth (so as to extend beyond the 40 m. margin) as having potential for development, is illogical and cannot be accepted. 6. We may demonstrate the absurdity of such a contention with reference to an illustration. Let 16 us take the example of a residential plot of land measuring 60 x 100. Let us assume that the municipal bye-laws require a front (roadside) set back of 20 for construction of houses in a plot of that size. Therefore, the owner would leave a twenty feet wide front strip in the said plot free of any construction while putting up the construction in the plot. Obviously, he cannot thereafter construct in that front strip. Let us further assume that the front strip is acquired for road widening. Can the acquiring authority deny compensation to that strip on the ground that the said 20 strip acquired for road widening could not in any event be used for any construction purpose and therefore, was not of any value? Obviously not. 7. Therefore, determination of market value of the acquired land with reference to the value of comparable land cannot be faulted.” In view of the said judgment of the Apex Court, merely because the 17 said area abuts the National Highway, it cannot be said that the land which belonged to the respondent No. 1 had no development potential. 15. This Court while disposing of the said appeal has relied upon most of the sale instances which were relied in the present case in support of the claim of the respondent No. 1 for enhancement of the compensation. After considering all the sale instances, this Court has relied upon the judgment passed in First Appeal No. 300/2003 wherein the compensation was fixed at the rate of Rs. 48/- per sq. metre in respect of land acquired by the same notification as in the year 1990. This Court on account of dissimilarities reduced 10% and fixed the market value at the rate of Rs. 43/- per sq. metre. Even considering the award in LAC No. 23/1987, the Division Bench of this Court came to the conclusion that after effecting deduction on account of the development charges, the market value of the acquired land would be Rs. 43/- per sq. metre. We find that for the purpose of determining the market value of the present land acquired, the award in LAC No. 116/1989 and the judgment passed by this Court could form the basis for the purpose of determining the compensation payable to the Respondent No. 1. 18 16. The land which is the subject matter of said acquisition in the award at exhibit 19 in LAC No. 116/1989 is said to be at a distance of 500 metres from the acquired land. The Notification under Section 4 of the said Act was published in December 1985 with regard to the said acquisition. While in the present case the notification has been issued in October 1987, that is after a period of nearly two years. After escalation of 7% per annum being located in the rural/semi rural area, the amount would work out to Rs. 90/- per sq. metre approximately. The Apex Court in the judgment reported in 2010 (1) SCC 444, in the case of Subh Ram v. State of Haryana has held at paras 12, 13, 14, 15 as under: 12. In a standard layout with plots measuring say 2500 sq ft (50' x 50') each, to provide road access to each plot, it will be necessary to provide a road after every two rows of plots. If the depth of each plot is 50', and if the road width is 25 ft, then for every two strips of plots, there will have to be a strip of road of 25 ft. This means a minimum of 25% of the total land area will be utilised for 19 roads. A typical layout will also have cross-roads, and areas earmarked for park, and/or community areas. Consequently non-saleable area (area which cannot be sold as plots) would be around 30% to 40% of the total area. 13. Therefore, in the hypothetical layout method of determination of market value, as a first step, the areas that will be used up for roads, drains, parks/playgrounds and community areas, will have to be excluded from the total extent of the acquired land. The standard deduction in this behalf is one- third (33%). 14. But merely deducting the areas required for roads, drains, parks and community areas, will not convert a large tract of agricultural or undeveloped land into a developed residential layout. For that, considerable financial outlay has to be made. The land will have to be levelled. The land will have to be converted from agricultural use to non-agricultural residential use by paying 20 necessary fees/fine to the Revenue/development