1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.145 OF 2003 Smt. Ritinha Da Costa (since deceased, through her Lrs: 1a) Smt. Piolinda Costa Ferrao, daughter of Joao Pedro da Costa, aged 45 years, occupation housewife. 1b) Shri John Joaquim Ferrao, age 59 years, occupation retired seaman. Both r/o H.No.413, Coldem, Navelim, Salcete, Goa. .... Appellants – Versus - 1. State of Goa, through the Chief Secretary with his office at Secretariat, Panaji, Goa. 2. The Deputy Collector (L.A), Collectorate of South Goa, Margao-Goa. .... Respondents Sri Sudesh Usgaonkar for the Appellants. Sri Guru Shirodkar, Addl. Government Advocate, for the Respondents. 2 CORAM: SRI R.M.S. KHANDEPARKAR & SRI S.C. DHARMADHIKARI, JJ. DATED: JULY 30, 2008 ORAL JUDGMENT (Per Sri S.C.Dharmadhikari, J.): 1. The appellants impugn the judgment of the Reference Court in Land Acquisition Case No.128 of 2000, delivered on 24-1- 2003 by which it has partly allowed the reference and held that the applicant/appellant is entitled to a sum of Rs.2750/- towards severance charges in respect of 275 square metres of Survey No.77/10 with consequential benefits under Sections 23(2), 23(1-A), 28 and 34 of the Land Acquisition Act, 1894, hereinafter called as “the said Act”. 2. It is not in dispute before us that the appellant invoked the jurisdiction of the Reference Court under Section 18 of the said Act. An application which was filed by her claimed enhancement in the sum of compensation awarded by the SLAO. By virtue of the notification dated 9-3-1992, which has been published in the Government Gazette dated 6-8-1992, the respondents acquired land admeasuring 3075 square metres and 875 square metres from Survey bearing Nos.77/10 and 68/7, respectively, of Village Navelim. The public purpose was re-alignment of National Highway 17 from km. 29/460 to 36/060 (Margao Western 3 Bypass). The award of the SLAO dated 31-5-1996 granted to the applicant/appellant a sum of Rs.20/- per square metre for the rice land, a sum of Rs.30/- per square metre for the coconut land and a sum of Rs.5/- for the road. The appellant aggrieved by this, claimed flat rate of Rs.2000/- per square metre for the acquired land and Rs.1000/- per square metre by way of severance charges. 3. As is clear from the award of the Reference Court, the claim for enhanced compensation has been rejected and only severance charges have been awarded. It is this award of the Reference Court which is impugned in the present First Appeal. 4. We have heard the learned Advocate appearing for the appellants and the learned Government Advocate for the respondents. 5. It is contended before us that the Reference Court failed in its duty in law to consider the claim for enhanced compensation. The claim was on the basis that not only there was a sale deed but the land fell in the settlement zone. There were amenities available. It was a levelled land. The surroundings included commercial development. There is a school, market and railway station within the vicinity. There is water and electricity connection. In such circumstances, merely because the valuation report could not be proved by the valuer and that 4 the sale deed relied upon was of 16-6-1997 (five years post acquisition) that does not mean that the Reference Court could not have considered the development potential and the features of the land under acquisition while entertaining and deciding the claim for enhanced compensation. The Reference Court has framed the issues for its consideration and while answering them has disbelieved the version of the valuer so also the contents of the sale deed. However, there is no discussion with regard to the development potential of the property. In such circumstances, the Reference Court has failed in its duty to consider the claim for enhanced compensation on merits and in accordance with law. The counsel, therefore, prays that an appropriate order be passed by this Court. 6. The learned Government Advocate supported the impugned order and urged that the claimant has failed to adduce any evidence. The sale deed was of 1997, which is five years after the acquisition. Even the valuer has not been able to show the basis for valuing the land. Thus, he was unable to prove the contents of the valuation report. In such circumstances and when there is no evidence on record, it cannot be said that the Reference Court has failed in its duty in law. Hence the award be sustained and the First Appeal be dismissed. 5 7. We have perused the Appeal memo and the judgment and award of the Reference Court. We have also perused with the assistance of the learned counsel appearing for the parties the deposition of one Santosh Satardekar, a Draughtsman, Grade-I in the Town and Country Planning Department. The said witness has placed on record the Regional Plan and the Base Plan. He has stated before the Court that Survey No.68/7 falls in the settlement zone and Survey No.77/10 is falling in a cultivable zone. The Regional Plan was prepared in 1986. The said witness has been cross-examined but the fact that there was a Regional Plan produced by him and that part of the land under acquisition fell within the settlement zone remained undisputed. In such circumstances, we are of the view that merely because the valuer's report which was placed on record and the valuer admitted in the cross- examination that he visited the land in the year 1993 by itself was not enough to discard the development potential. More so, when the part of the acquired land fell in the development or the settlement area. It is further clear that the sale deed being of five years post acquisition by itself does not mean that the Reference Court cannot consider the development potential independently. Apart from the sale deed, if there is material enough to prove that the land has developmental potential and the features, so also amenities available are such that the land can be put for commercial use, or it has development potential, the claim for enhanced compensation could have been considered on that basis. A 6 perusal of the judgment of the Reference Court demonstrates that these aspects have not been taken into consideration at all after disbelieving the version of the valuer and discarding the sale deed. The learned Judge has failed to consider the other aspects pointed out above. In such circumstances, we are of the view that the judgment and award dated 24-1-2003 cannot be sustained. Instead of we embarking upon an inquiry ourselves in Appeal, and considering the claim for enhanced compensation, we are of the view that interest of justice will be sub- served if the reference is restored to the file of the Reference Court for being considered afresh on merits and in accordance with law. Thus, remand of the matter to the Reference Court would meet the ends of justice. 8. Accordingly, the Appeal succeeds; the impugned judgment and award is quashed and set aside. The Land Acquisition Case No.128 of 2000 is restored to the file of the District and Sessions Court, South Goa, at Margao for disposal afresh in accordance with law. Considering that the land acquisition reference is of the year 2000, interest of justice will be sub-served further, if the Reference Court grants priority to the said reference and dispossess of the same expeditiously. (S.C.Dharmadhikari, J.) (R.M.S.Khandeparkar, J.) sjs/FCAJ145-3