:1: IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 191 OF 2004 The Chief Officer, Curchorem-Cacora Municipal Council. ... Appellant V e r s u s Clara Fernandes, r/o Bapquigal, Curchorem. ... Respondent Mr. N. K. Sawaikar, Advocate for the Appellant. CORAM : F. M. REIS, J. DATE : 1 st OCTOBER,, 2010. ORAL JUDGMENT : The above appeal challenges the judgment and award dated 23rd April, 2004 passed by the learned Additional District Judge, South Goa, Margao, in Land Acquisition Case No. 55/1997. 2. The brief facts of the case : By a notification dated 14th December, 1994 published under Section 4 of the Land Acquisition Act, 1894 ( hereinafter referred to as 'the said Act') on 22nd December, 1994, different portions of the property at Curchorem Village of Quepem Taluka were acquired for the construction of the market complex under IDSMT scheme. Amongst the lands acquired were 2732 square metres of survey numbers 231/5, 231/16, 231/8, 231/25 and 229/4 in which the Respondent was having an interest. :2: By an award passed by the Land Acquisition Officer dated 22nd August, 1996, a sum of Rs.9/- per square metre was awarded for the tenanted land and Rs.12/- per square metre for the untenanted paddy field land. Being dissatisfied with the said amount offered, the Respondent sought a reference under Section 18 of the said Act for enhancement of a compensation and claimed an amount of Rs.500/- per square metre for the untenanted portion of the land and Rs.400/- per square metre for the tenanted portion of the land. By judgment dated 23rd April, 2004, the Reference Court partly allowed the said reference and fixed the market value of the land admeasuring 909 square metres at the rate of Rs.108/- per square metre besides the other statutory benefits. 3. Being aggrieved by the said judgment, the Appellant has preferred the present appeal. The learned Counsel appearing for the Appellant Mr. N. K. Sawaikar has assailed the impugned judgment and submitted that the Reference Court has totally misdirected itself in fixing the market value of the acquired land. He further submitted that the Reference Court failed to apply the well settled principle in fixing the market value of the acquired land under the provisions of Section 23 of the said Act and as such erroneously enhanced the compensation of the said portion of the land at the rate of Rs.108/- per square metre. The learned Counsel further submitted that there was no evidence on record for enhancement of a compensation in respect of the land which was :3: formed a part of the property surveyed under survey Nos. 231/16 and 231/25. The learned Counsel further submitted that the acquired lands were tenanted lands and as such granting of any enhancement in compensation will not arise. The learned Counsel submitted that there is no comparability of the land acquired with the land which was subject matter of judgment passed in First Appeal No. 33/91 which was at Exhibit AW2/B. The learned Counsel further submitted that the acquired land was not similar with the land subject matter of the said judgment as the acquired land was below the level of the road. The learned Counsel as such submitted that there is no basis for the Reference Court to enhance the compensation and as such the Appeal deserves to be allowed and the impugned judgment and award be quashed and set aside. The Respondent though served failed to remain present nor represented by any counsel. 4. On the basis of the submissions of the learned Counsel and on perusal of 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 admeasuring an area of 909 square metres at the rate of Rs.108/- per square metre ? :4: 5. In support of the claim for enhancement of a compensation, the Respondent has examined herself as AW1. She has stated in her deposition that an area of 138 square metres from survey No. 231/5 is tenanted and an area of 738 square metres from survey No. 229/4 and an area of 394 square metres from survey No.331/18 are all tenanted portions of the property. She has further stated that an area of 356 square metres from survey No. 231/16 and an area of 553 square metres from survey No.231/25 are both untenanted which were also subject matter of the said acquisition. She has further stated that the present acquisition is for the market complex and that her land was also acquired for the construction of KTC bus stand in the year 1986 and that her land is abutting Margao- Curchorem road. She has further stated that the Government offices including the market are within a radius of 100 metres from the acquired land and the railway station of Curchorem was at a distance of about 200 metres from the acquired land. She has also stated that her valuer Shri Bhende had valued the land at the rate of Rs.200/- per square metre. She has further stated that she relied upon a sale deed dated 31st October, 1991 in respect of the property which is at a distance of 50 metres from the acquired land wherein the land admeasuring an area of 1075 square metres was sold for Rs.240/- per square metre. The nature of the land sold is a level land and fit for construction. She as such claimed a compensation for the land acquired at the rate of Rs.200/- per square metre. In her cross examination, she has admitted that the acquired land is :5: below the road level and that the entire acquisition land is a paddy field and she was cultivating the said portion. She has further stated that the land which was acquired for the KTC bus stand was also a paddy field portion and that both the lands acquired are at a distance of half metre from the road. She has admitted that the sale deed plot is at Kakoda and close to Dr. Satish hospital. She has denied the suggestion that the land which was acquired for KTC bus stand was closer to the market than the land in the present acquisition. In her re-examination, she has produced an award dated 4th April, 2000 of the Land Acquisition Officer in the acquisition of land for the construction of the road near KTC bus stand at Curchorem which is at Exhibit 32. By the said award, a sum of Rs.71/- per square metre was paid for untenanted paddy field of the land and Rs. 64/- per square metre for the tenanted land. In her cross examination, she has stated that a part of the land was acquired by the said award from survey No.231/14 and also from survey No.231/8. She has further stated that a part of survey No.231/8 was also acquired in the present acquisition. She has denied the suggestion that the distance between the land acquired and the land subject matter of the said award was 400 metres. 