:1: IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 237 OF 2002 WITH STAMP NUMBER NO. 2819 OF 2002 (CROSS OBJECTION ) FIRST APPEAL NO. 237 OF 2002 1. State of Goa, through the Dy. Collector (LA) Margao. 2. The Director of Sports & Youth Affairs, Panaji Goa. … Appellants V e r s u s Dr. Eurico da Silva, resident of Borda, Margao Goa. … Respondent Mr. M. Salkar, Government Advocate for the Appellants. Mr. M. S. Sonak with Mr. J. Supekar, Advocates for the Respondent. WITH STAMP NUMBER NO. 2819 OF 2002 (CROSS OBJECTION ) IN FIRST APPEAL NO. 237 OF 2002 1. State of Goa, through the Dy. Collector (LA) Margao. 2. The Director of Sports & Youth Affairs, Panaji Goa. … Appellants V e r s u s Dr. Eurico da Silva, resident of Borda, Margao Goa. … Respondent/ Cross Objectioner :2: Mr. M. Salkar, Government Advocate for the Appellants. Mr. M. S. Sonak with Mr. J. Supekar, Advocates for the Respondent/Cross Objectioner. CORAM : S. A. BOBDE,J DATE : 14 th JULY, 2011 . ORAL JUDGMENT This is an appeal by the State against the award of the Reference Court awarding the compensation at the rate of Rs.168/- per square metre to the respondent. The respondent has also filed a cross objection making a grievance that the amount awarded by the Reference Court is low on account of deductions which were not warranted. 2. The land admeasuring 1461 square metres from Chalta No.18 P.T. Sheet No.99 was acquired by the State for the purpose of construction of multi-purpose stadium at Fatorda. The Land Acquisition Officer awarded a sum of Rs.40/- per square metre. The respondent applied for a reference in which the Reference Court awarded Rs.168/- per square metre. The description and location of the acquired land is as follows : :3: The acquired land is a plain level land having coconut trees and some residential houses including a store room. At this juncture, it may be noted that other properties under survey Nos.3/10, 11 and 12 which were acquired were compensated at the rate of Rs.20/- per square metre. In that regard, the respondent did not ask for enhancement. The acquired land is accessible by four wheelers from other property. It is situated close to Dr. J. Costa's hospital, school, banks, post office, pharmacy, shops and other stores, fish market etc. which are within the radius of 150 metres from the acquired land. Margao K.T.C. bus stand is at a distance of about 200 to 250 square metres approximately from the acquired land. There is also no dispute that the acquired land has all the amenities such as water, electricity as on the date of the notification. There was no telephone facility in the acquired land on the date of the notification. By now that has become a redundant factor in view of the introduction of the ubiquitous cell phone. 3. Before the Reference Court, the respondent relied on three sale deeds (a) Exhibit AW1/C in respect of 628 square metres of the land sold at the rate of Rs.400/- per square metre; (b) Exhibit AW1/D in respect of 1126 square :4: metres of the land sold at the rate of Rs.546/- per square metre and (c) Exhibit AW1/E in respect of 500 square metres of the land sold at the rate of Rs.300/- per square metre. The Reference Court straightaway deducted 40% on account of development expenditure of the acquired land. After deducting the said 40%, the Reference Court further deducted 35% almost for similar reason namely the fact that one of the sale instances was sold for commercial development. Mr. Salkar, learned Government Advocate submitted that the deduction of 40% from Exhibit AW1/D was on account of commercial development and also there were coconut trees in the said land. The Reference Court arrived at the rates of Rs.240/- in respect of (a), Rs.212/- in respect of (b) and Rs.180/- in respect of (c) above and drew an average, reaching a figure of Rs.210/- per square metre. Thereafter, the Reference Court has made a further deduction of 20% on account of want of motorable access and reached the figure of Rs.168/- which is awarded to the respondent. 4. Mr. Salkar, learned Government Advocate submitted that the deductions ought to have been more since the sale instances are in respect of small parcel of the lands and there was no motorable access at all to the said land. :5: This contention does not appear to be justified since the land of 540 square metres was sold in respect of the land which is much smaller in size than the acquired land. The acquired land is 1461 square metres and the sale instance is of 1126 square metres. Moreover, as rightly pointed out by Shri Sonak, the proposition that large area of land cannot possibly fetch a price at the same rate at which small plots are sold is not an absolute proposition. In Bhagwathula Samanna and others V/s Special Tahsildar and Land Acquisition Officer, Visakhapatnam Municipality, reported in AIR 1992 SC 2298, the Supreme Court has observed at paragraph 13 as follows : “13. The proposition that large area of land cannot possibly fetch a price at the same rate at which small plots are sold is not absolute proposition and in given circumstances it would be permissible to take into account the price fetched by the small plots of land. If