:1: IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 87 OF 2003 WITH FIRST APPEAL NOS. 105 & 184 OF 2002 FIRST APPEAL NO. 87 OF 2003 Shri Somnath Bhiva Sawant, Neura-o-Grande, Tiswadi Goa. … Appellant V e r s u s 1. Special Land Acquisition Officer, North Goa District, Konkan Railway Corporation Ltd., Ameya Guest House, Davorlim Road, Navelim, Salcete Goa. 2. Chief Engineer, North Goa District, Konkan Railway Corporation Ltd., Ameya Guest House, Davorlim Road, Navelim, Salcete Goa. … Respondents Shri R. V. Kamat, Advocate for the petitioner. Shri E. Afonso, Advocate for the respondents. WITH FIRST APPEAL NO. 105 OF 2002 1. Shri Krishnanath Bhiva Sawant 2. Shri Dnyaneshwar alias Nonla Bhiva Sawant, Both residents of Neura, Ilhas Goa. …Appellants V e r s u s :2: 1. State of Goa through Chief Secretary Panaji Goa. 2. Special Land Acquisition Officer, North Goa District (KRC) Ltd., Panaji, Ameya Guest House, Davorlim Road, Navelim, Salcete Goa. 3. Chief Engineer, Konkan Railway Corporation Ltd., Navelim, Salcete Goa. …. Respondents Ms. S. Chodankar, holding for Mr. M. S. Joshi, Advocate for the appellants. Mr. E. Afonso, Advocate for respondent nos. 2 and 3. WITH FIRST APPEAL NO. 184 OF 2002 1. Shri Krishnanath Bhiva Sawant 2. Shri Dnyaneshwar alias Nonla Bhiva Sawant, Both residents of Neura, Ilhas Goa. …. Appellants V e r s u s 1. State of Goa through Chief Secretary Panaji Goa. 2. Special Land Acquisition Officer, North Goa District (KRC) Ltd., Panaji, Ameya Guest House, Davorlim Road, Navelim, Salcete Goa. 3. Chief Engineer, Konkan Railway Corporation Ltd., Navelim, Salcete Goa. …. Respondents :3: Ms. S. Chodankar, holding for Mr. M. S. Joshi, Advocate for the appellants. Mr. E. Afonso, Advocate for respondent nos. 2 and 3. CORAM : F. M. REIS, J DATE : 13 th SEPTEMBER, 2011 . ORAL JUDGMENT All the above appeals are taken together for final disposal as it was not disputed by the learned Counsel appearing for the respective parties that the subject matter of the acquisition in the above appeals is in respect of an area of 350 square metres from the property surveyed under No. 18/39 and an area of 700 square metres from the property surveyed under No.18/40 of Neura-O-Grande Village which belongs in co-ownership to the appellants and common grounds arise in all the appeals. 2. The land was acquired by the respondents belonging to the appellants admeasuring an area of 350 square metres from the survey no.18/39 and an area of 700 square metres from survey No.18/40 of Neura-O-Grande Village for the purpose of erecting the Konkan Railway Project from Roha and Mangalore which was passing through the property of the appellants. The notification under Section 4 of :4: the Land Acquisition Act, 1894 (hereinafter referred to as “the said Act” ) was published in the Official Gazette dated 04.07.1991 and the award under Section 11 of the said Act was passed on 14.01.1994. Besides the said land, houses existing in the respective properties belonging to the appellants were intended to be acquired. The Land Acquisition Officer offered the compensation under Section 11 of the said Act at the rate of Rs.15/- per square metre for the land acquired as well as the compensation for the houses existing therein. Being dissatisfied with the said amount, the appellants sought a reference under Section 18 of the said Act for enhancement of compensation and claimed compensation at the rate of Rs.300/- per square metre and Rs.250/- per square metre for the land acquired. The learned Reference Court by the impugned judgment rejected the reference filed by the appellants. Being aggrieved by the said judgment, the appellants have preferred the present appeals. Submissions in First Appeal No. 87 of 2003 3. Shri R. V. Kamat, learned Counsel appearing for the appellant has assailed the impugned judgment and pointed out that the Reference Court has totally misinterpreted the evidence on record and has come to an erroneous conclusion that the appellant has failed to :5: discharge the burden cast on him that the amount offered by the Land Acquisition Officer was inadequate. The learned Counsel further pointed out that a sale instance was produced by the appellant at Exhibit 50 wherein a development plot was sold for the price of Rs.125/- per square metre. The learned Counsel further pointed out that the said sale deed is in proximity in time to Section 4 notification and as such there is no justification for the Reference Court to refuse the enhancement of compensation claimed by the appellant. The learned