-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 24 OF 2004 1. Dy. Collector (L.A.) Margao, Goa. 2. The Executive Engineer WD VI (R & B), PWD, Fatorda, Margao, Goa. …... Appellants V e r s u s The Holy Trinity Chapel Through its Attorney Mr. Martinho Wilson Chagas e Silva, r/o. Majilwado, Benaulim, Salcete, Goa. (Above addresses are registered addresses of the parties) …... Respondent Ms. Susan Linhares, Addl. Government Advocate for the Appellants. CORAM: F. M. REIS, J. DATE : 27 th August, 2010. ORAL JUDGMENT The above Appeal challenges the Judgment and Award dated 29th September, 2003, passed by the learned Addl. District Judge, South Goa, Margao, in Land Acquisition Case no. 5/2001, whereby a reference filed by the Respondent under Section 18 of the Land Acquisition Act, was partly allowed. 2. By a Notification under Section 4 of the Land Acquisition Act, 1894, (hereinafter referred to as the 'said Act'), bearing no.22/166/92-RD -2- dated 06.01.1993, published in the Official Gazette dated 26th April, 1993, a portion of the property admeasuring an area of 80 square metres from survey no. 277/7, 25 square metres from survey no. 197/7, 170 square metres from survey no. 198/10, 7 square metres from survey no. 212/2, 150 square metres from survey no. 220/1 in Village Benaulim, was acquired for the purpose of widening and black topping of road from Colva to Varca junction. The Land Acquisition Officer by an Award passed under Section 11 of the said Act, fixed the compensation at the rate of Rs.20/- per square metre for the land acquired in respect of the property surveyed under no. 277/7, 212/2 and 220/1 and Rs.16/- per square metre for the land acquired from survey no. 197/7 and 198/10. Being dissatisfied with the said Award, the Respondents filed a reference under Section 18 of the said Act for enhancement of compensation and claimed a compensation at the rate of Rs.600/- per square metre. By the impugned Judgment and Award dated 29th September, 2003, the learned Addl. District Judge, South Goa, Margao, has partly allowed the said reference and fixed the compensation of the acquired land at the rate of Rs.30/- per square metre. 3. Being aggrieved by the said Judgment, the Appellants preferred the present Appeal. 4. The learned Addl. Government Advocate, appearing for the Appellants has submitted that the Reference Court has totally misdirected in enhancing the compensation payable to the Respondent as there was no -3- material on record for the Reference Court to grant such enhancement. She further submitted that the Reference Court has failed to consider that the land has been acquired for road widening and, as such, the land acquired had no potentialities of being used for non agricultural purpose. She further submitted that the reliance by the Reference Court to the Judgment in Land Acquisition Case no. 133/1993 at exhibit 21 is erroneous as the land therein could not be compared to the land acquired. She further submitted that the land subject matter of the said Award was not comparable to the land acquired in the present proceedings. The learned Counsel as such submitted that the impugned Judgment deserves to be quashed and set aside. 5. The Respondent though served, has failed to remain present. 6. Having heard the learned Addl. Government Advocate for the Appellants, the following point arises in the present Appeal :- POINT FOR DETERMINATION 1. Whether the Reference Court was justified to fix the compensation at the rate of Rs.30/- per square metre ? 7. Aw.1, Shri Martinho Wilson Chagas e Silva, has deposed that the land which has been acquired is located within a radius of 800 metres from the school, Panchayat office, Central Government Fisheries Office, Five Star Hotels, besides being 900 metres away from Vaddi beach and 1.5 kilometres -4- from Benaulim beach. He further stated that there are posh and high cost residential houses all around the acquired land. He has further deposed that the property which has been acquired was adjoining one another and was accessible to the Village road and that the land has facilities of electricity, tap water and telephone facilities. He has further deposed that the land had high potentialities as it is located in a tourism locality. He has also produced the Sale Deed dated 30th March, 1992. The said witness has filed an additional affidavit and has produced a Judgment and Award dated 8th May, 1998, in Land Acquisition Case no. 133/1993, whereby the land belonging to one Francisco Correia de Meireles, was acquired for the road. He has further stated that the land acquired for the said road and the land which was subject matter of the present acquisition, was similar and is at a distance of 800 metres from the High Tide Line. 8. The distance between the land acquired and the land subject matter of the said Award was 550 metres from each other. The said Judgment