1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 272 OF 2005 1. Land Acquisition Officer, South Goa Sub Division, Quepem, Goa. 2. The Director of Industries and Mines, Udyog Bhawan, Panaji-Goa. ... Applicants versus 1. Shri Manju Balkrishna Naik Gaonkar(expired) through legal heirs:- 1a. Kamla M. N. Gaokar, widow. 1b. Ms. Tanvi Rajiv Naik Gaonkar, L.R. Of Respondent No.1b. 1c. Prasad M.N.Gaokar, 34 years, son. 1d. Ashank M. N. Gaokar, 28 years, son. 1e. Seema Mukund Mahale, daughter, residents of House No.145, Nagorcem, Canacona, Goa. 2. Molu Raghunath Naik Gaonkar, 3. Nilba Pundi Naik Gaonkar, 4. Datta Babaji Naik Gaonkar, 5. Shri Balsu Babu Naik Gaonkar, Nagorcem, Canacona, Goa. 2 6. Pundalik alias Pundi Uttam Naik Gaonkar, 7. Mogrem alias Mangala Pauto Dessai, both r/o Nagorcem, Canacona, Goa. ... Respondents Shri S. Vahidulla, Government Advocate for the Appellants. CORAM : F. M. REIS, J. DATE : 8TH FEBRUARY, 2011. ORAL JUDGMENT The above appeal challenges the Judgment and Award dated 1-6-2004 passed by the learned Additional District Judge, South Goa, Margao, in Land Acquisition Case No.220/1993. 2. The land belonging to the respondents came to be acquired for the U.H.F. Telecommunication links at Nagorcem, Palolem, Canacona, pursuant to a notification under Section 4 of the Land Acquisition Act, 1894(herein after referred to as the Act, for short) dated 29-6-1989 published in Official Gazette on 6-7-1989. The land intended 3 to be acquired was part of the survey No.113/2 of Village Nagorcem, Palolem admeasuring an area of 2,500 sq. meters. 3. By an award passed under Section 11 of the said Act by the Land Acquisition Officer dated 22-1-1992, an amount of Rs.17/- was offered to the respondents. Being dissatisfied with the said amount, the respondents sought a reference under Section 18 of the said Act for enhancement of the compensation and claimed an amount of Rs.100/- per sq. meter for the land acquired. 4. By Judgment and Award dated 1-6-2004, the Reference Court fixed the compensation for the land acquired at the rate of Rs.40/- per sq. meter. Being aggrieved by the said Judgment, the appellants have preferred the First Appeal. 5. Shri S. Vahidulla, learned Government Advocate for the appellants has assailed the impugned Judgment and submitted that the respondents had failed to adduce any evidence to substantiate their claim for enhancement of compensation. Learned Government Advocate further submitted that the amount offered by the Land Acquisition 4 Officer was just and proper, considering the market value prevailing at the relevant time. He further submitted that the sale deed relied upon by the Reference Court as comparable sale instance could not at all be compared with the land acquired and as such, the Reference Court has erroneously relied upon the said sale instance for fixing the market value of the land. Learned Government Advocate further submitted that even assuming that the said sale instance is considered as the basis for fixing the market value, the deduction of 50% is less and ought to have been increased. Learned Government Advocate further submitted that the land acquired in the sale instance is not of the same village as that of the land acquired. The learned Government Advocate as such pointed out that the impugned Judgment deserves to be quashed and set aside. The respondents, though served, failed to remain present at the time of hearing of the First Appeal. 6. Having heard the learned Government Advocate and on perusal of the record, the following point for determination arises in the present appeal:- 1. Whether the Reference Court was justified to fix the market value of the land acquired at the rate of Rs.40s/- per sq. meter? 5 7. In support of his claim for enhancement of compensation, the respondents have examined Mono Raghunath Naik Gaonkar who has stated that he is the original applicant No.3, and that an area of 2,500 sq. meters from the property belonged to them. Survey under No.113/2 was acquired by the appellants. He has further stated that the land acquired had all the amenities such as electricity, water, telephone facilities and the Canacona Clinical Centre is at a distance of 20 meters from the acquired land. He has further stated that a commercial area is at a distance of 900 meters and Palolem Beach is at a distance of 500 meters from the acquired land. He has produced the sale deed dated 25-9-1985 in support of his claim for enhancement of compensation. The said sale deed is at Exh.23. He has also produced an award in Land Acquisition Case No.32 of 1990 dated 17-4-1995 which is at Exh.24. In his cross- examination, he has denied the suggestion that there were only five shops at the time of acquisition. He has also denied the suggestion that Palolem Beach is at a distance of 1 km. from the acquired land. He has further stated that he had seen the sale deed plot which is close to Chaudi market and that there are many structures adjoining to the sale deed plot and is ready for construction activity. The