-1- IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 39 OF 2004. Mr. Joao Mascarenhas, R/o. H. No. 337, 4th Ward, Colva, Salcete, Goa …....... Appellant. Versus 1 Dy. Collector,(L.A.), Margao- Goa, 2 The Executive Engineer, W.D. VI, P.W.D., Fatorda, Margao, Goa. …....... Respondents. Mr. J. P. Mulgaonkar, Advocate for the Appellant. Mr. V. Rodrigues, Additional Government Advocate for the Respondents. CORAM: F. M. REIS, J. DATE : 3 rd SEPTEMBER, 2010. ORAL JUDGMENT The above appeal takes exception to the Judgment and Award dated 14th November, 2003, passed by the Learned District Judge, South Goa, Margao in Land Acquisition Case No.201/ 99. -2- 2. By notification issued under section 4 of the Land Acquisition Act ( hereinafter referred to as “the said Act''), dated 24th October, 1995 published in the Official Gazette dated 21st March, 1996, the Respondents proposed to acquire an area of 1575 square metres for construction and black topping of main Betalbatim to Colva via Bagdem and Padriguelem, Sernabatim Road. An area of 325 square metres from the property surveyed under no.13/1 and an area of 225 square metres from the property surveyed under no.136/5 belonging to the Appellant was also subject matter of the said notification. By an Award dated 05th February, 1999, the Land Acquisition Officer has awarded the compensation at the rate of Rs.10/- per square metre. Being dissatisfied with the said amount, the appellant filed a reference under section 18 of the said Act and sought an enhancement to the said compensation and claimed a compensation at the rate of Rs.400/- per square metre for the acquired land. 3. By the impugned Judgment and Award dated 14th -3- November, 2003, the learned Reference Court rejected the said reference. Being aggrieved by the said Judgment, the Appellant has preferred the present appeal. 4. Mr. J. P. Mulgaokar, learned counsel appearing for the Appellant has assailed the impugned Judgment and submitted that the Reference Court has totally misdirected itself in arriving at the conclusion that the Appellant has failed to establish the market value of the acquired land. He further submitted that the Reference Court has discarded the claim of the Appellant on the ground that there was a traditional access passing through the acquired land which is not at all relevant for the purpose of determining the market value under the provisions of section 23 of the said Act. He further submitted that admittedly such traditional access was not depicted in the survey records and as such the question of depriving the appellant from awarding the compensation for the land acquired on such ground would not arise at all. He further submitted that merely because some occupants of land pass through the land of the owner by itself cannot be considered as of right and as such, the -4- question of considering such fact to deprive the Appellant just compensation for the land acquired is totally not justified. He further submitted that unless and until there is a declaration in favour of any person to the effect that such easementary right has been granted in his favour, this cannot be a ground to deprive the owners to just compensation for the land acquired. The learned Counsel has further submitted that the Appellant has produced the comparable sale instance which is at Exh.20 which discloses that the price in the vicinity of the acquired land was to the tune of Rs.1,097/- per square meter. He further submitted that the Appellant has examined the Vendor of the said sale deed who has confirmed that the nature of the land of the Appellant is the same and is comparable with the sale instance. He further pointed out that the Reference Court has erroneously discarded the evidence of AW2, who is a vendor to the said sale deed on the basis of irrelevant contradiction. The Learned Counsel has further submitted that on the basis of the said sale deed, any demerits with regard to the acquired land could have been ascertained and appropriate market value could be arrived at after making suitable deduction. He as such submitted that the impugned -5- Judgment deserves to be set aside. 5. On the other hand the learned Additional Government Advocate Mr. V. Rodrigues, has supported the impugned Judgment. He submitted that the Reference Court after minutely considering the evidence on record has come to the conclusion that the Appellant has failed to establish any claim for enhancement of compensation. He submitted that the evidence of AW2 cannot be believed in view of contradictory statement made by him in his deposition and in the cross-examination. The learned Counsel has further submitted that the sale instance at Exh. 20 cannot at all be compared with the acquired land as the sale deed land has commercial value which is not even the case as far as the acquired land is concerned. He further point out that the sale deed plot has total frontage to the main road proceeding from Margao to Colva which is not even the case in respect of the land acquired. The Learned Counsel has further submitted that admittedly on the basis of the evidence on record it