-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 107 OF 2006 Assistant Defence Estate Officer, Near Goa Traffic Police Cell, Panaji-Goa 403 001. ... Appellant V e r s u s 1. Shri Thomas Rodrigues Near Railway Gate, Margao, Salcete-Goa. 2. Dy. Collector & SDO, Land Acquisition Officer, Quepem, Goa. ... Respondents Shri C. A. Ferreira, Assistant Solicitor General for the Appellant. Shri V. P. Thali, Advocate for Respondent No.1. Coram :- F. M. REIS, J Date : 15 th July, 2011. JUDGMENT Heard Shri C. A. Ferreira, learned Assistant Solicitor General appearing for the Appellant and Shri V. P. Thali, learned Counsel appearing for Respondent No.1. 2. The above appeal challenges the Judgment and Award dated 2-2- 2006 passed in Land Acquisition Case No.12 of 2005 disposing a reference filed by the Appellant under Section 18 of the Land Acquisition Act, 1894(hereinafter referred to as the said Act). -2- 3. Land was acquired pursuant to a notification under Section 4 of the said Act dated 1-6-1990 for camp training of recruits of 3 MTR(2STC) at Cotombi in Quepem Taluka admeasuring an area of 4876 sq. meters from the property. By an award dated 29-9-1992 passed under Section 11 of the said Act, a sum of Rs.12/- per sq. meter was offered by the Land Acquisition Officer. Being dissatisfied with the said amount the Respondents sought a reference under Section 18 of the said Act for enhancement of compensation and claimed compensation at the rate of Rs.60/- per sq. meter. 4. By Judgment and Award dated 2-2-2006, the Reference Court partly allowed the Reference and awarded compensation at the rate of Rs.48/- per sq. meter. Being aggrieved by the said Judgment and Award, the Appellant has preferred the present appeal. 5. Shri C. A. Ferreira, learned Assistant Solicitor General appearing for the Appellant has assailed the impugned Judgment and pointed out that the Reference Court has failed to consider the sale deed produced by the Appellant which is at Exh.D-21 whereby the property surveyed under No.2/1 was purchased by the Respondent which includes the acquired portion of the land. The learned Assistant Solicitor General has further pointed out that as per the said sale deed the property was sold at the rate of Rs.3/- per sq. meter, and as such the amount offered by the Land Acquisition Officer was adequate. Learned Counsel has further pointed out that in view of the sale deed at Exh.D-21 it cannot be said that the respondent is entitled for enhancement of compensation as the said sale instance was not produced in the previous proceedings as it was not in existence at that -3- time. The Learned Counsel as such submitted that the Learned Judge misconstrued the evidence on record and as such the impugned Judgment deserves to be quashed and set aside. 6. Shri V. P. Thali, learned Counsel for Respondent No.1 has supported the impugned Judgment. Learned Counsel has pointed out that once the price was fixed by the earlier award in respect of the same survey number at the rate of Rs.30/- per sq. metre, it is not open to the Appellant to dispute the amount paid in the said proceedings and claimed that the price offered by the Land Acquisition Officer is adequate. Learned Counsel has further submitted that it is well settled by the Apex Court that the price fixed in respect of earlier acquisitions in respect of the same land is the best piece of evidence and can form the basis for fixing the market value of the acquired land. Learned Counsel has further submitted that Exh.22 could not be produced at the time of the passing of the earlier award as according to him the sale deed was executed subsequent to the Section 4 notification therein. Learned Counsel has further submitted that it was not open for the Reference Court to allow the production of the sale deed in the cross-examination of the Respondent without giving an opportunity to the Respondent to lead evidence in rebuttal. Learned Counsel further submitted that there is no reason to interfere in the impugned Judgment and as such the appeal deserves to be rejected. 7. 