1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.100 OF 2005 1. Special Land Acquisition Officer (South Goa) Konkan Railway Corporation Limited, Amey Guest House, Davorlim Road, P.O. Navelim, Salcete Goa, 403 707. 2. Chief Engineer, Konkan Railway Corporation Ltd., Rawanfond, near Margao Railway Station, Margao – Goa. …. Appellants V/s Julia Pereira Andrade, Arossim, Casaulim – Goa. …. Respondent Mr. E. Afonso, Advocate for the Appellants. Mr. P. Rao, Advocate for the Respondent. CORAM : N.A. BRITTO, J. DATE : 15th OCTOBER, 2010 JUDGMENT : This appeal is directed against judgment dated 31/10/2001 of the learned Reference Court, Margao in Land Acquisition Case No.264/95 by which compensation payable has been enhanced from `36/- to `138/- per square metre. 2. The respondent (applicant, for short) had a property admeasuring 2075 square metres surveyed under no.45/11 of 2 Village Cansaulim in Mormugao Taluka. By virtue of notification issued under Section 4(1) of the Land Acquisition Act, 1894 and published on Gazette dated 8/08/1991, an area of 1665 square metres of the said land of the applicant was acquired for the purpose of construction of new broad gauge line of Konkan Railway. 3. In the reference, the applicant claimed `400/- per square metre. The applicant also claimed `4,35,000/- for the trees as against `1,59,625/- awarded by the Land Acquisition Officer. In support of her claim for enhancement, the applicant examined herself (AW1), Engineer Shri Bhende as her expert (AW2) and Shri Joseph Barretto (AW3). This witness was examined in support of the sale deed Exhibit AW1/C by which a plot of land admeasuring 1,300 square metres was sold at the rate of `163/- per square metre situated in the same village, Cansaulim. 4. The applicant had also produced three other sale deeds namely AW1/B - a sale deed dated 12/11/1983 by which a plot of land of 1,000 square metres was sold at the rate of `245/- per square metre, AW1/D - a sale deed dated 21/01/1987 by which a plot was sold at the rate of `209/- per square metre and AW1/E - a 3 sale deed dated 27/04/2987 by which a plot of land admesuring 232 square metres was sold at the rate of `94/- per square metre. 5. The learned Reference Court discarded three of the sale deeds namely Exhibit AW1/B, AW1/D & AW1/E as they were about 5 years prior to the publication of the notification. The learned Reference Court chose AW1/C sale deed dated 19/09/1990 to form basis of assessing compensation, as in the opinion of the learned Reference Court, the land of this sale deed was similar to the acquired land except for the access. The learned Reference Court, thereafter, held that in order to construct a road to the acquired land 15% deduction was required to be made and after taking the said deduction assessed the market value at the rate of `138/- per square metre. 6. Shri E. Afonso, the learned Counsel appearing on behalf of the appellants submits that the plot of sale deed Exhibit AW1/C was very close to the Verna-Cansaulim road, while the acquired land was at a distance of about 10 minutes walk as stated by AW3/ Shri Barretto. Learned Counsel further submits that the acquired land could not be compared at all with the plot of the sale deed Exhibit AW1/C. Learned Counsel further submits that the sale 4 deed Exhibit AW1/C also had a house, as stated by AW3/Shri Baretto and, therefore, was not a comparable instance. Relying on the judgment of the Apex Court in Subh Ram & Ors. V/s. State of Haryana & Anr. (2010 (1) SCC 444), learned Counsel submits that a deduction of at least 75% ought to have been made from the price of the sale deed Exhibit AW1/C before fixing the compensation payable to the applicant. 7. On the other hand, Shri Rao, the learned Counsel appearing on behalf of the respondent-original applicant submits that the plot of Exhibit AW1/C was not a developed plot for such a deduction to be taken and in fact learned Counsel submits that since the acquired property as well as the plot of sale deed Exhibit AW1/C were mixed garden land no deduction was at all required to be made. Learned Counsel further submits that if at all any deduction was required to be made then the same could not have been more than 30%. Learned Counsel also submits that the learned Reference Court has not considered of giving any appreciation considering that the sale deed Exhibit AW1/C was about a year prior to the date of acquisition and if this method was adopted by giving appreciation of 10%, the market value would work out to `179/- which could be rounded to `180/- per square metre, and by 5 taking deduction of 30% it would work out to `126/- square metre. 