1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 316 OF 2005 1. Dr. Armando De Silva, Dental Surgeon, resident of House No.266, Nagoa Verna, Salcete, Goa. 2. Mrs. Imelda Da Silva, resident of House No.266, Nagoa Verna, Salcete, Goa. 3. Mr. Teddy Da Silva, resident of House No.266, Nagoa Verna, Salcete, Goa. 4. Mrs. Arzilia Da Silva, resident of House No.266, Nagoa Verna, Salcete, Goa. 5. Mr. Cyril Da Silva, resident of House No.266, Nagoa Verna, Salcete, Goa. 6. Mrs. Jenifer Da Silva, Dental Surgeon, resident of House No.266, Nagoa Verna, Salcete, Goa. 7. Mr. Placido Da Silva, resident of House No.266, Nagoa, Verna, Salcete, Goa. 8. Mrs. Silvia Da Silva, resident of House No.266, Nagoa Verna, Salcete, Goa. All represented by their lawful attorney Dr. Armando de Silva. ... Appellants 2 versus 1. Special Land Acquisition Officer, South Goa, KRCL, Amey Guest House, Davorlim Road, P.O. Navelim, Salcete, Goa-403707. 2. The Chief Engineer, Konkan Railway Corporation Ltd. 4th Floor Souza Towers, Church Square, Panaji, Goa-403001. 3. Michael de Silva 4. Suzette de Silva, r/o Nagoa Verna, Salcete, Goa. ... Respondents Shri M. P. Almeida, Advocate for the Appellants. Shri E. Afonso, Advocate for Respondent Nos.1 and 2. CORAM : F. M. REIS, J. DATE : 1ST MARCH, 2011. ORAL JUDGMENT The above appeal challenges the Judgment and Award dated 1-7-2005 passed by the learned Additional District Judge, Margao in Land Acquisition Case No.256 of 1995. 3 2. Land was acquired belonging to the appellants pursuant to a notification under Section 4 of the Land Acquisition Act, 1894(hereinafter referred to as the said Act) for the construction of a new broad gauge line for Konkan Railway in Nagoa Village from the property surveyed under Nos.101/1, 101/5, 102/2 and 102/3. Being dissatisfied with the award passed under Section 11 of the said Act, the appellants sought a reference under Section 18 of the said Act for enhancement of compensation and claimed compensation for the land acquired to the tune of Rs.5,22,000/- besides compensation for severance at the rate of Rs.300/- per sq. meter and compensation for coconut trees and cashew trees and a sum of Rs.50,000/- as damages on account of the value of the crop of coconuts taken by the respondents. By Judgment and Award dated 1-7-2005, the Reference Court rejected the said reference. Being aggrieved by the said Judgment and Award, the appellants have preferred the present appeal. 3. Shri M. P. Almeida, learned Counsel appearing for the appellants has assailed the impugned Judgment and pointed out that besides the said survey numbers there is another portion of the property bearing No.10/1 which was not included in the statement made under 4 Section 19 of the said Act by the Land Acquisition Officer. Learned Counsel further submitted that the property surveyed under No.10/1 was subject matter of the reference proceedings and as such, the application for amendment filed by the appellants to incorporate the said survey number in the reference proceedings was wrongly rejected by Order dated 25-6-2004. Learned Counsel further submitted that the appellants are also impugning the said Order in the present appeal along with the Judgment passed on merits. Learned Counsel pointed out that though the compensation has been claimed not on the basis of comparable sales method but on the basis of capitalization method, the Reference Court erroneously came to the conclusion that the appellants were not entitled for enhancement of compensation. Learned Counsel took me through the evidence on record and stated that the reduction of the number of coconuts sold by the appellants after the acquisition establishes the yield in the acquired portion of the land. Learned Counsel took me through the impugned Judgment and pointed out that the Reference Court has misdirected itself in appreciating the evidence on record and as such came to erroneous conclusions. Learned Counsel further submitted that the land acquired was fertile land having coconut grove and the same was being well maintained by the appellants and as such, the appellants 5 were entitled for the compensation of the agricultural land on the basis of the yield after applying an appropriate multiplier. Learned Counsel further submitted that the appellants have established the yield of the coconut trees in the acquired land and as such, it was incumbent upon the Reference Court to calculate the net income in the acquired portion of the land and thereafter apply a suitable multiplier for the purpose of fixing the compensation to the appellants. Learned Counsel further submitted that the Reference Court has not at all applied the well settled principles of law in fixing the compensation and as such, the impugned Judgment deserves to be set aside and an enhancement of the compensation be awarded in favour of the appellants. 