1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.148 OF 2003 1. Special Land Acquisition Officer, (S.I.P) Complex, Gogal. MARGAO, Goa 2. Executive Engineer, Works Division XXIV, P.W.D., Borda, Margao – Goa. …. Appellants V e r s u s 1. M/s. Chowgule Real Estate and Construction Co. Ltd., Chowgule Garden, Gadegal, Sancoale, Goa. …. Respondent. Mr. V. Rodrigues, Additional Government Advocate for the Appellants. Mr. M.S. Joshi, Advocate for the Respondent. Coram: A. P. Lavande, J. Date: 26th November, 2010. JUDGMENT: 2 By this appeal, the appellants take exception to the judgment and award dated 30/09/2002 passed by the Additional District Judge, South Goa, Margao, passed in Land Acquisition Case No.304 of 1992 partly allowing the reference under Section 18 of the Land Acquisition Act,1894 (“The Act” for short). 2. Vide notification under Section 4 of the Act which was published in the Official Gazette dated 16/12/1989, the Government of Goa acquired lands of several persons for public purpose namely construction of service road from Cuelim to Vasco . An area admeasuring 1785 sq.metres bearing survey no.135, an area admeasuring 4450 sq.metres bearing survey no.143 and an area admeasuring 5200 sq.metres bearing survey no.137 belonging to the respondent were parts of the acquired land. The Land Acquisition Officer awarded 3 compensation at the rate of Rs.6/- per sq.metre. 3. The respondent sought reference under Section 18 of the said Act and claimed Rs.300/- per sq.metre. The respondent also claimed that the acquired land bearing survey no.137 was not admeasuring 5200 sq.metres,but 8220 sq.mts. The respondent also claimed compensation of Rs.30,000/- in respect of trees, compensation of Rs.3,91,200/- for laterite stone compound wall and Rs.81,250/- for ruble stone wall, respectively. 4. In Land Acquisition Case No.304 of 1992, the respondent examined two witnesses namely,Hanumant Acharya, AW.1 and Sitaram Ayaar, AW.2, The respondent relied upon the judgment in Land Acquisition Case no.303 of 1992 in which the award dated 19/2/1999 was passed and the market rate of the acquired land belonging to one Minguel Victor Rodrigues was fixed at Rs.30/- per 4 sq.metre. The said land was acquired by the very same notification for the same purpose. 5. The Reference Court placed reliance upon judgment dated 19/2/1999 in Land Acquisition Case no.303 of 1993 and awarded compensation of Rs.30/- per sq.metre on the ground that the land acquired and the land which was the subject matter of Land Acquisition Case no.303 were of similar nature and they were acquired by the same notification. Aggrieved by the said award, the appellants have filed the present appeal. 6. Mr. Rodrigues, learned additional Government Advocate for the appellants submitted that the reference Court ought not to have relied upon the award dated 19/2/1999 in as much as the respondent had not led any evidence to establish that the acquired land and the land involved in L.A.C No.303 of 1992 were similar. Mr. 5 Rodrigues further submitted that merely because both the lands were acquired by the same notification, the same by itself cannot justify the grant of same compensation in respect of both the lands. He further submitted that since the acquired land admeasures 11000 sq.metres whereas the land in Land Acquisition case no.303 of 1992 was 540 sq.metres and therefore the Reference Court ought to have made deductions while fixing the market rate of the acquired land. He, therefore, submitted that the impugned judgment and order must be quashed and set aside. 7. Mr. Joshi, learned counsel appearing for the respondent submitted that although no evidence has been led by the respondent that both the lands were of similar nature, since both the lands were acquired by the same notification, the Reference Court was justified in placing reliance upon the award passed in Land Acquisition Case 6 no.303 of 1992 and granting the same compensation. He further submitted that having regard to the location of the acquired land, the compensation granted in respect of the acquired land cannot be said to be excessive and therefore no interference is warranted with the impugned award. Mr. Joshi further submitted that the point that the acquired land was bigger as compared to the land in Land Acquisition Case no.303/92 has not been taken in the memo of the appeal and as such, the appellants are not entitled to urge this ground during the course of arguments. 8. I have considered the rival submissions and perused the record. 9. In view of the rival submissions and the findings given by the Reference Court the following point arises for determination in the appeal: 7 i) Whether the Reference Court was justified in placing reliance upon the award dated 19/2/1999 passed in Land Acquisition Case No.303/1992 and granting compensation in respect of the acquired land on the basis of the said award? 10. As stated above, the respondent examined two witnesses. The appellants did not examine any witness. The evidence of Hanumant Acharya,AW1 discloses that the acquired land was in settlement zone and it was adjoining the national highway proceeding from Vasco to Margao via Zuarinagar and was at a distance of about 8-10 kms from Vasco city and 3 kms. from Dabolim airport. The railway station was about 2.5 kms from the said land and Zuari Agro Chemicals was situated at about half kilometer from the acquired land. Across the highway, opposite the said land Sancoale Industrial Estate existed. 