-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 13 OF 2004 Mr. Jose Avelino Fernandes major, married, landlord, r/o. Near Chapel of Our Lady of Carmel, Ponda, Goa. …... Appellant V e r s u s 1. Deputy Collector & S.D.O., Ponda, Sub-division, Ponda, Goa. 2. The Executive Engineer, Works Division XVIII, (Roads), Public Works Division, Ponda, Goa. …... Respondents Mr. A. R. Kantak, Advocate for the Appellant. Ms. S. Mordekar, Addl. Government Advocate for the Respondents. CORAM: F. M. REIS, J. DATE : 27 th August, 2010. ORAL JUDGMENT The above Appeal challenges the Judgment and Award dated 13th October, 2003, passed by the learned District Judge, North Goa, Panaji, in Land Acquisition Case no. 218/1996. 2. By Notification under Section 4 of the Land Acquisition Act, 1894, (hereinafter referred to as the said Act), dated 04th June, 1992, the land -2- belonging to the Appellant, admeasuring 3500 square metres, surveyed under no. 136/8 and an area of 345 square metres surveyed under no. 136/9 situated at Village Bethora in Ponda Taluka, was intended to be acquired for the purpose of constructing the Ponda bye pass from Dhavali to Khandepar (Curti). By an Award passed under Section 11 of the said Act, the Land Acquisition Officer offered a sum of Rs.25/- per square metre for the land acquired. Being dissatisfied with the said Award, the Appellant filed a reference under Section 18 of the said Act for enhancement of compensation and claimed a compensation to the tune of Rs.350/- per square metre. By the impugned Judgment and Award dated 13th October, 2003, the reference filed by the Appellant came to be dismissed. Being aggrieved by the said Judgment, the Appellant has preferred the present Appeal. 3. The learned Counsel appearing for the Appellant has assailed the impugned Judgment and submitted that the Reference Court has totally misdirected himself in rejecting the reference filed by the Appellant as, according to him, the Sale Deeds produced by the Appellant were comparable to the land acquired. He further submitted that the Appellant had produced two Sale Deeds one dated 13th November, 1990 and the other dated 14th June, 1991, which are in the vicinity of the acquired land and the same were comparable to the land acquired. He further submitted that the price in the said Sale Deeds was at the rate of Rs.582.84 per square metre while in the other Sale Deed is at the rate of Rs.300/- per square metre and considering the market value prevailing as on the date of Section 4 Notification, the -3- Reference Court was not justified in refusing the reference filed by he Appellant. He further submitted that the Apex Court in the recent Judgment dated 14th September, 2009, passed in Special Leave Petition no. 10598/2009 in the case of State of Goa & anr. vs. Gopal Baburao Gaudo & Ors.,has upheld the compensation awarded at the rate of Rs.154/- per square metre in respect of the land surveyed under no. 85 of Curti Village, wherein the Notification under Section 4 was dated 14th February, 1991, for construction of the Ponda By-pass road. He further submitted that the said land was comparable to the land acquired. The learned Counsel has also pointed out that the Appellant is in position to substantiate their claim of comparability of the land acquired with the land which was subject matter of the said Judgment passed by the Apex Court, in case the matter is remanded to the Reference Court. 4. On the other hand, the learned Addl. Government Advocate, appearing for the Respondent has supported the impugned Judgment. She further submitted that the Sale Deeds produced by the Appellant are at a distance of more than three kilometres from the acquired land and the same are not comparable. She further pointed out that the Sale Deeds are in respect of land which are located in Kurti Village and the land acquired is at Bethora Village which lands are not comparable. He further pointed out that the amenities available within the vicinity of the Sale Deed plots are much better than the one available in respect of the land acquired. He further pointed out that the Appellant is not entitled to rely upon the Judgment passed -4- by the Executive Magistrate fixing amount of compensation payable for the damage sustained due to erection of electrical lines whilst determining the market value of the land acquired. She further pointed out that the land which was subject matter of the Judgment passed by the Apex Court sought to be relied by the Appellant is not comparable with the acquired land. In any case, she submitted that in case the matter is remanded for reconsideration, the Respondents should be given a liberty to lead evidence in rebuttal. 5. Having heard the learned Counsel and on perusal of the records, I find that the following point arises in the present Appeal :- POINT FOR DETERMINATION 1.Whether the Appellant has made out a case for any enhancement of compensation under Section 18 of the said Act for the land acquired ? 