1 First Appeal No.170 of 2008 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.170 OF 2008 1. The Dy. Collector, (L.A.), South Goa, Collectorate Bldg., Margao. 2. Director of Sports & Youth Affairs, Campal, Panaji-Goa. …. Appellants V/s Pedro D'Costa, since deceased through his legal heirs, namely, 1. Joaquim Herculano D'Costa, deceased through legal heirs, (a) Idalina Ubaldina Almeida e D'Costa (wife), H.No.429/A, Novo Bazar, Macazana, Salcete-Goa 403709. (b) Pedro Francisco D'Costa – Son (expired), Legal Heir: Bravo Herculano D'Costa (Son) (c) Sofia Euza Martina Erpetua D'Costa e Silva Monteiro, Daughter (married), w/o. Rosario Silva Monteiro, r/o. Tibet, Cavellossim, Salcete-Goa. (d) Joycy Veena Piedade D'Costa E Dias, W/o. Ronnie Michael Dias, R/o. H.No.429/A, Novo Bazar, Macazana, Salcete-Goa 403709. 2 First Appeal No.170 of 2008 (e) Silvia Savio D'Costa (Unmarried), R/o. Novo Bazar, H.No.429/A, Macazana-Salcete, Goa 403709. 2. Sebastiao alias Seby da Costa, 3. Lourdes Mariana da Costa, 4. Gloriana Piedade da Costa (expired) and her husband, 5. Antonio Tiago da Costa (expired) Through legal heirs, (a) Maria Catarina da Costa, (b) Sebastiana Lourdina Marcia Francisca Costa, (c) Maria Regina Piedade da Costa, (d) Dogdee Alberto Estanislau Costa, (e) Inez Conceicao da Costa, (f) Erodina Cecilia Costa, (g) Clara Costa, (h) Silvestre Lino Patricio da Costa & (i) Antonio Wilson da Costa, All r/o. H.No.60, Cupator, Macazana, Salcete-Goa. …. Respondents Mr. S. Vahidulla, Government Advocate for the Appellants. Mrs. A. Agni, Advocate for Respondents Nos.2,3,5(a) to 5(i). 3 First Appeal No.170 of 2008 CORAM : F.M. REIS, J. DATE : 2nd JULY, 2011 JUDGMENT : The above appeal challenges the judgment and award dated 13/03/2008, passed by the learned District Judge-3, South Goa, Margao in Land Acquisition Case No.19/2007. 2. Pursuant to a notification issued under Section 4 of the Land Acquisition Act, 1894, herein after referred to as “the said Act”, dated 9/01/2004, the appellants acquired land for development of Government village school playground at Macazana, Salcete from the property surveyed under No.141/3 consisting of paddy field admeasuring an area of 1080 square metres and bharad land admeasuring an area of 1466 square metres. By an award under Section 11 of the said Act dated 23/03/2006, the Land Acquisition Officer awarded compensation at the rate of Rs.15/- per square metre in respect of the paddy field portion of the property and a sum of Rs.30/- per square metre for the bharad land and Rs.30,000/- towards the trees existing in the acquired portion. Being dissatisfied with the said amount, the respondents sought a 4 First Appeal No.170 of 2008 reference under Section 18 of the said Act for enhancement of compensation and claimed a sum of Rs.350/- per square metre for the land acquired. By judgment and award dated 13/03/2008, the learned Reference Court partly allowed the said reference and fixed the compensation in respect of the bharad land admeasuring 1466 square metres at the rate of Rs.260/- per square metre besides statutory benefits. Being aggrieved by the said judgment and award, the appellants have preferred the present appeal. 3. Shri S. Vahidulla, the learned Government Advocate appearing for the appellants has assailed the impugned judgment and pointed out that the land acquired was situated in the interior of Salcete Taluka where there is no scope for any development and, as such, the amount awarded by he Reference Court is very excessive. The learned Counsel further took exception to the classification done by the Reference Court. The learned Counsel, has further pointed out that the sale deed produced by the appellants is not a comparable sale instance and, as such, the question of fixing the compensation on the basis of such sale deed would not arise. The learned Counsel has further submitted that the sale instance relied 5 First Appeal No.170 of 2008 upon by the Reference Court is a developed plot and, as such, considerable deductions ought to have been given on account of development charges as the land acquired was undeveloped land. The learned Counsel further submitted that a sub-divided plot was the subject matter of the sale deed from an approved sub-division and, as such, further deductions had to be made considering that expenses are incurred on such count. The learned Counsel further submitted that the Land Acquisition Officer had offered a just compensation and the respondents have failed to discharge the burden to establish that the amount offered by Land Acquisition Officer was inadequate. The learned Counsel, as such, submitted that the impugned judgment deserves to be quashed and set aside. 