-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 117 OF 2002 1. Smt Santana P. B. Pereira, 2. Smt. Ana Joseph C. M. Pereira, 3. Shri Jose Franco M. Peter Paul Pereira, 4. Smt. Maria C. Bertha Pereira, 5. Smt. Maria Luis Suzana dos Merces Pereira, 6. Shri Manuel Felipe M. Pereira, 7. Shri Jose Francisco Luis Pereira, all residents of House No. 130, Near Pandova Chapel, Aquem Alto, Margao, Goa. …... Appellants V e r s u s 1. The Deputy Collector (LAC), Panaji, Goa. 2. The Chairman, Goa Daman & Diu Housing Board, Junta House, Panaji, Goa. …... Respondents (The above are registered addresses of the parties) Mr. S. G. Bobe, Advocate for the Appellants. Ms. Sapna Mordekar, Addl. Government Advocate for the Respondent no.1. Mr. A. N. S. Nadkarni, Senior Advocate with Mr. H. D. Naik, Advocate -2- for Respondent no.2. CORAM : B. P. DHARMADHIKARI & U. D. SALVI, JJ. DATE : 14 th JULY, 2009 . JUDGMENT (Per B. P. DHARMADHIKARI, J ) The challenge in this appeal under Section 54 of Land Acquisition Act is to the Judgment dated 27.09.2001, delivered by Addl. District Judge, South Goa, Margao, in Land Acquisition Case no. 21/86. The extent of area of land acquired is not in dispute. The Land Acquisition Officer granted compensation at the rate of Rs.5/- per square metre for paddy land, Rs. 6/- per square metre for mixed type land and Rs.7/- per square metre for cultivable land. The acquisition is for its Housing Project by Housing Board and date of Section 4 Notification is 10.11.1980. The land admeasuring 10,912 square metres has been acquired. 2. Not satisfied with the Award, the appellant moved an application under Section 18 and sought compensation at the rate of Rs.150/- per square metre. The learned Addl. District Judge has dismissed the said application after recording a finding that appellants could not prove that market price was better than what was allotted to -3- them by Land Acquisition Officer. 3. Advocate Bhobe appearing for the appellants-land owner has contended that a Sale Deed of a land in the vicinity of same period was produced on record and that Sale Deed revealed market price of Rs.35/- per square metre. He further states that the Award in relation to land in the vicinity purchased by Housing Board by a private Agreement was also produced on record and, according to him, as the rates therein were of a period prior to Section 4 Notification, grant of such meagre rates to appellants is unjustified. He points out that evidence has been led to show non-agricultural potential possessed by the appellants' land. He has taken us through the evidence of appellants and his witness to substantiate his contention. 4. Learned Senior Advocate appearing for Housing Board has contended that the Land Acquisition Officer in the instant case has awarded compensation at the rates at which adjacent but better land was procured by Housing Board by private Agreement. He further points out that a Sale Deed produced on record vide Exhibit Aw.1/A is for a small plot of land which is admittedly developed one and hence not comparable with the huge lands acquired here. He invited our attention to the evidence on record to show that the acquired lands were hilly or in -4- any case on a slope of hill and hence the expenses required for its levelling/developing were much more. He points out that as per law, 50% of the acquired land is required to be left open for road and other public utility as per law. He, therefore, states that in such circumstances, it was incumbent for appellants to bring on record adequate evidence to show the market price of comparable land and the market rate. He argues that evidence brought on record does not show any non-agricultural potential or then any market rate. He, therefore, states that the Judgment as delivered does not call for any interference. In the alternative, he has invited our attention to the fact that large tracts of land in the vicinity are acquired by Housing Board at the same time or thereafter and, any view that this Court may take in the present matter, is bound to effect adjudication of similar disputes in other matters. 5. Having heard both learned Counsel, we find that the following questions arise for our determination :- (1) Whether the learned Court below was justified in holding that the compensation as determined by Land Acquisition Officer did not require any interference ? (2) Whether any interference is warranted in the present appeal ? -5- 6. The consideration of evidence on record shows that lands have been acquired for Housing Project i.e. for non-agricultural purpose. The evidence adduced by appellants shows the distance from main road and also the fact that there is a College at some distance and also a Power Station. It has also been established that developed plots have been sold in the vicinity. The Housing Board itself appears to have acquired from Kare family the land in the vicinity for development. Learned Senior Advocate has attempted to contend that these factors are not sufficient to establish any non-agricultural potential and he has placed reliance upon Section 24 of Land Acquisition Act to contend that purpose of which, land is put in future by Housing Board, cannot be determinative in this respect. 7. The rate afforded by Housing Board for purchasing the land from Kare family is Rs.9/- per square metre for developed land and Rs.5.50 per square metre for undeveloped land. This Sale Deed is dated 18.04.1978 i.e. two years prior to Section 4 Notification in the present matter. The said Sale Deed is at exhibit Rw.1/A on record. It appears that said land is in the vicinity of the land acquired. The appellants have produced on record a Sale Deed which is dated 01.12.1978 and the said Sale Deed is for 350 square metres of land with rate of Rs.35/- per square metres. It is admittedly a developed plot at a -6- distance of about 400 metres from the land of present appellants. The evidence of appellants shows that main road is at a distance of 100 metres from his land and a building of old Chowgule College is at a distance of about 400 metres from it. 8. In the circumstances, when Housing Board had already purchased private lands for having its Housing Project in the vicinity and the existence of developed plots in the vicinity is also established, considering the oral evidence on record, we find that the non-agricultural potential has been established. However, whether the non-agricultural potential warrants any upward revision in present facts and what should be the extent of upward revision are the questions which need consideration. The evidence of respondents' witness shows that after the lands of appellants were acquired, they were required to be levelled and thus extra expenditure was required to be incurred for development. Thus, whether a standard deduction of particular portion from price of developed plot in present circumstances will be sufficient or some more deduction is required to be considered are the disputed questions. Not only this, the land acquired is a huge piece of land and the rate which has come on record i.e. Rs.35/- per square metre is of developed plot. What should be the relation of that rate with the developed portion which may become available in the appellants' land is the second question. -7- The respondents have tried to demonstrate that 50% of the land of the appellants is required to be left open to sky and cannot be developed. The Court below has not gone into all these questions. The Land Acquisition Officer has awarded three rates as already mentioned above but when N.A. potential is already in existence, whether grant of these three rates is justified or not, is again a question which has not been gone into by the Reference Court. 9. In the circumstances, considering the fact that there are other reference proceedings pending and certain material aspects have not been gone into by the Reference Court, we find it, in the interest of justice, to remand the matter back to the Reference Court for adjudication of these questions. Needless to mention that the first question formulated above, therefore, needs to be answered in favour of the appellants and, consequently, the impugned Judgment deserves to be quashed and set aside. However, the quantification of actual amount of compensation is left open for consideration by the Reference Court. The parties are at liberty to adduce additional evidence, if any, to substantiate their claims. As the matter is being sent back and Land Acquisition case is of 1986, the Reference Court to attempt to decide the same as early as possible and, in any case, within a period of one year from today. The amount of compensation will be worked out by the -8- Reference Court independently and uninfluenced by our observations made above. 10. Appeal is thus allowed. However, in the circumstances of the case, there shall be no Order as to costs. B. P. DHARMADHIKARI, J. U. D. SALVI J. arp/*