8. In Subh Ram & Ors. (supra), the Apex Court has held that: “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. Therefore, when deduction is made from the value of a small residential plot towards the development cost, to arrive at the value of a large tract of agricultural or undeveloped land with development potential, the deduction has nothing to do with the purpose for which the land is acquired. On the other hand, where the value of acquired agricultural land is determined with reference to the sale price of a neighbouring agricultural land, no deduction need be made towards “development cost”.” 9. The Apex Court in Chimanlal Hargovinddas V/s. Special Land Acquisition Officer, Poona, & Anr. (AIR 1988 SC 1652) has, inter alia, observed that the Reference Court is required to identify the most comparable instances out of the genuine instances from the proximity of time angle and proximity of situation angle and after identifying the same the price reflected therein may be taken as the norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors vis-a-vis land under acquisition by placing 6 the two in juxtaposition. A balance sheet of plus and minus factors has got to be drawn for this purpose and the relevant factors may be evaluated in terms of price variation as a prudent purchaser would do. The market value of the land under acquisition has thereafter to be deduced by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors, etc. 10. In my view, the choice of sale deed Exhibit AW1/C by the learned Reference Court to form the basis of assessment of compensation per se cannot be faulted as it was a sale of a piece of land which was proximate from the date of notification as well as location and also being of the same nature. However, the learned Reference Court does not appear to have taken into consideration other disadvantages or dissimilarities which the acquired land had in comparison with the land of sale deed Exhibit AW1/C. Although the land of Exhibit AW1/C had an old house, it was a plot of land essentially purchased for the construction of a house and a new house and subsequently a new house was built thereon. There is no mention to the said old house on the sale deed Exhibit AW1/C. As far as the distances are concerned, the distances given by AW1 were not seriously disputed by the respondent in as much as the 7 respondents did not lead any evidence. And, it can be seen from the distances given, that the acquired property was at a distance of about 250 metres from the said Verna-Cansaulim road and was accessible by foot path. Likewise, the plot of Exhibit AW1/C was situated at a distance of about 1 km from the said Verna-Cansaulim road. Both the properties can be said to have been accessible by a footpath from the said Verna-Cansaulim road. If the acquired property was at a distance of about a kilometre from Cansaulim proper, where there are basic civic amenities, the plot of Exhibit AW1/C was more towards Verna and at a distance of about 3 kms from Cansaulim proper. However, it can be seen from the evidence of AW2/Shri Bhende that the applicant's acquired land was a bund of about 10 metres width surrounded by paddy fields having a length of about 120 metres on the longer side and about 82 metres on the shorter side with a central bund of 82 metres in length and 4 metres in width. He has also stated that the bund was used for coconut plantation whereas the central bund was later on constructed by earth filing and with retaining walls on both sides. Although the plot of sale deed Exhibit AW1/C was not a developed plot and was similar to the acquired property, it appears that plot of AW1/C was a plot which was fit for construction without any development, while much development would have been required 8 to make the acquired property fit for construction. 11. Considering the disadvantages the acquired land had in relation to the plot of Exhibit AW1/C, in my view, at least 50% deduction ought to have been taken by the learned Reference Court; and if so taken the price of the acquired land works out to `81.50 and with the further appreciation of 10% for one year, the price would work out to `89.50 which for sake of convenience could be rounded to `90/- per square metre, which in my view would be fair compensation payable to the applicant, for the acquired land. 12. Consequently, the First Appeal is allowed and the judgment of the learned Reference Court is modified. Accordingly, the applicant would be entitled to receive compensation at the rate of `90/- per square metre. Needless to say the compensation payable would be exclusive of the value of the trees paid for under clause secondly of sub-section (1) of Section 23 of the Land Acquisition Act, 1894. N.A. BRITTO, J. NH/-