8 He also deposed that development have been carried out in survey no.137 and stated that the plots were sold at the rate raging from Rs.300/- per sq.metre onwards. He also deposed that development was carried out in survey no.143 and plots were sold at the rate of Rs.500/- onwards. He also deposed that land bearing survey nos.135 and 137 had a compound wall of laterite stones, whereas land bearing survey no.143 was adjoining the road. He also stated that the respondent was entitled to compensation of Rs.30,000/- in respect of cashew trees existing in the acquired portion of the land. 11. Sitaram Aiyaar, AW2 who was working as Senior Technical Manager since 1996 with the respondent deposed that he was looking after the development of the property of the respondent and further that the respondent had developed the properties bearing survey nos.143/1, 150/1 and 137/1. He produced several N.O.Cs in support 9 of this fact. He also deposed that boundary near the road of the property had a masonary wall all along the road while some portion had a ruble stone wall. He produced judgment dated 19/2/1999 in L.A.C no.303/1992(Exhibit AW2/B). 12. Bare perusal of the evidence led on behalf of the respondent discloses that the witnesses examined on behalf of the respondent have neither deposed about the nature of the acquired land nor the nature of the land which was subject matter of L.A.C no.303/1992. The Reference Court held that the acquired land and the land in L.A.C no.303/1992 were of similar nature and both were bharad lands on the basis of the award passed by the Land Acquisition Officer. In my considered opinion, this exercise undertaken by the Land Acquisition Officer was not permissible in law. In th case of Chimanlal Hargovinddas Vs. Special Land Acquisition Officer, 10 Poona and anr., AIR 1988 Supreme Court 1652, the Apex Court has held that in a reference under Section 18, of the Act, the claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. The Apex Court further held that the reference under Section 18 is not an appeal against the award and the Court cannot take into account the material relied upon by the Land Acquisition Officer in his award unless the same material is produced and proved before the court. The ratio laid down in the said case is squarely applicable in the present case. Admittedly, the award of the Land Acquisition Officer was not placed before the Court by either of the parties and therefore the finding of the Reference Court that both the lands were of similar nature on the basis of the award of the Land Acquisition Officer cannot be sustained. Both the witnesses examined by the respondent did not even whisper in their evidence 11 about the nature of the acquired land nor about the nature of the land which was subject matter of L.A.C no.303/1992. 13. No doubt, the Apex Court in a number of judgments has held that when several lands are acquired by one notification, the different persons whose lands are acquired are entitled to same price provided the nature of the lands is the same and the burden of proving this fact is on the person who seeks reference under Section 18 of the Act. As stated above, there is absolutely no evidence on record regarding the nature of the acquired land nor the nature of the land acquired in Land Acquisition Case no.303 of 1992. It is not necessary for me to deal with the second submission made by Mr. Rodrigues that the acquired land was bigger as compared to the land in L.A.C no.303 of 992. 12 14. This being the position, I am of the considered opinion that the Reference Court was not justified in placing reliance upon the award dated 19/2/1999 in L.A.C No.303 of 1992, solely on the ground that both the lands were acquired by the same notification. 15. In so far as the argument of Mr. Joshi that the acquired land was situated in a developed zone and had all potentials is concerned, I am afraid that this fact cannot advance the case of the respondent. Merely on the basis of the location of the acquired land the party seeking reference is not entitled to seek enhanced compensation in view of the settled principles laid down by the Apex Court. Merely on the basis of location the market rate of the acquired land cannot be fixed in a reference under Section 18 of the Land Acquisition Act. In my opinion, the evidence led by the respondent is not sufficient to establish that he is entitled to higher compensation than 13 the one awarded by the Land Acquisition Officer. In so far as the evidence regarding the development of the remaining portion of land is concerned the same discloses that the development was carried out after publication of Section 4 notification and as such the same does not advance the case of the respondent. 16. In view of the above discussion, the impugned judgment and award is liable to be set aside and is hereby quashed and set aside. Having regard to the facts and circumstances of the case the parties to bear their own costs. A. P. Lavande, J. Ap/-