-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.84 OF 2007 1. Smt. Suniti Ramakant Sinai Kakodkar (Since deceased) represented by her legal representatives : 1a. Mr. Chandrashekar Ramakant Sinai Kakodkar, son of late Ramakant R. S. Kakodkar, aged about 55 years, bachelor, engineer; 1b. Ms. Bharati Ramakant Sinai Kakodkar, daughter of late Ramakant R. S. Kakodkar, aged about 51 years, spinster, unemployed; 1c. Mr. Sudir Ramakant Sinai Kakodkar, alias Sudil Ramakant Sinai Kakodkar, son of late Ramakant R. S. Kakodkar, aged about 49 years, bachelor, service; 1d. Ms. Kiran Ramakant Sinai Kakodkar, daughter of late Ramakant R. S. Kakodkar, aged about 48 years, spinster, unemployed; and 1e. Mr. Nitin Ramakant Sinai Kakodkar, son of late Ramakant R. S. Kakodkar, aged about 46 years, bachelor, service; All Indian nationals and citizens and all residing at Hoskote House, Next to Parulekar Hospital, Patrong, Baina, Vasco – da – Gama, Goa – 403 802. …... Appellants / (Original Applicants) V e r s u s 1. Deputy Collector & S.D.O. of Quepem, & Land Acquisition Officer 2. Director of Technical Education, Porvorim, Bardez, Goa. …... Respondents/ (Original Respondents) -2- Mr. T. Pereira, Advocate for the Appellant. Mr. V. Rodrigues, Additional Government Advocate for the Respondents. Coram :- A. S. OKA F. M. REIS, JJ. Judgment Reserved on : 16 th August, 2010. Judgment Pronounced on : 30 th September, 2010. JUDGMENT : (Per F. M. Reis, J.) The above Appeal challenges the Judgment and Award dated 28th November, 2006, passed by the learned Addl. District Judge, South Goa, Margao, in Land Acquisition Case no. 6/2000, whereby the reference filed by the Appellant was partly allowed. 2. By a Notification issued under Section 4 of the Land Acquisition Act, bearing no. 22/22/97-RD dated 3rd June, 1997, published in official Gazette dated 10th July, 1997, various lands situated at Kakoda Village in Quepem Taluka, were acquired for setting up Polytechnic Institute. Besides different lands, the land belonging to the Appellants bearing survey no. 156/8, 160/1, to 13 and 161/2 totally admeasuring an area of 50,425 square metres was also acquired. By an Award dated 17th November, 1998, under Section 11 of the said Act, the Land Acquisition Officer awarded a compensation at the rate of Rs.32/- per square metres for the land acquired. As there was a dispute with regard to the portion of the property surveyed under no. 161/2 claimed by the Appellants, a reference under Section 30 of -3- the said Act was preferred by the Land Acquisition Officer to the concerned Court. 3. Being dissatisfied with the amount of compensation fixed by the said Award, the Appellant sought a reference under Section 18 of the said Act for enhancement of compensation and claimed compensation for loss of income from the trees to the tune of Rs.4,26,500/-; Rs. 37,50,000/- due to potential earnings of brick making business; Rs.30,00,000/- on account of loss suffered for potential earnings on account of use of granite gneiss and compensation for the land at the rate of Rs.600/- per square metre. 4. After framing the issues and recording of evidence by Judgment and Award dated 28th November, 2006, the learned Addl. District Judge partly allowed the said reference and awarded compensation for the land acquired at the rate of Rs.48/- per square metre besides statutory benefits. The remaining claim of the Appellants came to be rejected. 5. Being aggrieved by the said Judgment and Award, the Appellants have preferred the present Appeal. 6. Shri T. Pereira, the learned Counsel appearing for the Appellants has assailed the impugned Judgment only with regard to the market value of the land acquired as fixed by the Reference Court. The -4- learned Counsel did not press for any compensation on account of the other heads as claimed by the Appellants in the reference application. The learned Counsel for the Appellants submitted that the Reference Court has totally misdirected itself in appreciating the evidence on record and in coming to the conclusion that the market value of land as on the date of Section 4 Notification was Rs.48/- per square metre. The learned Counsel submitted that the Appellants have produced comparable Sale Deed which is at exhibit 32 in respect of a Sale Deed dated 16th December, 1996, wherein a plot of 345 square metres was sold for a price of Rs.69,000/- and the same is located within the vicinity of the acquired land. He further submitted that the Appellants have also relied upon a Sale Deed which is at exhibit 33 and is in the proximity of the acquired land dated 16th December, 1996, whereby plot no. 14, admeasuring an area of 365 square metres was sold at the rate of Rs.200/- per square metre of the property surveyed under no. 