1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEALS NOS.46 OF 2005 & 291 OF 2005 FIRST APPEAL NO.46 OF 2005 1. The Managing Director, Goa IDC, Shri Saraswati Mandir Building, 18th June Road, Panaji-Goa. 2. The Special Land Acquisition Officer, IDC, Panaji-Goa. …. Appellants V/s. Shri Shrikant Anta Gaonkar, Attorney substitute, Communidade of Panchawadi, Mapa, Panchawadi, Ponda, Goa. …. Respondent Mr. M.S. Sonak, Advocate for the Appellants. Mr. R.G. Ramani, Advocate for the Respondent. AND FIRST APPEAL NO.291 OF 2005 The Communidade of Panchawadi, through its Attorney, Shri Santosh T. Bhangui, residing at Mapa, Panchawadi, Goa. …. Appellant V/s. 1. Special Land Acquisition Officer, Goa, Daman & Diu, Industrial Development Corporation (GDDIDC), having his office at Panaji, Goa. 2. The Managing Director, Goa, Daman & Diu Industrial Development Corporation, having its office at Shree Saraswati 2 Mandir Building, Second floor, 18th June Road, Panaji, Goa. Mr. R.G. Ramani, Advocate for the Appellant. Mr. M.S. Sonak, Advocate for the Respondents. CORAM : F.M. REIS, J. DATE : 4th MARCH, 2011 JUDGMENT : The above appeals challenge the judgment and award dated 29/10/2004, passed by the learned Additional District Judge at Panaji in Land Acquisition Case No.247/1996. 2. The parties shall be referred to in the manner they so appear in the cause title of the impugned judgment and award. 3. The land belonging to the applicant came to be acquired pursuant to the notification issued under Section 4 of the Land Acquisition Act, 1894, hereinafter referred to as ‘the said Act’, published in the Official Gazette dated 7/03/1995 situated at Panchawadi of Ponda Taluka for the industrial development corporation for setting up an industrial estate. The total area of the land acquired belonging to the applicant is 2,16,139 square metres. The Land Acquisition Officer passed an award under Section 11 of 3 the said Act and offered a compensation at the rate of Rs.6/- per square metre. Being dissatisfied with the said amount, the applicant sought a reference under Section 18 of the said Act for enhancement of compensation and claimed an amount of Rs.50/- per square metre for the land acquired. By judgment and award dated 29/10/2004, the Reference Court partly allowed the said reference and fixed the compensation at the rate of Rs.15/- per square metre for the land acquired. Being aggrieved by the said judgment, the applicant who is appellant in First Appeal No.291/2005 has preferred the present appeals for enhancement of compensation. The respondent no.2, who is the acquiring body along with the respondent no.1, who are the appellants in First Appeal No.46/2005 have also challenged the impugned judgment and filed the above appeal. 4. During the pendency of the above appeal, the applicant filed an application to adduce additional evidence, which came to be allowed by order dated 1/07/2010 and the matter was remanded to the learned Reference Court for recording of evidence and production of the said documents. The evidence was recorded and the same was submitted to this Court. During the course of the said proceedings, besides the evidence which was already on 4 record the applicants produced two sale instances one dated 8/05/1992 wherein an area of 376 square metres was sold at the rate of Rs106.38 per square metre and the other sale deed is dated 20/04/1993, wherein a plot of land admeasuring an area of 691 square metres was sold at the rate of Rs.49.20 per square metre. 5. Shri M.S. Sonak, the learned Counsel appearing for respondent no.2 has assailed the impugned judgment and pointed out that the sale instance dated 8/05/1992 cannot be considered as according to him the said sale deed demonstrates that there was a structure in the sale deed land. He further submitted that once the structure is existing in the property, the same cannot be considered to be an agricultural land, but a non agricultural property and, as such, the said sale instance cannot form the basis to fix the compensation for the land acquired which is an agricultural land. Learned Counsel further submitted that the said sale instance is not comparable to the land acquired. The learned Counsel further pointed out that as far as the second sale instance dated 20/04/1993 is concerned, the same is of a small developed plot and the land acquired in the present case is more than 2 lacs square metres, which cannot be compared to the price fetched in such sale instance. He further submitted that the said sale instance is not 5 comparable with the land acquired, as in the present case, the land of the applicant is a Communidade land which is subject to the restrictions for transfer under the Code of Communidade. Learned Counsel further took me through the evidence on record and pointed out that there is no comparable sale instance produced by the applicant to justify any enhancement of compensation. Learned Counsel further submitted that the applicant has failed to establish that the price offered by the Land Acquisition Officer was inadequate and, as such, there is no case made out by the applicant for any enhancement of compensation and, consequently, the appeal preferred by the respondents deserves to be allowed. 