4. On the other hand, Mrs. A. Agni, learned Counsel appearing for the respondents has supported the impugned judgment and pointed out that the escalation awarded by the Reference Court at the rate of 7.5% per annum considering the date of the sale deed and the date of Section 4 notification is erroneous as it is well settled that the appreciation should be at the rate of 10% per annum. The learned Counsel further submitted that after such 6 First Appeal No.170 of 2008 escalation, the compensation fixed by the Reference Court is on the lower side. The learned Counsel further submitted that the question of effecting deductions of 30% are not justified in the facts and circumstances of the case. The learned Counsel submitted that the sale deed produced by the respondents is a comparable sale instance and as the same is located in the vicinity of the acquired land, the contention of the appellants that the sale instance is not a comparable land deserves to be rejected. The learned Counsel further submitted that the sale deed relied upon by the respondents is not a developed plot, but merely a portion of the land which was allotted to the sellers pursuant to a family partition which cannot be considered to be a sub-divided plot in a development scheme. The learned Counsel, as such, submitted that no interference is called for in the impugned judgment and the same deserves to be rejected. 5. Having heard the learned Counsel and on perusal of the record, the following point for determination arises in the present appeal: 7 First Appeal No.170 of 2008 POINT FOR DETERMINATION: Whether the Reference Court is justified to fix the compensation for the land acquired in respect of the bharad land at the rate of Rs.260/- per square metre. 6. In support of their claim for enhancement of compensationv the respondents have examined Shri Sebastiao D'Costa as AW1. He has produced an award dated 23/03/2006 at Exhibit 61 besides sale deed dated 13/02/1996 at Exhibit 62 and another sale instance dated 26/09/1996 at Exhibit 63 with a sketch at Exhibit AW1/A and the valuation report at Exhibit AW1/B. He has stated in his deposition that his land is situated within the jurisdiction of village panchayat of Macazana and in the residential zone as the acquired land is a house property of the respondents. He has further stated that the land was developed and that in the locality there were necessary amenities such as electricity, transport, water telecommunication, etc. available within the distance of about 200 metres from the acquired land. He has further stated that the land is abutting the Macazana-Curtorim road and is located at a distance of about 9 kms from the centre of Margao city and 3 kms from Chandor. He has further stated that the bharad portion of the 8 First Appeal No.170 of 2008 acquired land is abutting the Macazana-Curtorim road on the southern portion in the settlement zone. He has further stated that the house was located in the paddy field portion of the property. He has further stated that the neighbouring plot surveyed under no.141/1 was sold at the rate of Rs.200/- per square metre in the year 1996, having same amenities and advantages. He has further stated that the said plot is situated at a distance of 50 metres from the acquired land and is dated 26/09/1996. In the cross- examination, he has admitted that hill cutting has been done for the purpose of making the playground in the property surveyed under no.141/3. He has further stated that the land is not a hill but bharad land. He has further admitted that in the property of the sale deed at Exhibit 63 the purchaser has constructed a house. He has further stated that the sale deed at Exhibit 62 is at a distance of about 1 km from his property. The next witness examined is Shri Mahendra Kakule, who is a registered valuer and who has prepared a report. He has stated in his affidavit that he has prepared the report based on the information collected for the purpose of fixing the market value of the acquired land. According to him, the market value as on 30/01/2004 is Rs.357/- per square metre in 9 First Appeal No.170 of 2008 respect of the bharad portion. While fixing the market value of the land he has relied upon the sale instance of the year 1996, where the price was fixed at the rate of Rs.200/- per square metre. 7. The Reference Court after appreciating the evidence on record has relied upon the sale instance at Exhibit 63, which is a sale deed dated 10/10/1996 wherein the price of the land sold was fixed at the rate of Rs.200/- per square metre for a plot admeasuring an area of 352.75 square metres. The Reference Court has taken the basis of the said sale instance for the purpose of determining the market value of the acquired land, and fixed the compensation for the bharad portion at the rate of Rs.260/- per square metre. 