1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 85 OF 2003 Executive Engineer, P.W.D., Works Department VI, Fatorda, Margao, Goa. …....... Appellant. Versus Rev. Fr. Protasio R. I. Colaco Soares, C/o. Advocate Aristeu J. Furtado, 12, Ground Floor, Mayfair Apartments, Margao Goa. …....... Respondent. Mr. S. Vahidulla, Government Advocate for the Appellant. Mr. C. A. Coutinho, Advocate for the respondent. CORAM :- A. P. LAVANDE, J. DATE : 29 th SEPTEMBER, 2010. ORAL JUDGMENT :- By this appeal, the appellant takes exception to the Judgment and Award dated 25.11.1993 passed by the District Judge, South Goa, Margao in the Land Acquisition Case No. 282/1992 partly allowing the reference under Section 18 of the 2 Land Acquisition Act, 1894 (hereinafter referred to as 'the Act' for short). 2. Vide notification issued under section 4 of the Act dated 13.2.1991 which was published in the official gazette dated 21.3.1991, the Government of Goa acquired land admeasuring 1880 square metres of survey no. 234/3 of village Benaulim, Salcete Taluka. An area of 378 square metres belonging to the respondent was part of the acquired land. The land was acquired for the purpose of construction of road in the village panchayat of Benaulim, Salcete Goa. The respondent claim compensation at the rate of Rs. 100/- per square metre. The Land Acquisition Officer made a award on 16.11.1992 fixing the market value of the acquired land at Rs.23/- per square metre. 3. Aggrieved by the inadequacy of the compensation granted, the respondent sought reference under section 18 of the Act and claimed compensation of Rs. 100/- per square metre. 4. Pursuant to the reference made the Land Acquisition 3 case no. 282/1992 was registered. In the said case and the respondent examined himself and examined Mr. S. N. Bhende an expert as AW2. The respondent placed reliance on the sale deed dated 24.5.1989, Exh. AW1/B by which an area of 1324 square metres was sold for a consideration of Rs.75000/- i.e at the rate of Rs.56.65 per square metre. The learned Reference Court placed reliance upon the sale deed for the purpose of fixing the market rate of the acquired land and after deducting 15% on the ground that the sale deed plot was better located and came to the figure of Rs.40/- per square metre. Aggrieved by the enhancement of the compensation, the appellant has preferred the present appeal. 5. Mr. S. Vahidulla, Government Advocate appearing for the appellant submitted that the Reference Court ought not to have placed reliance upon the said sale deed since the land in the sale deed could not be compared with the acquired land. He further submitted that the sale deed, Exh. AW1/B discloses that the purchaser was dumping wood in the said property prior to the execution of the sale deed and as such could not have been compared with the acquired land. In any case Mr. Vahidulla, 4 further submitted that the acquired had no access except by way of foot path and therefore the Reference Court in any case ought to have made further deduction while fixing the market value of the acquired land. 6. Per contra, Mr. Coutinho, learned counsel appearing for the respondent has supported the impugned Judgment and Award. 7. I have carefully considered the rival submissions and perused the record. 8. In view of the rival submissions, the following point arises for determination in the present appeal. Whether the market rate of the acquired land fixed by the Reference Court at the rate of Rs.40/- per square metre is just and property? If not, what was the market rate of the acquired land on the date of publication of section 4 notification? 9. As stated above, the respondent examined himself and Mr. S. N. Bhende, as an expert. The respondent placed reliance 5 upon the sale deed dated 24.5.1989 in support of his case. His evidence discloses that the acquired land was accessible by footh path which was towards the northern side of the property and the distance between the acquired land and the main road i.e Margao -Benaulim-Cavelosim road was about 100 metres approximately. The acquired land was fit for the residential purpose and levelled. The Margao city was at a distance of about 5 kms from the acquired land. The nearest chapel was at a distance of 400 metres and shops and other amenities were available within the radius of 1 km. In the cross examination he admitted that there were private properties in between the acquired land and the main road and prior to the construction of the road they did not have any access from the southern side of his property to go to the main road. He denied the suggestion that the sale deed land was far superior than the acquired land. In so far as the expert Mr. S. N. Bhende is concerned. I do not deem it necessary to refer to his evidence as admittedly the report prepared by him is dated 15.12.2001. Therefore it is difficult to accept that he visited the acquired land soon after publication of section 4 notification. Therefore his evidence deserves to be rejected, except to the extent of location 6 of the acquired land to which the expert made reference in his evidence and the report. 10. The question which arises for the consideration is whether the sale deed dated 24.5.1989, Exh. AW1/B could have been relied upon by the Reference Court for fixing the market rate of the acquired land and if yes, what would be the appropriate deductions for fixing the market rate of the acquired land. The evidence led by the respondent discloses that between the road and the acquired land there were properties of several persons and the acquired land was accessible by the footpath. Moreover in the sale deed plot there were no trees where in the acquired land there were coconut trees. The evidence discloses that the sale deed plot was situated near the seashore and was better located as has been rightly held by the Reference Court. 11. In my opinion the Reference Court was justified in placing the reliance upon the sale deed plot for fixing the market rate of the acquired land since it was in the same village but the Reference Court has clearly erred in making deduction of only 7 15% on the ground that the sale deed plot was better situated. Even the Reference Court has erred in calculating the correct market rate in as much as deduction of 15% from Rs.56.65 does not works out to Rs.40/- per square metre. 12. Be that as it may, the market rate of the acquired land has to be fixed on the basis of the sale deed plot after considering all the permissible deductions. The plot was sold by the sale deed dated 24.5.1989 and section 4 notification was published on 21.3.1991 therefore considering 10% escalation every year on compounding basis the amount works out to Rs.68.54. It is admitted position that the sale deed plot was situated in a better location near the seashore. In my opinion the appropriate deduction would be 20% and as such amount works out to Rs. 54.81. According to the respondent the acquired land had no motorable access and it was accessible by the footpath and there were properties of several persons between the acquired land and the main road. In my opinion further deduction of 20% would be appropriate therefore amount works out to Rs.43.85. Perusal of the sale deed discloses that there were no trees in the sale deed 8 plot. Since the nature of both the properties was different further deduction of 20% would be appropriate. Thus the amount comes to Rs.35.15. The market rate of the acquired land as on date of publication of Section 4 notification works out to Rs.35.15(rounded up to Rs.35/-) per square metre. Hence, the respondent is held entitled to receive compensation at the rate of Rs.35/- per square metre in respect of the acquired land. Needless to mention that the respondent is also entitled to all the statutory benefits under the Act. 13. In view of the above, the appeal stands partly allowed with no order as to costs. A. P. LAVANDE, J. vn*