1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 36 OF 2004 1. Dy. Collector(L.A.) Margao, Goa. 2. The Executive Engineer, W.D. XXV(Road) P.W.D. Fatorda, Margao, Goa. .... Appellants versus Shri Bhiku Vaman Pai R/o. Sadoldxem, Canacona, Goa, since deceased represented by his legal heirs: 1(a). Smt. Sulbha Bhiku Pai Bhatikar, age 65 years, 1(b). Shri Vaman Bhiku Pai Bhatikar, age 34 years, 1(c). Smt. Harsha Vaman Pai Bhatikar, age 27 years, All r/o. House No.263, Sadolxem, Canacona-Goa. 1(d). Shri Rajesh V. Pai, age 46 years, 1(e). Smt. Vibha R. Pai, age 40 years, both r/o. B-603, 2 Gokul Residency, Thakur Village, Near Dattani Park, Kandiwaly(E), 400101. 1(f). Shri Vallabh Velingkar, aged 44 years, 1(g).Smt. Sheetal Velingkar, age 41 years, both r/o Shantinagar, Ponda, Goa. 1(h).Shri Nitin Prabhu Tendulkar, aged 37 years, 1(i). Smt.Sushma N. Prabhu Tendulkar, aged 33 years, both r/o. Vishny Sadan, Bethoda, Ponda, Goa. 1(j). Shri Yeshwant V. Kamat, aged 42 years, 1(k). Smt. Jyoti Y. Kamat, aged 38 years, both r/o. Shantinagar, Near Forest Office, Ponda-Goa. ... Respondents Ms. Susan Linhares, Additional Government Advocate for the Appellants. CORAM : F. M. REIS, J. DATE : 15TH APRIL, 2011. 3 ORAL JUDGMENT The above appeal challenges the Judgment and Award dated 29-10-2003 passed by the learned Additional District Judge, South Goa, Margao in Land Acquisition Case No.10 of 2001. 2. The land belonging to the Respondents was intended to be acquired pursuant to a notification under Section 4 of the Land Acquisition Act, 1894(hereinafter referred to as the said Act) published in Official Gazette on 29-1-1998 admeasuring an area of 25 sq. meters from the property surveyed under No.223/3, an area of 175 sq. meters from the property surveyed under No.223/9 and an area of 300 sq. meters from the property surveyed under No.223/11 for the purpose of constructing the Sadolxem Foot Bridge and approaches. By an Award dated 31-5-2000, the Land Acquisition Officer offered a compensation of Rs.8/- per sq. meter for the land acquired. Being dissatisfied with the said amount, the Respondents sought a reference under Section 18 of the said Act for enhancement of compensation and claimed compensation at the rate of Rs.100/- per sq. meter. By Judgment and Award dated 29-10-2003, the Reference Court partly allowed the said reference and fixed the compensation at the rate of Rs.40/- per sq. meter for the land 4 acquired besides statutory benefits. Being aggrieved by the said Judgment, the Appellants have preferred the said appeal. 3. Ms. Susan Linhares, learned Additional Government Advocate appearing for the Appellants has assailed the impugned Judgment and pointed out that the sale instances produced by the Appellants are located in a municipal area while the land is located in the Panchayat area, and as such the sale instances cannot be considered to be comparable with the land acquired. Learned Additional Government Advocate after taking me through the evidence on record as well as the impugned Judgment pointed out that the Respondents have failed to discharge the burden cast on them to establish that the price offered by the Land Acquisition Officer was inadequate. Learned Additional Government Advocate further stated that the land had no potentiality and as such the impugned Judgment and Award deserves to be quashed and set aside. The Respondents though served failed to remain present. 4. Having heard the learned Additional Government Advocate and on perusal of the records, the following point for determination arises:- 5 Whether the Court was justified to fix the market value of the land at the rate of Rs.40/- per sq. meter? 5. In support of the claim for enhancement of compensation, the Respondents have filed the affidavit of the Respondent Bhiku Vaman Pai. He has stated that the property under survey Nos.223/3 and 223/11 are exclusively owned by him whereas with regard to the property surveyed under No.223/9 he has 1/4th share in the said portion of the property. He has further stated that all these plots of land are paddy fields in nature. He has stated the yield which the said paddy field was yielding to the Respondents. He has further stated that in the year 1995, one Agostinho Barretto put up a construction in the property surveyed under No.222/1 after obtaining licence from the Village Panchayat. The permission was granted to put a residential house therein. He has further stated that his land is similar to the land which is subject matter of the property where the said residential house was constructed. He has further stated that his residential house is situated at a distance of 25 meters from the acquired land and the church is about 50 meters