1 IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 200/2004. With CROSS OBJECTION NO. 1/2005. FIRST APPEAL NO. 200/2004. 1. The Executive Engineer, W. D. XXIV, PWD, Fatorda, Margao, Goa. 2. Special Land Acquisition Officer, S.I.P., Gogol, Margao, Goa. … Appellants. V/s The Attorney Communidade of Margao, Old Market, Margao. … Respondents. Ms. S. Mordeikar, Addl. Government Advocate for the Appellants. Mr. G. Teles, Advocate for the Respondent. CROSS OBJECTION NO. 1/2005. Communidade of Margao, Through Attorney of Communidade of Margao, Old Market, Margao, Goa. … Cross Objectionist. (Original Respondent) 2 Vs. 1. The Executive Engineer, W. D. XXIV, PWD, Fatorda, Margao, Goa. 2. Special Land Acquisition Officer, S.I.P., Gogol, Margao, Goa. … Respondents. (Original Appellants) Mr. G. Teles, Advocate for the Cross Objectionist. Ms. S. Mordeikar, Addl. Government Advocate for the Respondents. . CORAM : F. M. REIS , J. DATE : 8 th October 2010 . ORAL JUDGMENT The above appeal challenges the judgment and award dated 10.5.2005 passed by the learned Addl. District Judge, South Goa, Margao in LAC No. 45/1994 2. The land belonging to the respondent was sought to be acquired pursuant to the notification 3 under Section 4 of the Land Acquisition Act (hereinafter referred to as 'the said Act') dated 5.12.1986 published in the Official Gazette dated 8.1.1987 for the construction of the ground level reservoir at Gogol Margao for the 160 MLD Selaulim Water Supply Project (Additional Area). The land acquired which was admeasuring 1746 sq. metres was situated in the property bearing P.T. Sheet No. 84/1 of Margao city By an award of the Land Acquisition Officer (LAO for short) dated 31.1.1989 the price was fixed at Rs. 13.50 per sq. metre for the land acquired. Being dissatisfied with the said amount, the respondent sought reference under Section 18 of the said Act for enhancement of the compensation, claiming an amount of Rs. 230/- per sq. metre for the land acquired besides an amount towards severance charges. By judgment and award dated 10.5.2004, the learned Addl. District Judge partly allowed the said reference by fixing the market value of the acquired land at the rate of Rs. 40/- per sq. metres and refused to award compensation towards severance 4 charges. 3. Being aggrieved by the said award, the appellants preferred the present appeal and the respondent after due service have filed their Cross Objections and claimed that the compensation be enhanced to Rs. 230/- per sq. metre. 4. The learned Addl. Government Advocate appearing for the appellants has assailed into the said judgment and submitted that the Reference Court has totally misdirected in fixing the market value of the acquired land at Rs. 40/- per sq. metre. The learned Addl. Government Advocate further submitted that the respondents failed to adduce any evidence to substantiate that the price offered by the LAO was inadequate. The Learned Government Advocate took me through the evidence on record and pointed out that the land which was acquired was on the top of a hill and could not be used for the purpose of 5 development as it was not accessible and had no amenities of any nature. She further submitted that there is no sale instance produced by the respondent which is said to be comparable with the land acquired. The Learned Government Advocate further submitted that the land of the respondent could not be used for any other purpose in view of the topography, location and inaccessibility of the acquired land. As such, the Learned Government Advocate submitted that the enhancement award granted by the reference court deserves to be quashed and set aside. 5. On the other hand Learned Counsel Mr. G. Telles has supported the impugned judgment and submitted that the Reference Court ought to have fixed the market value of the acquired land at the rate of Rs. 230/- per sq. metre. He further submitted that the Reference Court has erroneously effected the deductions to the extent of 80% to fix the compensation at the rate of Rs. 40/- per sq. metre. 6 The learned Counsel further submitted that at the most the reference court could have effected deductions to the extent of 1/3rd for arriving at the market value of the acquired land. The learned Counsel further submitted that the land acquired was in the vicinity of developed area and the land of the respondent had high potential for construction purpose as there were residential plots which were located in the vicinity of the acquired land. He further submitted that the land was suitable for non agricultural purpose and in fact the land acquired was superior to the land of the sale instance produced by the respondent and as such, the reference court ought to have fixed the compensation at the minimum rate of Rs. 150/- per sq. metre. The learned Counsel further submitted that the area involved in land acquisition cases at exhibit 10/AW1/A is more than 12,000 sq. metres while in the present case, the area involved is less than 2000 sq. metres and as such the deductions could not be to the extent of 80%. He as such submitted that the Cross 7 Objections filed by the respondents deserves to be granted. 