1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 226 OF 2003. Fidelis A. Pereira, resident of House no.439, Caramoroda, Dramapur, Salcete-Goa. .. Appellant Versus 1. Special Land Acquisition Officer (S.I.P.) I.D., Complex, Gogol, Margao, Goa 2. The Executive Engineer, Works Division XIII, I.D., Gogol, Margao-Goa .. Respondents. Mr. D. J. Pangam, Advocate for the Appellant. Mr. S. Vahidulla, Additional Government Advocate for respondents. CORAM :- A. P. LAVANDE, J. Reserved on : 24 th September, 2010. Dictated in open Court on : 26 th October, 2010. ORAL JUDGMENT : By this appeal, the appellant takes exception to the judgment and award dated 9th May, 2003 passed by IIIrd Additional District Judge, Margao in Land Acquisition Case no.42/1998 rejecting the reference under Section 18 of the Land Acquisition Act ('The Act' for short). 2 2. Vide notification dated 9th March, 1993 issued under Section 4 of the Act which was published in the Official Gazette on 19th July, 1994, the Government of Goa acquired lands of several persons for public purpose, namely, for the purpose of construction of branch canal II of distributory D3 of S.I.P. at village Dramapur of Salcete Taluka. An area admeasuring 850 square meters of survey no.65/7 and 125 square meters of survey no.65/10 in Dramapur village belonging to the appellant was part of the acquired land. The area acquired in survey no.65/7 was paddy field whereas the area acquired in survey no.65/10 was dry crop land. The appellant claimed compensation at the rate of Rs.200/- per square meter. The Land Acquisition Officer ('The LAO') made award on 1st April, 1997 and fixed the market rate of the acquired land in respect of dry crop land at the rate of Rs.27/- and in respect of paddy filed at the rate of Rs.11/- per square meter. Aggrieved by the said award, the appellant sought reference under Section 18 of the Act and claimed Rs.200/- per square meter. 3. In Land Acquisition Case No.42/1998, the appellant / claimant examined himself and Shri Vikas Dessai- 3 AW2 - registered valuer. The claimant produced sale deed dated 4th December, 1990 by which two plots admeasuring 294 square meters and 324.29 square meters were sold at the rate of Rs.89.23 per square meter. The said plots were situated at a distance of about 1 kilometer from the acquired land. The Reference Court held that the acquired land was agricultural land and as such, could not be compared with the sale deed plots. The Reference Court held that the nature of the two properties of the acquired land and of the sale deed plots was different and consequently, rejected the reference. 4. Mr. Pangam, learned Counsel appearing for the appellant/ claimant submitted that the Reference Court has erred in rejecting the reference. He further submitted that the approach of the Reference Court in not relying upon the sale deed plot is patently unsustainable in law in as much as the Reference Court ought to have placed reliance upon the said sale deed dated 4th December, 1990 and ought to have made appropriate deductions. He further submitted that even the agricultural lands have building potential and as such, the Reference Court could not have rejected the reference in toto on the ground that the acquired land was 4 not similar to the two plots sold by sale deed dated 4th December, 1990. He further submitted that the Reference Court at the most ought to have deducted 33 1/3rd % from the price mentioned in the sale deed towards development costs and arrived at the market rate of the acquired land. He further submitted that the Reference Court at the most could have made some deduction on the ground that paddy field was at lower level than the dry crop land. In support of his submissions, Mr. Pangam relied upon the following judgments : (i) Land Acquisition Officer, Kammarapally Vs. Nookala Rajamallu and others;(2003)12 SCC 334. (ii) Lal Chand vs. Union of India and another; (2009)15 SCC 769 and (iii) Revenue Divisional Officer-cum- Land Acquisition Officer Vs Shaikh Azam Saheb and others;(2009)4 SCC 395. 5. Per contra, Mr. Vahidulla, learned Additional Government Advocate supported the impugned judgment and award and submitted that since the acquired land was agricultural land, the same could not have been compared with the sale deed plots as rightly held by the Reference Court. In support of his submissions, Mr. Vahidulla placed 5 reliance upon the Division Bench judgment of this Court in the case of State of Goa Vs. Pedro Antonio Pereira and others reported in 1996(2) G. L.T. 346. 6. I have considered the rival submissions and perused the record and the judgments relied upon. 7. In view of the rival submissions and the findings given by the Reference Court, the following points arise for determination in the appeal : (i) Whether the Reference Court was justified in rejecting the reference ? (ii) If not, what was the market rate of the acquired land as on the date of publication of Section 4 notification ? 8. The appellant/ claimant examined himself and Vikas Dessai-AW2 in support of his claim for higher compensation. The evidence of Fidelis Pereira- the claimant discloses that both the lands in survey nos. 65/7 and 65/10 were touching each other and land in survey no.65/7 was paddy filed whereas the land in survey no.65/10 was dry crop land. The acquired land was about 3 meters away from the 6 road leading from Highway no. NH17 to Caramoroda. The paddy field was 2.5 meters below the coconut garden, but both the lands were not having not any slope. There were some jungle trees in the acquired land. In the cross- examination, he stated that he appointed surveyor in the year 1998. He also admitted that in respect of the plot no.51 sold by sale deed 4th December, 1990, there was a six meters reserved road adjacent to the said plot. He also admitted that the sale deed plot was subdivided plot. He denied the suggestion that the sale deed property and the acquired land were not of same nature. 