1 IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 175 OF 2003. The Executive Engineer, Work Division XVII, P.W.D., Porvorim. ... Appellant. Versus Shri Pedro Gomes Viegas, R/o Comprem, Tivim, Bardez, Goa. ... Respondent. Ms. W. Coutinho, Government Advocate for the Appellant. Mr. S. D. Lotlikar, Senior Advocate with Mr. P. Lotlikar, Advocate for the Respondent. Coram : R. M. SAVANT, J. Date : 11 th March, 2010. ORAL JUDGMENT This First Appeal challenges the judgment and award dated 5.1.2003 passed by the reference court in Land Acquisition Case No. 66/1991. By the said judgment and award, the reference in question came to be partly allowed and the appellant was granted enhancement at the rate of Rs. 145/- per sq. meter and statutory allowances on the said enhanced rate. 2. The subject matter of the acquisition were the lands 2 admeasuring 285 sq. meters from survey Nos. 557/11 (part) and 559/1 (part) situated at village Tivim owned by the respondents above named. The purpose of the acquisition was for augumentation of Assonora water supply scheme. The notification under Section 4 of the Land Acquisition Act, 1894 came to be published on 7.11.1983 and the award in respect of the said land came to be declared on 7.3.1988. The Land Acquisition Officer had awarded compensation at the rate of Rs. 7/- per sq. meter in the said award. Being dissatisfied with the compensation awarded, the respondent filed an application with the Collector for a reference being made under Section 18 of the Land Acquisition Act, to the Court claiming enhancement of the compensation at the rate of Rs. 300/- per sq. meter, apart from compensation for severence charges of the land. The said reference came to be numbered as L.A.C.No. 66/91. 3. Initially in the said reference issues were framed which came to be amended later on by framing additional issues and ultimately the following issues were tried by the reference court. The additional issues framed were in respect of : 1. Whether the Government had acquired an excess area of 150 sq. meters over and above mentioned in the declaration under Section 6 and whether on account of such additional acquisition the appellant was entitled to severence charges? One more additional issue that was framed was: 1. Whether the possession was taken prior to the notification issued under section 4 of the Act? 3 4. The parties would be referred to as per their status in the trial court. 5 On behalf of the claimant i.e. respondent above named, one Fr. Gomes, AW1 deposed that the land in question was acquired for augumenting the water supply of Assonora village. The work order in question which was published in the official gazette was produced and marked as exhibit 18. In the cross examination of the witness, of the acquiring body, it is come on record that the work order came to be issued on 18.4.1983 whereas the notification under section 4 of the Act was issued on 7.11.1983. It is further come in evidence that possession of the acquired land was taken by the applicant as per their records in their office though being unable to state the date of possession. Taking into consideration the cross examination of the main witness, RW1 for the acquiring body, the case of the appellant that the possession was taken even prior to Section 4 of the notification finds support. 6. In so far as the discrepancy in the area is concerned, it is come in the evidence of the Junior Engineer examined on behalf of the appellant, the acquiring body, one T.T. Balkrishna though initially he has stated that acquired area from survey No. 557/11 is 155 sq. meters as specified in the notification under section 4. He has revealed that the plan was prepared by him selecting the area although no final plan had been prepared by him personally and which had been prepared by Survey Department. It is his admission that as per provisional plan prepared by him, the area acquired from 557/11 was 155 sq. meters. The said evidence therefore, lend support to the case of the appellant that the area 4 acquired from survey No. 557/11 was 155 sqq. Meters and not 5 sq. meters as contended on behalf of the acquiring body. 7. One more witness was examined on behalf of the acquiring body i.e. G.G. Kambli, R.w.3 who has discharged the duties as a Land Acquisiton Officer. Though he has deposed that the area in question was physically demarcated and a final plan of demarcation was prepared in the year 1986, before issuance of the declaration under section 6 , no demarcation plan has been produced by him. He has also admitted that the work order was issued and work completed even prior to the Section 6 declaration and therefore supports the case of the applicants. That the acquired land was close to the Tivim market and that the said lands were falling within the residential area and there were houses in the vicinity were suggestions which were not denied by him. 8. It would be pertinent to note that the appellant has not produced the final plan though two witnesses on its behalf have deposed that such a final plan was prepared and therefore, since the appellants have chosen not to produce the final plan, an adverse inference is to be drawn against the appellants. Resultantly, it would have to be held that an area of 155 sq. meters has been acquired from survey No. 557/11 instead of 5 sq. meters as mentioned in the Section 6 declaration. It would also have to be held that the possession of the lands in question were taken prior to the issuance of Section 4 notification some time in August, 1982 in terms of the work order at exhibit 17. The reference court therefore, has rightly held that the acquiring body has taken possession of an area of 155 sq. meters more than what was 5 mentioned in the Section 6 declaration and that the appellant would be entitled to claim compensation from May 1982 for the acquired land. 9. In so far as the enhancement claimed is concerned, the applicant claims the sum at Rs. 300/- per sq. meter. In support of his case, the applicant has relied upon the sale deed of the year 1966 where the applicant sold a plot to one Ida Pereira for Rs. 12/- per sq. meter which goes to show that