:1: IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 295 OF 2006 AND FIRST APPEAL NO. 56 OF 2007 FIRST APPEAL NO. 295 OF 2006 1. Shri Bala Atmaram Sahakari 2. Shri Ashok Atmaram Sahakari, both residing at Kurti, P.O. Ponda, P.O. Box No.31, Ponda Goa. Duly represented by their Power of Attorney holder, Shri Madhav Atmaram Sahakari … Appellants V e r s u s 1. The Deputy Collector and S. D. O. Ponda Sub Division, Ponda Goa. 2. The Executive Engineer, Works Division XVIII (Roads), P.W.D., Ponda Goa. … Respondents Mr. A. F. Diniz, Advocate for the appellants. Mr. Guru Shirodkar, Government Advocate for the respondents. AND FIRST APPEAL NO. 56 OF 2007 1. The Deputy Collector and S. D.O., Ponda Sub Division, Ponda Goa. 2. The Executive Engineer, Works Division XVIII (Roads), P.W.D., Ponda Goa. … Appellants :2: V e r s u s 1. Shri Bala Atmaram Sahakari 2. Shri Ashok Atmaram Sahakari, (both residing at Kurti, P. O. Ponda) P.O. Box NO. 31, Ponda Goa) Both are represented by the Power of Attorney Holder Shri Madhav A. Sahakari … Respondents Mr. G. Shirodkar, Government Advocate for the appellants. Mr. A. F. Diniz, Advocate for the respondents. CORAM : F. M. REIS, J DATE : 8 th NOVEMBER, 2011 . ORAL JUDGMENT Heard Shri A. F. Diniz, learned Counsel appearing for the appellants in First Appeal No. 295 of 2006 and Shri G. Shirodkar, learned Government Advocate appearing for appellants in First Appeal No. 56 of 2007. 2. Both the above appeals are taken up together for final hearing as both impugned the same judgment and award passed by the Reference Court dated 11.07.2006 in Land Acquisition Case No. 71/2001. The parties shall be referred to in a manner they so appear in the cause title of the impugned :3: judgment. 3. Land belonging to the appellants was acquired pursuant to a notification under Section 4 of theLand Acquisition Act, 1894 ( hereinafter referred to as 'the said Act”) dated 18.10.1999 published in the Official Gazette dated 10.11.1999 for the construction of Ponda by-pass road from Dhavli to Candepar ( Curti) via Bondbag and Betora in Ponda Taluka, from the property surveyed under No.79(part) admeasuring an area of 1075 square metres, 80(part) admeasuring an area of 775 square metres and 81(part) admeasuring an area of 200 square metres. By an award passed under Section 11 of the said Act, the Land Acquisition Officer offered compensation for the land acquired at the rate of Rs.14/- per square metre. Being dissatisfied with the said amount, the appellants sought a reference under Section 18 of the said Act for enhancement of compensation and claimed a sum of Rs.1000/- per square metre for the land acquired. By the impugned judgment and award dated 11.07.2006, the Reference Court partly allowed the said reference and fixed the compensation for the land acquired at the rate of Rs.390/- per square metre and directed the payment of excess amount of Rs.376/- per square metre for the acquired land besides :4: the statutory benefits. Being aggrieved by the said judgment, the appellants as well as respondents have preferred the present appeal. 4. Shri G. Shirodkar, learned Government Advocate appearing for the respondents has assailed the impugned judgment and pointed out that the Reference Court was not justified to rely upon the sale instance at Exhibit 16 which was a small piece of land admeasuring an area of 200 square metres which was not at all comparable to the land acquired. The learned Counsel further points out that the land acquired in the present proceedings admeasures more than 2000 square metres and as such according to him the said sale deed which is dated 25.06.1999 cannot form the basis for the purpose of fixing the market value of the acquired land. The learned Counsel further points out that the sale deed plot was suitable for construction purpose and as the land acquired is an agricultural land, the same had no potentialities of being used for non agricultural purpose. The learned Counsel further points out that the learned Judge in any event has erroneously deducted 60% on account of the dissimilarity and/or development charges when according to him considering the topography of the land acquired and the sale :5: deed plot a substantial deduction to the extent of 70% ought to have been made for arriving at the market value of the acquired land. The learned Counsel further took me through the impugned judgment as well as evidence on record and pointed out that the Reference Court was not at all justified to enhance the compensation fixed by the Land Acquisition Officer and as such the impugned judgment and award deserves to be quashed and set aside. 5. On the other hand, Shri A. F. Diniz, learned Counsel appearing for the applicants has pointed out that the compensation amount fixed by the Reference Court is on the lower side as according to him the sale deed plot which otherwise admeasures 200 square metres was sold by the applicants at the rate of Rs.975/- per square metre. The learned Counsel further points out that the sale deed plot which was admeasuring an area of 200 square metres was not developed plot as admittedly no sub-division was approved at the time of executing of the sale deed. The learned Counsel further points out that the Reference Court whilst fixing the compensation for the land acquired has erroneously failed to fix the compensation for an area of 200 square metres from the property surveyed under No.81(part) on an erroneous :6: ground that there was no reference to the said survey number in the deposition of AW1. The learned Counsel further took me through the award under Section 11 of the said Act as well as the reference application made by the Land Acquisition Officer and points out that the land acquired under survey no.81(part) admeasuring 200 square metres was offered same compensation at the rate of Rs.14/- per square metre as offered for the remaining two pieces of the land belonging to the applicants. The learned Counsel further points out that merely because the survey number was not mentioned in the deposition of AW1 by itself does not disentitle the applicants to claim the compensation for the land acquired in respect of an area of 200 square metres from the property surveyed under No.81(part). The learned Counsel further points out that the Reference Court was not justified to make deduction of 60% on account of dissimilarities without considering that the sale deed plot was in respect of the same property, the deduction ought to have been much lower. The learned Counsel as such submitted that the compensation fixed by the Reference Court deserves to be enhanced appreciably. 