the larger tract of land because of advantageous position is capable of being used for the purpose for which the smaller plots are used and is also situated in a developed area with little or no requirement of further development, the principle of deduction of the value for purpose of comparison is not warranted. :6: With regard to the nature of the plots involved in these two cases, it has been satisfactorily shown on the evidence on record that the land has facilities of road and other amenities and is adjacent to a developed colony and in such circumstances it is possible to utilise the entire area in question as house sites. In respect of the land acquired for the road, the same advantages are available and it did not require any further development. We are, therefore, of the view that the High Court has erred in applying the principle of deduction and reducing the fair market value of land from Rs.10/- per square yard to Rs.6.50 paise per square yard. In our opinion, no such deduction is justified in the facts and circumstances of these cases. The appellants, therefore, succeed.” Therefore, it is necessary to see if the acquired land had same advantages as the lands under sale instances. Having gone through the evidence, it seems that the acquired land had no particular disadvantage in comparison of the land in sale instance. The land is very close to all the amenities referred to above. The land had water and coconut trees. It has not been disputed that the land was certainly capable for :7: residential development. The evidence of the respondent clearly shows that the land has motorable access through other property. Such an access need not be discounted since the respondent, obviously, could exercise an easement of necessity over the other land from which he had access. Moreover, it is not disputed that under the Town and Country Planning Act, the access can be compulsorily required by the dominant heritage. 5. In these circumstances, there is no merit in the submission on behalf of the appellants that the deductions ought to have been greater. Shri Sonak, learned Counsel for the respondent, however, submitted that even if the deductions of 40% on account of some element of lack of development may be justified. However, there is absolutely no justification about further deduction of 35% made by the learned Judge again on account of lack of development i.e. to say a comparison with the more developed state of the sale instances. Learned Counsel further submitted that the deduction on account of coconut trees also made by the learned Judge is wholly unjustified since the acquired land also had coconut trees. In this regard, it appears from the judgment vide para 11, the learned Judge has further made :8: 35% deduction on account of the fact that the plot under the sale instance is about 50 square metres away from the national highway and it was sold for development which could have been for residential or commercial purpose and further that the land includes the sale instance land which has 12 yielding coconut trees. It appears from the judgment, the learned Reference Court has already deducted 40% on account of lack of development of the land in question. One sees no reason why a further 35% is deducted by referring to the other side of the same coin namely apparently better state of development of the sale instance land. Obviously, the initial deduction of 40% is for the reason of lack of development in comparison to the sale instance land. There is no merit in making further deduction on account of positive deduction of sale instance in comparison of the acquired land. As pointed out earlier, the deduction of 40% itself which has been done mechanically may not have been warranted in view of the judgment of the Supreme Court cited above. However, that deduction has not been interfered with because it appears that this deduction of additional 35% is not justified. It further appears that the learned Reference Court has without substantial reason referred to the factor of 12 yielding coconut trees in the land of the sale instance. This overlooks :9: the fact that the acquired land also had coconut trees and, therefore, taking into account this factor, is not justified at all. 6. In the circumstances, I am of the view that the compensation should be awarded after removing the deduction of 35% made by the learned Reference Court in respect of sale instance at (b). The average rate after deduction of 40% is comes to Rs.250/- per square metre. In addition, it appears that the expert relied on by the respondent himself has deposed that a deduction of 15% on account of provision for motorable road is justified. Therefore, the learned Judge has held that there should be deduction of 15% on this count. 7. I am of the view having regard to the fact that the respondent has easement of necessity which can admittedly be enforced under the Goa Town Planning Act, the deduction should not be more than 15% as deposed by the expert. Thus, the rate at which the respondent is entitled for compensation is Rs.213/- per square metre. The appeal and cross objection are disposed of in above terms. S. A. BOBDE,J at*