1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEALS NOS. 186 & 197 OF 2005 FIRST APPEAL NO.186 OF 2005 Communidade of Cortalim, Represented by its Attorney, Shri Peter Carvalho, Cortalim Goa. …. Appellant V/s 1. The Executive Engineer, W.D.IV(R&B), P.W.D., Fatorda, Margao-Goa. 2. Deputy Collector & S.D.O., Quepem, Goa. …. Respondents Mr. I. Agha, Advocate for the Appellant. Ms. Susan Linhares, Additional Government Advocate for the Respondents. AND FIRST APPEAL NO.197 OF 2005 1. The Executive Engineer, W.D. VI (R&B), P.W.D. Fatorda, Margao, Goa. 2. Deputy Collector & S.D.O., Quepem, Goa. …. Appellants V/s Communidade of Cortalim, Represented by its Attorney, Francis Jeronimo Mesquita, H.No.17, Consua, Cortalim, Goa. …. Respondent Ms. Susan Linhares, Additional Government Advocate for the Appellants. Mr. I. Agha, Advocate for the Respondent. 2 CORAM : F.M. REIS, J. DATE : 31st MARCH, 2011 JUDGMENT : Both the above appeals are taken up together for hearing as they challenge the same award passed in Land Acquisition Case No.124/1992 dated 31/03/2005, passed by the learned District Judge, South Goa, Margao. 2. Parties shall be referred to in the manner they so appear in the cause title of the impugned judgment. 3. In view of the notification under Section 4 of the Land Acquisition Act, 1894 hereinafter referred to as 'the said Act', dated 19/04/1985, land was acquired bearing survey nos.202,206,207,127/2,145,157,133 and 140 of Village of Cortalim, admeasuring an area of 37,360 square metres for the construction of the road from Palem to Alto Verna at National Highway No.17 junction, belonging to the applicants, except for the property under Survey No.206 to which the applicants were not claiming any compensation. By an award passed under Section 11 of the said Act, the Land Acquisition Officer offered compensation 3 at the rate of Rs.10/- per square metre. Being dissatisfied with the said amount, the applicants sought a reference under Section 18 of the said Act for enhancement of compensation and claimed compensation at the rate of Rs.55/- per square metre. The learned Reference Court by judgment and award dated 31/03/2005 partly allowed the said reference and fixed the compensation for the land acquired at the rate of Rs.25/- per square metre, besides other statutory benefits. Being aggrieved by the said judgment, the applicants have preferred the present appeal. 4. Ms. S. Linhares, the learned Additional Government Advocate appearing for the respondents has assailed the impugned judgment and submitted that the Reference Court has failed to consider that the land acquired was a Communidade land which required deductions on account of such dissimilarity vis-a-vis the sale instances produced by the applicants. The learned Counsel further submitted that the learned Judge has relied upon the award at Exhibit 19 which is located at a distance of about 700 metres from the acquired land, though the land which was the subject matter of the said award, which was acquired in the year 1985 was not comparable with the land acquired. The learned Counsel further took me though the evidence on record and pointed out that 4 the respondents have failed to adduce any evidence to substantiate their contention that the amount offered by the Land Acquisition Officer was inadequate. The learned Counsel has taken me through the impugned judgment and pointed out that the Reference Court has totally mis appreciated the evidence on record and, consequently, came to an erroneous conclusion that the applicants were entitled for enhancement of compensation. The learned Counsel, as such, submitted that the impugned judgment and award deserves to be quashed and set aside. 5. On the other hand, Shri I. Agha, the learned Counsel appearing for the applicants has pointed out that the amount awarded by the Reference Court at the rate of Rs.25/- per square metre is on the lower side. The learned Counsel further pointed out that the applicants have produced the sale deed at Exhibit AW1/D which is at a distance of about 100 metres from the acquired land wherein the plot of land admeasuring an area of 500 square metres was sold at the rate of Rs.65/- per square mere. The learned Counsel further submitted that the Reference Court was not justified to effect excessive deductions and arrive at a market value of the acquired land at the rate of Rs.25/- per square metre. The learned Counsel further submitted that the possession of the 5 acquired land was taken over by the respondents much before the notification under Section 4 of the said Act and, as such, the applicants are entitled for compensation on that count. Shri Agha, the learned Counsel further pointed out that considering the sale instances produced by the applicants, the compensation awarded by the Reference Court deserves to be enhanced and the applicants should also be granted compensation for the date the possession was taken which is much prior to Section 4 notification. The learned Counsel accordingly submitted that the appeal preferred by the respondents/State Government deserves to be rejected and appeal preferred by the applicants/claimants deserves to be allowed. 