6. Aw.1, Jose A. Fernandes, in his affidavit stated that the property which was acquired was surveyed under no. 136/8 and 136/9 of Village Bethora in Ponda Taluka and was admeasuring 3500 square metres and 345 square metres respectively. He further stated that the said land acquired is situated at Bondbag-Bethora Village, near Ganapati Temple and the market place is at a distance of about 2.5 kilometres from the acquired land. He further pointed out that the Primary School is at a distance of five metres away while the Government High School is at a distance of three kilometres, hospital at a distance of three kilometres, post office, etc., at a distance of four -5- kilometres while the Bethora Industrial Estate is at a distance of 2.50 kilometres from the acquired land. He further stated that by Sale Deed dated 13.11.1990, land was sold at the rate of Rs.582.84 per square metre which was situated at a distance of 2.5 kilometres from the acquired land at Curti Village. He further stated that by another Sale Deed dated 14.06.1991 an area of 3823 square metres was sold at the rate of Rs.300/- per square metre which is located at a distance of about 3.5 kilometres from the acquired land. He has also relied upon the letter of the Executive Magistrate wherein compensation was fixed at the rate of Rs.90/- per square metre on account of the erection of a High Tension Electricity line through his own property. In the cross examination, he has admitted that the Sale Deed dated 13.11.90, which is at exhibit 10, was a sub-divided plot and that buildings have come up therein. He has also admitted in his cross examination that the Sale Deed dated 14.06.1991 at exhibit 11 was also a sub-divided plot where buildings have come up. The Appellants have also examined Shri S. N. Bhobe, who is a registered valuer, who in his affidavit stated that the Sale Deed plot in respect of the Sale Deed dated 13.11.90 is at a distance of 3.5 kilometres from the acquired land and the Sale Deed dated 14.6.1991, was also at a distance of 3.5 kilometres from the acquired land. He has further stated that the lands were comparable. 7. With regard to the contention of the learned Counsel for the Appellant whereby he sought to rely upon the decision whereby the compensation fixed on account of the High Tension Electric wire passing -6- through the property of the Appellant, I find that the compensation determined then cannot be considered to be the market value of the land for the purpose of determing the compensation of the land acquired as on the date of Section 4 Notification. Such compensation is paid on account of the damages sustained to the owner under Section 10(d) of the Telegraph Act. In no circumstances, can the compensation paid on this count be considered to be the market value of the land. The Division Bench of this Court, in the Judgment passed on 28.07.2010, in First Appeal no. 11/2004, has in fact discarded such document for arriving at the market value of land as on the date of Section 4 Notification. Hence, the said document at exhibit 13 cannot be considered for determining the market value of the land acquired. The Sale Deeds sought to be relied upon by the Appellant, are at exhibit 10 and 11. I find that the said Sale Deeds are in a different Village besides the fact that the same are located at a distance of 3.5 kilometres from the acquired land. There is no evidence on record to substantiate the comparability of the land subject matter of the said Sale Deed with the land acquired. Hence, the Reference Court was justified in refusing to rely upon the said Sale Deeds for the purpose of arriving at the market value of land as on the date of Section 4 Notification. 8. With regard to the reliance sought to be placed by the learned Counsel appearing for the Appellant in the Judgment passed by the Apex Court in respect of the acquisition which took place in the year 1991 for the same by-pass but different villages, I find that the said Judgment can be a -7- basis for the purpose of arriving at the market value of land as on the date of Section 4 Notification in the present case, as the Notification in the present case is admittedly subsequent to the notification issued in the said Judgment of the Apex Court. But, however, the market value will have to be determined on the basis of comparability of the land acquired and the land which was subject matter of the said Judgment of the Apex Court. There is nothing to suggest in the evidence adduced by the Appellant to show any such comparability to determine the market value of the land acquired. The Apex Court in the Judgment reported in 2009 (9) S.C.C. 289 in the case of Attar Singh v. Union of India, has held at para 7, 8 & 10 thus : “7. It is now a well-settled principle of law that determination of the market value of the land acquired indisputably would depend upon a large number of factors including the nature and quality thereof. The norms which are required to be applied for determination of the market value of the