6. On the other hand, Shri R.G. Ramani, the learned Counsel appearing for the Appellant has joint issues with the contentions of the learned Counsel appearing for the respondent no.2. The learned Counsel submitted that there is appreciable evidence on record produced by the applicant to establish that the price offered by the Land Acquisition Officer was much more than the one awarded by the impugned award. The learned Counsel further submitted that both the sale instances produced by the applicant after remand are comparable to the land acquired. The learned Counsel further submitted that the applicant has examined an 6 expert who was examined for the purpose of fixing the market value of the acquired land. The learned Counsel has taken me through the evidence of the expert and pointed out that the expert has given appropriate deductions on account of dissimilarities of the land acquired with the sale deed plot while fixing the market value of the acquired land. The learned Counsel further submitted that even assuming that the sale deed dated 20/04/1993 is considered after giving the deductions as suggested by the valuer, the market value of the acquired land has to be much more than the one awarded by the Reference Court. The learned Counsel has taken me through the evidence produced by the applicant as well as the evidence produced after the remand and pointed out that the applicant has adduced sufficient material on record to discharge the burden that the price offered by the Land Acquisition Officer was inadequate. The learned Counsel further submitted that the respondents have failed to adduce any evidence to support the price offered by the Land Acquisition Officer. He, accordingly, pointed out that the applicant is entitled to a minimum compensation of Rs.30/- per square metre for the land acquired. 7. Having heard the learned Counsel and on perusal of the record, the fllowing point for determination arises in the present 7 appeal: POINT FOR DETERMINATION: (i) Whether the Reference Court was justified to fix the market value of the acquired land at the rate of Rs.15/- per square metre? 8. With the assistance of the learned Counsel, I have perused the evidence on record adduced by the applicant. I have also perused the evidence adduced by the applicant after the remand as well as the sale instance produced by the applicant. Having gone through the said records, I find that the applicant has produced a sale deed dated 8/05/1992, but on going through the evidence on record, there is nothing adduced by the applicant to establish the comparability of the land acquired with the land which was subject matter of the said sale deed. The said sale deed plot also discloses the existence of a structure and as such the manner in which the price has been effected has not been established by the applicant by examining any of the parties to the said sale deed. There is no evidence as to what is the price of the land and the said structure. As such, I find that the said sale deed cannot form the basis for the purpose of fixing the market value of the acquired land in the present case. 8 9. As far as the sale deed dated 20/04/1993 is concerned, on perusal of the said sale deed, it reveals that the land of the owner was sub-divided into four plots and one of the plots was the subject matter of the said sale deed. Going through the contents of the said sale deed, it transpires that the sale deed land therein was part of a developed plot. The contention of Shri Ramani, the learned Counsel appearing for the applicant that the sale deed plot was not a developed plot cannot be accepted. The boundaries in the schedule of the said sale deed further disclose that there are other plots which are bounded on different sides of the said sale deed plot besides the public road. The said sale deed plot can form the basis of fixing the compensation in the present case as the land is comparable and situated at a distance of about 250 metres from the acquired land. The land acquired is partly sloppy and agricultural land. The Apex Court in the judgment reported in 2010 (1) SCC 444 in the case of Subh Ram & Ors. V/s. State of Haryana & Anr. has held at para 11 and 15 thus: “11. What is the concept of deduction of development cost to arrive at market value? If the market value of a large tract of agricultural and or undeveloped non-agricultural land possessing potential for development is to be determined with reference to the market value of a small residential plot situated in a neighbouring residential layout, it becomes necessary to work back the market value of the large tract of undeveloped land from the market 9 value of the small residential plot. This is because the value of one square yard of undeveloped land is not the same as one square yard of developed residential plot. If there is a large tract of agricultural or undeveloped land, obviously the entire extent cannot be sold as residential plots. If the agricultural or undeveloped land has to be sold as residential plots, it is first necessary to make a layout of plots in such land. This would mean that a provision will have to be made for roads to provide access to each plot in the layout. 