-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 158 OF 2006 WITH MISC. CIVIL APPLICATION NO. 511 OF 2000 M/s. Zuari Industries Ltd., Zuarinagar, Sancoale-Goa. (Registered Address) …... Appellant V e r s u s 1. Dy. Collector (LA) / MPT, Headland Sada, Mormugao-Goa. 2. Executive Engineer, Works Division VI, (R-S), P.W.D., Fatorda, Margao – Goa. (Registered Addresses) …... Respondents Mr. M. S. Sonak, Advocate with Mr. D. Pangam, Advocate for the Appellant. Mr. S. S. Kantak, Advocate General, with Mr. A. Kamat, Addl. Government Advocate for the Respondents. Coram :- A. S. OKA F. M. REIS, JJ. Date : 21 st June, 2010. ORAL JUDGMENT (Per A. S. Oka, J.) By this Appeal, the Appellant has taken an exception to the Judgment and Award dated 27th March, 2006, passed by the learned Addl. District Judge, South Goa, at Margao, in Land Acquisition Case no. 49/2004. 2. The Appellant is the claimant. The acquisition relates to a land at -2- Sancoale Village. The Land Acquisition Officer offered market value at the rate of Rs.30/- per square metre. The notification under Section 4 of the Land Acquisition Act, 1894, (hereinafter referred to as 'the said Act'), was published on 2nd September, 1999. The Award under Section 11 of the said Act is dated 11th December, 2002. 3. The Appellant relied upon a Sale Deed dated 10th January, 2001, at exhibit 17 as well as an instance of allotment of a plot made on 17th November, 1998 by the Goa Housing Board. The document of allotment is placed on record at exhibit 19. The Reference Court held that the Appellant has failed to discharge the burden to show that the compensation offered was inadequate and, therefore, the reference was answered in the negative against the Appellant. 4. The learned Counsel appearing for the Appellant invited our attention to Order dated 26th June, 2009, passed in Misc. Civil Application no. 483/2009, by which, the Appellant was permitted to produce a true copy of Judgment and Award dated 26th March, 1993 in Land Acquisition case no. 294/1991. The learned Counsel appearing for the Appellant submitted that in the Award made under Section 11 of the said Act in the present case, the Land Acquisition Officer relied upon the said Award in Land Acquisition Case no. 294/1991 and came to the conclusion that the land subject matter of the said Award was comparable to the land subject matter of this Appeal. He pointed out that in fact, on the basis of the said Award, the Land Acquisition Officer came to the conclusion that the market value of the acquired land was Rs.30/- per square metre. He submitted that the notification under Section 4 of the said Act in case of the said Award in Land -3- Acquisition Case no. 294/1991, was published on 15th November, 1984. He submitted that this important aspect has been completely overlooked by the Land Acquisition Officer. He submitted that as the said Award is found to be in respect of a comparable land, market value of the acquired land on the relevant date ought to have been fixed by granting appropriate escalation in the market value of Rs.30/- per square metre which was the prevailing market value as on 15th November, 1984. He submitted that as the said Award is already accepted by the Land Acquisition Officer as an evidence of market value of a comparable land for fixing the appropriate market value on the basis of the Award, escalation in market value from 15th November 1984 to 2nd September, 1999 will have to be considered. He invited our attention to the findings recorded by the Reference Court. He submitted that the instance of allotment of a plot of land by Goa Housing Board has been rejected only on the ground that the plot was sold in auction and, therefore, the auction would not depict the market value of the plot. He submitted that even the Sale Deed at exhibit 17, was in respect of a comparable land which could not have been discarded. 5. He invited our attention to Misc. Civil Application no. 511/2006 by which, a prayer has been made for production of the copy of Conveyance dated 1st March, 1971, by which the Appellant purchased the acquired land. He pointed out the evidence of the witness examined by the Appellant in which there is a reference to the said Conveyance. He pointed out the observations made in the impugned Award which record that the land was a leasehold land. He submitted that the Award under Section 11 accepts that the Appellant was the owner of the acquired land and, therefore, it was not open for the Respondent to raise a contention in the -4- reference under Section 18 of the said Act that the Appellant is not the owner. He submitted that the Misc. Civil Application no. 511/2006 has to be allowed as the issue regarding title was not framed while deciding reference under Section 18 of the said Act and, therefore, there was no occasion for the Appellant to file the said document on record. 6. The learned Advocate General supported the impugned Judgment and Award. He pointed out that no evidence has been adduced by the Appellant to show that the land subject matter of Land Acquisition Case no. 294/1991, was comparable to the acquired land. He submitted that, even assuming that the said land is comparable, there is no document to show as to what was the area of the land subject matter of Land Acquisition Case no. 294/1991. He, therefore, submitted that the sale instance of the Award in the said Land Acquisition Case cannot be taken into consideration. He submitted that the Reference Court was entitled to decide the issue of title of the Appellant and hold that the Appellant had only leasehold rights. He, therefore, submitted that no interference is called for with the impugned Award. 