1 IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 190/2004. The Executive Engineer, W. D. VI ( R-S), PWD, Fatorda, Margao, Goa. … Appellant. V/s Smt. Filomena Luis Lourenco, widow of Serafino Lourenco, R/o H. P. Flats, 3/3 Baina, Vasco-da-Gama, Goa. … Respondent. Ms. S. Mordekar, Addl. Government Advocate for the Appellants. CORAM : F. M. REIS , J. DATE : 7 th October 2010 . ORAL JUDGMENT The above appeal challenges the judgment and award dated 8.4.2004 passed by the IIIrd Addl. District Judge, South Goa, Margao in LAC No. 93/1998. 2. By notification dated 15.7.1992 and published in the 2 Official Gazette dated 21.9.1992, under Section 4 of the Land Acquisition Act (hereinafter called the said Act) several properties were acquired for the construction of Josegal road in Cuncolim village of Salcete Taluka. Besides other land, two plots one of 80 sq. metres from survey No. 517/2 and one of 120 sq. metres from survey No. 542/6 were intended to be acquired. The Land Acquisition Officer (LAO for short) by an award under Section 11 of the said Act fixed the compensation for the said lands at the rate of Rs. 9/- per sq. metre. Being dissatisfied with the said amount offered by the LAO, the respondents sought a reference under Section 18 of the said Act and claimed compensation at the rate of Rs. 300/- per sq. metre for the land acquired. The respondent also raised a dispute with regard to the area and alleged that the acquired area was 370 sq. metres and not 200 sq. metres. The respondent further claimed compensation for a coconut tree which was in the portion of the property surveyed under No. 542/6 and claimed an amount of Rs. 6000/- for the said coconut tree. By judgment and award dated 8.4.2004, the Reference Court fixed the excess compensation for the land acquired at the rate of Rs. 21/- per sq. metre. The Reference Court rejected the contention of the respondents about the difference in the area of the land acquired as well as the compensation for the coconut tree. Being aggrieved by 3 the said judgment and award, the appellants have preferred the present appeal. 3. The learned Addl. Government Advocate has assailed into the judgment and submitted that the Reference Court has totally misdirected in fixing the compensation at the rate of Rs. 30/- per sq. metre. The learned Government Advocate further submitted that the Reference Court failed to consider that there was a road existing through the property of the respondent which would substantially depreciate the land of the respondent. The learned Government Advocate further submitted that the sale deed produced by the respondent dated 6.3.1990 is not at all comparable to the land acquired and that there was a mundkarial house in the sale deed plot and as such not a comparable sale instance. The learned Government Advocate further submitted that the Reference Court has erred in giving escalation of 10% on the price of the sale deed plot for every year as the land acquired is in rural area. The learned Government Advocate further submitted that the Reference Court ought to have effected further deductions for the price in fixing the market value of the acquired land. She further submitted that the Respondents have failed to adduce any evidence to substantiate their claim for 4 enhancement of compensation and as such the impugned judgment and award be quashed and set aside. 4. The respondent failed to remain present or represented by any Counsel at the time of hearing. 5. Upon hearing the learned Government Advocate for the appellant and on perusal of the record, the following point for determination arises in the present Appeal: POINT FOR DETERMINATION 1. Whether the Reference Court was justified to fix the value of the acquired land at the rate of Rs. 30/- per sq. metre and to award an excess amount of Rs. 21/- per sq. metre to the respondents for the land acquired ? 6. In support of the claim for enhancement, the respondent has examined herself as Aw1. She has stated in her affidavit that there never existed any public road in the property of the respondent surveyed under No. 517/2 and 542/6. She has further stated that she had sold vide sale deed dated 6.3.1990 a plot of 415 sq. metres to one 5 of her mundkars for a sum of Rs. 20,000/- from the property surveyed under No. 533/32 and 33 which is of the same nature and similar to the land acquired. She has further stated that the acquired land is plain land and suitable for construction as all around the locality it is thickly populated and is situated about 1 ½ kms. away from Cuncolim market, school, hospital etc. She has also produced the judgment passed in Inventory proceeding No. 3/1975 to establish her title over the acquired land. In cross examination the respondent has stated that the distance between the Cuncolim market and acquired land is about 500 metres. She has further stated that prior to acquisition she proceeded to her property through the property of others and said persons used to proceed through her property in order to proceed to their property. She has further admitted that a road is shown through her property. She has further admitted that there is a foothpath through her property though not a road. She has further admitted that the plot in sale deed dated 16/9/1990 is about 100 metres from the acquired land. She has further admitted that there is no mention in the sale deed that the purchaser was a mundkar and that there was a house in the sale deed plot. The respondent has also produce the Valuation Report dated 8.12.1998 wherein the valuer has