:1: IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 164 OF 2004 1. Dy. Collector & SDO, Ponda Sub Division, Ponda Goa. 2. The Executive Engineer, WD-XVIII (R), P.W.D., Ponda Goa. ... Appellants V e r s u s Shree Shantadurga Devasthan of Kavlem, Ponda Goa, by its Attorney Shri Vallabh Kudchadkar ... Respondent Ms. Sapna Mordekar, Additional Government Advocate for the Appellants. Mr. Deep Shirodkar, Advocate for the Respondent. CORAM : F. M. REIS, J DATE: 1 st OCTOBER, 2010. ORAL JUDGMENT The above appeal challenges the judgment and award dated 22nd March, 2004 passed by the learned Additional District Judge, Panaji in Land Acquisition Case No. 21/99. 2. The Appellant sought to acquire different portions of the property of the Respondent situated at Ponda for the construction of :2: Ponda by-pass road from Farmagudi to Dhavali via Kashimath Khandpaband and Kapileshwari in Ponda pursuant to a notification issued under Section 4 of the Land Acquisition Act, 1894 ( hereinafter referred to as 'the said Act') dated 6th November, 1991. The area sought to be acquired was admeasuring 3275 square metres from the property surveyed under survey No.6/3 of village Queula and an area of 1850 square metres from the property surveyed under survey No.204/1. 3. By an award dated 13th November, 1992 the Land Acquisition Officer offered the compensation at the rate of Rs.15/- per square metre for the land acquired. Being dissatisfied with the said amount, the Respondent sought a reference under Section 18 of the said Act for enhancement of the compensation and claimed an amount of Rs.250/- per square metre for the land acquired. By judgment and award dated 22nd March, 2004,the Reference Court after recording of evidence and hearing the parties fixed the compensation for the land acquired at the rate of Rs.80/- per square metre. Being aggrieved by the said award, the Appellants have preferred the present appeal. 4. The learned Additional Government Advocate appearing for the Appellants has assailed the impugned judgment and submitted that the Reference Court has misdirected itself in fixing the :3: compensation at the rate of Rs.80/- per square metre. The learned Counsel further submitted that the land surveyed under survey no. 6/3 was at a commercial location as against the land which was surveyed under survey no.204/1 and as such the question of awarding the same compensation for the two portions of the land did not arise. The learned Counsel further submitted that the land acquired was tenanted and as such the question of fixing any compensation on the basis that the land could be used for non-agricultural purpose does not arise at all. The learned Counsel further pointed out that there are more houses located close to the property surveyed under survey No.6/3 than the property surveyed under survey No.204/1 which itself demonstrate that the land under survey No.204/1 was inferior in nature. The learned Counsel further submitted that the Reference Court has totally erred in relying upon the sale instance at Exhibit 24 as the land which was subject matter to the said sale deed was not comparable to the acquired land. The learned Counsel further submitted that the Reference Court has wrongly fixed the compensation after taking the average of two sale instances at Exhibits 24 and 25 of the acquired land. The learned Counsel further submitted that the Reference Court failed to appreciate the evidence on record and as such has come to an erroneous conclusion that the market value of the acquired land was Rs.80/- per square metre. The learned Counsel further submitted that the land acquired had no potentialities of :4: being used for non-agricultural purpose and as such the impugned judgment passed by the Reference Court deserves to be quashed and set aside. 5. On the other hand, the learned Counsel appearing for the Respondent has supported the impugned judgment. He submitted that the Reference Court has rightly taken the average of two sale deeds at Exhibits 24 and 25 and thereafter deducted an amount towards development expenses. The learned Counsel further submitted that the Reference Court has further deducted 50% on account of the fact that the land acquired did not have a direct access to the main road. The learned Counsel further submitted that the deductions which have been effected are exorbitant and considering that no cross objection has been filed by the Respondent, this Court should not interfere in the market value assessed by the Reference Court. The learned Counsel went through the notes of evidence and pointed out that the sale deeds produced by the Respondent at Exhibits 24 and 25 are comparable sale instances and no infirmity has been committed by the Reference Court in fixing the market value of the acquired land. The learned Counsel further submitted that considering the deductions which have been effected, there is no difference between the land which is surveyed under survey Nos.204/1 and 6/3 as contended by the learned Counsel for the :5: Appellants. He as such submitted that the appeal deserves to be dismissed. 6. Having heard the learned Counsel for the Appellants and the Respondent and on perusal of the records, the following point for determination arise in the present Appeal. POINT FOR DETERMINATION Whether the Reference Court was justified to fix the market value of the acquired land at the rate of Rs.80/- per square metre ? 7. Dealing with the said contention of the learned Additional Government Advocate to the effect that the acquired land was tenanted, I find that the Reference Court on the basis of the promulgated survey records as well as the fact that there was no claim of tenancy over the land acquired has come to the conclusion that there was no tenant in the acquired portion of the land. Apart from that there was no dispute with that regard pending before any forum. :6: 8. The Reference Court has considered the deposition of AW1 as well as that of the Executive Engineer and after appreciating the material on record, came to the conclusion that the contention of the Appellants that the land acquired has no potentiality of being used for non-agricultural purpose deserves to be discarded. I find no error committed by the Reference Court on that count. 