discloses that the acquired land has no motorable access. He further submitted that once the land has no motorable access that itself -6- devalues such land for the purpose of using it for any building purpose. He further submitted that the land which was the subject matter of the said sale deed was sold for commercial purpose as the said land had potentiality of being used for construction purpose. As far as the land acquired is concerned no such potentiality could be available apart from the fact that the Appellant has failed to produce any evidence on that count. The Learned Counsel further took me through the evidence on record and pointed out that the Appellant has failed to compare the acquired land with the sale instance. Learned counsel further pointed out that in the remaining portion of the acquired land there was a mundkarial house, who was using the said portion of the acquired land as a means of access which is another demerits to be considered for arriving at the market value of the land acquired. He further pointed out that there was a pathway through the acquired land which have to be considered for the purpose of a determining the market value of the acquired land. 6. Considering the submissions of the learned Counsels and on perusal of the record, the following point for determination arise -7- in the present Appeal: POINT FOR DETERMINATION Whether the Reference Court was justified to reject the Reference filed by the Appellant? 7. In support of his claim for enhancement of compensation AW1 has deposed that the property acquired is at a distance of ½ km from the Colva beach and it is 5 kms from the Margao Colva road. He has further admitted that in between his property and the road there is a church property. He has further stated that he had intention of developing the property and he knew one Baltazar Fernandes who had sold property close to his property to M/s S. M. Naik for a sum of Rs.1095/- per square metre. He further stated that the land subject matter of the sale instance is at a distance of 4 to 5 metres from his property and both the lands were meant for coconut plantation. In the cross examination he has stated that both the properties bearing survey nos. 13/1 and 136/5 are adjoining one another and which are the subject matters of the acquisition. He has further admitted that the peoples staying towards the northern side used to pass through his property to come to the church. He has -8- further admitted that the width of the present road is 6 metres and the road goes from the front of the church and then between the Church and Bank of Baroda building and goes further to the north. He has further admitted that the property of said Baltazar Fernandes is towards the north of the church and that there is a separate road which goes to Baltazar Fernandes property. The road which goes from the junction to the beach used to be used to go to Baltazar's property and the junction therein is at a distance of 5 metres from the church. He has further admitted that the property of said Baltazar is on the either side of the road proceeding from Margao to Colva. The next witness examined is Baltazar Fernandes who has deposed that his property is surveyed under no. 29/1situated at Colva village and at a distance of 300 metres from the acquired land belonging to the Appellant. He has further stated that he had sold 2186.75squre metres for total consideration of Rs. 24,00,000/- (Rupees twenty four lakhs only) i.e at the rate of Rs.1097/- per square metre. He has further stated that the nature of his property and that of the Appellant is the same. He has further stated that in the property which he had sold the purchaser has built residential cum shops complex. In the -9- cross examination he has admitted that on the northern side of the plot at Exh.20 there is Margao Colva road and that it is at a distance of 20 metres from Margao- Betalbatim to Sernabatim junction. He has further admitted that the construction consisting of ground plus three floors has been constructed in his said property. He has further admitted that the property of the Appellant is behind the panchayat and the primary school. He has further admitted that the property of the Appellant cannot be seen from the Margao-Colva road because of the church and other buildings. The access to the property of the Appellant is by a footpath and there is no motorable road. He has further admitted that dissimilarity with the acquired land and with his property is that his property is touching the main road and the Appellant property was not touching the main road and it was having a foot path access. The next witness examined is Mr. Vikas Dessai, who is an expert witness. He has deposed that he had prepared the report on 16.12.1995 and that according to him the property of the Appellant has a value of Rs.1000/- per square metre. In his cross examination he has stated that prior to the acquisition of the property surveyed under no.3/1 had an area of 2175 square metres and 136/5 -10- had an area of 950 square metres and that the said two properties are on the either side of the new road