:1: IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 193 OF 2004 WITH FIRST APPEAL NO. 121 OF 2005 FIRST APPEAL NO. 193 OF 2004 Shri Jose Antonio Jaques Son of late Alexandre Jaques aged about 69 years, resident of House No. 52, Belloy, Nuvem Salcete Goa. ... Appellant V e r s u s 1. Dy. Collector & SDO,Mormugao Vasco. 2. The Government Pleader, Margao. 3. The Executive Engineer, WD VI (R-S) PWD, Fatorda, Margao. ... Respondents Mr. S. S. Kakodkar, Advocate for the Appellant. Ms. Sapna Mordekar, Additional Government Advocate for the Respondents. AND FIRST APPEAL NO. 121 OF 200 5 1. Dy. Collector & SDO, Mormugao, Vasco. 2. The Government Pleader, Margao. 3. The Executive Engineer, W.D. VI (R-S) PWD, Fatorda, Margao Goa. ... Appellants V e r s u s :2: Jose Antonio Jaques, H.No.52, Belloy, Nuvem, Salcete Goa. ... Respondent Ms. Sapna Mordekar, Additional Government Advocate for the Appellants. Mr. S. S. Kakodkar, Advocate for the Respondent. CORAM : F. M. REIS, J DATE: 30 th SEPTEMBER, 2010. ORAL JUDGMENT Both the above Appeals are taken up together as they both challenge the judgment and award passed in Land Acquisition Case No. 41/2001 passed by the Additional District Judge, Fast Track Court-I, South Goa, Margao. The parties shall be referred to as they so appeared in the cause title of the impugned judgment. The Applicant is the Appellant in First Appeal No. 193 of 2004 and the Respondents are the Appellants in First Appeal No.121 of 2005. The land belonging to the Applicant came to be acquired pursuant to a notification under Section 4 of the Land Acquisition Act, 1894 ( hereinafter referred to as 'the said Act' ) dated 7th December, 1995 in respect of an area of 400 square metres from the property surveyed under survey No. 37/7 (part) situated at Majorda village for the construction of Motiwado-Askona-Utorda road. 2. By an award passed by the Land Acquisition Officer under Section 11 of the said Act, the compensation for the land acquired was fixed at the rate of Rs.39/- per square metre. :3: 3. Being dissatisfied with the said award, the Applicant sought a reference under Section 18 of the said Act for enhancement of the compensation and claimed for an amount of Rs.500/- per square metre for the land acquired. After recording of evidence and hearing both the parties, the Reference Court by a judgment and award dated 6th April, 2004 fixed the market value for the acquired land at the rate of Rs.52/- per square metre. 4. Being aggrieved by the said judgment and award, the Applicant as well as the Respondents preferred the present Appeals. 5. The learned Counsel appearing for the Applicant has assailed the impugned judgment and submitted that the Reference Court has erroneously discarded the four sale instances at Exhibits 13, 14, 15 and 16 which are comparable to the land acquired. He further took me through the said sale instances and pointed out that the lands which were the subject matter of the said sale instances were sold for a sum of Rs.250/- to Rs.300/- per square metre as on the date of notification and they are within the same proximity of time. He further pointed out that though the price paid for the said sale instances was with regard to a mundcarial house even the amount which was paid was in fact on account of open land. The learned Counsel further submitted that the Reference Court ought to have given a deductions of 40% only on account of development charges considering the negative factors and fixed the market value of the acquired land accordingly. The learned Counsel further submitted that the Reference Court has rightly relied upon a sale instance at Exhibit 17 but erroneously effected 75% deduction on :4: account of development charges. He further pointed out that the Reference Court has misread the said document and had come to an erroneous conclusion that a house was existing in the property which was the subject matter of the said sale instance. He further submitted that as there was no house in the said sale deed plot, and as such the deduction of 75% made by the Reference Court is exorbitant. He as such submitted that the Applicant is entitled to the higher compensation then that awarded by the Reference Court by the impugned judgment. 