9. As far as fixation of the compensation of the land acquired, the Reference Court has considered two sale instances produced by the Respondent. Both the sale instances are of developed plots. The sale instance at Exhibit 24 is dated 22nd January, 1991 wherein a developed sub-divided plot admeasuring 225 square metres was sold for Rs.90,000/- which works out to Rs.400/- per square metre. The said plot is situated at Kavlem. Next sale instance relied upon by the Reference Court is dated 12th April, 1991 which is at Exhibit 25 wherein a developed sub-divided plot admeasuring an area of 315 square metres situated at Dhavali- Queula was sold for a sum of Rs.1,66,500/- which works out to Rs.528.57 per square metre. The Reference Court considered that the sale instances are within the vicinity of the acquired land and more or less in the same proximity of time and as such calculated the average price of both the said sale instances which works out to Rs.464/- per square metre as the basis to fix the :7: market value of the acquired land. When small plots which are similarly located within the same proximity of time are relied upon having similar features as a comparable sale instance for fixing of the market value of the acquired land, the Court is justified to take the average price of such sale instance to form the basis for determining the market value of the acquired land. AW1 in his evidence has stated that the property surveyed under No.6/3 is in the prime area near four junction roads proceedings to Ponda-Queula-Dhavali-Farmagudi and it has high commercial value. He has further stated that the property surveyed under No.6/3 is just ½ Km and property surveyed under No.204/1 is about 1 Km away from Ponda Civil Court. In support of his claim for enhancement, he has produced an award dated 13th November, 1992 as well as the said sale instances which are registered on 22nd July, 1992 and 27th August, 1992 before the Sub-Registrar of Ponda. In his cross examination, he has stated that the property surveyed under No.204/1 is at a distance of less than 500 metres from the road. He has further stated that there is a pathway proceeding to the acquired portion of the property and that there are several properties in between Ponda- Queula road and the acquired land and that the said pathway proceeds through the property of said owners. He has further stated that the property surveyed under No.6/3 is situated at a distance of about 10 metres away from Ponda – Quevla road and that it is accessible by a :8: pathway to the said road. He has further stated that the distance between the property surveyed under Nos.204/1 and 6/3 will be about 510 to 520 metres. Next witness examined by Appellants has stated that the property surveyed under No.204/1 was a low line area which used to be flooded during the rainy season which was disputed by the Respondent in the cross examination. 10. From the material produced by the Respondent, I find that the Reference Court was justified to rely upon the sale instances at Exhibits 24 and 25 and taking average thereof for the purpose of fixing the basis to fix the market value of the acquired land. The Reference Court has also considered the award passed in Land Acquisition Case No. 88/98 whereby another portion of the land which was acquired wherein the market value of land was fixed at the rate of Rs.80/- per square metre. The law is well settled that when the comparable sale instances are relied upon, the Reference Court has to consider the merits as well as the demerits of the sale instances vis-a-vis the land acquired. In the present case the Reference Court has considered that the sale instance at Exhibit 25 is from the same village though it was a developed plot. The law is well settled that for the purpose of determining the market value of undeveloped land on the basis of a sale instance of a developed plot deduction can be made from 20% to 75%. :9: The Apex Court in the judgment reported in 2010(1) SCC 444 has held at paras 15 & 16 as under :- “15. Thus, if the valuation of a large extent of agricultural or undeveloped land is to be based on the sale price of a small developed plot in a private layout, then the standard deductions should be one-third (for roads, etc.) plus one- third (for expenditure of development), in all two-thirds (or 67%), as “development cost” from the value of small plot. The percentage of deduction may however vary between 20% to 75% depending on several circumstances (see Lal Chand v. Union of India, paras 8 and 9 for illustrations of such circumstances). 16. Therefore, when deduction is made from the value of a small residential plot towards the development cost, to arrive at the value of a large tract of agricultural or undeveloped land with development potential, the deduction has nothing to do with the purpose for which the land is acquired. The deduction is with reference to the price of the small residential plot, to work back :10: the value of the large tract of undeveloped land. On the other hand, where the value of acquired agricultural land is determined with reference to the sale price of a neighbouring agricultural land, no deduction need be made towards “development cost”.” 11. Considering the said judgment of the Apex Court, the Reference Court has deducted 2/3rd of the amount fixed in the sale instances on account of development charges. Besides considering that the land acquired was accessible by a pathway, the Reference Court has further deducted another 45% and fixed the market value of the land acquired at the rate of Rs.80/- per square metre. I find no infirmity in the approach of the Reference Court in determining the market value of the land acquired. But however as far as the property surveyed under No.204/1 is concerned, the evidence discloses that it was at a distance nearly about 500 metres from the main road whereas the property surveyed under No.6/3 is at a distance of about 10 metres from the main road. Apart from that the evidence discloses that the property surveyed under No.6/3 is of a superior nature and has better potentiality of being used for commercial purpose being close to the main road. As such I find that as far as the property surveyed under No.204/1 is concerned, a :11: deduction of 10% should have been effected vis-a-vis the property which was surveyed under No. 6/3 on account of the said dissimilarity. As such in view of the said factors and after deducting 10% the market value of the land surveyed under No. 204/1 is Rs.72/- per square metre. However no interference is called for as far as fixation of the market value of the land in respect of survey No.6/3 at the rate of Rs.80/- per square metre. Hence, the point for determination is answered accordingly. 12. In view of the above, I pass the following :- O R D E R (i) The Appeal is partly allowed. (ii) The market value fixed by the Reference Court in respect of the property surveyed under No. 6/3 admeasuring an area of 3275 square metre at the rate of Rs.80/- per square metre is confirmed. The market value of the land surveyed under No.204/1 admeasuring 1850 square metres is fixed at the rate of Rs.72/- per square metre. (iii) The statutory benefits as awarded by the Reference Court are confirmed. :12: (iv) The Appeal stands disposed of accordingly with no order as to costs. (v) The Registrar is directed to compute the amount payable to the Respondent in accordance with the above judgment and disburse the amount so determined along with accrued interest thereon after a period of three months. (vi) The excess amount deposited by the Appellant shall be disbursed to the Appellant along with accrued interest thereon. F. M. REIS, J at*