1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.314 of 2003 1. Shri Jose A. Menezes (deceased) through his legal representatives Maria Elvina Pinto e Menezes. 2. Shri Joao Sarto Hugolino V. De Menezes (since deceased) through his L.Rs. (a) Rui De Menezes, through his attorney, J.A. Menezes, r/o Agassaim, Goa. (b) Savio N. Menezes, through his attorney, L.C.A. Menezes, r/o F-1, Gharse Tower, Panaji. 3. Luis Cristovam A. Dos R. Da Piedade, r/o F-1, Gharse Tower, Panaji Goa …. Appellants V e r s u s 1. The Deputy Collector (LA), Land Acquisition Officer, Panaji-Goa. 2. The Executive Engineer, Division II (Roads), P.W.D., Panaji, Goa. ….. Respondents 2 Mr. V.A. Lawande, Advocate for the Appellants. Mr. A. Kakodkar, Additional Government Advocate for the Respondents. Coram: A. P. Lavande, J. Reserved on : 15/12/2010. Pronounced on: 7/6/2011. JUDGMENT: By this appeal, the appellants (hereinafter referred to as “the applicants”) take exception to the judgment and award dated 28/7/2003 passed by the District Judge, North Goa, Panaji in Land Acquisition Case No.41/2001 rejecting the reference under Section 18 of the Land Acquisition Act 1894 (“The Act” for short). 2. Vide Notification issued under Section 4 (1) of “the Act”, the Government of Goa acquired land admeasuring 1980 square metres belonging to the applicants surveyed under survey nos.68 (part), 67/1 3 (part), 65/2 (part), 67/2 (part), 63/1(part), 63/2 (part), 65/3 (part) and 69/1 (part) for the purpose of construction of B/T road at Mercurim in Village Panchayat, Agassaim. The said notification was issued by the Government on 2/6/1998 and was published in Official Gazette on 28/6/1998. The acquired land consisted of coconut trees and a negligible portion was paddy field. 3. Before the Land Acquisition Officer the applicants claimed compensation at the rate of Rs.700/- per square metre. The Land Acquisition Officer awarded compensation at the rate of Rs.100/- per square metre and Rs.20/- per square metre in respect of 10 sq.mtres of paddy field forming part of survey no.65/2. 4. Aggrieved by the inadequacy of compensation awarded by the Land Acquisition Officer, the applicants sought reference under Section 18 of the Act which was 4 registered as Land Acquisition Case No.41/2001. 5. Before the Reference Court, the applicants claimed that though the Government had acquired additional 1600 sq.metres of land, the same was not shown as acquired and as such, they were entitled to compensation in respect of the said land. The applicants also claimed severance charges in respect of the remaining portion of the property on the ground that the same was rendered useless and non-beneficial. The applicants also claimed compensation of Rs.1,20,000/- on account of coconut trees and saplings. 6. The Reference Court framed the following issues: i. Whether the applicants prove that the market value of the acquired land was Rs.700/- per sq.mtr. as on the date of the acquisition? 5 ii. Whether the applicants prove that an area of 1600 sq.mtrs. belonging to the applicants has been wrongly shown as acquired by the Government and to which the applicants are entitled for compensation? iii. Whether the applicants prove that they are entitled to claim severance loss as due to the acquisition the remaining property of the applicants has been rendered useless and non- beneficial? iv. Whether the applicants prove that they are entitled for compensation of Rs.1,20,000/- on account of coconut trees and saplings? v. What relief? What order? 7. The applicants in support of their claim for higher compensation examined three witnesses namely, Luis Cristovam A. Dos R. Da Piedade Menezes, AW.1- 6 Applicant no.3, Shri Subhaschandra Narayan Bhobe, AW.2, the Surveyor and Mr. Sebastiao Oscar Furtado, AW.3, the purchaser in sale dated 11/10/2000 (Exhibit 27). Besides the evidence of the above three witnesses, the applicants relied upon the following documentary evidence: I) Exhibit 21 - Sale deed dated 12/1/1998. II) Exhibit 23 – Sale Deed dated 19/3/1997 III) Exhibit 24 – Sale Deed dated 10/4/1997 IV) Exhibit 25 – Sale Deed dated 19/6/1997 V) Exhibit 26 – Sale Deed dated 11/10/2000 VI) Exhibit 27 – Valuation Report dated 11/12/1999 which has considered the rate of the acquired land to be Rs.375/- per sq.mtre. 8. The Respondents did not lead any evidence. 7 9. The Reference Court upon appreciation of the evidence, oral and documentary led by the parties answered all the issues against the applicants and held that the applicants had not proved their case for higher compensation. The Reference Court did not place reliance upon the sale deeds on the ground that they were not comparable sale instances. The Reference Court also did not place reliance upon the report of the expert Shri Subhaschandra Narayan Bhobe. 10. Mr. Lawande, learned counsel appearing for the appellants/applicants submitted that the Reference Court has erred in rejecting the reference and in refusing to place reliance upon the sale deeds relied upon by the applicants in support of their claim. According to the learned counsel, the reasons given by the Reference Court for rejecting the reference are patently unsustainable in law in as much as there is no material on record to establish that 8 the sale deeds relied upon by the applicants were in respect of developed plots. According to the learned counsel the Reference Court ought to have relied upon the sale deeds produced by the applicants and more particularly sale deed dated 11/10/2000 since by the said sale deed the property was sold at the rate of Rs.638/- per sq.mtre. Learned counsel further submitted that the burden of proving true value of the acquired property is on the State, which has not been discharged by the