:1: IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 25 OF 2000 Shri Mahesh Dattaram Kuvelkar, major, resident of Toleband, Loutulim, Salcete Goa. ... Appellant V e r s u s 1. Special Land Acquisition Officer (SIP), Gogol, Margao. 2. State of Goa, through the Chief Secretary, Secretariat, Panaji Goa. ... Respondents AND FIRST APPEAL NO. 34 OF 2000 Shri Jose Avelino Fortunato Menezes, major, resident of Vaxem, Loutulim, Salcete Goa ( deceased ) through his LRs (a) Santana de Fortunato Menezes, married, major in age, r/o H.No.883/A, Vanxen Loutolim, Salcete Goa. ... Appellant V e r s u s 1. State of Goa, through the Chief Secretary, Secretariat, Panaji Goa. :2: 2. The Special Land Acquisition Officer, (SIP), Gogol, Margao Goa. ... Respondents Mr. V. A. Lawande, Advocate for the Appellant. Mr. G. Shirodkar, Government Advocate for the Respondents. CORAM: R. M. SAVANT, J. Dated: 2nd March, 2010. ORAL JUDGMENT: 1. The above Appeals are filed challenging the Judgment and Award of the Reference Court dated 7.12.1998 in reference applications under Section 28-A of the Land Acquisition Act. The said applications were numbered as LAC Nos. 151/93 and 152/93. In both the aforesaid LAC's reliance was placed on the Award of the reference Court in LAC No.387 of 81, involving a land covered by the same notification. The above Appeals also involve common facts as reliance was sought to be placed in LAC No.152 of 93 on the Award passed in LAC No.151 of 93. They are therefore heard and dealt with together. :3: 2. The lands of the Appellants abovenamed were notified under Section 4(1) of the Land Acquisition Act on 17.11.1971 and were part of the total land admeasuring 23,44,750 square metres of Salaulim Village, which were to be acquired for the Salaulim Irrigation project. The lands of the Appellant in FA No.25 of 2000 which were acquired were plot No. 36 admeasuring 89500 square metres and plot No.49-A admeasuring 1600 square metres. The lands of the Appellant in First Appeal No. 34 of 2000 were out of the larger area of 14,36,456 square metres of Kurdi Village being plot no.360 admeasuring 1,37,400 square metres, Plot No. 364 admeasuring 3800 square metres, plot No.366 admeasuring 3000 square metres and plot No.367 admeasuring 2600 square metres. However, the application under Section 28A was only in respect of plot Nos. 360 and 365. Though each of the Appellants abovenamed had received the compensation under protest, they did not file any application for reference under Section 18 of the Land Acquisition Act. The land of one Shri Narendra Nadkarni was also notified along with the lands of the Appellants abovenamed and in respect of which land and the lands of the Appellants the Award was common. The said Shri Narendra Nadkarni had filed a reference application under Section 18 of the Land Acquisition Act, which :4: gave rise to Land Acquisition Case No. 387 of 1981 in which reference application the learned District Judge enhanced the market rate of land and trees as under :- 1. Bharad land ... .... Rs. 1.00 per sq.mt. 2. Coconut land ... .... Rs. 1.00 per sq.mt. 3. Paddy land ... .... Rs. 4.00 per sq.mt. 4. Coconut tree ... .... Rs.250.00 per tree. 5. Non-yielding sapplings ... ... Rs.100.00 per tree 6. Jackfruit tree ... ... Rs.800.00 per tree It is on the basis of the Award in Narendra Nadkarni's case by the Reference Court that the Appellants abovenamed claimed re-determination of the amount of compensation awarded to them by invoking Section 28-A of the said Act. In so far as the Appellant in First Appeal No.25/2000 is concerned, the application for re-determination of compensation under Section 28-A came to be numbered as LAC No. SLAO/SIP/21-II/7/91-92. In the said case an Award came to be passed and the SLAO had awarded the market rate of Rs.1/- per sq.mt. for the entire acquired land of plot Nos. 36 and 49-A, Rs.250/- each for 90 coconut trees and :5: Rs.800/- for one jackfruit tree. The SLAO also granted 30% solatium charges on the total of the above compensation granted under Section 28-A as also 9% interest for first year and 15% interest for subsequent period on the said sum total. In so far as the Appellant in First Appeal No. 34/2000 is concerned, he was awarded market rate of Rs.1/- per square metre for the entire acquired land of plot No.360 and Rs.4/- per square metre for plot Nos. 364, 366 and 367 and Rs.250/- each for 120 coconut trees, Rs.100/- each for 101 coconut plants and Rs.800/- each for five