opined that the market value of the acquired land is Rs. 85/- per sq. 6 metre at the relevant time. 7. A.w.2, Ernesto Moniz is the Valuer who has produced the said Valuation Report. He has stated that there was an access shown in the survey plan as existing between the properties and the same was partly acquired. He has further stated that the acquired land was suitable for construction purpose. He has further admitted that no construction of a house could be done in respect of survey No. 517/2 prior to the acquisition due to its small size. He has further stated that sale deed dated 16.3.1990 was 50 metres away from the acquired land. 8. The next witness is A.w.3, Mariano Fernandes, who has stated that prior to acquisition there was a footpath existing in the acquired land. 9. The Reference Court after appreciating the evidence on record has discarded the evidence of the Valuer on the ground that the valuer had visited the acquired land only six years after the notification under Section 4 of the Act. No doubt such evidence will have no value to determine the nature of the acquired land as on the date of the notification, as there is nothing produced on record by the 7 respondent to establish that the land acquired was in the same state as it existed for a period of six years. As such, the Reference Court was justified in discarding the evidence of the expert as far as the nature of the land is concern vis a vis the sale instance as on the date of notification. 10. The Reference Court for the purpose of fixing the market value of the acquired land has relied upon the sale deed produced by the respondent dated 6.3.1990. The evidence produced by the respondent suggest that the property which was acquired in survey No. 542/6 was bounded towards the southern side by a road so also on the eastern side. By the said sale deed an area of 415 sq. metres was sold for Rs. 20,000/- which comes to Rs. 48/- per sq. metre. The said sale deed plot is the property bearing survey No. 523/23. On perusal of the said sale deed, I find that there is nothing mentioned therein to the effect that the price paid at the time of such transaction was inclusive of the value of any house which was existing therein. The sale deed suggest that the amount paid by the purchaser was the value of the land which was sold pursuant to the sale instance. The respondent who is a vendor in the said sale deed has stated that the said land is similar to the acquired land and at a distance of 100 8 metres between them. This facts about the location is also confirmed by A.w.2. The genuineness of the sale deed has not been disputed by the appellants nor any suggestion put about the authenticity of the said sale instance in the cross examination of the respondent. As such, as the nature of the acquired land is said to be similar to the sale deed plot and as the said sale deed plot is in the vicinity of the acquired land, I find that the Reference Court was justified to rely upon the said sale instance for fixing the market value of the acquired land. 11. The Reference Court has further considered that the land acquired had dissimilarities with the acquired land specifically the fact that the acquired land was not suitable for construction on account of statutory restrictions. The evidence on record further suggest that A.w.1 has stated that the acquired land is located in a thickly populated locality in Cuncolim. This shows that the acquired land was otherwise suitable for non agricultural purpose. In view of the demerits of the acquired land vis a vis the sale deed plot, I find that the Reference Court was justified to effect deduction of 50% on account of such demerits. The learned Addl. Government advocate was however justified to contend that the Reference Court has erroneously given escalation of 10% to arrive at the value of the figure 9 of Rs. 48/- per sq. metre as the land was located in a rural area and/or semi urban area wherein development was not substantial at the relevant time. The Apex Court in the judgment in 2008(14) SCC 745 in the case of General Manager, Oil and Natural Gas Corporation Ltd. Vs. Rameshbhai Jivanbhai Patel and anr. has held that the escalation in the rural areas could extend between 5% to 7.5 % per annum. Considering the land of the respondent was located in rural area where no development was shown to be appreciable and the land acquired, was not per se suitable for construction, the escalation could not be at the rate of 10% per annum as awarded by the Reference Court but ought to have been at the rate of 7.5% per annum. The sale deed is of the year 1990 and the notification under Section 4 of the said Act in the present case is of the year 1992. After calculation the amount works out to Rs. 55.40 which is rounded up to Rs. 55/- per sq. metre after giving deduction of 50% on account of dissimilarities vis a vis the sale deed plot. For the reasons stated herein above, the amount works out to Rs. 27.50 per sq. metre. The LAO has paid a sum of Rs. 9/- per sq. metre and the respondent would as such be entitled for an excess amount of Rs. 18.50 per sq. metre. The point for determination is answered accordingly. 10 12. In view of the above, I pass the following: O R D E R i. The appeal is partly allowed. ii. The impugned judgment and award is modified and the respondent is entitled for an excess amount of Rs. 18.50 per sq. metre. The remaining part of the award granting statutory benefits is confirmed. 13. The appeal stands disposed of accordingly with no order as to costs. F. M. REIS, J. MF/-