- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 140 OF 2004 & 141 OF 2004. FIRST APPEAL NO. 140 OF 2004. Smt. Regina Gracias, (Since deceased) now represented by her legal representatives: 1 Smt. Felicidade Perpetua Cleta Gracias, widow of Francisco Carvalho(since deceased) 1a Mr. Xavier Eltono A. Gracias son of the Appellant no.1, and his wife; 1b Mrs. Maria Ernestine Gracias 1c Mr. Elito M. Gracias, son of the Appellant no.1, and his wife; 1d Mrs. Angelica Joan Gracias, All residents of Chaudi, Canacona, Goa. 2 Mrs. Fortuna Vidalia Gracias, wife of Mr. Luis Gracias, Both residents of Chaudi, Canacona, Goa. .......... Appellants. Versus - 2 - 1 Deputy Collector( L.A.) Margao, Goa. 2 The Director of Transport, Panaji, Goa. .......... Respondents. Mr. Sudin Usgaonkar, Advocate for the Appellants. Mr. S. Vahidulla, Government Advocate for the respondents. AND FIRST APPEAL NO. 141 OF 2004. Mr. Isidore Gracias, (since deceased through L.R.'s), resident of Chaudi, Canacona, Goa. a Shri Isito Minguel Jhon Gracias, son of Mr. Isidorio H. Gracias, aged 45 years. b Mrs. Herma Josefa Gracias, daughter of Mr. Isidorio H. Gracias, aged 40 years, married. c Mr. Godfrey Correia, husband of Mrs. Herma Josefa Gracias, aged 53 years, d Ms. Serafina Alba Gracias, daughter of Mr. Isidorio H. Gracias, aged 38 years. e Ms. Benisha Gracias, daughter of Mr. Isidorio H. - 3 - Gracias, aged 30 years. All residing at Chaudi, Canacona, Goa. .......... Appellants. Versus 1 Deputy Collector(L.A.), Margao Goa. 2 The Director of Transport, Panaji Goa. .......... Respondents. Mr. Sudin Usgaonkar, Advocate for the Appellants. Ms. S. Linhares, Additional Government Advocate for the Respondents. Coram:-F. M. REIS, J. Date:- 16th September, 2010. ORAL JUDGMENT Both the above appeals have been heard together as both challenges the common judgment dated 5th March, 2004 passed by the learned District Judge, South Goa Margao, disposing Land Acquisition case nos. 106/1999 and 107/1999. 2. By notification issued under section 4 of the Land Acquisition Act ( hereinafter referred to as the “said Act”) published in the Extra-ordinary Official Gazette dated 6th September, 1996, Respondents acquired land admeasuring 9616sq.mts for the purpose - 4 - of construction of a bus stand at Chaudi Canacona. The area involved in First Appeal no. 140/2004 is 1320 square metres from the property surveyed under no.176/8 and the area involved in the First Appeal no. 141/2004 is 594 square metres from the property surveyed under no. 176/5.By an Award passed under section 11 of the said Act, the Land Acquisition Officer awarded compensation at the rate of Rs. 7/- per square metre. 3. Being dissatisfied with the said amount offered by the Land Acquisition Officer, the Appellants preferred a reference for enhancement of the compensation under section 18 of the said Act and claimed compensation at the rate of Rs.500/- per square metre. 4. By Judgment and Award dated 5th March, 2004, the learned Reference Court rejected the said reference filed by the Appellants. 5. Being aggrieved by the said Judgment and Award, the Appellants have preferred the present appeals. 6. Mr. Sudin Usgaonkar, learned Counsel appearing for the - 5 - Appellants has assailed the impugned Judgment and submitted that the Reference Court has totally misdirected itself in discarding the sale instance produced by the Appellants and came to erroneous conclusion that the land acquired could be used only as a paddy field. The learned Counsel took me through the document at exhibit 22 and pointed out that Chief Town Planner has agreed to change the use of zone from Cultivable zone to settlement zone. Learned Counsel further submitted that the acquisition in the present case was in the year 1996 which is subsequent to the decision at the said meeting and as such the Reference Court was not justified to come to the conclusion that the land was not coming within the said zone. The learned Counsel further took me through the impugned Judgment and pointed out that though the Reference Court has come to the conclusion that the land acquired was coming within the settlement zone, nevertheless the learned Judge has erroneously gone on the footing that the acquired land could be used only as a paddy field. The learned Counsel also pointed out that the sale deed dated 30th June, 1994 produced by the Appellants is a comparable sale instance as it is located at a distance of 300 metres from the acquired land. The learned Counsel further submitted that the Appellants have also produced sale deeds which are dated 25th September, 1985 and 30th - 6 - January, 1992 which are also in the vicinity of the acquired land. The learned Counsel further pointed out from the evidence of the expert, that the said witness Shri Dessai had stated in his report that the subject matter of the sale deed dated 30th June,1994 was at a distance of 300 metres from the acquired land. The learned Counsel has pointed out that the Reference Court has not at all appreciated the evidence in accordance with the well settled principles of law and as such the impugned Judgment deserves to be quashed and set aside and the reference filed by the Appellants for enhancement of the compensation be allowed. 