4. On the other hand, Shri E. Afonso, learned Counsel for the Respondent Nos.1 and 2 has supported the impugned Judgment. Dealing with the Order rejecting the application for amendment, Shri Afonso pointed out that it is well settled that the Reference Court will have to determine the reference on the basis of the terms of reference made by the Land Acquisition Officer and the Reference Court has no jurisdiction to allow any application for amendment of the reference proceedings. Learned Counsel further submitted that the property surveyed under 6 No.10/1 is not the subject matter of the reference proceedings and the question of seeking to incorporate the said survey number in the reference proceedings would not arise. Learned Counsel as such pointed out that the order cannot be said to be erroneous. Dealing with the contention of the learned Counsel on merits, Shri E. Afonso pointed out that the claims of the appellants on the basis of the yield is very vague, and there is no material on record to establish the actual yield nor the amount of expenditure incurred for the maintenance to compute the net income of the acquired portion of the land. Learned Counsel pointed out that merely because there was a reduction in the number of coconuts sold to a coconut buyer that by itself cannot be attributed to be the yield of the acquired portion when such reduction can be attributed for different reasons including the number of properties which the appellants own and the number of coconuts which have been plucked on different occasions. Apart from that, learned Counsel pointed out that the amount of expenditure has not been established nor has the appellants adduced any evidence to establish the actual income and/or the net income of the acquired portion of the land. Learned Counsel further pointed out that as no such material is available on record the question of applying any multiplier and fixing the compensation would not arise. Learned Counsel 7 has taken me through the evidence on record and pointed out that there is no infirmity committed by the Reference Court and as such the question of interference by this Court in the impugned Judgment does not arise. 5. Upon hearing the learned Counsel and on perusal of the record, the following points for determination arise:- 1. Whether the Reference Court was justified to come to the conclusion that the property surveyed under No.10/1 is not subject matter of the reference proceedings? 2. Whether the Reference Court was justified to reject the reference filed by the appellants? 6. There is no dispute that in the statement made by the Land Acquisition Officer dated 16-6-1995, it refers to the property surveyed under Nos.101/1, 101/5, 102/2 and 102/3. The property surveyed under No.10/1 was not included in the said reference made by the Land Acquisition Officer. When the said aspect was pointed out to Shri Almeida, the learned Counsel for the appellants, he fairly stated that he would withdraw his challenge to the said order passed in the reference proceedings dated 25-6-2004 as no reference under Section 18 of the 8 said Act was made in respect of the property surveyed under No.10/1. Shri Almeida further pointed out that the appellants would be entitled to pursue their remedy available in law to claim compensation in respect of the said property surveyed under No.10/1 in accordance with law. As the property surveyed under No.10/1 is not subject matter of the reference proceedings it would be open to the appellants to seek remedies in law if so advised and it will be considered in an appropriate forum on its own merits. The first point for determination is answered accordingly. 7. Dealing with the second point for determination in support for enhancement of compensation, the appellant No.1 was examined. He has stated on affidavit that the property surveyed under No.101/5 at Nagoa village is part of the property known as “Valado Petvotam” which is fully developed into a coconut grove and the cultivation therein was about 20 years old. He has further stated that the property surveyed under Nos.102/1 and 102/3 at Nagoa village is also one which was fully developed into a coconut grove with a cultivation therein for the last 20 years. The reference to the property surveyed under No.10/1 made in the said affidavit is not relevant as the same is not the subject matter to the reference proceedings. He has further stated that the fruit value of the 9 coconut tree should be Rs.10,000/- and the fruit value of the cashew tree ought to be Rs.5000/- and the wood value of coconut trees would be Rs.2000/- whereas that of the cashew tree would be minimum of Rs.2,500/-. He has further stated that the market value of the land as on the relevant date ought to have been Rs.14,52,000/-. He relied upon an award passed in Land Acquisition Case No.254 of 1995. In the cross- examination, he has stated that the acquired land is situated at about 2 kms. away on the west of the Margao Cortalim National Highway. He has further stated that