6. On the other hand, the learned Additional Government Advocate has submitted that there is no question of any enhancement in compensation as awarded by the Reference Court as in fact the amount awarded by the Reference Court is exorbitant as according to her, the Applicant has failed to discharge the burden that the amount as offered by the Land Acquisition Officer was inadequate. She further pointed out that the Reference Court has rightly discarded the sale instances at Exhibits 13, 14, 15 and 16 as there are mundcarial houses and the price mentioned therein cannot be considered to be the price which a willing purchaser would pay for the land acquired. She further pointed out that admittedly the land acquired was not adjoining the main road as there was no motorable road and as such the land acquired was not comparable to the sale instance plot. The learned Additional Government Advocate further submitted that the Reference Court ought to have given further deduction in view of the fact that the land acquired did not have motorable access and as such the question of fixing the compensation at the rate of Rs.52/- would not arise at all. The learned Counsel further :5: submitted that the Reference Court has totally misdirected itself in fixing the compensation at the rate of Rs.52/- as according to her the Applicant has failed to produce any comparable sale instance. She as such submitted that the Appeal filed by the Respondents deserves to be allowed and impugned judgment of the Reference Court be quashed and set aside. 7. Having heard the learned Counsel for the Applicant and the Respondents and on perusal of the records, the following point for determination arise in the present Appeals : POINT FOR DETERMINATION Whether the Reference Court was justified to fix the market value of the acquired land at the rate of Rs.52/- per square metre ? 8. On perusal of the records, I find that the Applicant in support of his claim for enhancement of compensation has produced five sale instances. The sale instance at Exhibit 13 is a sale deed dated 17th June, 1991 whereby an area of 300 square metres was sold at the rate of Rs.301/- per square metre. The said property is situated at Majorda, Salcete. On perusal of the said sale deed, it is admitted that the property which is a subject matter of the said sale instance is abutting the main road. The said sale instance further stipulates that the property which has been sold is a distinct and independent property by itself and is bounded on two sides by roads, one 15 metres wide road and other three metres wide access. The land acquired is situated in the interior part of the village while the plot which was the subject matter of the said sale :6: deed is located in an advantageous locality. There is no evidence on record to assess the value of the said dissimilarity with the land acquired. As such the Reference Court was justified in discarding the said sale deed at Exhibit 13 for the purpose of determining the market value of the acquired land. Next sale instance produced by the Applicant is at Exhibit 14 which is a sale deed dated 18th February, 1994. On perusal of the said sale deed, it demonstrate that the property which has been sold admeasuring an area of 414 square metres and is bounded on west by three metres wide reserved access and on the north by Cansaulim-Nuvem road and there exists a mundkarial house in the said sale deed plot. Though the price fixed therein is at the rate of Rs.246/- per square metre, there is nothing on record to assess the value of the mundkarial house existing therein and the open land. In any event, such a sale instance whereby the properties have been sold to mundkars cannot be considered as comparable sale instance for the purpose of fixing the market value of the acquired land specially when other sale deeds in the proximity of the lands acquired are available on record. Next sale document is at Exhibit 15 which is a sale deed dated 7th March, 1994. The said sale deed plot is also a developed plot and there is also a mundkarial house existing therein. The Reference Court was as such justified in rejecting the said sale instance for the purpose of determining the market value of the acquired land. The sale deed at Exhibit 16 is dated 29th October, 1994. The property which was sold was having 1075 square metres and was sold at the rate of Rs.339/- per square metre. It is admitted that the mundcarial house was also existing in the said property. For the reasons stated herein above, I find that the said sale instance in view of absence of any evidence on record with regard to the price of the mundcarial house and the :7: open land, the same cannot be considered to be a comparable sale instance for determining the market value of the acquired land. The only sale instance which remains to be considered is the one at Exhibit 17. The Reference Court while relying upon the said sale deed has considered the dissimilarity of the land acquired vis-a-vis the sale deed plot. The Reference Court has found that the land acquired is located in the neighbourhood of the said sale deed plot and it is within reasonable time of the notification under Section 4 of the Act. The acquired land was admittedly located in the interior part of the village and it was not accessible by a motorable road. The Applicant had an access through the property of different private owner to reach to the main road from the land acquired. 