6. Having heard the learned Counsel and on perusal of the record, the following point arises for my determination in the present Appeal: POINT FOR DETERMINATION 1. Whether the Reference Court was justified to fix the market value of the acquired land at the rate of Rs. 40/- per sq. metre? 7. On perusal of the evidence on record, I find that the respondents in support of their claim for enhancement, has examined Attorney of the respondent as Aw1. He has stated in his affidavit that the acquired land, is situated at Gogol Margao and high school, college, market, bus stand, church, hospitals, railway station etc. are within a radius of 1 to 3 kms. from the acquired land. He has further stated that 8 the land acquired was a bharad land and that Electricity, water, telephone and transport facilities were available at a distance of 800 metres from the acquired land. He has further stated that in the vicinity of the acquired land there are several residential houses and the acquired land is ideal for construction of residential houses. In support of his claim for enhancement, the respondent has relied upon the award dated 28.11.1998 passed by the learned District Judge, South Goa, Margao, in L.A.C. Nos. 7/1985, 8/1985 and 9/1985 in respect of land in the vicinity of the acquired land wherein an area of 12,412 sq. metres belonging to different co-owners was acquired at the rate of Rs. 200/- per sq. metre as fixed by the Reference Court. He has further stated that the land acquired is similar in nature and has potential as the land acquired pursuant to the said award. The awards are at exhibit 10/AWI/A. He has further stated that the land acquired is hilly land and that Mathgramasht was constructed around the year 1990 which was located close to the 9 acquired land. He has further admitted that the acquired land and the present acquired land are of the same nature and almost have similar facilities and that in the previous acquisition the amount offered was Rs. 12/- per sq. metre. He has further admitted that at the time of acquisition there was no electricity, water supply and telephone facility to the acquired land. He also admitted that the land which was the subject matter of the land acquired at exhibit 10/AW1/A was level land and higher to the level of the road. He further admitted that in the land acquired which was subject matter of the said award, a multipurpose building was constructed for the Irrigation Department. 8. The next witness examined is AW2, Benedito Carvalho. He has stated in his affidavit that the acquired land was bharad land situated on a hill slop commanding the view of the area. He has further stated that in the vicinity of the acquired land there are several luxurious independent bungalow type 10 residential houses which are situated in the settlement zone. He has further stated that the nature of the acquired land and the potential thereof was similar to the land which was subject matter of the land at exhibit 10/AWI/A. In cross examination he has stated that the distance between the acquired land in the present case and the land of Manovikas is about 500 metres by crows fly and by road it is 1.5 kms. He has further stated that the garbage dump yard of Margao city lies on the right hand side of Margao-Curtorim road and that the acquired land is on the left hand side of the said road. He has further stated that the land in the present case was acquired in the year 1987. He has further admitted that he was not aware as to what was the nature of the land at the time of acquisition. 9. The appellants failed to adduce any evidence to rebut the case of the respondent. 10. The Reference Court after appreciating the 11 evidence on record has come to the conclusion that the award at exhibit 10/AW1/A could be a comparable sale instance after making suitable deductions on account of the dissimilarities. The law is well settled that in the case in which no other comparable sale deeds are available, the judgment and award passed in the vicinity of the acquired land and proximate in time to Section 4 Notification can also be considered to determine the market value of the acquired land. The land which was the subject matter of award at exhibit 10/AW1/A was acquired for the purpose of putting up a construction for irrigation complex and it was at a distance of 50 metres from the Margao-Curtorim road and fit for construction purpose as it had infrastructure facilities for development. The Reference Court has rightly found that there were four demerits as far as the acquired land is concerned vis a vis the award at exhibit 10/AW1/A, namely (1) The land acquired was inferior; (ii) The land acquired was of a hilly area and in fact appears to have been located on the top of a 12 hill; (iii) The land which was the subject matter of award at exhibit 10/AW1/A was closer to Margao- Curtorim road while the land acquired was at a distance of 1.5 kms. from the acquired land; (iv) There was no access for the acquired land. The evidence on record shows that the land which was subject matter of the award at exhibit 10/AW1/A was accessible and as such had better potentiality for being used for other purposes, as the high way was close to the said land. It is well settled that the lands which are located near the high way have more potential for commercial and residential purpose. The acquired land was situated at a much further distance from the highway. For the purpose of carrying out any development, substantial expenditure would have to be incurred with respect to the acquired land since it was located on a hill top and there was no motorable access available. All these demerits would have to be taken into account for determining the market value of the acquired land. 13 11. The Apex Court in the Judgment reported in (2008) 17 S.C.C. 436 in CESC Limited Vs. Sandhya Rani Barik and ors. has held at paras 16, 19 and 20 thus: “16. The case of the appellant was that the plot which was acquired for their use was wholly landlocked. This forms a very important factual issue which is important while determining the compensation. 