7. On the other hand Mr. S. Vahidulla, learned Government Advocate and Ms. S. Linhares, learned Additional Government Advocate appearing for the Respondents have supported the impugned Judgment. Learned Counsel pointed out that on perusal of the impugned judgment the Reference Court has rightly come to the conclusion that the land acquired was not coming within the settlement zone. Learned Counsel further pointed out that there is no evidence of comparability between the land acquired and the sale instance. Learned Counsel took me through the impugned Judgment and submitted that the Reference Court has minutely appreciated the - 7 - evidence on record and came to the conclusion that the Appellants have failed to discharge the burden cast on them to establish that the amount offered by the Land Acquisition Officer in the Award under section 11 of the said Act was inadequate. Learned Counsel as such submitted that there is no infirmity committed by the Reference Court and as such the appeals deserve to be dismissed. 8. Upon hearing the learned Counsels and on perusal of the records, the following point for determination arise in the present appeal:- POINT FOR DETERMINATION Whether the Reference Court was justified to reject the references under section 18 of the Act filed by the Appellants? 9. On perusal of the letter from the Chief Town Planner at Exhibit 22 dated 23th April, 1996, he states that at the meeting held in the year 1994 the land which was subject matter of the said acquisition was agreed to be converted into settlement zone in the meeting of the Board of Town and Country Planning held on 2nd June, 1994. The notification under section 4 in the present case was published in the Official Gazette on 6th September, 1996 which is - 8 - subsequent to the said Board resolution. As such the Reference Court was not justified to come to the conclusion that the acquired land could be used only as a paddy field as the same was in cultivable zone. On the contrary the evidence on record suggest that as on the date of section 4 notification, there was a Board resolution to the effect that the acquired land was coming within the settlement zone. The Reference Court has rejected the sale deed dated 30th June, 1994 on the assumption that the sale deed plot therein is not comparable with the land acquired as the acquired land was in cultivable zone. The evidence on record discloses that the sale deed plot is at a distance of 300 metres from the acquired land. The expert examined by the Appellants has stated in his report the similarity or otherwise of the sale deed plot with the land acquired. This aspect has not been considered by the Reference Court while passing the impugned judgment. No doubt the Appellants have not produced necessary evidence to show that the nature and the comparability of the acquired land vis-a-vis sale deed plot for this Court to determine the market value of the land as on the date of section 4 notification. 10. The Apex Court in the Judgment reported in 2009(9) SCC 289, in the case of Attar Singh Versus Union of India has held - 9 - at paras 9 and 10 thus:- 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 Gujarat1 i.e.: (SCC p.797, para 20) “ Positive Factors Negative Factors (i) smallness of size (i) largeness of area (ii) proximity to a raod (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 level requiring the depressed portion to be filled up (v) regular shape (v) remoteness from developed locality (vi) level vis-a-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.” - 10 - 10. This Court in Union of India v. Pramod Gupta2 on the question of determination of market value opined: (SCC p. 21, paras 24-26) “24. While determining the amount of compensation payable in respect of the lands acquired by the State, the market value therefor indisputably has to be ascertained. There exist different modes therefor. 25. The best method, as is well known, would be the amount which a willing purchaser would pay to the owner of the land. In absence of any direct evidence, the court, however, may take recourse to various other known methods. Evidences admissible therefor inter alia would be judgments and awards passed in respect of acquisitions of lands made in the same village and/or neighbouring villages. Such a judgment and award, in the absence of any other evidence like the deed of sale, report of the expert and other relevant evidence would have only evidentiary value. 26. Therefore, the contention that as the Union of India was a party to the said awards would not by itself be a ground to invoke the principles of res judicata and/or estoppel. Despite such awards it may be open to the Union of India to question the entitlement of - 11 - the respondent claimants to the amount of compensation and/or the statutory limitations in respect thereof. It would also be open to it to raise other contentions relying on or on the basis of other materials brought on record. It was also open to the appellant to contend that the lands under acquisition are not similar to the lands in respect whereof judgments have been delivered. The area of the land, the nature thereof, advantages and disadvantages occurring therein amongst others would be relevant factors for determining the actual market value of the property although such judgments/awards, if duly brought on record, as stated hereinbefore, would be admissible in evidence.” 