9. On perusal of the said sale instance at Exhibit 17, the recitals therein suggest that the sale deed has been executed pursuant to an agreement cum declaration dated 30th January, 1995. The term of the sale deed further suggest that the purchaser had kept indemnified the vendors from any claim to the said property. The said declaration cum agreement has not been produced by the Applicant herein. Apart from that, in the cross examination of AW1, he has admitted that in the said sale deed plot there existing earlier a mundkarial house. Though there is no evidence on record to suggest as to whether such house was in fact existing as on the date of execution of the sale deed nevertheless this fact will have to be considered for the purpose of determining the market value of the land acquired. The Reference Court after considering the said demerits has effected deduction of 75% for fixing the market value of the acquired land at the rate of Rs.52/- per square metre. :8: 10. The Apex Court in a judgment reported in (2010) 1 SCC 444 in the case of Subh Ram v. State of Haryana has held at paras 14 & 15 as follows : “14. But merely deducting the areas required for roads, drains, parks and community areas, will not convert a large tract of agricultural or undeveloped land into a developed residential layout. For that, considerable financial outlay has to be made. The land will have to be levelled. The land will have to be converted from agricultural use to non-agricultural residential use by paying necessary fees/fine to the Revenue/development authorities. Then the roads will have to be asphalted or concreted. Drains will have to be dug and lined with reinforced cement concrete or stone, for drainage of rainwater. Electricity, water, and sewage lines will have to be laid. Deposits will have to be made to the authorities dealing with electricity, water and sewage removal. The development will also involve the service of surveyors, engineers and developers. All these involve considerable expenditure. Further, as there will be a time gap between the expenditure for development and the actual sale of plots, the cost of development will also have an element of interest on investment. The developer who undertakes the development and invests the monies for development would also expect a reasonable profit when the plots are sold. All these expenditure and factors are standardised into another one-third (33%) deduction towards expenses of development. 15. Thus, 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 (see Lal Chand v. Union of India, paras 8 and 9 for illustrations of such circumstances).” :9: 11. In view of the said judgment of the Apex Court, the deductions on account of development vary between 20% to 75%. Considering the Appellant has not produced any appreciable evidence on record to assess the development expenses the maximum deduction of 75% as held by the Apex Court, can be effected in the present case. As such the Reference Court was justified to effect deduction of 75% for arriving at the market value of the acquired land at the rate of Rs.52/- per square metre. The learned Additional Government Advocate is not justified to contend that the Appellant has failed to discharge the burden cast on him that the price offered by the Land Acquisition Officer is inadequate. In fact the Appellant had produced five sale instances of the same village which demonstrate the price which was prevailing as on the date of Section 4 notification. Once such evidence has been produced which suggest that the price offered by the Land Acquisition Officer is inadequate, the burden shifted on the Respondents to establish that the price as determined by the Land Acquisition Officer was just and proper. 12. The Apex Court in the judgment in the case of Mahesh Dattatray Thirthkar V/s State of Maharastra reported in 2009 AIR SCW 2962 has clearly held that once the claimant has established by evidence that the price offered by the Land Acquisition Officer is inadequate, the onus shifts on the State to adduce sufficient evidence to sustain the award of the Land Acquisition Officer. In the present case, the Respondents have failed to adduce any evidence to demonstrate that the price offered by the Land Acquisition Officer is fair and just. As such the learned Additional Government Advocate is not justified to contend that the market value offered by the Land :10: Acquisition Officer is appropriate. The point is answered accordingly. 13. In view of the above, there is no merit in both the Appeals and both the Appeals stand dismissed with no order as to costs. 14. The Registrar is directed to disburse the amount deposited by the Respondents with accrued interest to the Applicant after a period of three months from today. F. M. REIS, J at*