First appeal no. 219 of 2006 1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 219 OF 2006 1. Deputy Collector(L.A.) Margao. 2. The Executive Engineer, Works Division XIV(NH), P.W.D., Fatorda, Margao, Goa. ... Appellants versus 1. Mrs. Ana Maria Moraes. 2. Mr. Armando Rosario Ornelas Moraes, alias Armando Ornelas Rosario Moraes, both r/o Garden Cottage, Rua Bernando Road, Margao, Goa. ... Respondents Shri M. Salkar, Government Advocate for the Appellants. CORAM : F. M. REIS, J. DATE : 22ND JULY, 2011. First appeal no. 219 of 2006 2 ORAL JUDGMENT The above appeal challenges the Judgment and Award dated 28-4-2006 passed by the learned Additional District Judge, South Goa, Margao in Land Acquisition Case No.126 of 2000. 2. Pursuant to a notification under Section 4 of the Land Acquisition Act, 1894(hereinafter referred to as the said Act) dated 9-3-1992 published in the Official Gazette on 6-8-1992, various lands were acquired for the re-alignment of the National Highway No.17 in various villages including Village Nuvem. Amongst the lands acquired, an area of 178 sq. meters from the property surveyed under No.291/24 and an area of 1160 sq. meters from the property surveyed under No.291/25 situated in Nuvem village were intended to be acquired. The Land Acquisition Officer by an award dated 31-5-1996 offered a compensation for the land acquired at the rate of Rs.30/- per sq. meter. Being dissatisfied with the said amount, the respondents herein sought a reference under Section 18 of the said Act for enhancement of compensation and claimed Rs.150/- per sq. meter for the land acquired. By the impugned Judgment and Award dated 28-4-2006, the learned First appeal no. 219 of 2006 3 Reference Court partly allowed the said reference and fixed the compensation for the land acquired at the rate of Rs.117/- per sq. meter. Being aggrieved by the said Judgment, the Appellants have preferred the above appeal. 3. Shri M. Salkar, learned Government Advocate appearing for the Appellants has assailed the impugned Judgment and pointed out that the Reference Court has totally lost sight of the fact that the land acquired which was subject matter of the property surveyed under No.291/25 was occupied substantially by mundkars and as such the question of fixing the compensation as ordered by the Reference Court is not justified. Learned Government Advocate has further submitted that the Reference Court has relied upon an award passed in another acquisition in Verna village which is not the village where the land acquired was located. Learned Government Advocate has further pointed out that it was the contention of the Appellants that the said award had not become final and as such, the question of relying upon the said award would not arise. Learned Government Advocate has taken me through the impugned Judgment and pointed out that there are First appeal no. 219 of 2006 4 admissions on the part of the Respondents to the effect that the land which was in acquisition is not suitable for any development and consequently the question of fixing the compensation at Rs.117/- per sq. meter is not at all justified. Learned Government Advocate further submitted that there is no evidence on record adduced by the Appellants to establish the comparability of the land acquired with the land in the sale instance and as such the burden cast on the Respondents that the amount offered is inadequate has not been discharged. Learned Government Advocate as such submitted that the appeal deserves to be allowed and the impugned Judgment be set aside. The Respondents though served have failed to remain present. 4. Having heard the learned Counsel and on perusal of the record, the following point for determination arises in the present appeal:- Whether the Reference Court was justified to fix the compensation at the rate of Rs.117/- per sq. meter? First appeal no. 219 of 2006 5 5. On perusal of the impugned Judgment, I find that the Reference Court whilst determining the market value has come to the conclusion that the award passed by the learned District Judge by Judgment and Award dated 15-12-1999 passed in Land Acquisition Case No.131 of 1995 and by Judgment and Award dated 30-9-2004 passed in Land Acquisition Case No.152 of 1996 can form the basis for determining the market value of the acquired land. The learned Judge has further found that in that acquisition the subject matter of the land acquired is surveyed under No.227/1 and that both the lands were in the settlement zone with residential houses around both the lands. The learned Judge has found that the land acquired therein is at a distance of 3 kms. from the land acquired. The learned Judge has further considered the valuation report of the valuer and the acquisition plan at Exh.20 and has given a deduction of 50% on account of the dissimilarities with the acquired lands. The learned Judge has further deducted 20% considering that there were mundkarial houses in the land belonging to the Respondents and fixed the compensation at the rate of Rs.117/- per sq. meter. First appeal no. 219 of 2006 6 6. Considering the evidence on record when no instances are available in the proximity of the land acquired, there is no bar to consider an award passed in another proceeding as the basis for determining the market value of the acquired land in the present case subject to ascertaining the similarities. There is no dispute that the village Nuvem and the village Verna are adjoining one another. Nuvem village is closer to the commercial city of Margao while Verna village is at a further distance. The Reference Court has also considered the fact that the acquired land which was subject matter in the earlier proceedings were surveyed under No.227/1 at Verna were abutting the same national highway and the nature of both the lands is the same. In such circumstances, as no other sale instances were available for the purpose of determining the market value of the acquired land, I find that there is no bar for the Reference Court to rely upon such instances of the neighbouring village as the basis to determine the market value of the land acquired. The contention of Shri Salkar, learned Government Advocate to the effect that the Reference Court has not taken into account that the remaining land where mundkarial houses are located are subjected to statutory restrictions cannot be accepted. On perusal of the First appeal no. 219 of 2006 7 impugned Judgment, I find that the Reference Court has deducted 50% on account of the dissimilar factors between the two lands and a further deduction on the ground that there were mundkarial houses in the acquired land. Dissimilarities are in fact considered by the Reference Court whilst determining the market value of the land acquired The learned Government Advocate was unable to point out any infirmity in the said findings by the Reference Court. In fact, such dissimilarities were not to be considered in respect of the land surveyed under No.291/24 as it is nobody's case that the said land was occupied by mundkarial houses but however the Reference Court has awarded the same rate of Rs.117/- per sq. metre for both the portions of the land which were acquired. 7. Apart from that the contention of Shri Salkar, learned Government Advocate that the awards relied upon by the Reference Court are not final and cannot be relied upon cannot be accepted. On perusal of the records of this Court, it is found that an appeal was preferred before this Court being First Appeal No.140 of 2005 challenging the Judgment and Award dated 30-9-2004 in respect of the said acquisition. By Judgment First appeal no. 219 of 2006 8 dated 15-7-2009, the Division Bench of this Court has dismissed the appeal preferred by the Appellants. Hence, the said award has become final. As such, there is no infirmity committed by the Reference Court in relying upon the said award for the purpose of determining the market value of the land acquired. 8. Considering the overall evidence on record and the facts and circumstances of the case, I find that the amount fixed by the Reference Court at the rate of Rs.117/- is just and reasonable. No interference is called for in the impugned Judgment. The point for determination is answered accordingly. 9. In view of the above, there is no merit in the above appeal. Hence, the appeal stands dismissed with no order as to costs. F. M. REIS, J. RD