whereas the temple is about 200 meters from the acquired land. He has further stated that the Government has acquired similar paddy fields for the purpose of the Konkan Railway Corporation which is situated at a 6 distance of about 500 meters across the river. He has further stated that his paddy field is acquired for Konkan Railway. He has further stated that the Reference Court awarded compensation to the paddy field belonging to Kankonkar family at the rate of Rs.24/- per sq. meter. Another paddy field of Raikar family which is situated at a distance of 3 kms. from the acquired land was sold in the year 1988 at the rate of Rs.100/- per sq. meter. He has further stated that the nature of the paddy fields are the same. Amongst the documents which he has produced, the Respondents have produced the Judgment and Award dated 22-9-1999 in Land Acquisition Case No.213 of 1999 at Exh. 20 and the sale deed dated 10-11-1988 at Exh.21. Another award is produced at Exh.22. In the cross-examination, he has stated that his property is not accessible by motorable road prior to the acquisition. He has further stated that to go to the acquired land from Canacona one has to cross river Talpona. He has admitted that the paddy field belonging to Raikar was purchased by Veronica D'Souza for construction of a house. He further admitted that the Canacona market is within the municipal limits. He has further admitted that the land of Kankonkar acquired for railway is across the river. He has further admitted that the sale deed plot is a levelled land. The next witness examined is Parashuram Gopal Phal Gaonkar who has 7 a rice mill in Gaondongrem. The next witness examined as AW3 is Shahu Kankonkar. He has filed his affidavit. He has stated that he knows the applicants and his paddy field which is situated at Sadolxem across the river is at a distance of 700 meters from his residence. He has further stated that the Government has acquired the paddy field for Konkan Railway where he was a tenant and the compensation was fixed at the rate of Rs.24/- per sq. meter. He has further stated that the compensation has not been paid as there is an appeal challenging the said award. 6. On perusal of the impugned Judgment as well as the evidence on record, I find that the Respondents have produced besides the sale instances Judgment and Award dated 22-9-1999 at Exh.20 whereby compensation was fixed at the rate of Rs.24/- per sq. meter in respect of the land acquired which is located in the vicinity of the said land. Apart from the said evidence, the Respondents have also produced a sale instance dated 10-11-1988 at Exh.21 whereby a piece of land was sold at the rate of Rs.100/- per sq. meter. The Reference Court has considered the fact that the sale deed plot is located in the municipal limits of Canacona and the acquired land is in the Village Panchayat area. After considering all the said aspects and the fact that the said land 8 was a developed plot though having dissimilarities with the acquired land, the Reference Court has effected deduction of 80% for fixing the market value of the acquired land. After giving an appreciation of 10%, the Reference Court has fixed the market value at the rate of Rs.40/- per sq. meter for the land acquired. I find no infirmities committed by the Reference Court in coming to such a conclusion. Merely because a plot is located in a municipal area and the land acquired is located in the village though adjoining to the municipal area, it cannot be said that the sale deed cannot form the basis of fixing the market value of the acquired land. The Reference Court has assessed the dissimilarities of the land acquired and the sale instance and after effecting deduction fixed the market value of the acquired land. The sale deed plot was originally a paddy field as was the case with the land acquired. Considering the overall evidence on record, I find that the amount fixed by the Reference Court cannot be said to be unjust and exorbitant. The amount is just and proper in the facts and circumstances of the case. In fact, whilst fixing the compensation in the village of Poiguinim which is an adjoining village this Court in respect of acquisitions for Konkan Railway has fixed the compensation at the rate of Rs.24/- per sq. meter in respect of the acquisitions which took place in the year 1991. The land 9 acquired in the present proceedings was in the year 1998. As such the amount fixed by the Reference Court is not excessive. The point for determination is answered accordingly. 7. Considering the facts and circumstances of the case, there is no substance in the above appeal and as such, the appeal stands dismissed with no order as to costs. F. M. REIS, J. RD