6. Having heard the learned Counsel and on perusal of the records, the following point for determination arises in the present appeal: POINT FOR DETERMINATION : Whether the Reference Court was justified to fix the compensation for the land acquired at the rate of Rs.25/- per square metre. 7. In support of their claim for enhancement, the applicants/claimants have examined Peter Carvalho as AW1. He 6 has deposed as attorney of the applicants. He has stated that the area acquired admeasures around 36,000 square metres and that with regard to the property surveyed under no.207 apportionment proceedings are pending. He has further stated that except the property surveyed under no.202 of the lands acquired, all the other acquired lands were accessible through the internal Communidade road abutting National Highway with Cortalim Consua road. He has further stated the distance from the infra structure facilities and development activities available to the acquired land. He has further stated that by a sale deed dated 25/09/1984, the plot admeasuring 559 square metres was sold at the rate of Rs.87/- per square metre at Quelossim in the neighbouring village. He has also produced the sale deed dated 14/03/1985, wherein the land admeasuring 351 square metres was sold at the rate of Rs.80/- per square metre, which is stated to be at a distance of one and half kilo metres from the survey no.127. The said land is stated to be about 300 metres from the Cortalim Church and at a distance of about one and half to two kilometres from the bank and police station. He has also produced sale instance in respect of the property bearing survey no.157 having an area of 500 square metres wherein the price was Rs.65/- per square metre. The said land is stated to be on the old highway Margao - Cortalim and 7 water and electricity was available close by. He has also produced another sale instance wherein an area of 325 square metres was sold at the rate of Rs.95/- per square metres at Cortalim adjacent to the acquired land under survey no.157. He has produced an award of the land acquired in Nagoa wherein the price was fixed at the rate of Rs.92/- per square metre. The said award is at Exhibit AW1/F. He has further submitted that the Consua – Cortalim road was a tar road at the time of the acquisition but the internal road was not tarred. In the cross-examination, he has further stated that the acquired land is on the left side of the road proceeding from Margao to Panjim. He has further stated that the acquired land had a gradual gradient. He has denied the suggestion that the land had ups and downs. He has admitted the suggestion that there was no public transport which was available on the Consua - Cortalim road in the year 1984. He has further stated that the petrol pump at Nagoa was at a distance of 1.5 kilometres from the property under survey no.157. He has further stated that Kesarwal spring was more than 500 metres from the survey no.157. He has further stated that the land in the sale deed Exhibit AW1/D is close to Zuari river. He has further stated that on the left hand side of the road, the land has been developed by Luizinho Faleiro at a distance 100 metres from the survey no.115. He has further stated that the 8 plot in the survey no.115 was sold in the year 1986. He has further stated that in the year 1982 Luizinho Faleiro had developed plots in the property survey no.114/2 at a distance of 700 metres from the acquired land. He has further stated that all the plots which were developed in the year 1982 in survey no.114/2 by Luizinho Faleiro were sold at the rate of Rs.25/- per square metre in the year 1984 but there was no water, electricity and access to the said plots. He has further stated that the said plots were approved without access. He has further admitted that the Communidade did not stop the access to the said land though the land of Communidade was shown on all four sides of the said property. The next witness examined is Mrs. Pratima Kumar, who is an Architect who has inspected the property in the year 1984 and stated that she had inspected the acquired portion of the land and has also relied upon the instances produced by the respondents and according to her the market value of the land is Rs.70/- per square metre. She has also produced the valuation report at Exhibit AW2/A. In the cross- examination, she has stated that if one goes from Panjim to Margao National Highway to the acquired land on which the new road has been constructed, the first survey number is 157 which is adjoining National Highway followed by survey no.140 at a distance of 100 metres from the National Highway, followed by survey no.133, 9 followed by survey no.145 and thereafter