1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 167 OF 2004 1. Shri Shrihari Kurade Savarcatta, Cuncolim, Goa. 2. Shri Vithal Jagannath Keni, H. No.800, Dr. Rama Hegde Road, Aquem, Margao-Goa. ... Appellants versus 1. Dy. Collector(LA), South Goa, Margao. 2. The Executive Engineer(Planning) Goa Housing Board, Alto, Porvorim, Bardez, Goa. ... Respondents Shri Sudin Usgaonkar, Advocate for the Appellants. Shri A. N. S. Nadkarni, Senior Advocate with Shri H. D. Naik, Advocate for Respondent No.2. Ms. Sapna Mordekar, Additional Government Advocate for Respondent No.1. CORAM : S. A. BOBDE & F. M. REIS, JJ. DATE OF RESERVING THE JUDGMENT: : 14TH JUNE, 2011. DATE OF PRONOUNCING THE JUDGMENT: 12TH AUGUST, 2011. 2 JUDGMENT(Per F. M. REIS, J.) The above appeal challenges the Judgment and Award dated 17-3-2004 passed by the learned Additional District Judge, South Goa, Margao in Land Acquisition Case No.6 of 2003. 2. Land belonging to the Appellants admeasuring an area of 58900 sq. meters from the property surveyed under No.123 sub-divisions 1 to 8 was acquired by the Respondents for the purpose of implementation of the Housing Scheme at Xeldem. The land was acquired pursuant to a notification under Section 4 of the Land Acquisition Act, 1894(hereinafter referred to as the said Act) dated 21-10-1998 published in the Official Gazette on 4-12-1998. 3. By an award dated 6-1-2002, the Land Acquisition Officer offered a compensation for the land acquired at the rate of Rs.9/- per sq. meter in respect of untenanted bharad/coconut land falling in the settlement zone admeasuring 29,500 sq.meters; Rs.6/- per sq. meter in respect of the untenanted bharad/coconut land falling in orchard zone admeasuring 22,900 sq. meters and Rs.4/- per sq. meter in respect of untenanted paddy field falling in settlement zone admeasuring 6,500 sq. 3 meters. Being dissatisfied with the said amount, the Appellants sought a reference under Section 18 of the Land Acquisition Act for enhancement of compensation and claimed a sum of Rs.700/- per sq. meter for the land acquired. 4. By Judgment and Award dated 17-3-2004, the Reference Court rejected the reference filed by the Appellants. Being aggrieved by the said Judgment and Award, the Appellants have preferred the said appeal. 5. Shri Sudin Usgaonkar, learned Counsel appearing for the Appellants has assailed the impugned Judgment and pointed out that the Reference Court has totally erred in rejecting the reference as according to him there was substantial evidence adduced by the Appellants to substantiate their contention that the prices offered by the Land Acquisition Officer was inadequate. Learned Counsel further submitted that the Appellants have examined an expert witness who has valued the acquired land at the rate of about Rs.193.42 per sq. meter. Learned Counsel has further submitted that the Appellants have produced a sale deed dated 24-9-1997 which is at Exh.20 as well as the said Valuation 4 Report which is at Exh.19 which establishes that the market value of the acquired land is at the rate of Rs.380/- per sq. meter at the relevant time. Learned Counsel has taken us through the impugned Judgment and pointed out that the learned Reference Court has erroneously come to the conclusion that the Appellants have not established the comparability of the land acquired with the said sale deed plot. Learned Counsel further pointed out that in case this Court finds that the evidence is not sufficient for determining the market value of the acquired land, the matter be remanded to the Reference Court to decide the reference afresh after giving an opportunity to the Appellants to lead further evidence on such point. Learned Counsel as such submitted that the appeal deserves to be rejected. 6. Shri A. N. S. Nadkarni, learned Senior Counsel appearing for Respondent No.2 has supported the impugned Judgment. Learned Senior Counsel has taken us through the impugned Judgment as well as the evidence on record and pointed out that there is no evidence adduced by the Appellants to establish any comparability between the land acquired and the sale deed plot and as such, the Appellants have failed to discharge the burden cast on them to establish that the price offered by 5 the Land Acquisition Officer was inadequate. Learned Senior Counsel has further submitted that the Reference Court was as such justified to reject the reference in view of the fact that no evidence has been adduced by the Appellants to establish the similarity of the land acquired with the sale deed plot. Learned Senior Counsel as such pointed out that the appeal deserves to be rejected. Learned Senior Counsel however submitted that in case the matter is remanded for fresh decision, the Respondents should be given opportunity to lead evidence in rebuttal. 7. Having heard the learned Counsel and on perusal of the record, the following point for determination arises. Whether the Reference Court was justified to reject the reference filed by the Appellants under Section 18 of the said Act? 8. On perusal of the evidence on record, we find that the Appellants in support of their claim for enhancement of compensation have examined Shri Srihari Kurade as AW1 who has deposed that a plot of land admeasuring an area of 1,631.00 sq. meters was sold by sale deed dated 24-9-1997 from the property surveyed under No.109/63(part) 6 at Xeldem for a total consideration of Rs.4,80,000/- which according to him was at a distance of 800 meters from the acquired land. He has further stated that there are residential houses in a radius of 400 meters from the acquired land. The Valuation Report prepared by the valuer has based his valuation on the said sale deed plot. On going through the Valuation Report, the said valuer has only stated that the sale deed plot is at a distance of 800 meters from the acquired land. On perusal of the description of the sale deed plot, we find that the plot which has been sold is bounded on the western side by a public PWD road and that a sale deed plot was dis-annexed from a larger property. The Reference Court while passing the impugned Judgment has after appreciating the evidence on record come to the conclusion that the evidence adduced by the Appellants is silent with regard to the nature of the sale deed land and that there is no evidence to establish the nature of the sale deed land whether the sale deed land is similar to the acquired land. In fact, on going through the evidence on record, besides the fact the sale deed plot is situated at 800 meters, there is nothing to suggest what is the nature of the land and whether the land acquired and the sale deed plot is comparable. Considering the request of Shri Usgaonkar, we find that as a substantial area of the property of the Appellants is lost in acquisition 7 and in the interest of justice, the Appellants should be given an opportunity to lead further evidence to establish the comparability of the land acquired with the sale deed plot. The evidence on record is not sufficient to accept the contention of the Appellants that the land is comparable. 9. As such, in the interest of justice, we find it appropriate that the matter be remanded to the Reference Court to decide the reference afresh in the light of the observations made hereinabove. Needless to say that the Respondents would be entitled to lead evidence in rebuttal in support of their contentions. All the contentions of the parties are left open. The point for determination is answered accordingly. 10. In view of the above, we pass the following Order:- ORDER 1. The appeal is partly allowed. 2. The impugned Judgment and Award dated 17-3-2004 is quashed and set aside. 3. Land Acquisition Case No.6 of 2003 is restored to the file of the learned Reference Court. 8 4. The learned Reference Court is directed to decide the reference afresh after hearing the parties in the light of the observations made hereinabove in accordance with law. 5. The appeal stands disposed of accordingly with no order as to costs. 6. The parties are directed to appear before the Reference Court on 12th September, 2011 at 10.00 a.m. S. A. BOBDE, J. F. M. REIS, J. RD