159/1/L. The learned Counsel for the Appellants further submitted that the Reference Court has failed to consider that plot of the land was already converted at the time of Section 4 notification. The learned Counsel further submitted that the Reference Court has erroneously fixed the compensation at the rate of Rs.48/- per square metre when the compensation ought to have been more than Rs.100/- per square metre in the facts and circumstances of the case. The learned Counsel took us through the notes of evidence and pointed out that the Appellants had produced cogent evidence on record to substantiate their claim for enhancement of compensation of more than Rs.100/- per -5- square metre. The learned Counsel further submitted that the Reference Court has erroneously given deductions which are not at all warranted in the facts and circumstances of the case. The learned Counsel as such submitted that the Appellants are entitled for a much higher compensation than the one awarded by the Reference Court. 7. On the other hand, Addl. Government Advocate appearing for the Respondents, has supported the impugned Judgment. He submitted that the Reference Court has minutely examined the evidence on record and come to the conclusion that the market value of land as on the date of Section 4 Notification is to be fixed at Rs.48/- per square metre. He further submitted that the Sale Deed relied upon by the Appellants have been duly considered and the same have been rejected by the Reference Court by giving cogent reasons. He further submitted that there is no infirmity committed by the Reference Court in determining the compensation payable to the Appellants and, as such, the question of this Court interfering in the impugned Judgment does not arise at all. He further submitted that the amount of compensation with regard to the property surveyed under no. 161/2 can, in any event, not be allowed to be disbursed as a reference, under Section 30 of the said Act, is pending adjudication before the competent Court. The learned Addl. Government Advocate submitted that they have produced a Sale Deed dated 17th December, 1994, at exhibit 42, whereby a plot of land forming part of the property surveyed under no. -6- 150/11 at Kakoda Village admeasuring an area of 765 square metres was sold for a price of Rs.61,200/-. He further submitted that the above Appeal as such deserves to be rejected. 8. On hearing the learned Counsel and on perusal of the record, the following point for determination arises in the present Appeal : 1. Whether the Reference Court was justified to fix the compensation payable to the Appellants for the land acquired at the rate of Rs.48/- per square metre. 9. Aw.1, Chandrashekar Ramnath Sinai Kakodkar, has deposed on behalf of the Appellants. He has stated that the original Appellant was his mother and that he was her duly constituted Attorney. Besides Aw.1, he has further stated that the Applicant nos. 1(b) to 1(e) along with him are the surviving children entitled to the inheritance of his said mother. He further stated that the Respondents proposed to acquire the entire property of his said mother for the purpose of putting up a new Polytechnic Institute in Kakoda. The total area acquired belonging to the Appellants is stated to be 50,425 square metres as per the Notification under Section 6 of the said Act. He has further stated that by notice issued under Section 12(2) of the said Act, his said mother was informed that a sum of Rs.11,63,766/- was allotted to her in respect of an area of 24,475 square metres located in the property surveyed under no. 156/8, 160/1, 160/2, 160/3, 160/4, 160/5, 160/6, 160/7, -7- 160/8, 160/9, 160/10, 160/11, 160/12 and 160/13. With regard to the remaining portion of the property claimed by his said mother located in the property surveyed under no. 161/2 pertaining to an area of 25,450 square metres, a sum of Rs.12,12,384/- was awarded by the Award under Section 11 of the said Act but, however, in view of a dispute raised therein, the same was referred under Section 30 of the said Act to the learned District Judge, South Goa, at Margao. He further stated that the cost for undeveloped plot in the property surveyed under no. 159/1 at village Kakoda, was about Rs.200/- per square metre in the month of December, 1996. He further stated that the said plot is about 50 metres from the acquired land. He further stated that the cost of taking electrical connection to the land acquired would be minimum as the said land is adjacent to the main road and is opposite the Kakoda Industrial Estate. He has further stated that the acquired land is located on the southern edge of the main road going from Curchorem to Sanguem where there is regular traffic. He has also stated