6. Shri G. Shirodkar, the learned Government Advocate in reply to the submissions of the learned Counsel :7: appearing for the applicants has pointed out that as far as the property surveyed under no.81(part) is concerned, a reference under Section 30 of the said Act is made by the Land Acquisition Officer in view of the rival claim for the compensation in respect of the said portions of the property. The learned Counsel further points out that the applicants are not entitled for any compensation for the said land until the said reference under Section 30 of the said Act is disposed of. 7. Having heard the learned Counsel and on perusal of the record, the following points for determination arise in the present appeals : POINTS FOR DETERMINATION 1. Whether the Reference Court was justified to fix the market value for the land acquired at the rate of Rs.390/- per square metre ? 2. Whether the appellants are entitled for the compensation in respect of an area of 200 square metres from the property surveyed under No.81((part) ? 8. On perusal of the evidence on record as well as the impugned judgment, I find that the reference Court whilst :8: fixing the compensation for the land acquired has relied upon the said sale deed dated 25.06.1999 whereby an area of 200 square metres from the property surveyed under No.79 was sold by the applicants for a sum of Rs.975/- per square metre. There is no dispute that the land subject matter of the said sale deed was from the same property which was subject matter of the acquisition in the present case. On the basis of evidence on record, there is no doubt that the nature of the land acquired as well as that of the sale deed plot is similar in nature. The learned Judge whilst appreciating the evidence has come to the conclusion that the authenticity of the said sale deed has not been challenged by the respondents nor any evidence adduced to dispute the genuineness of the said sale deed. Considering the said aspect, the learned Judge was justified to fix the compensation for the land acquired, on the basis of the sale instance at Exhibit 16. 9. Considering the price mentioned in the sale deed at Exhibit 16, I find that the Reference Court has rightly effected deduction of 60% for the purpose of fixing the market value of the acquired land. The deductions have been effected considering that the sale deed plot was only 200 square metres whereas the land acquired was more than :9: 2000 square metres. Apart from that, considering the nature of the land acquired, the Reference Court found that substantial expenditure would have to be incurred for the development charges besides statutory restrictions in respect of such development. Considering the said aspect, I find that the Reference Court was justified to make the deduction of 60% to arrive at the market value of Rs.390/- per square metre. The contention of Shri Diniz that the deduction of 60% is on the higher side has to be as such rejected. The first point for determination is answered accordingly. 10. With regard to the contention of Shri Diniz, learned Counsel appearing for the applicants, to the effect that the Reference Court was not justified to refuse the compensation for the land acquired in respect of property surveyed under No.81(part) admeasuring 200 square metres, I find that in the reference application filed by the applicants there is a specific mention made by them claiming enhancement of compensation for the land acquired from the property surveyed under No.81(part). Apart from that, in the report made by the Land Acquisition Officer whilst making the reference under Section 18 of the said Act, there is a specific mention to the effect that an area of 200 square metres from :10: the property surveyed under No.81(part) was acquired and a sum of Rs.4009/- was paid on account of the said land acquired. Apart from that, on perusal of the award made by the Land Acquisition Officer under Section 11 of the said Act, the compensation for the land acquired in respect of all the three portions of the land from the property surveyed under No. 79(part), 80(part), and 81(part) were offered similar rate of Rs.14/- per square metre. The Land Acquisition Officer in the said award has clearly stated that all the three portions of the land were bharad lands. Hence, there can be no dispute that all the lands are similar in nature and as such the compensation for the said portions of land has to be the same. As such, the Reference Court was not justified to refuse the compensation for the land acquired in respect of the property surveyed under No.81(part) admeasuring an area of 200 square metres merely on the ground that there is no mention to that effect in the deposition of AW1. Once there is a reference in respect of the said portions of the land, merely because the survey number is not mentioned in the deposition by itself cannot disentitle the applicants from claiming the compensation for the land acquired. But however taking note of the submissions of Shri G. Shirodkar, learned Government Advocate appearing for the respondents, :11: the compensation in respect of the portions of the property surveyed under No.81(part) admeasuring an area of 200 square metres would have to be paid on the basis of the final adjudication of the reference under Section 30 of the said Act which is stated to be pending. In view of the above, I find that the Reference Court was justified to fix the compensation for the land acquired at the rate of Rs.390/- per square metre for the portions of the property surveyed under Nos.79(part) as well as 80(part). The appellants are also entitled to the compensation for the land acquired in respect of the property surveyed under No.81(part) admeasuring 200 square metres subject to final adjudication of the reference under Section 30 of the said Act. The second point for determination is answered accordingly. 11. In view of the above, I pass the following : O R D E R (i) First Appeal No. 295 of 2006 is partly allowed. (ii) The impugned judgment fixing the compensation for the land acquired in respect of the property surveyed under No.79 (part) and 80(part) is upheld. :12: (iii) The appellants are also entitled for compensation in respect of the property surveyed under No.81(part) admeasuring 200 square metres at the rate of Rs.390/- per square metre subject to final adjudication of the reference under Section 30 of the said Act. (iv) Needless to say, the appellants are entitled to the statutory benefits under Sections 23(A), 23(2) and 28 of the said Act in accordance with law. (v) First Appeal No. 56 of 2007 stands dismissed. (vi) Both the appeals stand disposed of accordingly with no order as to costs. F. M. REIS, J at*