1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEALS NO. 43 & 44 OF 2002 FIRST APPEAL NO. 43 OF 2002 1. State of Goa, Through the Land Acquisition Officer, P.W.D., (Cell) Altinho, Panaji. 2. The Executive Engineer, W.D. XXIII, PWD, Bicholim. …… Appellants. V/s. Shri Gurudas Sonu Lawande, Opposite Maruti Temple, Sanquelim, Goa. ……. Respondent. FIRST APPEAL NO. 44 OF 2002 1. State of Goa, Through the Land Acquisition Officer, P.W.D., (Cell) Altinho, Panaji. 2. The Executive Engineer, W.D. XXIII, PWD, Bicholim. …… Appellants. V/s. Shri Yaduvir Vaman Pai Kuchelkar, Tanvey, 115/1, St. Pedro. Ribandar, Ilhas, Goa. ……. Respondent. Mr. M. Salkar, Addl. Govt. Advocate for the appellants. Mr. Santosh H. Bharne, Advocate for the respondents. CORAM : D.G. KARNIK, J. 2 DATE : 1st OCTOBER, 2010 ORAL JUDGMENT : 1. These appeals are directed against two separate Judgments and Awards, both dated 31.8.2001, passed by the learned Addl. District Judge, Panaji, allowing two land references filed by the respective respondents and awarding compensation at the rate of Rs.60/- per sq. metre for their lands. 2. The lands in both the appeals were adjoining to each other and were acquired under the same notification. Hence, both were heard one after another and are being disposed of by this common judgment. Facts in First Appeal No.43/2002 : 3. The respondent was the owner of the land bearing survey No. 64/2 situated at Village Harvalem within Sanquelim-Harvalem Village Panchayat. An area admeasuring 1335 sq. metres, out of survey No.64/2 was proposed to be acquired by the appellant for the purpose of construction of a road from Primary School Harvalem to State Highway near Onda. A notification under Section 4 was issued on 17.12.1992 and an award was passed on 16th November, 1995 by the 3 Land acquisition Officer, awarding compensation at the rate of Rs.10/- per sq. metre. Aggrieved by the amount of compensation, the respondent applied for a reference under Section 18 of the Land Acquisition Act, 1894. The reference was received by the Reference Court and numbered as Land Acquisition Case No. 22/1998. After considering the evidence adduced before it, the Reference Court came to the conclusion that the market value of the suit land on the date of notification under Section 4 was Rs.60/- per sq. metre and, accordingly, enhanced the compensation to Rs.60/- per sq. metre. Facts in First Appeal No.44/2002 : 4. The respondent was the owner of the land bearing survey no.64/1, adjoining to the land bearing survey No.64/2 belonging to the respondent in First Appeal No.43/02. An area admeasuring 1975 sq. metres out of survey No.64/1 was proposed to be acquired for the construction of the same road under the same notification. The Land Acquisition Officer passed a common award in respect of both the acquisitions, awarding compensation at the rate of Rs.10/- per sq. metre and on reference, the Reference Court enhanced it to Rs.60/- per sq. metre. 4 5. Aggrieved by the decision of the Reference Court enhancing the compensation, the State has filed the aforementioned two appeals. Reasons : 6. The respondents being claimants in each of the references, examined themselves separately. They also examined Ramnath Venktesh Shetye (AW.2), and S.N. Bhobe (AW.3). Evidence of Shri Shetye and Shri Bhobe was recorded in both the references on the same day and is identically worded, both in respect of the examination in chief as well as cross examinations. Evidence of the claimants in each of the references is also similarly worded. I, would, therefore, now refer to the facts in respect of First Appeal No.43/2002, arising out of Land Acquisition Case No. 22/1998. Claimant (AW.1) examined himself and gave description of the property acquired, its location and surrounding area. From the deposition of claimant (AW.1), it appears that the lands in question are situated at Village Harvalem, but adjoining to the boarder of Village Honda in the same Taluka. In his deposition, he has stated that the boarder of Village Honda is at a distance of about 300 metres from the acquired land. Village Harvalem 5 appears to be a tourist place. Historical temple of Lord Shiva, considered as sacred temple by Hindus is situated in the Village. Throughout the year, about 50 to 75 tourists per day visit the village for visiting the temple. “O Pandava caves”, a place of tourist attraction is also situated in this very village. Water fall known as “Harvalem Waterfall” is visited by 300 to 400 tourists per day in the season. These facts relating to the location of the Village and it being a tourist place have been stated