Counsel has taken me through the impugned judgment as well as the evidence on record and the evidence of the purchaser AW2 and pointed out that the purchaser has categorically stated that the land is at a distance of about 500 to 600 metres away from the land acquired and that the land acquired had coconut trees therein. The learned Counsel further pointed out that considering the comparability of the land acquired with the sale instance, the Reference Court ought to have considered the said sale deed as the basis for the purpose of determining the compensation after effecting deductions on account of any dissimilarity and/or development charges. The learned Counsel further submitted that admittedly the land acquired had houses therein and as such had potentiality of being used for non agricultural :6: purpose besides abutting the internal road which was leading to the Pillar - Old Goa main road. The learned Counsel has taken me through the reasoning of the Reference Court and pointed out that the Reference Court has totally ignored the said sale deed and as such the impugned judgment deserves to be quashed and set aside. The learned Counsel further pointed out that the appellant do not press for any enhancement of compensation as far as his claim for the value of the residential house as well as for other damages as claimed in the reference proceedings. 4. On the other hand, Shri E. Afonso, learned Counsel appearing for the respondents has supported the impugned judgment. The learned Counsel has taken me through the evidence on record and pointed out that the land acquired was marshy land and had no potentiality of being used for non agricultural purpose. The learned Counsel further took me through the evidence of AW2 and pointed out that the purchaser himself has admitted that the sale deed plot was on one side of the road where number of houses are existing while the land acquired was adjoining the paddy field. The learned Counsel further pointed out that the Reference Court has rightly appreciated the evidence on record and has :7: come to a correct finding that the appellant is not entitled for the enhancement of compensation. The learned Counsel further pointed out that the appellant has been duly compensated as far as the house is concerned as according to the learned Counsel he has been given alternate site for the purpose of his residential house. The learned Counsel further submitted that no interference is called for in the impugned judgment and consequently the appeal deserves to be rejected. Submissions in First Appeal Nos. 105 and 184 of 2002. 5. The learned Counsel appearing for the appellants has adopted the submissions of the learned Counsel for the appellant in First Appeal No. 87/2003 and further pointed out that both the sale instances produced are post notification sale deeds wherein the price at which the plots were sold was at the rate of Rs.180/- per square metre. The learned Counsel has relied upon the judgment of this Court in support of her submission that even the post notification sale deed can be considered for the purpose of fixing the market value of the land acquired. The learned Counsel further submitted that considering the sale deeds, the appellants are entitled for enhancement of compensation and as such the Reference :8: Court was not justified to refuse the references filed by the appellants. 6. Shri E. Afonso, learned Counsel appearing for the respondents has supported the impugned judgment on the submissions which were advanced while advancing his case in First Appeal No. 87/2003. Consideration of submissions in above said appeals. 7. Having heard the learned Counsel for the parties and on perusal of records, the following point for determination arises in the present appeals : POINT FOR DETERMINATION "Whether the Reference Court was justified to refuse the references filed by the appellants herein?" 8. On perusal of the evidence, it transpires that the sale deed produced by the appellant in First Appeal N0. 