1 F.A. No.225/2003 with F.A. No.262/2003 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.225 OF 2003 WITH FIRST APPEAL NO.262 OF 2003 FIRST APPEAL NO.225 OF 2003 Ramachandra Shridhar Naik Gaunekar (since deceased through legal heirs) 1. Shridhar Ramachandra Naik Gaunekar, 2. Ramabai S.N. Gaunekar, 3. Laxmibai S.N. Gaunekar, 4. Ramachandra S.N. Gaunekar, 5. Prasad S.N. Gaunekar, All R/o. Varkhande – Ponda. …. Appellants V/s 1. Deputy Collector and S.D.O., Ponda Sub-division, Ponda, Goa. 2. Director of Fire Service, St. Inez, Panaji. …. Respondents Mr. V.A. Lawande, Advocate for the Appellants. Mr. A. Kakodkar, Additional Government Advocate for the Respondents. WITH FIRST APPEAL NO.262 OF 2003 1. Deputy Collector & S.D.O., Ponda Sub-division, Ponda, Goa. 2. Director of Fire Service, St. Inez, Panaji. …. Appellants V/s 2 F.A. No.225/2003 with F.A. No.262/2003 Ramachandra Shridhar Naik Gaunekar (since deceased through legal heirs) 1. Shridhar Ramachandra Naik Gaunekar, …appeal stands abated 2. Ramabai S.N. Gaunekar, 3. Laxmibai S.N. Gaunekar, 4. Ramachandra S.N. Gaunekar, 5. Prasad S.N. Gaunekar, 6. Rajshree S.N. Gaunekar, All R/o. Varkhande – Ponda, Goa. …. Respondents Mr. A. Kakodkar, Additional Government Advocate for the Appellants. Mr. V.A. Lawande, Advocate for the Respondents. CORAM : S.A. BOBDE & F.M. REIS, JJ. Reserved on : 28th JUNE, 2011 Pronounced on :12th August,2011 JUDGMENT : (Per F.M. REIS, J.) Both the above appeals were taken up together for final hearing as both challenge the same judgment and award dated 25/04/2003, passed by the learned Additional District Judge at Panaji in Land Acquisition Case No.246/1996. 2. The parties shall be referred to in the manner they so appear in the impugned judgment. 3. The land belonging to the applicants came to be acquired by 3 F.A. No.225/2003 with F.A. No.262/2003 the respondents admeasuring an area of 10685 square metres from the property surveyed under no.22/1 situated at Ponda for the setting up of a fire station at Ponda, pursuant to a notification under Section 4 of the Land Acquisition Act, 1894, herein after referred to as “the said Act”, dated 29/07/1994 and published in Official Gazette dated 6/08/1994. By an award passed under Section 11 of the said Act, the applicants were offered the sum of Rs.70/- per square metre for the land acquired. Being dissatisfied with the said amount, the applicants sought a reference under Section 18 of the said Act for enhancement of compensation and claimed an amount of Rs.1,500/- per square metre for the land acquired. The Reference Court by the impugned judgment and award dated 25/04/2003, partly allowed the said reference and fixed the compensation for the land acquired at the rate of Rs.600/- per square metre, besides statutory benefits. Being aggrieved by the said judgment, the applicants who are appellants in First Appeal No.225/2003 preferred the present appeal for enhancing the compensation awarded. 4. The respondents, who are the appellants in First Appeal 4 F.A. No.225/2003 with F.A. No.262/2003 No.262/2003 preferred the appeal challenging the compensation determined by the Reference Court. 5. Shri V.A. Lawande, the learned Counsel appearing for the appellants/applicants has assailed the impugned judgment and pointed out that the land which has been acquired is located in the heart of the city of Ponda which had commercial potentialities and, as such, the compensation for such land ought to have been to the minimum value of Rs.1,000/- per square metre. The learned Counsel further pointed out that the land which was acquired was adjoining the road and had high potentiality of being used for construction purposes. The learned Counsel has taken us through the evidence on record and pointed out that all the amenities required for development were available within the vicinity of the acquired land. The learned Counsel further submitted that Almeida School as well as the bus stand is in the close proximity of the land acquired and, as such, the land had high potentiality for commercial activity. The learned Counsel further submitted that the deductions effected by the Reference Court towards development charges are exorbitant and, as such, the amount of 5 F.A. No.225/2003 with F.A. No.262/2003 compensation fixed by the Reference Court deserves to be enhanced. The learned Counsel has taken us through the impugned judgment as well as the evidence on record and pointed out that there was sufficient evidence on record to establish that the amount of compensation payable to the applicants ought to have been a minimum sum of Rs.1,000/- and above. The learned Counsel accordingly submitted that the appeal deserves to be allowed and the compensation fixed by the Reference Court be accordingly enhanced. 