jackfruit trees. The statutory compensation awarded was the same as in First Appeal No.25/2000. Being dissatisfied with the Award passed by the SLAO under Section 28-A, the Appellants abovenamed made an application under Section 28-A (3) of the said Act which gave rise to the present reference cases being LAC Nos.151/93 and 152/93. In so far as the Appellant in First Appeal No.25/2000 is concerned, the Appellant claimed compensation for an area of 99,440 square metres for which area according to the Appellant he has not been compensated as compensation has been paid by the SLAO only for an area of 91,100 square metres. He claimed the rate of Rs.6/- per square metre for the entire area of 99,440 square metres. The Appellant further claimed an amount of :6: Rs.1000/- for each of his 16 mango trees, Rs.150/- for each of his 377 cashew trees, and Rs.1000/- for each of his 17 guava trees. He further claimed an amount of Rs.8000/- as forest value. The Appellant in FA No.34/2000 claimed an amount of Rs.1000/- for each of his four mango trees and Rs.150/- each towards fruit value of his 319 cashew trees. Both the Appellants also claimed 30% solatium on the value of the trees awarded under Section 28-A at Rs.23,300/-, interest at 9% from 23.2.1974 to 22.2.1975 and at the rate of 15% from 23.2.1975 to 10.7.1992. In addition to the above, both the Appellants also claimed 12% additional amount on market value of the land under Section 23(1-A) of the Land Acquisition Act, from the date of Section 4 Notification till the date of the original Award. 3. The Reference Court in LAC No.151/93 framed the following issues for consideration : 1. Whether the Applicant proves that the compensation paid by the SLAO of SIP is for an area which is 8.340 sq.mts. less than the area occupied by the acquiring Department and that he is entitled to compensation for 8.340 sq.mts. ? :7: 2. Whether the Applicant proves that the market value of the land occupied by the acquiring department, as on the date of Notification u/s 4 of the L.A. Act, was Rs.6/- per sq.mt. ? 3. Whether the Applicant proves that the value of the mango trees was Rs.1000/- each, of cashew trees Rs.150/- each and of guava trees Rs.1000/- each as on the date of Notification u/s 4 of the L.A. Act ? 4. Whether the Applicant proves that he is entitled to claim Rs.8000/- as Forest value for 90 coconut trees, 16 mango trees, 377 cashew trees, 17 guava trees and for other forest produce, as on the date of Notification u/s 4 of the L.A. Act ? 5. Whether the Applicant proves that he is entitled for 15% more of solatium charges as the same was increased to 30% under Amendment of 1984 to the Land Acquisition Act, 1894 ? 6. Whether the Applicant proves that he is entitled to an amount of Rs.25,851.51 as solatium charges for coconut and jackfruit trees and 9% interest from 23.2.1974 to 22.2.1975 and 15% interest from 23.2.1975 to 10.7.1992 ? 7. Whether the Applicant proves that he is entitled to 12% additional amount on market value of land under Section 23(1- A) from the date of Notification u/s 4 till the date of original Award ? :8: The said issues were answered against the Appellant abovenamed. 4. In LAC No.152 of 93 apart from making a claim on account of the “forest value” of his four mango trees and Rs.150/- each of his 319 cashew trees and Rs.19020/- on account of “fruit value” the Applicant also sought compensation on account of the nalla existing in plot No.360. The Reference Court had therefore framed issues accordingly in the said LAC. The said issues were answered against the Applicant in LAC No.152 of 93 i.e. the Appellant in Appeal No.34 of 2000. 5. In so far as discrepancy in the area is concerned which is an issue arising only in First Appeal No. 25/2000. The Reference Court on the basis of the evidence that was on record which was in the nature of revenue entries held that it is quite possible that the alleged area of 8340 square metres which the Appellant claimed to have been acquired but not compensated for might have gone in plot No.49 or other adjoining acquired land for which the compensation might have been paid to others. The Reference Court was of the view that the Appellant in the said First Appeal :9: No.25/2000 ought to have raised a dispute under Section 30 of the said Act, by objecting to the payment of the compensation which might have been given to some other person. The Reference Court placed reliance on the facts that the said plot Nos. 36 and 49 were verified