9. I do not deem it necessary to refer to in detail the evidence of Valuer Shri Dessai since as per the claimant himself, he was appointed in the year 1998 i.e. four years after the publication of Section 4 notification and his evidence discloses that he had visited the plot only after he was called upon by the claimant to inspect the site. 10. As stated above, the Reference Court has refused to place reliance upon the sale deed dated 4th December, 1990- exhibit AW1/A primarily on the ground that it was in respect of developed plots whereas the land acquired was 7 agricultural. In the case of Nookala Rajmallu (supra), the Apex Court has held that the value of the potentiality is to be determined on such materials as are available and without indulgence in any fits of imagination. Impracticability of determining the potential value is writ large in almost all cases. There is bound to be some amount of guess work involved while determining the potentiality. The Apex Court in paragraph 11 of the judgment held that lands acquired were agricultural lands and as such, necessary deductions for formation of roads, other amenities etc. had to be made. In the said case, the Apex Court made deduction of 53 %. In the case of K. S. Shivadevamma Vs. Assistant Commissioner and Land Acquisition Officer; (1996)2 SCC 62, it has been held that deduction is not automatic but depends upon the nature of the allotment and the stage of development. It has been further observed thereunder that as a general rule for laying of roads and other amenities, 33 1/3 % is required to be deducted and when development has already taken place, appropriate deductions needs to be made. The Apex Court, in the said case, further held that deduction of 53 % and further deduction towards development charges at 33 1/3 % as ordered by the High Court was not illegal. In the case of Shaikh Azam Saheb (supra), the Apex Court held that when 8 developed lands are compared with undeveloped lands, suitable deductions have to be made towards costs of development. In the said case, the Apex Court made deduction of 1/3 having regard to the factual situation. 11. In the case of Pedro Antonio Pereira (supra) relied upon by Mr. Vahidulla, the Division Bench of this Court held that agricultural lands could not be compared with developed plots since the agricultural lands had no building potential. 12. In view of the judgment in the case of Nookala Rajamallu (supra) relied upon by Mr. Pangam, I find myself unable to place reliance upon the Division Bench judgment of this Court. The Apex Court has clearly held that when the developed plot is compared to agricultural land in order to find out the building potential, appropriate deduction has to be made. Therefore, it cannot be taken as a rule that once agricultural land is acquired by the Government, the same cannot be compared to developed plot. While fixing the market rate of the agricultural land, appropriate deductions will have to be made. It is well settled that the percentage of deduction depends upon several factors as has been held by 9 the Apex Court in several judgments and there cannot be straight jacket formula for fixing the market rate of the acquired land. The Apex Court has further held that some amount of guess work is always involved in fixing the market rate of the acquired land. 13. In my considered opinion, the Reference Court has clearly erred in refusing to place reliance upon the sale deed dated 4th December, 1990. By the said sale deed, two adjoining plots admeasuring 294 and 324.29 square meters were sold at the rate of Rs.89.23 per square meter. The distance between the acquired land and the said sale deed plot was 1 kilometer. Since Section 4 notification was published on 19th July, 1994 and the sale deed was executed on 4th December, 1990, the market rate of the sale deed plot considering that Section 4 notification issued after almost 3 years and considering 10 % increase on compounding basis, works out to 118.75 which is rounded up to Rs.119/-. In the present case, the acquired land was in the village Dramapur and situated at a distance of about 3 meters away from the highway and had no abutting road. The evidence does not suggest that there was development in the neighbourhood of the acquired land. Considering all these factors, I am of the 10 opinion that in so far as dry crop land is concerned, the appropriate deduction towards development would be 53%. However, in view of the fact that the acquired land had no frontage of road, further deduction of 10 % is warranted. Therefore, the market rate of the dry crop land as on the date of the publication of Section 4 notification would work out to Rs.44/- per square meter. In so far as the area of 850 square meters forming part of survey no.65/7 is concerned, the same was admittedly a paddy field. According to claimant himself, the said land was at lower level by 2.5 meters. In view of this position, further deduction would have to be made. In my opinion, the appropriate deduction would be 30%. Therefore, the market rate of an area of 850 square meters would work out to Rs.32/-. Therefore, the market rate of the acquired land in so far as area of 125 square meters is concerned as on the date of Section 4 notification, is fixed at Rs.44/- per square meter and in respect of an area of 850 square meters, which was a paddy field, the same is fixed at Rs.32/- per square meter. 14. In view of the above, the appeal is partly allowed. The market rate of the acquired land in respect of survey no.65/10 is fixed at Rs.44/- per square meter and in respect 11 of survey no.65/7 is fixed at Rs.32/- per square meter. Needless to mention that the appellant is also entitled to all the statutory benefits under the Act. 15. The appeal stands disposed of in aforesaid terms with no order as to costs. A. P. LAVANDE, J. SMA