87 of 2003 is situated at a distance of about one kilometer from the acquired land. The purchaser examined as AW2 has categorically stated that the land acquired is situated at a distance of about 500 to 600 metres away from the land :9: acquired. Apart from that, on perusal of evidence of the said witness, only suggestion put by the respondents is that the sale deed plot is at a distance of about 1 km from the acquired land. Reading the overall evidence on that aspect, there can be no doubt that the sale instance at Exhibit 50 is located in the vicinity of the acquired land. The contention of the learned Counsel appearing for the appellants in First Appeal Nos.105 and 184 of 2002 to the effect that the post notification sale deeds are also to be considered cannot be accepted in the facts and circumstances of the case. As there are sale instances on record which are prior to the Section 4 notification in the present cases. There is no reason to rely upon post notification sale deeds. It is also admitted that the post sale deeds produced by the appellants are at a distance of about 1.5 km to 2 km from the acquired land. When the sale deeds which are in proximity to the land acquired are available on record, the question of relying upon any sale instance which is at a distance of about 1 km to 2 km for the purpose of determining the market value of the land acquired would not arise. As such the contention of the learned Counsel for the appellants to the effect that the post notification sale deeds should form the basis for fixing the market value of the acquired land cannot be accepted. The :10: judgments relied upon by the appellants are not applicable to the facts and circumstances of the above cases. 9. The price mentioned in the sale deed plot at exhibit 50 was at a rate of Rs.125/- per square metre. There are dissimilarities which are required to be considered for the purpose of determining the market value of the acquired land. There is no dispute that the acquired land was adjoining the paddy field whereas the sale deed plot is closer to the habited houses. Further the evidence discloses that the acquired land is at a distance of about 100 metres from the main road. There is also evidence on record to suggest that the acquired land was accessible by a footpath. AW1 in his evidence also stated that the land acquired is abutting to the internal road which leads to Old Goa-Pillar highway. There is no suggestion to the contrary put to AW1 by the Respondents in the cross examination. Considering the said aspect, the dissimilarity of the land acquired vis-a-vis sale deed are as follows : (1) sale deed plot was a developed plot and the acquired land was undeveloped though a house was existing therein, (2) the sale deed plot was adjoining the main road whereas the acquired land was :11: accessible to the internal road, (3) the acquired land was located adjoining the paddy field. Considering the said dissimilarities, as the sale deed plot was a developed plot a deduction of 30% would be appropriate. On account of the two other dissimilarities namely that the sale deed plot was adjoining the main road and that the land acquired was closer to the paddy field, a deduction of 10% on each counts would be appropriate. The total deduction as such would be 50% on account of the dissimilarities. Considering the price in sale deed plot, I find that the market value of the acquired land would be Rs.60/- per square metre approximately. The Reference Court was not justified to refuse the references on the ground that the appellants had been paid compensation for the houses existing therein. That aspect itself cannot disentitle the appellants from claiming the compensation for the land acquired. The Land Acquisition Officer himself had valued the land and the houses separately whilst making the award under Section 11 of the said Act. The Reference Court was not justified not to rely upon the sale deed for the purpose of determining the market value of the acquired land though the :12: sale instance land was comparable to the land acquired. On the basis of material on record, I find that the sale deed can form the basis for determining the market value of the land acquired after effecting the deduction as stated herein above. On the basis of the evidence on record, the appellants are entitled to the compensation for the land acquired at the rate of Rs.60/- per square metre. The point for determination is answered accordingly. 10. In view of the above, I pass the following : O R D E R (i) The appeals are partly allowed. (ii) The impugned judgments dated 17.10.2002 and 27.07.2001 are quashed and set aside. (iii) The references filed by the appellants are partly allowed and the compensation for the acquired land is fixed at the rate of Rs.60/- per square metre. (iv) Needless to say the appellants are entitled for statutory benefits under Section 23(1A), 23(2) and Section 28 :13: of the Land Acquisition Act, in accordance with law. (v) The appeals stand disposed of accordingly with no order as to costs. F. M. REIS, J at*