which goes behind the Colva village panchayat building. He has further admitted that there is a private foot path belonging to the Appellant passing through both the sub divisions going from south to north and that the present road has been constructed over the existing foot path with slight alterations. He has further stated that the distance between property surveyed under no. 3/1 and Margao Colva road is about 90 metres by crow fly and the actual distance is about 150 metres and that the acquired land cannot be seen from the main road because of the existence of the church. The next witness who has been examined is Mr. Shridhar Kamat who is an Civil Engineer. He has stated in his affidavit that he had been informed by the Appellant that the access from the Margao Colva road to the acquired land was by a traditional access which was 3 metres wide. In his cross examination he has admitted that the road was already constructed when he visited on 16.3.2003. He has further stated that there is a mundkarial house in the property surveyed under no. 3/1 and the said mundkarial house lies to the east of the new road. The said witness has also prepared the valuation -11- report and according to him the market value of the acquired land is Rs.500/- per square metre as in October, 1995. 8. The Reference Court while passing the impugned Judgment has essentially noticed that there is an existence of a traditional footpath passing through the acquired land and as the road has been constructed at the place where the said access was located, has come to the conclusion that the acquired land could not be used for construction purpose. The Reference Court further held that the Appellant has failed to adduce evidence to substantiate their contention that the acquired land could be used for construction purpose and as such the question of relying upon the sale deed at Exh. 20 would not arise. The Reference Court has also considered that no plan has been produced of the sale deed plot at Exh. 20 to ascertain the comparability with the acquired land. The Reference Court further held that there is no evidence adduced by the Appellant to adopt any guess work so as to come to any market value of the acquired land. The Reference Court has disbelieved the evidence of AW3 and AW4 in view of the inconsistencies and as such they could -12- not be relied. The learned Reference Court found that the evidence did not demonstrate the facts as they existed on the relevant date. The Reference Court has rejected the reference on the ground that the land which was acquired was earlier a traditional access. 9. From the evidence on record, I find that though there is no clinching evidence on record to establish existence of any traditional road as such in the acquired land, nevertheless the record suggest that there was a path way which was passing through the acquired land. This is manifest from the Award passed by the Land Acquisition Officer as well as in view of the admissions made by the witnesses of the Appellant. Though AW3 and AW4 had tried to contend that the access was only touching the property of the Appellant and not beyond that, nevertheless on perusal of the evidence on record specially the plan produced by the AW3, I find that there was a pathway which was passing through the property of the Appellant which was also being used as a means of access by the mundkar who was residing in the property of the Appellant. However, merely because the existence of such pathway was -13- established, it cannot be said that the land acquired has no appreciable value. This fact can always be considered for the purpose of effecting deduction for arriving at a just and proper evaluation of the market value of the land acquired. 10 Even in case such pathway exists through the acquired land, it would not affect the remaining portion of the land of the Appellant for carrying out development activities. The existence of the house in the property itself suggest that the land was suitable for non agricultural purpose. The land is said to be only at a distance of about 150 metres from Margao-Colva road. This factor suggests that even under the statutory regulations, the area consumed for such a path way could always be considered for the purpose of meeting the statutory requirements while carrying out development of the remaining portion of the land of the Appellant surveyed under no. 136/5 and 13/1. It is not the case of the Respondents that any inhabitant from the locality had claimed for compensation on the ground of existence of any such traditional access through the property of the Appellant. From the evidence, I find that there is no -14- reason to treat the land acquired totally worthless and be given a meager compensation considering the price prevailing in the vicinity of the acquired land. Admittedly the portion of the said property did not vest on the Respondents and as such the Appellant cannot be deprived of the compensation for the land acquired. 