6. On the other hand, Shri A. Kakodkar, the learned Additional Government Advocate appearing for the respondents has pointed out that the Reference Court has erroneously fixed the compensation for the land acquired at the rate of Rs.600/- per square metre. The learned Counsel further submitted that the land of the applicants was close to an internal road and not to the main Margao - Panjim highway and, as such, the commercial value of such land was less. The learned Counsel has further submitted that the land of the applicant was agricultural land and there was nothing on record to establish that any development activity was in 6 F.A. No.225/2003 with F.A. No.262/2003 fact initiated by the applicants. The learned Counsel further submitted that the land of the applicants was uneven and the same could not be used for construction purposes without effecting substantial expenditure. The learned Additional Government Advocate further submitted that the Sale Instance relied upon by the Reference Court is of a developed plot and the law is well settled that when a developed plot of a small piece of land is considered as the basis for determining the market value of an undeveloped plot of land, the deduction in such circumstances would be minimum of 66%. The learned Counsel further submitted that the land of the applicants was not sub-divided and, as such, 33% had to be deducted on account of the internal road besides, another 33% for maintaining internal open space and, as such, the Reference Court was not justified in effecting the deductions as effected in the impugned judgment. The learned Counsel, as such, pointed out that the impugned judgment deserves to be quashed and set aside. 7. Having heard the learned Counsel and on perusal of the records, the following point for determination arises in the present 7 F.A. No.225/2003 with F.A. No.262/2003 appeal: POINT FOR DETERMINATION: Whether the Reference Court was justified to fix the compensation for the land acquired at the rate of Rs.600/- per square metre as on the relevant date. 8. In support of his claim for enhancement of compensation the applicants have examined Shri Ramchandra S.N. Gaunekar as AW1. He has stated in his deposition that the land acquired is situated at Ponda - Panjim highway, near Almeida School which is situated at a distance of about 50 metres from the acquired land. He has further stated that the land is a levelled land and that there are about 170 coconut trees in the acquired potion of the property. He has further stated that the land acquired on the Ponda - Panjim highway is one of the boundaries of the acquired land and there is also internal road on his northern side. He has further stated that school, bus stand, shopping area, etc. are within the radius of 50 to 70 metres from the acquired land. In support of his claim for enhancement he has relied upon the Sale Deed dated 20/12/1991 whereby an area of 558 square metres was sold at the rate of 8 F.A. No.225/2003 with F.A. No.262/2003 Rs.761.64 per square metre. He has further stated that the Sale Deed plot was at a distance of about 300 metres from the acquired land and is similar in nature. He has also relied upon another Sale Deed of the year 1982 wherein two plots of 600 and 616 square metres were sold at the rate of Rs.905/- per square metre. The said Sale Deed plots are stated to be at a distance of about 300 metres from the acquired land. He has also produced the valuation report and has valued the land at the rate of Rs.1,000/- per square metre which is at Exhibit 15. In his cross-examination, he has stated that the land adjoining the National Highway is 30 metres and the land adjoining the village road is about 15 metres. He has further admitted that in the acquired land 40 metres is no development zone. He has further submitted that as far as the village road is concerned no development zone is to the extent of 10 metres. He has also admitted that the Sale Deeds produced by him are of developed plots. The next witness examined is Shri Bhaskar Khandeparkar, who has stated that his services were engaged by the applicant to carry out the valuation of the acquired land. He has further stated that the land is close to the school and about 200 metres from Ponda bus stand and abutting the Ponda - Panjim 9 F.A. No.225/2003 with F.A. No.262/2003 highway. According to him, the market value of the land is Rs.1,000/- per square metre. In the cross-examination, he has admitted that the Sale Deeds relied upon by him are of developed plots. He denied the suggestion that the acquired land was a hilly terrain. 