on the spot by the SLAO and that area of 1600 square metres in plot No.49 is owned by Shri Dattaram Kuvelkar, the owner of the adjoining plot No.36 and that the said area of 1600 square metres was separated from plot No.49 and shown as plot No.49-A in the revised survey report. It is on the basis of the said fact that the Reference Court held that it is possible that the area of 8340 square metres might have gone in some other land and the compensation might have been paid to others. In so far as the market value of the land is concerned since the Reference Court under Section 28-A was sought on the basis of the Award of the Reference Court in Narendra Atmaram Sinai Nadkarni's case being LAC No.387 of 1981, the Reference Court was of the view that it would have to restrict itself to the re-determination of the compensation on the basis of the amount of compensation awarded by the Reference Court in the said LAC No.387 of 1981 and that there could not be a question of measurement of the acquired land etc. on the basis of the said Award in LAC No.387 of 1981 since :10: there were no basis for the same in the said Award. In my view considering the evidence which is on record and considering the well settled position in law in so far as Section 28-A of the Land Acquisition Act is concerned the findings of the Reference Court in both the LAC's on that aspect cannot be faulted with. 6. Be that as it may, in so far as the enhancement sought by the Appellants is concerned the Reference Court considered the claim of the Appellants but rejected the said claim on the ground that the evidence produced by the Appellants by way of Sale Deeds at Exhibit AW1/D and Exhibit AW1/E could not be taken as acceptable evidence since neither the vendees nor the vendors were examined and since the re-determination of the compensation would have to be within the parameters of the Award in LAC No.387/81. The Reference Court also rejected the evidence sought to be adduced by the Appellant in First Appeal No.25/2000 of Shri P. G. Navelkar, the retired Director of Agriculture, as valuation report prepared by him on 23.7.1997 was not on the basis of any site visit but purely on the basis of information given by the Appellant and on the basis of some report of the agricultural expert Shri Salelkar. The said valuation report the Reference Court :11: found was dehors the Award of the Reference Court in LAC No.387/81. The Reference Court therefore did not find it fit to rely upon the evidence of the said AW2 Shri P. G. Navelkar for re- determination of the market value of the acquired land in question. In the same way the evidence of AW3 Shri Avdoot Salelkar who is an agricultural land valuer has also been rejected as he has prepared a report after about 26 years of the acquisition and secondly his conclusion as contained in the report was based on the original Award of the SLAO under Section 11 of the Land Acquisition Act, without taking into consideration the Award under Section 28-A of the said Act. On similar lines the Reference Court refused enhancement to the Appellant in FA No.34 of 2000 over and above the rates fixed in LAC No.387 of 81. The Reference Court also rejected the claim for compensation on account of the alleged nalla in plot No.360. The Reference Court has considered the aspect as to whether the Appellants abovenamed were granted enhanced compensation for the lands in terms of Award in LAC No.387/81 on the basis of which Award they had filed the application under Section 28-A of the said Act. The Reference Court has recorded a finding that the Appellants abovenamed have been granted compensation as per the maximum awarded by the :12: SLAO in LAC No.387/81. 7. In so far as the trees are concerned, the Appellant in First Appeal No.25/2000 did not raise any dispute as regards the compensation awarded in respect of the coconut trees and jack fruit trees awarded by the SLAO but raised a dispute only as regards the mango trees for which he claimed Rs.1000/- each for 16 mango trees and also Rs.1000/- each for his 17 guava trees and Rs.150/- each for his 377 cashew trees and he also claimed compensation for forest value for all the trees at Rs.8000/-. The Reference Court considered the evidence in that regard. In so far as the Appellant is concerned it would be significant to note that he has not deposed as regards the various kind of trees, their sizes, yield and income per year. In so far as evidence of Navelkar and Salelkar are