that in the past, there was a Sanad obtained by his deceased mother in respect of the said property for non agricultural purposes from the Collector of Goa at Panaji in March, 1981, which was duly renewed from time to time but, however, she could not develop the same on account of family disputes. He has further stated that adjacent to the acquired land, there is a property belonging to Naik Karmali family which is surveyed under no. 159 and 155/2 totally admeasuring 60,750 square metres wherein the property has been sub- divided. Plot no.1 from the said property admeasuring an area of 345 square -8- metres was sold on 16th December, 1996, at the rate of Rs.200/- per square metre approximately. Another Sale Deed dated 16th December, 1996, also discloses that the plot was sold at the rate of Rs.200/- per square metre in the same property surveyed under no. 159/1. He has further stated that there are buildings in the vicinity of the acquired land and that he has compared the land acquired with the land of said Karmali stating that the land acquired is adjacent to the road whereas the land of Naik Karmali is situated towards the southern side of the land acquired at a distance of 50 metres. Both the lands are of bharad nature and they are flat type leveled with main road. The land acquired already had a conversion Sanad which was not the case with the property of Naik Karmali. In the cross examination, he has admitted that part of the land acquired is shown as rice land and part is shown as bharad land. He has further admitted that as per the Sanad at exhibit 30 produced by the Appellants, there was a condition to the effect that his mother was required to keep a 20 metre space between the centre line of the State highway for further road widening and that the survey numbers wherein the Sanad was obtained was in respect of the property surveyed under no. 156/8, 160/5 and 161/2. He has also admitted that mining minerals were extracted from the land acquired. He has further admitted that he had not developed any properties. He has further admitted that both the plots at exhibit 32 and exhibit 33 are from the same property and they are sub-divided plots and at a distance of 1.5 kilometres from the main road. He has further admitted that -9- the plot surveyed under no.150/11, which is a sub-divided plot at exhibit 42, is at a distance of 2 kilometres from the acquired land. The Appellants did not examine anybody else but, however, the Respondents examined the officiating Officer as Rw.1. 10. Rw.1, has produced the Sale Deed at exhibit 42 dated 17th December, 1994. He has stated that the said Sale Deed plot is at a distance of hundred metres from Curchorem to Sanguem road and about 600 metres from the acquired land. In the cross examination, he has stated that the acquired land is abutting the main road going from Curchorem to Sanguem and that the Kakoda Industrial Estate is situated opposite the acquired land. He further admitted that he has no expert opinion to suggest that the said Sale Deed plot is better than the acquired land. 11. From the oral and documentary evidence on record, we find that the acquired land is opposite the Kakoda Industrial Estate. The land is also adjacent to the main road Curchorem to Sanguem. There was a development which was in existence as on the date of Section 4 notification in the vicinity of the acquired land at a distance of 50 metres wherein the property of Naik Karmali surveyed under no. 159 was already sub-divided for construction purpose. The evidence further demonstrates that the acquired land had potentiality of being used for non agricultural purpose as a Sanad was obtained way back in the year 1981 though there was no actual renewal -10- as on the date of Section 4 Notification but, however, this fact itself discloses that the acquired land had potentiality of being used for non agricultural purpose. No doubt, part of the acquired land was also used for winning minor minerals and would require more development expenditure. On perusal of the Sale Deeds at exhibit 32 and 33, produced by the Appellants and exhibit 42, produced by the Respondents, we find that the Sale Deeds at exhibit 32 and 33 are in the proximity of the acquired land being at a distance of only 50 meres therefrom. The Sale Deed at exhibit 42 produced by the Respondents is at a distance of 2 kilometres as per the version of Aw.1 and at a distance of 600 metres as per the deposition of Rw.1. The closer Sale Deed in the vicinity of the acquired land are the ones at exhibit 32 and 33. On perusal of the plan depicting the said Sale Deeds, we find that the Sale Deeds at exhibit 32 and 33 are much closer to the acquired land. Apart from that, the Sale Deed at exhibit 32 and 33 are less than six months from the date of Section 4 Notification as compared to the Sale Deed at exhibit 42, which is of the year 1994. We, accordingly, find that the Sale Deed at exhibit 32 and 33 are comparable with the acquired land. The Reference Court as such was not justified in relying upon the sale instance at Exhibit 42 to determine the market value of the land acquired. 