:1: IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO.218 OF 2000 1. State of Goa, through the Dy. Collector (LAO) Panaji Goa. 2. The Executive Engineer, W.D. II, P.W.D., Panaji Goa. ... Appellants V e r s u s Shri Suresh L. Naik Chopdekar, r/o Patto, Panaji Goa. ... Respondent Mr. G. Shirodkar, Government Advocate for the Appellants. Mr. R. G. Ramani, Advocate for the Respondent. CORAM: R. M. SAVANT, J. Dated: 4th March, 2010. ORAL JUDGMENT: 1. This Appeal challenges the Judgment and Award dated 29.1.2000 passed by the Reference Court in Land Acquisition Case No.34/1986 by which Judgment and Award the Reference :2: application filed by the Respondent herein came to be partly allowed and the rate of compensation fixed was enhanced to Rs.240/- per square metre and consequently the statutory allowances were directed to be paid on the said market rate. 2. The land in question which was owned by the Respondent herein i.e. the Applicant before the Reference Court was notified for the purpose of widening the curve road opposite PDA office at Patto, Panaji Goa. The area notified was 100 square metres. The Notification under Section 4 of the Land Acquisition Act was published in the Official Gazette on 1.11.1983. Thereafter, an Award came to be passed under Section 11 of the said Act and compensation awarded was Rs.100/- per square metre. The Respondent herein accepted the said compensation under protest but dissatisfied with the same had filed an application for reference being made to the Court. The Collector accordingly made a reference which came to be numbered as LAC No.34/86. Since the Respondent - Claimant claimed an amount of enhancement to the extent of Rs.1000/- per square metre, the Reference Court framed the following issue :- :3: “Whether the Applicant proves that market valuation of the land acquired at the relevant date was at least Rs.1000/- per square metre ? The said issue was answered against the Applicant but the Court granted enhancement to the extent of Rs.240/- per square metre. 3. In support of his case, the Applicant examined four witnesses i.e. himself as AW1, one Ankush R. Naik AW2, one Barnadino de Souza AW3 and one P. N. Kaisare AW4. The Respondent relied upon documents namely Mortgage Deed which was numbered as Exhibit PW1/A, Sale Deed at Exhibit RW1/B, Agreement dated 2.5.1983 at Exhibit AW2/A. It would be relevant to note that the land in question which was the subject matter of the acquisition is the part of the plot of land wherein the building Sapna Hotel is situated. The said hotel belongs to the Applicant. The area which was to be acquired was used for parking cars. It would also be relevant to note that all the amenities like, water, electricity, telephone, were available and the said acquired land falls within the Municipal area close to the Kadamba Bus Stand and the other amenities like church, temple, post office are also within :4: the vicinity. It is on the said basis the claimant sought for enhancement of the compensation to the extent of Rs.1000/- per square metre. 4. In so far as the documentary evidence produced by the claimant is concerned, the Agreement for Sale dated 2.5.83 did not find favour with the Reference Court in view of the fact that it was an agreement and could not be relied upon for fixing the compensation. The said Agreement was also not relied upon in view of the fact that the Sale Deed pertained to the said Agreement was executed after a lapse of 10 years. The Sale Deed dated 17.1.1985 at Exhibit RW1/B was also not taken into consideration as the said Sale Deed was executed two years after the date of Section 4 Notification which was published in the Official Gazette on 1.11.1983 and since there is no proximity of time and place between the said Sale Deed and Notification, the Mortgage Deed dated 18.5.1983 was also refused to be considered by the Reference Court on the ground that the valuation as contained in the Mortgage Deed for the purpose of land could not be the criteria for the valuation of the land coupled with the fact that it was not a sale instance. The Reference Court therefore rejected the :5: documentary evidence produced by the claimant. The Reference Court turned to the Award in Land Acquisition Case No.19/1980 dated 13.2.1985 for fixing the compensation of the acquired land. The said Award was relied upon by the Land Acquisition Officer for fixing the compensation. In the said case the amount awarded by the SLAO was enhanced by the District Court to Rs.100/- per square metre. The land in question covered by the said Award of the District Court was salt pan land and it was acquired for the construction of the office complex of EDC and the Notification in question in respect of the said acquisition was issued in the year 1977. In the said Award considering the situation of the lands covered therein, the learned District Judge has fixed Rs.150/- per square metre for developed plots and had deducted one third of the amount while fixing the market rate for undeveloped plots which were covered by the Award. The land concerned in the said Award in LAC No.19/80 dated 13.2.1985, and the land concerned in present proceedings are admittedly close to each other and surrounded by developments. Therefore, the said Award dated 13.2.1985 passed in LAC No.19/80 could be taken into consideration for fixing the rate of compensation in respect of the land in question. Since the land in the instant case was developed :6: as there is Sapna hotel in the said plot of land, the rate of Rs.150/- per square metre which was awarded in the Award dated 13.2.1985 could be the basis of fixing the rate of compensation for the land in question. The Reference Court on considering the increase in price at the rate of 10% per annum has accordingly arrived at the rate of Rs.240/- per square metre. 5. The Reference Court therefore considering the situation of the land has fixed the market rate at Rs.240/- per square metre. It is sought to be contended on behalf of the Appellants/State that since no construction is possible in the acquired portion, the market rate would not be fixed on the basis of development potential and the Reference Court had therefore erred in taking Rs.150/- per square metre as the base price for arriving at the market rate. The learned Counsel for the Appellants/State submitted that the price fixed for the undeveloped plots i.e. Rs.100/- per square metre ought to have been taken as a base price for fixing the market rate. A identical issue has arisen in the fact situation as same as in the instant case before the Apex Court where part of the land which was left for road widening was sought to be acquired. The judgment of the Apex Court is reported in 2009 :7: (10) SCC page 686 in the matter of State of Goa and Another V/s Gopal Baburao Gaudo and Others. Para 4 and 5 of the said judgment are material and are reproduced herein under :- “4. We may demonstrate the absurdity of such a contention with reference to an illustration. Let us take the example of a residential plot of land measuring 60' X 100'. Let us assume that the Municipal Bye-Laws require a front (road side ) set-back of 20' for construction of houses in a plot of that size. Therefore, the owner would leave a twenty feet wide front strip in the said plot free of any construction while putting up the construction in the plot. Obviously, he cannot thereafter construct in that front strip. Let us further assume that the front strip is acquired for road widening. Can the acquiring authority deny compensation to that strip on the ground that the said 20' strip acquired for road widening could not in any event be used for any construction purpose and therefore, was not of any value ? Obviously not. 5. Therefore, determination of market value of the acquired land with reference to the value of comparable land cannot be faulted. 6. In view of the judgment of the Apex Court ( supra ) the reliance placed by the District Court on the valuation of the comparable land in the Award dated 13.2.1985 in LAC No.19/80 therefore cannot be faulted with. :8: 7. In that view of the matter, there is no merit in the above Appeal which is accordingly dismissed. R. M. SAVANT, J. at*