11. The Apex Court in the case reported in 2009(10) SCC 686( State of Goa v. Gopal Baburao Gaudo,) has held at paras 5 and 7 has held thus:- 5. The contention that a land adjoining the highway should be treated as having no development potential (and therefore as land without much value except as ordinary agricultural land), while considering the lands to its rear which are farther away from the road, or other adjoining lands of the same extent, but having more depth (so as to extend beyond the 40 m margin) as having potential for development, is illogical and cannot be accepted. 7. Therefore, determination of market value of the acquired land with reference to the value of comparable land cannot be faulted. -15- 12. Considering the said judgment of the Apex Court, I find that even with regards to the areas which are reserved for road widening compensation can be determined on the basis of comparable sale instance after effecting appropriate deductions. As such the Reference Court was not justified to reject the reference of the Appellant merely because a pathway has been in existence in the acquired land. 13. The sale instance at Exh. 20 is admittedly in the vicinity of the acquired land. No doubt the sale deed at Exh. 20 is adjoining the main Margao Colva road and has a frontage to the said road. The property which has frontage to the main road essentially has higher commercial value than the lands which are located in the interior. In the present case the sale deed plot at Exh. 20 was in fact used for commercial establishment as well as residential apartments. The acquired land is admittedly at a distance of 150 metres from the main Margao Colva road. It was accessible by a foot path and had no motorable access as admitted by the witnesses examined by the -16- Appellant himself. The land of the Appellant also had a mundkarial house existing therein which is also to be considered as a demerit for the purpose of ascertaining the market value of the acquired land. The width of the acquired land is much less than the width of the sale deed plot at Exh. 20. 14. The Apex Court in the Judgment reported in (2008) 17 SCC 436( CESC LIMITED Versus SANDHYA RANI BARIK AND OTHERS) has held at paras 16, 19, 20 and 21 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 -17- find out the price fixed for the similar land in the vicinity. 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. 21. Where a very large plot of land has been acquired and the comparison is sought to be made with a comparatively smaller piece of land which has been sold or otherwise dealt with, then in that event, a percentage of the price is to be knocked off because of the largeness itself of the acquired land. Accordingly, the High Court made the deductions. The High Court also dealt with the question of land locking and held that it was a special feature which had to be taken note of. -18- 15. In another Judgment of the Apex Court reported in 2009(9) SCC 289 (Attar Sing and another vs. Union of India and another), it has been held at paras 7, 8 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 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 -19- land. 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 nearabout 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. 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 developed area (iv) lower -20- level requiring the depressed portion to be filled up (v) regular shape (v) remoteness from developed locality (vi) level vis-à-vis land under acquisition(vi) some special disadvantageous factors which would deter a purchaser (vii) special value for an owner of an adjoining property to whom it may have some very special advantage.” 16. Taking into consideration the principles enunciated by the Apex Court in the Judgment (supra), I find that different factors will have to be considered for the purpose of effecting necessary deduction. One of the essential demerit of the acquired land is that it does not have a motorable access to the said portion of the property which would require a deduction of 25% from the price in the sale deed. The other dissimilar factors of the acquired land are that it is at a distance of 150 metres from the Margao-Colva road and the sale deed plot had a better potential of being used for commercial as well as residential purpose which would require a deduction of 20%. The sale deed plot at Exh. 20 has a frontage to the main road which was not the case of the acquired land which would require a deduction of -21- 10%. The acquired land had a path way passing through the property besides having a mundkarial house which was located in the property of the Appellant. Apart from that the acquired had a narrow width. All these factors would require a deduction of 20%. The said deduction have been effected after considering that the land acquired is smaller in size and not subjected to statutory restrictions of maintaining set back for road widening as is the case in the sale deed plot. The total deduction as such on account of all the dissimilarities would be 75% from the price in the sale deed plot. 17. The sale deed plot admeasures 2186.75 square metres the price therein is Rs. 1097/- per square metre. In the facts and circumstance of the