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.48/- per sq. meter? -4- 8. In support of his claim for enhancement of compensation, the applicant has examined himself as Aw.1. He has stated in his affidavit that the Government has acquired land belonging to him for 3 MTR (2STC) at Cotombi in Quepem Taluka, pursuant to a notification dated 01.06.1990 from the property admeasuring an area of 4876 square metres from the property surveyed under no. 2/1 of Village Cotombi, Quepem. He has further stated that the said property surveyed under no. 2/1 is part and parcel of the property “Sonalem” described in the Land Registration Office under no. 1655, bearing Matriz no.835 and that he is in possession thereof. He has further stated that in view of the claim put forward to the compensation, a reference under Section 30 of the Land Acquisition Act, 1894, (hereinafter referred to as the 'said Act' ), was made to the learned District Judge and the same is pending before this Court. He has further stated that he puts up a claim for a compensation at the rate of Rs.60/- per square metre. He has further stated that the land is fit for urban construction and the same is bharad land and is located in the settlement zone. He has also disclosed the distance from the amenities available to the acquired portion of the property. He has further relied upon an Award passed by the learned District Judge in Land Acquisition Case no. 91/1990 dated 20.04.1993, whereby a portion of the property surveyed under no. 2/1, 28/1 and 28/2 in Village of Cotombi was acquired pursuant to a notification dated 10.06.1986 for the construction of the water courses for the Selaulim Project. He has further stated that the Land Acquisition Officer has offered a compensation at the rate of Rs.5/- per square metre for the said acquisition for an area of 3540 square metres and by the said Judgment, the compensation was paid at the rate of Rs.30/- per square metre. He has further stated that the land acquired under -5- survey no. 2/1 and the land acquired in the said proceedings are of identical nature and also lies within the settlement zone. He has further stated that the Judgment of the learned District Judge came to be upheld by this Court in First Appeal no. 40/1993 by Judgment dated 09.01.1997. In the cross examination, he has admitted that the proceedings under Section 30 of the said Act are still pending for adjudication. He has further admitted that the ownership rights of the entire survey no. 2/1 were acquired by him by virtue of the said Deed dated 30.12.1986 executed in his favour by Antonio Rosario D' Silva and his wife. He has further stated that thereafter on 30.08.1990, he had purchased an area of 8500 square metres of the said property from one Bartholomeo Francis D' Cunha for a consideration of Rs.47,000/-. He has further stated that the present acquisition in respect of the land was purchased in the year 1986. He has denied the suggestion that he is not entitled to a compensation at the rate of Rs.60/- per square metre. No further evidence was adduced by any of the parties. 9. On the perusal of the evidence on record, the fact that the land acquired in the previous proceedings and the earlier proceedings being of similar nature, have not been disputed. Shri Thali, the learned Counsel appearing for the Respondent has taken objection to the fact that the Sale Deed was introduced in the cross examination of Aw.1. On perusal of the records of the proceedings, such document was not produced in the cross examination but, however, an application was filed by the Appellants on 09.01.2006 praying that the document in respect of the Sale Deed dated 30.12.1986 and 30.08.1990, be taken on record. In view of the no objection given by the Respondents, the said document was marked as an -6- exhibit. As such, the grievance of the learned Counsel appearing for the Respondents that the said document was taken on record in the cross examination of the Respondent, cannot be accepted. But however, Shri Thali, the learned Counsel appearing for the Respondent can be justified to contend that the Respondents are entitled to establish the circumstances in which the said Sale Deed came to be executed. The Respondents as such ought to have been given an opportunity to lead evidence in rebuttal to establish the said aspect. From the records of the proceedings, I find that no such opportunity was given to the Respondents to lead such evidence in rebuttal. 10. The Apex Court in the Judgment reported in (2009 AIR SCW 1965) in the case of T. S. Ramchandra Shetty vs. Chairman, Karnataka Housing Board & anr. has held at paras 7 and 8 thus:- “7. In the case of Special Tehsildar Land Acquisition, Vishakapatnam v. A. Mangala Gowri(Smt.) (1991) 4 SCC 218, this Court observed as under: “The market value postulated in Section 23(1) of the Act designed to award just and fair compensation for the lands acquired. The word “market value” would postulate price of the land prevailing on the date of the publication of the notification under Section 4(1). The acid test that for determining the market value of the land, the price which a willing vendor might reasonably expect to obtain from a willing purchaser would form the basis to fix the market value. For ascertaining the market rate, the Court can rely upon such transactions which would offer a reasonable basis to fix the price. The -7- price paid in sale or purchase of the land acquired within a reasonable time from the date of the acquisition of the land in question would be the best piece of evidence. In its absence the price paid for a land possessing similar advantages to the land in the neighbourhood of the land acquired in or about the time of the notification would supply the data to assess the market value. But exclusion of bona fide and genuine sale transactions in respect of the same land under acquisition and to place reliance on the award of some other land is obviously illegal. 