respondents in the present case. Learned counsel further submitted that the Reference Court ought to have considered the various sale deeds relied upon by the applicants for the purpose of comparing the acquired land with the lands forming subject matter of the sale deeds. Learned counsel further submitted that even the sale instances which are subsequent to the issuance of Section 4 notification have to be considered provided they are proximate to notification issued under Section 4 of the Act. Learned counsel further submitted 9 that the party claiming compensation is not bound by the rate claimed by him and the applicants are entitled to just compensation subject to payment of balance court fees. Learned counsel submitted that the applicants are entitled to compensation in respect of an area of 1600 sq. metres which has been factually acquired but not shown as acquired. Learned counsel further submitted that the purpose of acquisition is relevant for deciding the compensation. According to learned counsel, the Reference Court has not correctly followed the principles governing for fixation of compensation in reference arising under Section 18 of the Act. Learned counsel therefore submitted that the impugned award is liable to be set aside and the reference sought by the applicants deserves to be allowed. In support of his submissions, learned counsel placed reliance on the following judgments: i) Mahesh Dattatray Thirthkar Vs. State of Maharashtra (2009) 11 SCC 141. 10 ii) Satish and others Vs. State of Uttar Pradesh and others (2009) 14 SCC 758. iii) Bhimasha Vs. Special Land Acquisition Officer and anr. (2008) 10 SCC 797. iv) State of Haryana Vs. Gurbax Singh (dead) by Lrs and anr. (2008) 11 SCC 65. v) State of Maharashtra Vs. Bhaskar Namdeo Wagh and others, 2008 (6) ALMR 55. vi) State of Goa and anr. Vs. Gopal Baburao Gaudo and others, 2009 (5) AL MR 1022 SC vii) Nelson Fernandes and others Vs. Special Land Acquisition Officer and others ( 2007) (9) SCC 447. 11. Per contra, Mr. Kakodkar, learned Additional Government Advocate supported the impugned judgment and award and submitted that the burden is on the applicants to prove that the compensation fixed by the 11 Land Acquisition Officer is not adequate. Learned counsel further submitted that there is absolutely no evidence that an additional area of 1600 sq.mtres though acquired has not been shown as acquired or that it has been rendered useless on account of the acquisition. According to Mr. Kakodkar, none of the sale deeds relied upon by the applicants are in respect of comparable lands and as such the Reference Court was justified in refusing to place reliance upon all the sale deeds produced by the applicants. In so far as relevancy of purpose of acquisition is concerned, Mr. Kakodkar placed reliance upon the judgment of the Apex Court in the case of Subh Ram and others Vs. State of Haryana and anr., (2010) 1 SCC 444. and submitted that the future use or purpose of acquisition under no circumstance plays role in determining percentage of deduction towards development cost. Mr Kakodkar also placed reliance upon the judgment of the 12 Apex Court in the case of Basant Kumar Vs. Union of India, (1996) 11 SCC 542 and Sangunthala (dead) through Lrs Vs. Special Tashildar (Land Acquisition) and others, 2010 (3) SCC 661. 12. I have carefully considered the rival submission and perused the record and the judgments relied upon. 13. In view of the submissions made, the following points arise for determination in the present appeal. i) Whether the applicants are entitled to compensation at the rate of Rs.700/- per sq.mtre in respect of the acquired land? If not, to what compensation the applicants are entitled? ii) Whether the applicants are entitled to compensation in respect of an additional area of 1600 sq.metres? 13 14. I do not deem it necessary to refer in detail to all the authorities relied upon by Mr. Lawande and Mr. Kakodkar. 15. The following propositions emerge from the authorities relied upon by Mr. Lawande : i) the burden of proving the true value of the acquired land is on the State. ii) the Reference Court can rely on a certified copy of the sale deed and it is not necessary to examine either the vendor or the seller. iii) sale instances in respect of bonafide transactions entered into soon after the issuance of notification u/s 4 of the Act can be considered for fixation of the market value of the acquired land. 14 iv) a long strip of land lying alongside and adjoining the Highway cannot be treated as a land without value or without any potential for developments. 16. The following propositions emerge from the authorities relied upon by Mr. Kakodkar: i) the purpose of acquisition is not a relevant factor for deciding the compensation. ii) the doctrine of equality in determination and payment of same compensation to all claimants covered by the same notification is not a good principle; entire village cannot be treated one unit and uniform compensation on that basis is not sustainable. iii) burden is on the claimants to prove the market value and the Court should adopt realistic standards and pragmatic approach in 15 evaluation of the evidence. 