- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 122 OF 2004. 1 Dy. Collector (L.A.), Margao, Goa. 2 The Assistant Director (Project), Directorate of Sports & Youth Affairs, Panaji, Goa. ........ Appellants. Versus Jose Xavier Gracious, House No.177, Borda, Margao, Goa, ( Since deceased represented by legal heirs) 1a Philomena Gracious (Widow) 1b Antonio Joaquim Xavier Gracious alias Tony Gracias(son) 1c Auastasia da Piedade Xavier Gracious alias Tasi Gracious ( daughter) married to 1d Melvin Savio Misquita (son-in-law) all residing at House no.177, St. Joaquim Road, Margao, Salcete, Goa. ........ Respondents. Ms. Sapna Mordekar, Additional Government Advocate for the Appellants. Mr. C. Mascarenhas, Advocate for the Respondents. - 2 - Coram:-F. M. REIS, J. Date:-23rd September, 2010. ORAL JUDGMENT The above appeal challenges the Judgment and Award dated 20.12.2003 passed by the learned Additional District Judge, South Goa, Margao, in Land Acquisition case no. 7/2002. 2. The Appellants acquired total area of 4425 square metres from the property belonging to the Respondents being an area of 600 square metres from survey no. 39/19, an area of 200 square metres from survey no. 44/6, besides an area of 875 square metres from survey no.45/1, an area of 950 square metres from survey no. 45/2, 325 square metres from survey no. 45/3, an area of 750 square metres from survey no.45/4 and an area of 725 square metres from survey no.45/5 of village Duncolim for the purpose of development of village school playground at Duncolim, Seraulim, Salcete, Goa. 3. The notification under section 4 of the Land Acquisition Act, ( hereinafter referred to as “the said Act') dated 31.7.1991 in respect of the said land was published in the Official Gazette dated 16.8.1991. By an Award under section 11 of the said Act, the Land - 3 - Acquisition Officer passed an Award dated 2.9.1994, and awarded a sum of Rs. 4/- per square metre for the land which was garden land in respect of the property surveyed under nos. 44/6 and 45/3 and at the rate of Rs. 4.50 per square metre for the remaining portion of the land. Being dissatisfied with the said Award, the Respondents filed the reference under section 18 of the said Act for enhancement of the compensation and claimed an amount of Rs.150/- per square metre for the land acquired. 4. By Judgment and Award dated 20.12.2003, the learned Additional District Judge, South Goa Margao, fixed the compensation of the land acquired at the rate of Rs. 30/- per square metre for the garden land and a sum of Rs. 24/- per square metre for the paddy field portion. 5. Being aggrieved by the said Judgment and Award, the Appellants have preferred the present appeal. The learned Additional Government Advocate Ms. S. Mordekar, appearing for the Appellants has assailed the impugned Judgment and submitted that the Reference Court has totally misdirected itself in enhancing the compensation fixed by the Land Acquisition Officer. She further - 4 - submitted that there is no evidence on record to establish the comparability of the land acquired with the sale deed plot dated 16.5.1990 at Exh.16. She further submitted that the said land subject matter of the said sale deed is a developed plot and it cannot be compared with the land acquired. She further submitted that the Reference Court failed to consider that the portion of the land acquired is a paddy field which cannot be compared with the developed plot. She further submitted that there is no evidence on record to substantiate that the land acquired can be used for non agricultural purpose. 6. On the other hand learned Counsel Mr. C. Mascarenhas appearing for the Respondents has supported the impugned Judgment. The learned Counsel went through the impugned judgment and pointed out that the Reference Court in fact effected deduction of 85% as development charges and arrived at the figure of Rs. 30/- per square metre which deduction is exorbitant. He further pointed out that the Reference Court has further deducted 20% as part of the acquired land was a paddy field. He further submitted that in view of the exorbitant deduction effected by the Reference Court no interference can be called for in the impugned Judgment and award. - 5 - 7. Having heard the learned Counsel 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 land acquired at the rate of Rs.30/- per square meter for the garden land and Rs.24/- per square metre for the paddy field portion.? 