he had made all the payments to the workers but he had not brought records on that day. He further stated that he used to sell the coconuts to a dealer at Benaulim by name Mr. Rodrigues and he had sold coconuts to him about two years back for the last time. He has further stated that in the property surveyed under No.101/5, 17 coconut trees were acquired and in the property No.102/1, 26 trees were acquired and in 102/3, 25 coconut trees were acquired. He further stated that the coconut trees were about 20 years old. He further admitted that the land in Land Acquisition Case No.254 of 1995 is in Cuelim village but the same is adjacent to Nagoa village. The next witness examined is Philipe Goes who has stated on affidavit that he has been permanently working for the appellant since the year 1985. He has further stated that prior to 10 the acquisition the plucking was about 2000 to 2,500 coconuts and that in the remaining area the coconuts plucked were about 500 to 1000 coconuts. In the cross-examination, he stated that he cannot give survey numbers of the properties of the appellants. He has further stated that the property is 5 meters in width. The next witness examined is one Paulo Miranda who has stated that he was working permanently from the year 1988 for the appellant. He stated in the cross-examination that he does not know the survey numbers nor he could give the boundaries of the properties. He further stated that he knows the appellant from his childhood. The next witness is Jose Menino Rodrigues who is stated to be a coconut merchant. He stated that he used to visit the properties when the coconut plucking was taking place. He has stated that in one month in the bandh there were in the year 1985 over 550 coconut trees which were of the age of about 30 to 35 years and the said bandh was producing about 6000 to 7000 coconuts per plucking. He has further stated that a major portion was acquired for the Konkan Railway and the land has been severed and in the remaining portions there are about 142 coconut trees. He has further stated that the appellants had other properties and prior to the acquisition the said properties were getting 2000 to 2,500 coconuts per plucking and that after acquisition the 11 pluckings are from 500 to 1000 coconuts. In the cross-examination, he has stated that in the year 1991 he purchased coconuts from the land acquired by Konkan Railway and that he has been to the property of the appellant only two times in the year 1988 and 1991. He also stated that he does not know the boundaries of the property. He further stated that the average age of the coconut trees is 40 to 50 years and that he has given the number of the coconut trees by approximation. 8. The Reference Court whilst passing the impugned Judgment has considered that the appellants have not relied upon any opinion of experts nor on any comparable sale instance for claiming any enhancement of compensation. The only basis on which the appellants were claiming enhancement of compensation is on the basis of the actual or immediate prospective profits which the land acquired would fetch on the basis of the number of the trees existing therein. The learned Judge has found that the appellant in his deposition has nowhere stated about the income of the fruit bearing trees in the acquired portion of the land. The learned Judge has also found that the value of the coconuts produced has not been established by any material on record. The learned Judge has rejected the awards produced by the appellants as they 12 are not situated in the same village and that no plan has been produced to show the location of the said property vis a vis the land acquired. As far as the award passed in Land Acquisition Case No.254 of 1995 is concerned, the learned Judge also found that the land acquired therein was a garden land containing coconut trees and mango trees and the same was comparable to the sale deed plot produced therein. The learned Judge found that there was no evidence adduced about the similarity of the land acquired. The learned Judge noted that the land acquired which is subject matter of the present reference is a narrow strip of land. The other two awards at Exhs.17 and 18 were rejected as the same were from Cortalim village and there was no evidence to show any similarity of the land acquired. 