6. Next witness examined is Shri Sakharam Bhende who is an expert has stated that he has visited the property in the year 1998 and that he has prepared a valuation report and considered the sale deed at Exhibit AW1/A wherein the land was sold at the rate of Rs.240/- per square :6: metre. He has also considered the price paid at the rate of Rs.48/- per square metre for the land acquired in the year 1985. According to him, considering all these aspects the market value of the land acquired is Rs.200/- per square metre. In his cross examination, he has admitted that for arriving at a finding he had not considered any sale deed. He has stated that the land acquired for KTC bus stand is at a lower level and having similar features as that of the land acquired. Next witness who has been examined on behalf of the Appellant is Shivaji B. Dessai who is a Chief Officer. He has supported the award passed by the Land Acquisition Officer and stated that the amount fixed therein is just and proper. He has stated that the sale sale produced by the Respondent dated 31st October, 1991 has no relevance for fixing the market value of the land acquired. He has stated that the acquired land is an agricultural paddy field. He has admitted that he had taken the charge as a Chief Officer in the year 2003. He has also produced an award passed in Land Acquisition Case No. 206/99 which is at Exhibit 26. He has admitted in cross examination, that he had visited the acquired land only after taking charge of the Chief Officer. He has stated that he could not say what was the level of the land on the relevant date. He has admitted that the acquired land surveyed under survey No. 231/25 is adjoining the main road going from Quepem to Curchorem. :7: 7. Next witness examined by the Appellant is Shri Surendra Gaonkar. He has stated that the land which was acquired for the market complex was an agricultural paddy land which is about 1.80 metres below the road level. He has further stated that the land acquired for the Kadamba Transport Corporation for the purpose of constructing a bus stop is at a higher level than the land acquired in the present proceedings. He has further stated that in order to proceed to the portion of the property surveyed under survey No.231/16, one will have to proceed through the other acquired land as means of access. He has further stated that no enhancement should be granted to the Respondent herein. He has stated that the land acquired does not have means of access and there are other lands surrounding the said locality. 8. The Reference Court after appreciating evidence on record has found that four of the acquired lands were tenanted paddy fields namely an area of 138 square metres of survey No.231/5; 394 square metres of survey no.231/8; and 730 square metres of survey no.229/4. The learned Judge further found that the other two survey numbers acquired by the Appellant were 356 square metres of survey no.231/16 and 1106 square metres of survey no.231/25 of which the Respondent is claiming only half share in respect of the said survey number admeasuring an area of 553 square metres. The Reference Court has rightly come to the conclusion that the Respondent would not be entitled for any :8: enhancement to the compensation as far as tenanted paddy fields are concerned. 9. With regard to the other two acquired lands surveyed under survey nos.231/16 and 231/25, no doubt they were paddy fields but however the statement of the witnesses to the effect that the Respondent was an owner of the property surveyed under survey no.231/16 and 50% of the acquired land from survey No.231/25 has not been challenged. On perusal of the promulgated survey records, no tenant is shown in the tenant column in respect of the property surveyed under survey No. 231/16. The Land Acquisition Officer himself has assessed the compensation thereon on the basis that the said land was untenanted paddy field. As such the Reference Court has rightly come to the conclusion that the Respondent was entitled to the compensation in respect of an area of 356 square metres of survey No.231/16 and an area of 553 square metres of survey No.231/25. The Appellant has failed to adduce any evidence to substantiate their contention that the said portion of the land acquired is a tenanted paddy field. As such the submissions of the learned Counsel for the Appellant that the said lands were tenanted lands deserve to be rejected. Exhibit AW2/B is the judgment passed by this Court in First Appeal No. 33/91. The land which was acquired therein was for KTC bus stand at Curchorem by notification published on 31st January, 1986 and in view of the settlement arrived between the :9: parties, this Court fixed the market value for the acquired land at the rate of Rs.48/- per square metre. AW1 in her deposition has stated that the distance between the acquired land and the land acquired for KTC bus stand is about 25 metres. AW2 who is a valuer has also given the comparability of the land acquired with the land which was acquired for the KTC bus stand. He has stated that the land acquired therein was at a lower level. The evidence of RW1 cannot be considered for the purpose of comparability of the two lands as he has visited the property only in the year 2003 which is much after the acquisition. The only aspect referred to by RW2 is that the land acquired for the KTC bus stand was at a higher level than the land in the present acquisition. As the nature of the land acquired for KTC bus stand is in the vicinity of the acquired land, I find that the award passed therein can form the basis for the purpose of determining the market value of the land under the acquisition in the present case. By the said award, the compensation was fixed at the rate of Rs.48/- per square metre in respect of an acquisition in the year 1986. As the land is comparable and of a similar nature, there is no reason to fix any different amount of compensation as far as the land which was acquired in the present case after giving escalation as the land which was acquired therein was in the year 1986. The Reference Court was as such justified to give an escalation of 10% on cumulative basis and arrived at the market value of the acquired land at the rate of Rs.108/- per square metre. The land which was acquired for a market complex at Curchorem :10: was a semi-urban area. The land is located in the vicinity of Government buildings within a radius of 1 Km apart from having infrastructure facilities. The land acquired had potentialities of being used for non- agricultural purpose. The market value has been fixed by the Reference Court in accordance with the well settled principle of law after comparing the acquired land and the land subject matter of the award. The Reference Court was as such justified to fix the compensation at the rate of Rs.108/- per square metre and after deducting a sum of Rs.12/- paid to the Respondent, direct payment of excess compensation of Rs.96/- per square metre for an area of 909 square metres along with statutory benefits. The amount so determined does not appear to be excessive or exorbitant. The point for determination is answered accordingly. 10. There is no infirmity in the impugned judgment and as such the appeal stands dismissed with no order as to costs. F. M. REIS, J. at*