11. The Apex Court in the Judgment reported in the case of Lal Chand Vs. Union of India, 2009(15) SCC 769 and another has held at paras 70,71, 73, 74 and 75 thus:- 70. The evidence to reject an exemplar sale deed as not relevant, may be either extrinsic or intrinsic. The statement of a witness describing the advantageous or disadvantageous features of the land which is the subject-matter of such document will be extrinsic evidence. An absurdly low or high freakish value when compared to the prevailing - 12 - price disclosed by other contemporaneous transactions may also be an extrinsic evidence. Where the sale deed recites the financial difficulties of the vendor and the urgent need to find money as reasons for the sale, that will be an intrinsic evidence of a distress sale. 71. Therefore, though a certified copy of a sale deed may be received in evidence and exhibited even without examining the vendor and vendee, and accepted as proof of the transaction to which it relates, the courts have the discretion to rely upon it or reject it as unreliable or unacceptable for reasons to be recorded. But a word of caution. What Narasaiah11 and Cement Corpn. of India3 clarified was that a certified copy of a sale deed could be marked as an exhibit and its contents may be relied upon as evidence of the sale transaction, even without examining either the vendor or the vendee, in view of the enabling provision in Section 51 of the LA Act. 73. It cannot be said that merely because two properties adjoin each other or touch each other the value applicable to the property facing a main road, should be applied to the property to its rear facing a service road. Therefore, while a distance of about a kilometre may not make a difference for the purposes of market value in a rural village, even a distance of 50 metres may make a huge - 13 - difference in market value in urban properties. 74. There would be lesser likelihood of rejection of a sale deed exhibited to prove the market value, if some witness speaks about the property which is the subject-matter of the exemplar sale deed and explains its situation, potential, as also about the similarities or dissimilarities with the acquired land. The distance between the two properties, the nature and situation of the property, proximity to the village or a road and several other factors may all be relevant in determining the market value. 75. Mere production of some exemplar deeds without “connecting” the subject-matter of the instrument, to the acquired lands will be of little assistance in determining the market value. Section 51-A of the LA Act only exempts the production of the original sale deed and examination of the vendor or vendee. 12. As such, on perusal of the evidence on record, I find that, there is no evidence expected to be produced by the Appellants to establish the comparability of the land acquired with the said sale deed plot in accordance with the said Judgment of the Apex Court. In the interest of Justice, as such, I find that, it would be appropriate that the Appellants be allowed to adduce such evidence so as to enable the Court to ascertain as to whether the sale instance produced by the - 14 - Appellants are comparable with the land acquired. For such purpose the matter is to be remitted to the Reference Court to decide the reference filed by the Appellants a fresh after giving an opportunity to both the parties to lead further evidence and to be heard in the matter. Only if such evidence is adduced in the light of the observation made herein above, the Reference Court would be in a position to determine the market value of the acquired land as on the date of section 4 notification. Point for determination is answered accordingly. 13. In view of the above, I pass the following O R D E R i. The Appeals are partly allowed. Impugned Judgment and Award dated 5th March, 2004 Land Acquisition case nos. 106/1999 and 107/1999 is quashed and set aside. ii. The reference in Land Acquisition Case nos. 106/1999 and 107/1999 is restored to the file of the Reference Court. iii. The Reference Court is directed to decide the said references afresh after giving an - 15 - opportunity to the Appellants to lead further evidence in the light of the observations made herein in above. Needless to say that the Respondents would be entitled to adduce evidence in rebuttal. After evidence is recorded the Reference Court shall pass a fresh decision in accordance with law. iv. The Appeals stand disposed of accordingly with no Order as to Costs. v. Parties are directed to appear before the Reference Court on 25.10.2010 at 10.00a.m. and abide by further directions. F. M. REIS, J. vn*