by the claimant (AW.1) in his examination-in-chief and there is no cross examination on this point. As regards location of the land, the respondent has stated that Harvalem Waterfall is at a distance of about 200 metres from the acquired land. National Highway is at a distance of about 40 metres by short cut and about 125 metres by the approach road. The respondent has further stated that at the time of acquisition, there were about 25 to 30 houses, situated in the acquired land, though it is not clear whether the houses were situated in the portion of survey No.64/2 which has been acquired or whether in the portion of survey No.64/2 remaining with the respondent after acquisition. A Primary School is situated at a distance of 200 metres from the acquired land. Thus, the acquired land appears to be a part of residential locality of Harvalem Village. 6 Harvalem Village itself is situated near Village Honda and also Sanquelim Town. The respondent has stated that the Secondary School at Sanquelim Market is at a distance of about 3 kms. from the acquired land. There is College of Arts, Commerce and Science at Sanquelim Town which is at a distance of 1.7 kms. from the acquired land. A Government hospital is at a distance of 2 Kms. and a Higher Secondary School of Sanquelim is at a distance of 2.5 kms. There is a market at Sanquelim which is at a distance of 1.5 kms. from the acquired land. These facts have not been controverted in the cross examination. The respondent then deposed that industrial estate situated at Village Honda was at a distance of about 1 km. from the acquired land. There is a factory by name Gwala Industries at a distance of 500 metres from the acquired land. It is a big industry with 400 workers. Industry of Automobile Corporation of Goa Ltd. employing about 200 workers is situate at a distance of about 2 kms. It appears that the factory of ACGL was already in existence, while the factory of Gwala Industry was under construction on the date of Section 4 notification as admitted by the respondent in the cross examination. However, the fact that the factory was under construction and was going to employ 400 employees goes to show that 400 people were going to come to 7 work at a place near the acquired land. They would naturally require houses for their residence. The acquired property, therefore, had a building potential on the date of acquisition. This fact is further corroborated as there were more than one housing colonies which had come up in the vicinity of the acquired land. The respondent has deposed that Vassantnagar Colony was situated in Village Harvalem at a distance of 600 metres. Pratapnagar Colony is situated at a distance of 200 metres from the acquired land. About 30 to 35 houses were constructed before the acquisition in Vasantnagar Colony, while there were 10 to 15 houses in Pratapnagar Colony. Considering these facts, the Reference Court has held that the acquired land had a building potential and I confirm the said finding recorded by the reference Court. 7. The respondent in First Appeal No.43/2002 has produced on record certified copies of 5 sale deed, while the respondent in First Appeal No.44/2002 has produced on record certified copies of 3 out of those 5 sale deeds. In any event, since both the land references were heard by the same Judge at the same time and were decided on the same day and also taking into consideration the fact that the acquired 8 lands are adjoining, the decision in one land reference would be relevant for the purpose of considering the market value of the land involved in the second reference. The fact that the two sale deeds have not been produced by the respondent in First Appeal No.44/02, would not make any difference. 8. Copies of the sale deeds were taken on record and no objection was raised before the reference Court regarding their admissibility and even before me by the learned Addl. Govt. Advocate appearing for the appellant herein. In fact, the learned Addl. Govt. Advocate has also sought to rely upon the said sale deeds. The 5 sale deeds have been exhibited as Exhibits AW.1/A to AW.1/E and, I would therefore refer the said sale deeds simply by letters “A” to “E” hereinafter. The reference Court has relied upon the sale deed B for the purpose of determining the market value of the said lands. I would, therefore, refer to the said sale deed at the first instance. 