9. The Reference Court while passing the impugned judgment has considered the said Sale Instances produced by the applicants at Exhibit 16 and 17 and found that in the year 1991, the developed plots were sold at the rate of Rs.716/- per square metre and in the year 1992, the rate was about Rs.904/- per square metre. The learned Judge has considered the Sale Deed at Exhibit 17 which is more proximate in time and found that developed plot was at a distance of about 300 metres from the acquired land and was fetching Rs.904/- per square metre. After effecting a deduction of 40%, the Reference Court has found that the value of undeveloped land would be Rs.542/- per square metre and after giving an escalation for the period between Section 4 notification and the dates of the Sale Deeds, fixed the amount at the rate Rs.600/- per square metres. 10 F.A. No.225/2003 with F.A. No.262/2003 10. On perusal of the evidence on record, we find that there can be no doubt that the land acquired was located in the proximity of the centre of Ponda Taluka. It is also born out from the records that the acquired land was adjoining the Margao - Panjim highway. Apart from that the land had another internal road abutting on the northern side of the acquired land. All these factors suggests that the land of the applicants which was undeveloped land had potentiality of being used for construction and the Reference Court while determining the compensation has found that the Sale Deed at Exhibit 17 can form the basis for determining the market value of the acquired land. We find that the Reference Court was justified to consider the Sale Deed at Exhibit 17 for the purpose of determining the market value of the acquired land as it was more proximate in time to Section 4 notification in the present case. The price of the developed plot in the said Sale Deed is admittedly a sum of Rs.904/- per square metre. There is no dispute that the plot referred to therein was a developed plot. The Sale Deed itself stipulates that the property was developed into different smaller plots and such sub-division was approved by the Ponda Municipal 11 F.A. No.225/2003 with F.A. No.262/2003 Council on 28/06/1986. Subsequently, the approval from the Chief Town Planner was also obtained from the valuers therein on 25/04/1986. Admittedly, the land acquired was not sub-divided nor any such approvals were obtained by the applicants. Hence, the Reference Court was justified to come to the conclusion that the deduction on account of development charges would have to be effected for arriving at market value of the acquired land. 11. The Apex Court in the judgment of Sukhram .. has held at para …. 12. In the present case, the Sale Deed plot at Exhibit 17 was abutting an internal road which was proceeding to Khandepar from Margao highway. On the contrary, the land acquired was adjoining the Margao - Panjim highway. No doubt, the lands which are abutting the National Highway will have more commercial value than the lands which are situated in the interior, unless such lands would be subjected to statutory restrictions as far as the set backs are concerned. The applicants himself have admitted that 40 metres from the National Highway would be no development zone. 12 F.A. No.225/2003 with F.A. No.262/2003 These factors would have to be considered for the purpose of determining the market value of the acquired land. In such circumstances, considering the Sale Deed plots admeasuring around 600 square metres and the land acquired is more than 10,000 square metres, naturally the deduction would have to be effected on account of such largeness of the land. Considering all these factors, any appreciation on account of the location of the land is concerned would be set off from the development charges and other statutory restrictions, which would be necessary for lands abutting National Highway. As such, the Reference Court was justified to make a deduction of 40% for the purpose of fixing the market value of the acquired land. The learned Additional Government Advocate is not justified to contend that the deduction should have been more in the present case. Considering that the land acquired was adjoining the National Highway and the Sale Deed plot was abutting an internal road, we find no infirmity in the deduction effected by the Reference Court at 40%. Shri Lawande is not justified to contend that the deductions should have been less as considering the location of the land and the other aspects which have been considered by the Reference Court. Hence, we find that 13 F.A. No.225/2003 with F.A. No.262/2003 no interference is called for in the impugned judgment determining the market value of the acquired land. 13. On the basis of the material on record and considering the facts and circumstances of the case, we find that the market value of the land acquired fixed by the Reference Court at the rate of Rs.600/- per square metre is just and appropriate. The point for determination is answered accordingly. 14. In view of the above, the appeal as well as the cross objection stands dismissed with no order as to costs. S.A. BOBDE, J F.M. REIS, J. NH/-