is at exhibit 21. The Reference Court whilst passing the impugned Judgment, has come to the conclusion that the Judgment produced at exhibit 21 is comparable to the land acquired. I find from the evidence on record that the land acquired at exhibit 21 is at a distance of 500 metres from the acquired land. The land is located in the same Village. Both the lands are within the same distance from the High Tide Line. Considering the features of both the lands, I find that the Reference Court has rightly come to the conclusion to consider the said Award at exhibit 21 in determining the market value of the -5- acquired land. 9. The contention of the learned Addl. Government Advocate appearing for the Appellants to the effect that as the land was acquired for road widening and cannot be assessed on the basis of sale instance to free hold land, I find that the said contention cannot be accepted. In the Judgment reported in 2009(5) ALL M. R. 1022 in the case of State of Goa vs. Gopal Baburao Gaudo, it has been held by the Apex Court at para 4, 5 and 6 thus :- “4. We may demonstrate the absurdity of such a contention with reference to an illustration. Let us take the example of a residential plot of land measuring 60' x 100'. Let us assume that the municipal bye-laws require a front (roadside) set-back of 20' for construction of houses in a plot of that size. Therefore, the owner would leave a twenty feet wide front strip in the said plot free of any construction while putting up the construction in the plot. Obviously, he cannot thereafter construct in that front strip. Let us further assume that the front strip is acquired for road widening. Can the acquiring authority deny compensation to that strip on the ground that the said 20' strip acquired for road widening could not in any event be used for any construction purpose and therefore, was not of any value? Obviously not. 5. Therefore, determination of market value of the acquired land with reference to the value of -6- comparable land cannot be faulted. 6. Another argument put forth by the petitioners is that if the statutory benefits like solatium under Section 23(2) and additional amount under Section 23(1-A) of the Land Acquisition Act, 1894 (“the Act”, for short), and interest are added to the compensation awarded, the compensation would bloat up having severe financial implications, and therefore, while determining compensation, the extent of statutory benefits should be taken note of or kept in view. There is absolutely no merit in the said contention. It is well- settled that the solatium, additional amount and interest have no bearing on the determination of the market value under first clause of section 23(1) of the Act. The reason for grant of the additional statutory benefits are clearly different. The additional benefit under section 23(1-A) is to mitigate the hardship to the owner on account of deprivation of enjoyment of the land because of the delay in making the award and offering payment. The solatium under section 23(2) is in consideration of the compulsory nature of acquisition. Interest under section 28 of the Act is paid for delay in paying the compensation from the date on which possession is taken. They are distinct from the determination of market value. The fact that the landowner would also be entitled to statutory benefits cannot be taken into account, when determining the market value of the acquired land for purpose of compensation.” 10. Considering the said Judgment of the Apex Court, I find that the contention of the learned Counsel appearing for the Appellants that the road -7- widening area cannot be assessed on the basis of a sale instance of developed land, cannot be tenable. No doubt there are restrictions for development in the area which falls within the road widening area, nevertheless, such de-merits can be appropriately taken care of by necessary deductions. The Reference Court, by considering the overall material on record has come to the conclusion that the deductions should be at 50 percent from the amount of Rs.60/- fixed in exhibit 21. I find that there is no error committed by the Reference Court in making such deduction. The law is well settled by the Apex Court in 2010 (1) S.C.C. 444 in the case of Subh Ram & Ors. vs. State of Haryana and anr. that deductions can range from 20 percent to 75 percent in the facts and circumstances of the case. Considering the locality of the land acquired and restrictions on that count, the Reference Court was justified to fix the market value of the land acquired at the rate of Rs.30/- per square metre. I find no basis to interfere in the impugned Judgment passed by the Reference Court. The point for determination is answered accordingly. 11. In view of the above, there is no merit in the Appeal and, consequently, the Appeal stands dismissed with no orders as to costs. F. M. REIS, J. arp/*