survey no.127/2 which is at a distance of 750 metres from the National Highway. She has further stated that the acquired land was an agricultural land but falling in settlement zone. She has further stated that she could not give the length of the newly constructed road. She has further stated that closest bank is at a distance of 3 kilometres, post office and police station 3½ kilometres and the health centre at Consua is 2 kilometres and market at Cortalim at 3 kilometres from the acquired land. She has further stated that the college from the property surveyed under no.157 is at a distance of 15 kilometres, hospital at a 15 kilometres and Cortalim church is at a distance of 4 kilometres from acquired land. She has further stated that the sale deed dated 29/03/1984 is situated behind hotel Kesarval. Next witness examined is Domnic Diniz, who is a purchaser in the sale deed at Exhibit AW1/E. Respondents have also examined Joao Mendes, who is a resident of Cortalim, who is a labourer and has stated that the road was constructed about 22 years back. The next witness is Ismile Bepari, who has produced the sale deed dated 25/09/1984 wherein he was a purchaser. The said sale deed is at Exhibit AW1/B. The next witness is Anton Pereira, who is the attorney of Communidade of Nagoa who has confirmed the award passed in Land Acquisition Case No.23/1987. In the Cross- 10 examination, he has stated that he is not well conversant with the property of the applicants in Land Acquisition Case No.123/92, 124/92 and 219/92, but he is aware that the property is at about 500 metres from the National Highway. The applicants have also examined Granville Pereira, who has produced award passed in Land Acquisition Case No.116/1989 wherein compensation was paid at the rate of Rs.79/- per square metre. In the cross- examination, he has stated that the land which was acquired was not developed by him though he was trying to develop the same and he had obtained a provisional NOC from the Panchayat, but no conversion sanad was obtained in respect of the said property. 8. The Reference Court while passing the impugned judgment has relied upon Exhibit 19 whereby an area of 25,000 square metres was acquired and the Reference Court therein had fixed the compensation at the rate of Rs.40/- per square metre as the basis for fixing the market value of the land acquired in present proceedings. The evidence on record however, discloses that the land which was the subject matter of the said acquisition was adjoining the National Highway No.17 proceeding from Margao to Panaji. The land which was acquired in the present case was for the construction of a new road and there is no evidence on record 11 to show that in fact there was a motorable access to the acquired portion of the land. The Reference Court has noted the said dissimilarity of the land and effected deductions. Apart from that, the acquired land was a Communidade land and on account of such dissimilarity further deduction has to be effected. 9. The Apex Court in the judgment reported in 2009 (14) SCC 367 in the case of Mohammad Raofuddin v. Land Acquisition Officer has held at para 11 & 14 thus: “11. One of the preferred and well-accepted methods adopted for working out the market value of the land in acquisition cases is the comparable sales method. The comparable sales i.e. the lands sought to be compared must be similar in nature and potentiality. Again, in the absence of sale deeds, the judgments and awards passed in respect of acquisition of lands, made in the same village and/or neighbouring villages can be accepted as valid piece of evidence and provide a sound basis to determine the market value of the land after suitable adjustments with regard to positive and negative factors enumerated in Sections 23 and 24 of the Act. Undoubtedly, an element of some guesswork is involved in the entire exercise. 14. Thus, comparable sale instances of similar lands in the neighbourhood at or about the date of notification under Section 4(1) of the Act are the best guide for determination of the market value of the land to arrive at a fair estimate of the amount of compensation payable to a landowner. Nevertheless, while ascertaining compensation, it is the duty of the Court to see 12 that the compensation so determined is just and fair not merely to the individual whose property has been acquired but also to the public which is to pay for it.” 10. Taking note of the principles enumerated in the said judgment of the Apex Court, I find that on account of the said dissimilarities, a deduction of 40% would be just and appropriate. A deduction of 20% will have to be effected in view of the fact that the land acquired did not have a motorable access and the remaining 20% in view of the restrictions imposed on the Code of Communidade for the purpose of transfer of Communidade lands, and the fact that the land which was the subject matter of the said acquisition was adjoining the National Highway whereas the land acquired herein was close to an internal road. Even the expert who has been examined has categorically stated that the infra structure facilities such as bank, church college, etc, are at a distance of 3 to 10 kilometres from the acquired land. It appears that the land which was acquired in the said proceedings at Exhibit 19 was better situated than the land which was acquired in the present case. Hence, the amount fixed by the Reference Court at the rate of Rs.25/- per square metre cannot be said to be unjust or exorbitant. 