8. In his deposition AW1 Anatasai Da Piedade Xavier Gracias has stated that the property surveyed under nos. 39/19, 44/6 and 45/3 are classified as a garden land out of which survey number 39/19 is a coconut bund with sandy soil and the rest of the property surveyed under nos. 45/1, 45/2, 45/4 and 45/5 are barren paddy fields. She has further stated that the power supply, water supply, telephone facilities are available at the village road which is at a distance of 50 metres from the acquired land. She has further stated that the church and the railway station at Seraulim is at a distance of 1.2 kilometres from the acquired land where the market place of Seraulim is also located. She has further stated that in the vicinity of acquired land - 6 - there are houses existing therein. A sale deed has been produced in support of her claim wherein the price was fixed at Rs.300/- per square metre for a plot of land admeasuring an area of 557 square metres from the property surveyed under no. 5/66 of Seraulim Village, Salcete Taluka. She has further stated that the sale deed plot is at a distance of 1.5 kilometres from the acquired land. In the cross examination she has stated that the land acquired is partly paddy field and partly a bund and the paddy field portion is at the lower level than the bund portion. She has further admitted that the sale deed plot is a developed plot. She has produced the report of the expert who has also produced the plan which depicts the sale deed plot and the acquired land. The next witness AW2 Olavo Antonio De Souza has stated that the club was negotiating with the Respondents to purchase the acquired land for the purpose of play ground and during the time of negotiations the land came to be acquired. The expert has also been examined who has confirmed the contents of the report prepared by him. He has further stated in his affidavit that the plot which was sold by the sale deed is comparable to the acquired land and is at a distance of about 1.50 kilometres apart and that it was a developed plot wherein price was fixed at the rate of Rs.300/- per square metre. In the cross examination he has stated that he was unable to give the - 7 - survey number in which there were trees and that he had not measured the acquired land and that he had not verified the zoning of the acquired land. He has also stated that he is unable to say anything to the suggestion that the land acquired is in the cultivable zone. Learned Judge by the impugned Judgment has come to the conclusion that the sale deed plot at Exh. 16 is a developed plot. After deduction were effected on account of development charges, the market rate of the acquired land is fixed at Rs.30/- per square metre for the garden land and Rs.24/- per square metre for the paddy field portion. 9. On perusal of the record, I find that the evidence discloses that the land acquired is within the vicinity of the houses which are stated to be in existence for more than 50 years prior to the acquisition. The evidence further discloses that the land acquired is at a distance of 50 metres from the market road. Evidence further discloses that the land which is subject matter of the acquisition is comparable with the sale deed plot at Exh.16. No doubt sale deed plot at Exh.16 is a developed plot wherein price was Rs.300/- per square metre and for the purpose of determining the market value of the acquired land suitable deduction would have been effected on account of development charges. - 8 - 10. The Apex Court in the Judgment reported in the case of Subh Ram Vs. State of Haryana, (2010)1 SCC 444, has held at Para 15:- 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 India3, paras 8 and 9 for illustrations of such circumstances). 11. Considering the said judgment of the Apex Court when a developed plot is comparable with an undeveloped land deduction on account of development charges can extend upto 75%. In the impugned judgment the Reference Court has effected deduction of 85% on account of development charges after deductions on account of dissimilarities between the acquired land and the sale deed plot. Considering over all aspect of the matter, I find that the Reference - 9 - Court was justified to fix the compensation at the rate of Rs.30/- per square metre for the garden land and Rs. 24/- per square mete in respect of the paddy field portion. AW1 has admitted that it is at a lower level than the garden land and/on that count the Reference Court has effected further deduction of 20% while determining the market value of the paddy field as on date of section 4 notification. The compensation determined cannot be held to be excessive. 12. I find no infirmity committed by the Reference Court which calls for interference by this Court with the amount fixed by the Reference Court. The point for determination is answered accordingly. 13. In view of the above, there is no merit in the above Appeal and, as such, the Appeal stands dismissed with no order as to costs. F. M. REIS, J. vn*