9. On perusal of the evidence on record, I find that there is no evidence adduced by the appellants to establish the actual yield in the portion of the acquired land. AW1/Dr. Armando de Silva gives the number of coconuts plucked in a plucking which substantially differ with the number of coconuts stated by AW4/Jose Menino Rodrigues who is the coconut dealer. The appellants have failed to establish the number of coconut trees existing in the land and the number of coconut trees which 13 were yielding coconuts and the number of coconuts plucked therefrom. Apart from that, it is to be noted that the witnesses who were examined were also referring to the property surveyed under No.10/1 which was not the subject matter of the reference. There is no material on record to establish the yield of the coconut trees located in the acquired portion of the land. AW2/Philipe Goes has stated that 400 coconut trees have been cut from the acquired portion of the land while the number of coconut trees as stated by AW1/Dr. de Silva in the acquired portion in the present case in the property surveyed under No.101/5 were 17 coconut trees. In survey No.102/1, 26 trees were acquired, under survey No.102/3, 25 coconut trees were acquired and in 101/1, 10 coconut trees were acquired. Hence, the total number of coconut trees in the acquired portion of the land are about 70 coconut trees only. The appellants have failed to adduce evidence as to the yield of the coconuts in respect of the said trees. The appellants have also failed to adduce any evidence to establish the net yield of the fruit bearing trees in the acquired portion of the land and consequently the question of applying any multiplier for fixing the compensation would not arise. The appellants have miserably failed to adduce evidence to establish the compensation on the basis of the yield of the fruit bearing trees. The appellants have not examined any 14 agricultural expert who could assist the Reference Court to ascertain the yield of the trees in the acquired land. 10. The full Bench of this Court in the Judgment reported in 2007(5) ALL MR 711 in the case of State of Maharashtra V/s. Prashram Jagannath Aute, has held at para 5 thus: 5. The analytical examination of the above enunciated principles of law would lead to no other conclusion but each case of determination of market value of the acquired land has to be decided on its own facts, existing statutory guidelines stated in sections 23 and 24 of the Act and in the backdrop of judicial pronouncements controlling exercise of jurisdiction under section 18 of the Act. The evidence led by the parties and, particularly the claimants, would have to be scrutinized so as to arrive at a just, fair and adequate compensation. Another facet of this aspect of acquisition law is what kind of methodology the Court would adopt while arriving at a conclusion. Should it adopt capitalization method, multiple method, belting system or evolve any other method which necessarily would have to depend on record before the Court. Location and potential of the land cannot be a question of law; it will ever be a matter of fact. The enunciated principle of law which, de hors the 15 evidence on record, can be applied to every case, is not only improbable but is even impermissible. It can be said that normally an irrigated land would get higher compensation than the unirrigated or jirayat land, but there can be cases where this principle is commonly appears to be true, may not be applicable. For example irrigated agricultural land is located away from the national highway or industrial area but non-irrigated land is located adjacent to the industrial area, which is fully developed and/or is adjacent to the national or State highway. Parties have to lead evidence to show that the lands have greater potential and value, which is higher than the agricultural land. In those circumstances the Court would have to consider the entire matter objectively and may be in all probability the bagayat land may get higher compensation than the agricultural land. Thus it cannot be stated as an universal rule that irrigated agricultural land must always get price higher or the double compensation than the non irrigated agricultural land. 11. Hence, considering the said judgment of the Full Bench of this Court, for the purpose of determining the market value of the acquired land on the basis of its agricultural value, the onus to establish the market value of said land is upon the appellants. As stated hereinabove on scrutinizing all the evidence adduced by the appellants, I 16 find that there is no material produced by the appellants to establish the yield of the fruit bearing trees in the acquired portion of the land nor the costs of maintenance, etc. which would be necessary so as to fix the compensation on the basis of yield value. As the appellants have failed to discharge the burden to establish that the amount of compensation offered by the Land Acquisition Officer is inadequate, I find that the Reference Court was justified to refuse enhancement of compensation for the land acquired. 12. With regard to the other claims put forward by the appellants, the learned Counsel appearing for the appellants was unable to point out any infirmities committed by the Reference Court in refusing the said claims. There is no infirmity committed by the Reference Court in dismissing the reference and as such, there is no merit in this appeal and the same stands dismissed with no order as to costs. F. M. REIS, J. RD 17