8. In the case of Periyar and Pareekanni Rubbers Ltd. v. State of Kerala(1991) 4 SCC 195, in para 10, this Court observed as under: “10. When the Courts are called upon to fix the market value of the land in complusory acquisition, the best evidence of the value of property is the sale of the acquired land to which the claimant himself is a party, in its absence the sales of the neighbouring lands. In proof of the sale transaction, the relationship of the parties to the transaction, the market conditions, the terms of the sale and the date of the sale are to be looked into. These features would be established by examining either the vendor or vendee and if they are not available, the attesting witnesses who have personal knowledge of the transaction etc. The original sale deed or certified copy thereof should be tendered as evidence. The underlying principle to fix a fair market value with reference to comparable sales is to reduce the element of speculation. In a comparable sale the features are: (1) it must be within a reasonable time of the date of the notification; (2) it should be a bona fide transaction; (3) it should be a sale of the land acquired or land adjacent to the land -8- acquired and (4) it should possess similar advantages. These should be established by adduction of material evidence by examining as stated above the parties to the sale or persons having personal knowledge of the sale transactions. The proof also would focus on the fact whether the transactions are genuine and bona fide transactions”. Learned counsel for the respondent also placed reliance on Printers House Pvt. Ltd. v. Cold Storage and Food Products and Ors.(1994) 2 SCC 133. He drew our attention to paragraph 7 of this judgment which deals with the similar proposition that the sale price of the acquired land is an important factor for determining the compensation. 11. Considering the said Judgment of the Apex Court, there can be no dispute that the best piece of evidence for the purpose of determining the market value of land would be an instance of the acquired portion of the land itself. In the present case, in the earlier acquisition proceedings, the compensation was fixed in respect of the property bearing survey no.2/1 at the rate of Rs.30/- per square metre which has been considered by the learned District Judge as the basis to fix the market value of the acquired land. The learned Judge has not at all considered the said Sale Deed produced by the Appellants in support of their contention that the amount offered by the Land Acquisition Officer was just and proper. No reasons are given as to why the said Sale Deed produced by the Appellants wherein the Respondent was a party has not been considered for the purpose of determining the market value of the land acquired. As such, I find in the interest of justice, that as the Respondent no.1 failed to establish his contention that there are some special circumstances in which the said Sale Deeds came to be executed, the Respondent should be allowed to lead such evidence in support of his -9- contention as the Sale Deed was produced in his cross examination and he was not given an opportunity to lead such evidence. No doubt, the Appellants would be entitled to lead evidence in answer to any such evidence adduced by the Respondent no.1. 12. Considering the facts and circumstances of the case, I find that in the interest of justice, the matter deserves to be remanded to the Reference Court to decide the said reference afresh in the light of the observations made herein above in accordance with law. The point for determination is answered accordingly. 13. In view of the above, I pass the following order:- ORDER 1. The appeal is partly allowed 2. The impugned Judgment and Award dated 02.02.2006 is quashed and set aside. 3. Land Acquisition Case No.12 of 2005 is restored to the file of the Reference Court. The Reference Court is directed to decide the said reference afresh after giving an opportunity to the parties to lead further evidence in the light of the observations made herein above, in accordance with law. 4. Appeal stands disposed of accordingly with no order as to costs. 5. Parties are directed to appear before the Reference Court on 29.09.2011 at 10.00 a.m. F. M. REIS, J. arp/*