7. We have considered the submissions. The first issue is regarding the title of the Appellant. It is well settled that an Award under Section 11 of the said Act is nothing but an offer by the State. It is for the Claimant, whose property has been acquired, either to accept the offer or not to accept it. However, the State is bound by the contents of the Award under Section 11 of the said Act. The Award in the present case proceeds on the footing that the Appellant is the owner of the acquired land. Therefore, the Respondents were estopped from raising a -5- contention before Reference Court that the Appellant was not the owner. Had it been a case where the Land Acquisition Officer had not accepted the title of the Appellant, the issue regarding title of the Claimant was certainly required to be decided by the Reference Court. In the present case, by Award under Section 11 of the said Act, the Respondents accepted the ownership of the Appellant. Therefore, it was not open for the Reference Court, in the facts of the case, to go in to the question of right of ownership claimed by the Appellant. The learned Counsel appearing for the Appellant has placed reliance on the decision of the Apex Court in the case of Ahad Brothers vs. State of M. P. & anr. ((2005) 1 S.C.C. 545). What has been held by the Apex Court in the said case is that the State was not entitled to challenge the ownership of the Claimant. In the facts of the present case, we hold that the Respondents were not entitled to contend that the claimant was not the owner but was holding only lease hold rights and, therefore, the issue of ownership rights of the Appellant did not arise in the reference. However, for different reasons, we are passing an Order of remand and, therefore, we permit the Appellant to produce the Sale Deed before the Reference Court. 8. The second issue is regarding the question of quantum of compensation. Only two sale instances are relied upon by the Appellant. The first is of Sale Deed dated 10th January, 2001 (exhibit 17), which relates to an area of only 289 square metres. The second is of auction sale dated 17th November 1998 (exhibit 19), which related to a plot admeasuring 297 square metres. In the present case, the area of the acquired land is more than 166000 square metres. The sale instance at exhibit 17 is relating to a very small area of 289 square metres which is -6- a sub-divided developed plot having road and all other facilities. There was a structure in existence on the said land. Considering the fact that the sale instance relates to a very small area, the Reference Court was justified in rejecting the same. 9. As far as sale instance at exhibit 19 of the auction sale dated 17th November, 1998, is concerned, there is a substance in the contention of the learned Counsel appearing for the Appellant that as an absolute proposition, it cannot be said that the price fetched in an auction of immoveable property will not depict the market value of the property. However, we find that even the said sale instance is of a very small developed plot admeasuring 297 square metres. Only on this ground, the Reference Court was justified in rejecting the said sale instance and we find no error in that behalf. 10. The last submission is based on permission granted to the Appellant to produce a copy of Judgment and Award in Land Acquisition Case no. 294/1991. The land subject matter of the said Award was found by the Land Acquisition Officer as comparable to the acquired land in the present case. In the circumstances, the said piece of evidence will have to be considered for determining the market value. However, we find that area of the land subject matter of the land in Land Acquisition Case no. 294/1991, is not on record. The Award shows that it was acquisition for road widening. Area of the land subject matter of the sale instance is very relevant for determining the market value of the acquired land inasmuch as if it relates to a smaller area, while determining the market value on the basis of the said Award, appropriate deduction will have to be -7- made. Moreover, the date of publication of notification under Section 4 of the said Act, is 15th November, 1984. The Appellant will have to lead evidence as regards alleged escalation of the prices of the immoveable properties in the area from the date on which notification under Section 4 was published in the year 1984. Therefore, in this Appeal, on the basis of the said Award, no finding can be recorded as regards the market value of the acquired land. By the impugned Judgment and Award, the reference has been answered in the negative. The Award in Land Acquisition Case no. 294/1991 was considered by the Land Acquisition Officer while making an Award under Section 11 of the Act. We are of the view that an opportunity deserves to be granted to both the parties to lead further evidence on the basis of the Award in Land Acquisition Case no. 294/1991. The Appellant will have to bring on record the area of the acquired land subject matter of the said acquisition case and its other features, which may be relevant on the aspect of comparability. Only for the said purpose, we propose to pass an Order of remand. We are also permitting the Appellant to place on record a certified copy of the Conveyance under which the Appellant purchased the property. However, we make it clear that after remand, issue of title will not be open and the Reference Court will have to proceed on the footing that the Appellant is the owner of the acquired land. 11. Hence, we dispose of the Appeal by passing the following Order : ORDER (i) The impugned Judgment and Award dated 27th March 2006, is quashed and set aside. The Land Acquisition Case no. 49/2004, is restored to the file of the learned Addl. District Judge, South Goa, at -8- Margao. (ii) The parties are directed to appear before the learned Trial Judge on Monday i.e. 27th July 2010, at 2.30 p.m. (iii) The Reference Court shall permit the Appellant to place on record a certified copy of the Award passed in Land Acquisition Case no. 294/1991. The learned Judge will permit the parties to adduce evidence confined to the said Award in the Land Acquisition Case no. 294/1991. (iv) Misc. Civil Application no. 511/2006 is allowed and the Appellant is permitted to place on record the Conveyance dated 1st March 1971. (v) After permitting the parties to adduce evidence as aforesaid, the Reference Court shall decide the reference afresh in the light of the observations made by this Court in this Judgment. (vi) The Reference Court shall endeavour to conclude the hearing before the end of March, 2011. A. S. OKA, J. F. M. REIS, J. arp/*