17. As stated above, the applicants relied upon the oral evidence of the three witnesses and the documentary evidence in the nature of sale deeds and the report of the expert Mr. Bhobe, AW2. Since the applicants have chosen to rely upon the sale deeds and the report of the expert which is also based on the sale deeds it would be appropriate to find out whether the sale deeds relied upon by the applicants can be relied upon for the purpose of fixation of the market value of the acquired land. In so far as sale deed dated 11/10/2000 (Exhibit 26) is concerned, it is pertinent to note that in the present case the notification under Section 4 of the Act was published on 28/6/1998. The sale deed was executed about 2 years and four months after publication of Section 4 notification. As such, the sale deed cannot be considered to be in respect of a sale transaction taken place soon after the publication of 16 Section 4 notification. Therefore, it would not be possible to rely upon the said sale deed. In so far as the other four sale deeds relied upon by the applicants are concerned, a three Judge Bench of the Apex Court in Printers House Pvt. Ltd. Vs. Mst Saiyadan (deceased) by L.Rs and ors.,1994 (2) SCC 133 has held that for the purpose of fixing the market value of the acquired land a sale transaction in respect of land which closely or nearly compares with the acquired land has to be preferred. In the present case, the acquired land admittedly was consisting of coconut trees and a negligible portion was a paddy field. Perusal of the sale deed dated 10/4/1997 (Exhibit 24) discloses that by the said sale deed, an area of 840 sq.metres was sold at the rate of Rs.200/- per sq.mtre. Perusal of the award by the Land Acquisition Officer discloses that the said plot was situated at a distance of about 500 sq.mtres from the acquired land. Thus, the sale deed (Exhibit 24) of the said date was proximate in time 17 and place vis-a-vis the acquired land. No doubt, the sale deed dated 10/4/1997 was in respect of a developed plot of land as is evident from the sale deed itself. Whereas there is absolutely no evidence brought on record by the applicants that the acquired land was also a developed land. Moreover, in the plot sold by sale deed dated 10/4/1997 there were no trees, whereas in the acquired land there were coconut trees. It is well settled by a catena of decisions of the Apex Court that in case of some difference in the nature of the acquired land and sale deed plot appropriate deduction has to be made while fixing the market rate of the acquired land. Since the sale deed (Exhibit 24) was executed on 10/4/1997 and in the present case notification was published on 28/6/1998, almost after a period of one year, it would be appropriate to consider escalation at the rate of 10% per annum. Thus, the value of the sale deed plot as on the date of publication of Section 4 notification works out at Rs.220/- per sq,mtere. 18 Considering the fact that plot sold by the said sale deed dated 10/4/1997 was a developed plot and in the absence of any cogent evidence that the acquired land was developed and also considering the fact that the sale deed plot had advantages of two abutting roads vis-a-vis the acquired land which had only one road, in my opinion, it would be appropriate to deduct 35% from the market rate of the said deed plot. Accordingly, the market value of the acquired land as on the date of publication of Section 4 notification works out to Rs.143/-. Since the area of paddy field portion was 10 sq.metres as compared to the total acquired land of 1980 sq.metres, I am of the considered opinion that the applicants are entitled to compensation at the rate of Rs.143/- per sq.metre in respect of the entire acquired land admeasuring 1980 sq.metres. 18. In so far as the issue as to whether the purpose of acquired land is relevant for determining the value of 19 the acquired land is concerned, the issue is squarely covered by the judgment of the Apex Court in the case of Subh Ram (supra). In the said case the Apex Court has held that the percentage of deduction will be applied fully where the acquired land has no development. But under no circumstance future use or purpose of acquisition plays a role in determining the percentage of deduction towards development cost. In my opinion, the ratio of the said judgment is squarely applicable in the present case. In so far as the judgment in the case of Gopal Baburao Gaude (supra) arising from the Division Bench judgment of this Court concerned, the Apex Court has held that when a long strip of land alongside and adjoining the Highway is acquired, the same cannot be treated as a land without value or without any potential for developments on the ground that the law relating to Highways prohibited construction on either side of the Highway, upto a depth of 40 meters from the centre of the Highway. 20 19. Therefore, I am of the considered opinion that the applicants are entitled to compensation at the rate of Rs.143/- per sq.mtre in respect of the acquired land admeasuring 1980 sq.metres. 20. In so far as the submission made by Mr. Lawande that the applicants are also entitled to compensation in respect of 1600 sq.metres of land for which the compensation has not been paid by the State Government is concerned, I am of the considered opinion that the Reference Court is perfectly justified in holding against the applicants in as much as the applicants have not led any cogent evidence before the Reference Court to establish that the Government has acquired an additional area of 1600 sq.metres belonging to them for which they have not been paid compensation. Except ipse dixit of appellant no.3 there is absolutely no cogent evidence on record to substantiate the claim of the applicants that the 21 applicants are entitled to compensation in respect of additional area of 1600 sq.metres. 21. For the reasons stated above, the appeal is partly allowed. The applicants are held entitled to compensation at the rate of Rs.143/- per sq.metre in respect of the acquired land admeasuring 1980 sq.metres belonging to the applicants. The applicants are also entitled to statutory benefits under the Land Acquisition Act. 22. The appeal stands disposed of in aforesaid terms. No order as to costs. A. P. Lavande, J. Ap/-