12. The next aspect to be considered is what is the amount of deduction to be effected for the purpose of arriving at a just and proper market value of the land acquired. The Reference Court has found that the -11- land acquired admeasures 50,420 square metres whereas the area involved in the said sale instances is only 365 and 345 respectively. The learned Judge has discarded the said Sale Deeds only on the ground that plots involved therein are very small and has preferred to rely upon the Sale Deed at exhibit 42. The law is well settled that when no other evidence of sale instances for large tracts of land are available, prices fetched for developed plot can be taken as basis for the purpose of determining undeveloped large tracts of land after giving appropriate deduction on account of development charges, etc. In the present case, we have found that the Reference court has erroneously relied upon the Sale Deed at exhibit 42 as a comparable sale instance when the Sale Deeds at exhibit 32 and 33 would be more comparable for the reasons already stated hereinabove. The price as per the Sale Deeds at exhibit 32 and 33 is at the rate of Rs.200/- per square metre. 13. The Apex Court in the Judgment reported in 2010 (1) S.C.C. 444 in the case of Subh Ram & Ors. vs. State of Haryana and anr. has held at paras 12, 13, 14 and 15 as under : “12. In a standard layout with plots measuring say 2500 sq ft (50' x 50') each, to provide road access to each plot, it will be necessary to provide a road after every two rows of plots. If the depth of each plot is 50', and if the road width is 25 ft, then for every two strips of plots, there will have to be a strip of road of 25 ft. This means a minimum of 25% of the total land area will be utilized for roads. A typical layout will -12- also have cross-roads, and areas earmarked for park, and/or community areas. Consequently non-saleable area (area which cannot be sold as plots) would be around 30% to 40% of the total area. 13. Therefore, in the hypothetical layout method of determination of market value, as a first step, the areas that will be used up for roads, drains, parks/playgrounds and community areas, will have to be excluded from the total extent of the acquired land. The standard deduction in this behalf is one-third (33%). 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 -13- 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).” 14. From the foregoing Judgment of the Apex Court, it is well settled that deductions can range from 20 percent to 75 percent depending upon the facts and circumstances of the case. In the present case, though the area involved is above 50,000 square metres and the Sale Deed plots admeasures 365 square metres and 345 square metres respectively, a substantial deduction will have to be effected. Considering that the Sanad for part of the land was already earlier obtained and part of the land was also being used for winning mining minerals and part was used for rice cultivation, we find that a just and appropriate deduction would be 66 percent in view of the said decision of the Apex Court. Accordingly, the market value of the acquired land works out to Rs.68/- per square metre. The point for determination is answered accordingly. -14- 15. The Appellants will be entitled to receive the compensation with regard to the land acquired except the property surveyed under no. 161/2. With regard to the compensation payable in respect of the land surveyed under no. 161/2, the same shall be invested by the Reference Court and shall be disbursed in accordance with the final determination of the reference under Section 30 of the Land Acquisition Act, pending before the learned District Court. 16. In view of the above, we pass the following : ORDER (i) The above Appeal is partly allowed. (ii) The impugned Judgment and Award dated 28th November, 2006, is modified and the market value of land is fixed at Rs.68/- per square metre for the land acquired. The remaining part of the Award granting statutory benefits, is confirmed. (iii) The compensation with regard to the land surveyed under no. 161/2 shall be disbursed in accordance with the determination of the reference under Section 30 of the said Act which is stated to be pending before the learned District Judge. -15- (iv) The Appeal stands disposed of accordingly with no orders as to costs. A. S. OKA, J. F. M. REIS, J. arp/*