respondents have also produced the Valuation Report which is at Exh.25 of the approved valuer 6 who has stated in his report that the sale deed plot was in respect of land sold at the price of Rs.80/- per sq. meter from the property surveyed under No.10/2, and it is at a distance of about 800 meters from the acquired land. The said valuer has valued the land acquired at the rate of Rs.100/- per sq. meter. The next witness examined is Balkrishna Shivram Naik Gaonkar who has stated in his affidavit that on the southern side of the property of the respondents there is a road and within a radius of 50 meters of the said land there are houses. He has further stated that he was the owner of the property which was subject matter of the sale deed dated 25-9-1985 whereby an area of 580 sq. meters was sold for a total consideration of Rs.45,600/- and that the distance of his property is less than 1 km. from the acquired land. In his cross-examination, he has stated that he was not aware of the survey number of the acquired land but that there were five fruit bearing trees such as mango, jack fruit and cashew trees existing therein. He further stated that there are houses adjacent to the sale deed plot. 8. The next witness is Vikas Desai who is a valuer who has stated that land acquired is located within the settlement zone and it had all civic amenities. He has further stated that the land acquired is about 7 50 cms. above the village road level and the National Highway is at a distance of about 250 meters. He has also stated that the sale deed plot is at a distance of 800 metres from the acquired land. He has visited the sale deed land as on the relevant date. In the cross-examination, he has stated that the acquired portion is on the eastern side of the survey holding bearing survey No.113/2. He has further stated that he had not prepared any plan of the acquired land as well as amenities and civil facilities therein. He has further stated that the UDP plan was not ready but he had perused the regional plan. He denied the suggestion that the acquired land does not fall within the settlement zone. He has further stated that he visited the sale deed plot in the year 1989 but after 5 to 6 days of his visit of the acquired land. He has further stated that the sale deed plot is at a distance of 500 meters from the Chaudi market. 9. The Reference Court whilst passing the impugned Judgment has held that the acquired land is abutting a road and is a bharad type of land whereas there is no disclosure about the nature of the land which is subject matter of the sale deed. The award Exh.24 was discarded as it was not comparable. The Reference Court has discarded the Valuation Report as it was prepared much after the relevant date. The Reference 8 Court has relied upon the sale deed Exh.23 as the basis to fix the market value of the acquired land. The Reference Court found that the sale deed plot is at Chaudi market itself and the land acquired was at a distance of about 1 km. from the said market place. On account of dissimilarities, the Reference Court considered the market rate of the acquired land at the rate of Rs.40/- per sq. meter. 10. On perusal of the evidence on record, I find that the Reference Court was justified in relying upon the said sale deed at Exh.23 as the basis for fixing the market value of the land. The sale deed was of the year 1985. Notification under Section 4 of the said Act in the present case was issued in 1989. No doubt, there was a gap of 4 years and the Reference Court did not grant any escalation on that count. Any dissimilarities sought to be alleged by the appellants as far as the sale deed and the acquired land are concerned are set off in view of the fact that no escalation has been given by the Reference Court. The evidence discloses that the sale deed plot was close to Chaudi market. It is well settled that prices in the market place would be higher than the price which would fetch in the interior part of the locality. The sale deed plot was admeasuring about 580 sq. meters of the property surveyed under 9 No.10/2. An area of 2,500 sq. meters was acquired for Telecommunication links at Nagorcem, Palolem. Considering the size of the land acquired and the sale deed plot, a deduction would have to be effected on that count apart from the factors stated herein above. 11. Considering all these factors, the Reference Court has made a deduction of 50% to fix the market value at the rate of Rs.40/- per sq. meter for the land acquired. I find no infirmity committed by the Reference Court in fixing the compensation in respect of the acquired land. The compensation fixed cannot be said to be exorbitant or unjust on the basis of the material on record. The Reference Court was justified to fix the market value of the land acquired at the rate of Rs.40/-. The point for determination is answered accordingly. 12. In view of the above, I find no merit in this above appeal and as such the appeal stands dismissed with no orders as to costs. F. M. REIS, J. RD