the rate of land was 12/- per sq meter in the year 1966. The rate on the basis of the said sale deed by applying the capitalisation method would work out to Rs. 33.6 per sq. meter. The other sale deed is of the year 1974 marked as exhibit 22 between one Maria Cecelia was of a plot of land admeasuring 125 sq. meters for total consideration of Rs. 75,000/- which would show that the rate was Rs. 75/- per sq. meter in the year 1974. This was the same plot sold by the applicant in the year 1966 at the rate of Rs. 12/- per sq. meter . Therefore between the period from 1966 and 1974 there was appreciation of Rs. 63/- per sq. meter in respect of the market rate. The reference court as can be seen from the impugned award has applied the capitalisation method and by giving increase of 10% per year for 9 years has worked out the rate at Rs. 142 per sq. meter in the year 1983 i.e. the date of notification. The appellant has also relied on a sale instance of the year 1974 when the appellant sold a plot of land to Domnic Albuquerque of 600 sq. meters for 48,000/- which would work out at Rs. 80/- per sq. meter. A sale deed of the year 1998 for consideration of Rs. 2,36,250/- for a plot of land admeasuring 525 sq. meters at Rs. 450 per sq. meter and another sale deed of the year 1989 for plot of land admeasurisng 774 sq. meters for Rs. 6 77,400/- which works to Rs. 100/- per sq. meter. However, it appears that the reference court took the sale deed of the year 1966 and 1974 as the barometer for fixing the enhanced market rate for considering the rate of enhancement claimed by the applicant. While arriving at this finding that the appellant would be entitled to rate of Rs. 145/- per sq. meter, the reference court has also taken in to consideration the sale deeds of the year 1998 and the sale deed of the year 1989. It is on the basis of the consideration of the aforesaid sale deeds that the reference court came to a conclusion that the market rate considering the aforesaid sale transaction and the peculiar features of the land acquired can reasonably be fixed at Rs. 145 per sq. meter. 10. In my view, considering the sale deeds of the year 1998 and of the year 1989 which obviously the reference court could not have glossed over since they were produced by the appellant, whether the rate of Rs. 145/- per sq. meter is a reasonable rate. If the reference court had fixed the rate on the basis of the aforesaid sale deeds and has come to a conclusion that Rs. 145 would be a reasonable rate on the basis of an overall picture in my view the reference court ought to have fixed it at Rs. 125 per sq. meter which rate is arrived at on the basis of the last sale deed of the year 1998. 11. It would also be significant to note that in the year 1989 the appellant himself sold a plot of land at Rs. 100/- per sq. meter. Therefore, considering the overall picture in my view the rate of Rs. 125/- per sq. meter would be an apt rate at which enhancement should have been granted to the appellant. The 7 question remains whether the appellant can now be deprived of Rs. 20/- per sq. meter. Particularly in the context of the fact that the award in question was declared by the Land Acquisition Officer in the year 1988 whereas the possession of the land as held herein above was taken in the year 1982 the appellant being a quandum land holder who has been now deprived of compensation for over a period of 22 years . A useful reference could be made to the judgment of the Apex court reported in 2009 (3) scale 263 in the matter of Special Land Acquisition Officer, U.K. Project Vs. Mehaboob & anr. Wherein the Apex court in a situation akin to the present case wherein the deprived land owner was deprived of compensation for over 17 years refused to interfere with the award passed by the reference court as confirmed by the High Court. Para 7 of the report is material and is reproduced herein under: “We may now advert to the fact of this case. The acquisition is of the year 1990. The extent of land acquired is 1 acre 13 guntas. The Land Acquisition Officer awarded a sum of Rs. 4,000/- per acre which is about nine paise per sq. ft. Not much argument is needed to show that the compensation was very low. The total compensation as per the award of the LAO made in 1991, was Rs. 5,300/- (excluding statutory additions). Having lost his land, and consequently, the means of livelihood the land loser had to engage a lawyer and fight for a reasonable compensation by seeking reference to the court. The reference court determined the 8 compensation as Rs. 30,420/- per acre on 10.3.2005. This means an increase of about Rs. 35,000/- in compensation (plus statutory additions) for the acquired land. But the land loser was not given this amount. The state Government files a first appeal, then a second appeal and then a SLP. The result is except the paltry amount which he must have received when the LAO made the award, the land loser has not received any compensation for nearly 17 years and had to fight the litigation before three courts for a total compensation of Rs. 40,000/- (excluding statutory benefits). Apart from the fact that the land loser would have spent virtually the entire amount for litigation, whatever amount he may ultimately receive will not get him even one-fourth or one-fifth of the extent of land which he lost by acquisition . Unless the process of acquisition gives him a reasonable compensation either at the time or immediately after the dispossession the compensation will be a mirage for most land losers. 12. In the light of the aforesaid decision, though this court has reached a conclusion that the enhancement if any can be granted only at Rs. 125/- per sq. meter considering the aforesaid aspects namely that the compensation should be just and that it should provide a real succor to the deprived land holder in my 9 view it would be not just and proper to deprive the appellant of Rs. 20/- per sq. meter at this point of time. For the reasons mentioned herein above, no interference is therefore, called for with the judgment and award of the reference court. 13. The appeal is accordingly dismissed. R. M. SAVANT, J. MF/-