agricultural land and homestead land are different. In given cases location of land and in particular, closeness thereof from any road or highway would play an important role for determination of the market value wherefor belting system may in appropriate cases may be resorted to. The position of the land, particularly in rainy season, existence of any building, etc. also plays an important role. A host of other factors including development in and around the acquired land and/or the potentiality of development will also have a bearing on determination of the fair market value of the land. -8- 8. Determination of the market value of the land may also depend upon the facts and circumstances of each case, amongst them would be the amount of consideration mentioned in a deed of sale executed in respect of similarly situated land near about the date of issuance of notification in terms of Section 4(1) of the Act; in the absence of any such exemplars, the market value can be determined on yield basis or in case of an orchard on the basis of number of fruit-bearing trees. 9. ... 10. This Court in Union of India v. Pramod Gupta on the question of determination of market value opined: (SCC p. 21, paras 24-26) “24. While determining the amount of compensation payable in respect of the lands acquired by the State, the market value therefor indisputably has to be ascertained. There exist different modes therefor. 25. The best method, as is well known, would be the amount which a willing purchaser would pay to the owner of the land. In absence of any direct evidence, the court, however, may take recourse to various other known methods. Evidences admissible therefor inter alia would be judgments and awards passed in respect of acquisitions of lands made in the same village and/or neighbouring villages. Such a judgment and award, in the absence of any other evidence like the deed of sale, report of the expert and other relevant evidence would have only evidentiary value. 26. Therefore, the contention that as the Union of India was a party to the said awards would not by itself be a ground to invoke the principles of res judicata -9- and/or estoppel. Despite such awards it may be open to the Union of India to question the entitlement of the respondent claimants to the amount of compensation and/or the statutory limitations in respect thereof. It would also be open to it to raise other contentions relying on or on the basis of other materials brought on record. It was also open to the appellant to contend that the lands under acquisition are not similar to the lands in respect whereof judgments have been delivered. The area of the land, the nature thereof, advantages and disadvantages occurring therein amongst others would be relevant factors for determining the actual market value of the property although such judgments/awards, if duly brought on record, as stated hereinbefore, would be admissible in evidence.” 9. Considering the said Judgment of the Apex Court, I find that there is no material to establish the comparability of the land acquired with the land which was subject matter of the said Judgment (supra). The Appellant will have to adduce evidence to ascertain as to whether the nature and the facilities available to the land acquired are comparable with the land subject matter of the said Judgment. As such, in the interest of justice, the Appellant should be given opportunity to lead further evidence so as to enable him to produce the said Judgment as well as the Award referred in the said Judgment in Land Acquisition Case no. 48/1995 and adduce evidence to sustain his contention about comparability of the said land with the acquired land in the light of what has been stated hereinabove. In view of the above, the matter will have to be remanded to the Reference Court to decide the -10- reference afresh in the light of the observations made herein above. The point for determination is answered accordingly. 10. In view of the above, I pass the following : ORDER (i)The Appeal is partly allowed. (ii)The Land Acquisition Case no. 218/1996 is restored to the file of the Reference Court. (iii)The impugned Judgment and Award dated 13.10.2003, is quashed and set aside. (iv)The Reference Court is directed to permit the Appellant to produce the said Judgment of the Apex Court dated 14.09.2009 as well as the final Award passed in Land Acquisition Case no. 48/1995 and adduce further evidence in the light of the observations made hereinabove. Needless to say, the Respondents will be entitled to rebuttal evidence, if any. After recording of such further evidence, the Reference Court shall decide the reference afresh on the basis of the evidence which has already been adduced by the parties as well as the evidence which shall be adduced hereafter in accordance with law. (v)The parties are directed to appear before the -11- Reference Court on 11.10.2010 at 10.00 a.m. (vi)Appeal stands disposed of accordingly with no orders as to costs. F. M. REIS, J. arp/*