concerned, Shri P. G. Navelkar is an agricultural expert and Shri Avdoot Salelkar is an agriculturist. Their evidence in respect of the trees was rejected on the ground that Navelkar submitted his report in 1997 when there were no trees in existence and obviously therefore he could not have personal knowledge of the quality, sizes and yield of the trees. For the said purpose he purely relied upon the Appellant. In so far as Salelkar is :13: concerned, he also admitted that he had not seen the trees or he did not know the sizes and yield of the same. The Reference Court was of the view that their evidence therefore could not be relied upon. The Reference Court therefore reached a conclusion that there was absolutely no material on record to re-determine the value of the mango trees, cashew trees and guava trees of the Appellant, on the basis of the valuation of coconut trees and jack fruit trees made by the learned SLAO in the Award in LAC No.387/81. In view of the fact that in Award No. 387/81 the Reference Court had not separately valued the “fruit value” and “timber value” of the trees but has fixed a consolidated value for each kind of trees existing in the land concerned in that case and therefore there was no question of the Reference Court re- determining the fruit value and timber value separately in the instant references. The Reference Court has therefore rejected the claim of the Appellant in FA No.34 of 2000 for separate “fruit value” and “forest value”. Considering the Award in LAC No.387 of 81 and the amounts awarded for trees therein, and considering the evidence on record, in my view the reasoning of the Reference Court cannot be found fault with. :14: 8. In so far as the claim for statutory allowance under Sections 23(2) and 23(1-A) are concerned the Reference Court recorded a finding that the solatium charges at the rate of 30% on the re-determination of the market value of the land as well as the trees were in fact awarded to the Appellants. The interest at the rate of 9% from 23.2.1974 to 22.2.1975 and further interest at the rate of 15% from 23.2.1975 to 10.7.1992 has been awarded to the Appellants on the enhanced value. The Reference Court therefore recorded a finding that the Appellants have been awarded statutory benefits of amended Sections 23(2) and 28 of the Land Acquisition Act. The finding of the Reference Court on the said aspect therefore cannot be faulted with. In so far as the statutory allowance under Section 23(1-A) of the Land Acquisition Act, is concerned since the Award under Section 11 of the Land Acquisition Act, in the present cases was made on 22.2.1974 i.e. before the cut -off date of 30.4.1982, the Reference Court was of the view that the Appellants could not be entitled to the benefit of 12% additional amount on the market value under Section 23(1-A) of the Land Acquisition Act. This was in terms of statutory mandate as contained in said Section 23-A. :15: The aforesaid payment of statutory allowances is also not disputed by the learned Counsel for the Appellants. 9. It is sought to be contended on behalf of the Appellants that the Reference Court was bound to re-determine the compensation on the basis of the evidence that was adduced before it and could not restrict itself to the re-determination of the compensation in terms of the parameters of the Award in LAC No.387/81. As can be seen from the facts as narrated above, the Reference Court has considered the evidence which was adduced on behalf of the Appellants abovenamed in their pursuit of seeking enhanced compensation albeit under Section 28-A of the Land Acquisition Act. The Reference Court on the consideration of the said evidence has come to a conclusion that the Appellants would not be entitled to the said enhanced compensation and has therefore not merely concluded the Appellants by holding that the re-determination could be only on the basis of the Award in LAC No. 387/81. There is therefore no merit in the said contention advanced on behalf of the Appellants abovenamed. Considering the mandate of Section 28-A of the Land Acquisition Act, the Reference Court has recorded its findings on each of the aforesaid :16: issues and has accordingly rejected the claim made by the Appellants. In my view, the findings of the Reference Court in the impugned Judgment and Award in both the above Appeals cannot be faulted with. There is therefore no merit in the above Appeals which are accordingly dismissed. R. M. SAVANT, J. at*