8. The grievance of Shri Vahidulla, the learned Counsel appearing for the appellants disputing the classification of the land as bharad land and paddy field portion cannot be accepted. The Land Acquisition Officer himself has specified that the bharad land admeasuring 1466 square metres and that the remaining land is paddy field portion. It is not open to the appellants to now dispute 10 First Appeal No.170 of 2008 the said classification. The respondents have not pressed for any enhancement of compensation with regard to the paddy field portion of the land. Hence, the compensation is enhanced only in respect of the bharad land admeasuring an area of 1466 square metres. 9. The Reference Court while determining the market value of the acquired land has found three dissimilarities between the acquired land and the sale deed plot and for each of the three counts the Reference Court has deducted 10%. The Reference Court has further noted that price of Rs.200/- was in respect of the transaction which took place in the year 1996 and the Section 4 notification in the present case was of the year 2004. On the basis of the admission of the valuer about the escalation of 7.5% per annum, the Reference Court has determined the value after giving such escalation at Rs.357/- per square metre. The contention of Mrs. Agni, the learned Counsel appearing for the respondents that the escalation of 7.5% is not justified cannot be accepted as the valuer examined by respondents himself has admitted in his report that the escalation in the locality is 7.5% per annum. The 11 First Appeal No.170 of 2008 contention of Government Advocate, Shri Vahidulla that the respondents have failed to prove that the amount offered by the Land Acquisition Officer is inadequate is to be rejected. The respondents have produced the sale instance at Exhibit 63 which is situated at a distance of 50 metres from the acquired land having similar advantages and both are provided with same amenities. As such, it cannot be disputed that the respondents have adduced evidence to substantiate their contention that the price offered by the Land Acquisition Officer is inadequate. 10. The only aspect to be considered are the deductions made by the Reference Court. It is to be noted that the sale deed plot was not an approved subdivided plot. This sale deed itself discloses that the property was allotted to the seller when the same was partitioned into four portions. The plot of land of 352.75 square metres was disannexed from one of the said portions and sold pursuant to the said sale deed. There is nothing in the sale deed to disclose that any sub-division was approved by the statutory authorities. However, it is to be noted that the acquired portion of the land admeasures 1466 square metres and the sale instance 352 12 First Appeal No.170 of 2008 square metres. The Reference Court has deducted 10% on account of such dissimilarity. No doubt the acquired land is abutting the village road from Curtorim to Macazana, but however, the evidence disclose that it is located in the midst of paddy fields, but however, as far as the land of sale instance is concerned, the evidence discloses to the contrary. Considering the said location substantial expenditure would have to be incurred for putting up a construction in such a type of land and due to the difference in the area of acquired land which is 1466 square metres and the sale instance, the deduction of 10% effected by the Reference Court on account of such dissimilarity is to be enhanced to 15%. Apart from that, the Reference Court has deducted 10% on account of hill cutting. I find no reason to interfere with such deduction. Besides that the Reference Court has further deducted 10% on account of the fact that part of the land would be reserved for set back area. I find no justification to interfere with such deduction. As such, considering the dissimilarities as found by the Reference Court, a total deduction of 35% would be just and proper. After such deduction, the amount works out to Rs.235/- per square metre, approximately. Consequently, I find that a just compensation in the 13 First Appeal No.170 of 2008 facts of the case in respect of the said portion of the land acquired would be Rs.235/- per square metre. The point for determination is answered accordingly. 11. In view of the above I pass the following Order: O R D E R (i) The appeal is partly allowed, (ii) The impugned judgment and award dated 13/03/2008 is modified and the compensation fixed by the Reference Court in respect of the bharad land admeasuring an area of 1466 square metres is fixed at the rate of Rs.235/- per square metre. (iii) The remaining part of the award granting statutory benefits stands confirmed. (iv) Appeal stands disposed of accordingly with no order as to costs. F.M. REIS, J. NH/-