9. Sale Deed “B” was executed by Korgaonkar Laxmi and others in favour of Uday Ramkrishna Lawande. It is in respect of a plot of land admeasuring 424 sq. metres, out of survey No.69/2 of 9 Village Harvalem. The plot was sold for Rs.42,500/- i.e. at the rate of Rs.100/- per sq. metre. The sale deed is proximate in time to Section 4 notification. That plot was sold about 15 months prior to Section 4 notification. This sale was held to be comparable. It was in respect of a land which is at a distance of about 700 metres from the acquired land. Since the said plot appears to be in a housing colony, the Reference Court held that it must be a developed plot and allowed 40 % deduction for arriving at the market value of the acquired land and held that the market value of the acquired land was arrived at Rs.60/- per sq. metre on the date of acquisition. The learned Addl. Govt. Advocate did not comment upon the valuation derived by this method by the Reference Court, but submitted that the other sale deeds which were produced by the respondent (claimant) himself should have been looked into and the mean of the rate derived from the other sale deeds should have been taken into consideration. I would, therefore, proceed to consider how far the other sale deeds are relevant. 10. In my view, the sale deed at “E” is not relevant at all. The plot under the sale deed was not only at a distance of 800 metres from the acquired land, but was situated on the Sanquelim side, while the 10 acquired land is near Honda Village. Even if one has to take this sale deed in consideration as contended by the learned Addl. Govt. Advocate, it shows that an area of 353 sq. metres was purchased for the price of Rs.21,120/- and the rate would therefore work out to Rs.60/- per sq. metre. The sale deed “E” was executed on 19.2.1990, about 2 years and 10 months earlier to date of Section 4 Notification. As would be seen from the further discussion, the prices in the area were rapidly increasing during the relevant period and if we take 15 % compound rise per year for 2 years market price on the date of the notification would be about 40% higher and if we take about 40% expenses for the development, still the market rate would be the same viz. Rs.60/- per sq. metre as on the date of the notification. Therefore, even if this sale deed is accepted as basis, still the market rate would work out to Rs.60/- per sq. metre. 11. The sale deed “D” is also not relevant for the purpose of determining the market value. It was executed on 28th July, 1993 i.e. about 7 months after the Section 4 notification and, therefore, the sale deed “D” would have to be ignored. 11 12. The sale deed “A” was executed on 6th December, 1990. By that sale deed, 230 sq. metres of land was sold by one Ramnath Shetye to Kishore Shankar Relekar for Rs.15,000/- and the rate comes to Rs.50/- per sq. metre. 13. The Sale Deed “C” was executed on 23.12.1991, by Ramesh Shetye in favour of Vaman Kamlakant Mhambre. Plot therein was admeasuring 525 sq. metres and was sold for Rs.31,500/- i.e. at the rate of Rs.60/- per sq. metre. Vendor of two sale deed viz. “A” and “C” Shri Ramnath Shetye was examined as AW.2. He has stated that both the plots were near each other and were in same colony. Said Ramnath Shetye had privately sub-divided his larger piece of land into smaller plots and sold them individually. Both these plots are at a distance of 300 metres from the acquired land. Firstly, the difference between the two sale deeds is of one year and the price rise is from Rs.50/- to Rs.60 per sq. metre. This shows that the price rise in the locality during the one year even prior to the acquisition was 20 % in a year. This shows that the prices were rising rapidly in the area. If we apply the same rate of rise from 23.12.1991 to 17.12.1992, on the date of Section 4 notification the prices would be further hiked by 20% 12 during that year and the rate would out to Rs.70/- per sq. metre on the date of Notification. Ramnath Shetye has stated on oath that both the plots were undeveloped and he sold the undeveloped plots under a private layout. Therefore, the rate of these lands would not be far more than the rate of the acquired lands. Even if one were to deduct only for the open spaces and/or roads were to be kept, the deduction will be 20 % sans expenses of development and the rate again would work out to Rs.60/- per sq. metre. Thus, even if the sale deeds on which the learned Addl. Govt. Advocate sought to place reliance is taken into consideration, the rate of land would work out to Rs.60/- per sq. metre. I, therefore, see no error in the decision of the Reference Court fixing the compensation at the rate of Rs.60/- per sq. metre. 14. Consequently, there is no merit in the appeals, which are hereby dismissed with costs. D.G. KARNIK, J. ssm