13 11. Even considering the sale deed at Exhibit AW1/D relied upon by the applicants in support of their claim for enhancement of compensation, I find that on perusal of the said Sale Deed the southern boundary of the said plot is a National Highway. The sale deed plot was a developed plot. In the judgment of the Apex Court reported in 2010 (1) SCC 444 in the case of Subh Ram & Ors. V/s. State of Haryana & Anr., it has been held that when a small developed plot is considered as the basis for fixing the market value of a large piece of land which is undeveloped, the deductions on account of development charges can range between 25% to 75%, considering the facts of each case. In the present case, the sale deed plot was adjoining the main road. The land acquired was undeveloped. The land which was acquired was 35,500 square metres as compared to the sale deed plot. The land was Communidade land which imposes restrictions in any such transfers. Considering these factors, the deduction of 40% on account of development charges would have to be effected. The sale deed plot is adjoining the National Highway and it is well settled that the land which is adjoining the National Highway has more potential and commercial value than the land which is located in the interior in the present case. The land acquired is admittedly located in the interior of the village and was not abutting any 14 National Highway or any other road though, respondents claimed that it was accessible by internal road. Nevertheless the records reveal that the tar road was at a considerable distance from the acquired land. This dissimilarity also would require a deduction to be effected for fixing the market value of the land acquired. On account of such dissimilarities, a further deduction of 20% would be just and appropriate. The total deduction, as such, works out to 60%. Considering the said deductions and the price as mentioned in the said sale deed at the rate of Rs.65/- per square metre, the amount of Rs.25/- per square metre fixed by the Reference Court appears to be just and appropriate. Considering the overall evidence on record and in view of the comparable instances produced by the applicants, I find that the market value of the land acquired fixed by the Reference Court at the rate of Rs.25/- per square metre appears to be just and appropriate. As such, no interference is called for in the impugned judgment. 12. The contention of the learned Counsel Shri Agha appearing for the applicants that the applicants should be compensated on account of the fact that the possession of the land acquired was taken in the year 1975, whereas the notification under Section 4 was issued in the year 1984, I find that such relief cannot be 15 granted in the present proceedings. The acquisition is pursuant to a notification under Section 4 of the said Act. In case the applicants are entitled for any such compensation on account of the alleged claim that the possession was taken earlier, the applicants would have to resist to an appropriate remedy in accordance with law. The applicants would be at liberty to file appropriate proceedings to recover any such amount if they are so entitled and the same would be considered on its own merits, in accordance with law. 13. The learned Additional Government Advocate appearing for the respondents is not justified to contend that the applicants have not established that the amount offered by the Land Acquisition Officer is inadequate. The respondents have produced instances which clearly establish that the price offered by the Land Acquisition Officer is much higher than the price offered by the Land Acquisition Officer. The respondents have failed to adduce any evidence to justify the amount offered by the Land Acquisition Officer. 14. Shri Agha, the learned Counsel appearing for the applicants has not justified to contend that the market value of the land acquired in the vicinity is much higher than the one awarded by the 16 Reference Court. The Reference Court has minutely examined the evidence on record and fixed the market value of the acquired land at the rate of Rs.25/- per square metre. The point for determination is answered accordingly. 15. In view of the above, there is no merit in both the above appeals and consequently both the appeals stand dismissed with no order as to costs. F.M. REIS, J. NH/-