19. The armchair assessment of land value has to proceed with common sense and circumspection. One should attempt to find out the just and reasonable compensation without attempting any mathematical precision in that regard. For the purpose of assessing compensation, the efforts should be to find out the price fixed for the similar land in the vicinity. 14 20. The difference in the land acquired and the land sold might take on various aspects. One plot of land might be larger, another small, one plot of land might have a large frontage and another might have none. There might be differences in land development and location. There might be special features which have to be taken note of and reasonably considered in the matter of assessing compensation. 12. In another Judgment of the Apex Court, reported in 2009 (9) SCC 289 in Attar Singh and another Vs. Union of India and anr. it has been held at paras 7 and 9 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 15 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. 16 9. It is also well settled that for the purpose of determination of price of acquired land, the courts would be well advised to consider the positive and negative factors, as has been laid down by this Court in Viluben Jhalejar Contractor v. State of Gujarat i.e.: (SCC p. 797, para 20) “Positive factors Negative factors (i) smallness of size (i) largeness of area (ii) proximity to a road (ii) situation in the interior at a distance from the road (iii) frontage on a road (iii) narrow strip of land with very small frontage compared to depth (iv) nearness to (iv)lower level requiring developed area the depressed portion to be filled up (v) regular shape (v) remoteness from developed locality (vi) level vis-à-vis (vi) some special land under disadvantageous acquisition factors which would deter a purchaser (vii) special value for an owner of an adjoining property to whom it may 17 have some very special advantage.” 13. The Reference Court after considering all the demerits on record has effected 80% deductions. In view of the principles enunciated by the Apex Court as set out in the Judgments (supra), I find in the facts and circumstances of the case that the Reference Court has fairly effected the deductions. The contention of the learned Counsel for the respondent that the Reference Court has erroneously effected the deductions to the extent of 80% cannot be accepted. On account of the fact that there was no motorable access the deduction would be 25%. Considering that the land was on the top of the hill, the acquired land had no infrastructure and water supply besides electricity and telephone was available at a distance of 500 metres and on such count another 20% deduction will have to be effected. Apart from that the land acquired was on the top of the hill which would require substantial expenditure for the purpose of 18 development. There is also evidence on record which discloses that the land acquired is much further from the main road vis a vis the land which is subject matter of award at exhibit 10/AW1/A. All these factors will entail substantial expenditure in case of any development of the acquired land. On account of both these factors 35% would have to be effected towards development charges. The total deduction as such aggregates to 80% which is just and proper. The land which is the subject matter of the award at exhibit 10/Aw1/A is much superior than the acquired land as it is plain and level land. Considering the dissimilar features of the acquired land, the market value fixed by the Reference Court cannot be stated to be excessive. On the contrary the rate fixed appears to be just and proper. 14. The contention of the learned Counsel for the respondent that the market value of the land should be fixed at the minimum rate of Rs. 150/- per 19 sq. metre cannot be accepted as the evidence on record discloses that the land acquired was inferior to the land which was subject matter of award at exhibit 10/AW1/A and as such there is no question of granting any appreciation on account of the largeness of the land acquired in 10/AW1/A. The evidence also shows that the land acquired was close to the garbage yard and the development of the land took place only after 1990 which is much after the Section 4 notification. Taking the overall view of the matter, I find that no interference is called for in the impugned judgment of the Reference Court. The point for determination is answered accordingly. 15. There is no merit in the appeal and the cross objections. The Appeal and the Cross Objections stands dismissed with no order as to costs. F. M. REIS, J. MF/-