15. Thus, if the valuation of a large extent of agricultural or undeveloped land is to be based on the sale price of a small developed plot in a private layout, then the standard deductions should be one-third (for roads, etc.) plus one- third (for expenditure of development), in all two-thirds (or 67%), as “development cost” from the value of small plot. The percentage of deduction may however vary between 20% to 75% depending on several circumstances (see Lal Chand v. Union of India, paras 8 and 9 for illustrations of such circumstances).” 10. Considering the said judgment of the Apex Court, it has been held therein that there is no bar for relying upon the price of a developed plot for fixing the market value of the large piece of agricultural and/or not developed land after giving suitable deduction on account of development charges. The Apex Court has held that on account of such development charges the deductions can range from 25% to 75%. 11. In the present case, besides the deductions to be effected on account of development charges, there is a further negative factor 10 as far as the land acquired is concerned as there are restrictions with regard to the transfer of lands belonging to the Communidade. The Division Bench of this Court has held that such negative factor can warrant a deduction of even 25%. Considering that the land acquired in the present case is more than 2,00,000 square metres and sale deed plot is hardly about 600 square metres, a deduction on account of development charges would be 60% and a further deduction of 10% on account of the fact that the land acquired was a Communidade land. The total deduction, as such, would be 70%, which would be just and proper in the circumstances of the case. Even the expert valuer examined by the Applicants has stated that the deduction on account of development charges should be 50%. The expert has not considered that the land acquired was partly sloppy and not close to the highway. The infrastructural facilities such as regular water and electricity was not available throughout the land acquired. Considering all these factors an aggregate deduction of 70% would be just and appropriate. The question of giving any appreciation on account of the location of the land acquired would not arise at all as the land acquired did not have any infrastructural facilities. After such deduction, the amount works out to Rs.15/- per square metre approximately. The Reference Court has also fixed the value of the acquired land at the 11 rate of Rs.15/- per square metre. While passing the impugned judgment, the Reference Court has not decided the matter on the basis of ascertaining the comparability of the land acquired with the sale instances. The Reference Court has also noted that amenities such as water, electricity and telephone were not available to the land acquired. The reasoning given by the Reference Court to the effect that the respondent no.2 is selling developed plots at Madkai which is at a distance of 25 kilometre from the acquired land cannot be a ground or a consideration for assessing the market value of the land acquired in the present case. The provision of Section 23 of the said Act is very clear about the factors to be considered while determining the market value of the acquired land. When the comparative sale deed method is applied for the purpose of fixing the market value of the land, it is incumbent upon the Court to consider the different features of the land acquired and the sale deed plot and ascertain the positive as well as negative factors of the land acquired so as to fix the market value of the land acquired. In the present case, the evidence on record discloses that the sale deed produced by the applicant is in the vicinity of the acquired land. Though the said sale deed plot is a developed plot, nevertheless, the same can form the basis for the purpose of determining the market value of the land acquired. 12 Considering all these factors, as stated above, the deduction of 70% would be just and appropriate. The amount, as such, works out to Rs.15/- per square metre. The Reference Court while passing the impugned judgment has not given statutory benefits to the applicant under the provisions of Section 23(1-A), Section 23(2) and Section 28 of the said Act. Shri Sonak, the learned Counsel appearing for the respondent no.2 did not dispute that the applicant is entitled to all such statutory benefits. The point for determination is answered accordingly. 12. In view of the above, I pass the following order: O R D E R (i) Both the appeals are partly allowed. (ii) The applicant is entitled for compensation for the land acquired at the rate of Rs.15/- per square metre. (iii) Besides the said amount, the applicant is entitled for statutory benefits under the provisions of Section 23(1-A), Section 23(2) and Section 28 of the said Act, in accordance with law. (iv) Both the above appeals are disposed of accordingly with no order as to costs. F.M. REIS, J. NH/-