1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 47/2006 1. The Special Land Acquisition Officer, (S.I.P.), Gogal, Margao, Goa. 2. The Executive Engineer, Works Division 14, PWD, Fatorda, Margao, Goa. …. Appellants. V/s 1. Mrs. Berta Margarida de Peidade e Costa, 2. Mr. Evaristo Marcos Francisco Antonio de Souza (since deceased represented through legal heirs) 2. a. Mr. Emilio Aleixo Joao Santos do Perpetuo Soccoro de Souza, 2.b. Mrs. Maria Annette Dos Milagres Lobo de Souza 2.c. Mrs. Evelina Especisco Fatima Do Perpetuo Soccoro De Souza Dias. 2.d. Luis Antonio Jose Dias 2.e. Edgar do Perpetuo Soccoro De Souza. 2.f. Diedre Lynn Maria Pereira de Souza. Flat No.3, 1st Floor, Luis Belle, 16th Road, T.P.S. III, Bandra (West), 2 Bombay – 400 050. 3. Mrs. Maria Angelica Leopoldina Da Piedade Costa Loba (since deceased represented through legal heirs). 3.a. Angelo do Perpeno Soccoro Sebastiao Loba, 3.b. Ana Conceicao Lobo. 3.c. Maria Annette Dos Milagres Lobo de Souza. 3.d. Emileo Aleixo Joao Santos do Perpeno Soccoro de Souza 3.e. Maria Alice da Conceicao Lobo de Souza. 3.f. Freddy Antonio Peistino Remediao Anunciacao Torres De Souza. 3.g. Arthur Francisco de Fatima Sebastiao Lobo. 3.h. Maria Da Luz Noronha e Lobo. 3.i. Miss Maria Alcina de Lourdes Lobo. 3.j. Arif Manuel do L. Sebastian Lobo, 4. Mr. Angelo do Perpetuo Soccoro Sebastiao Lobo. 5. Miss Maria Alcina de Lourdes Lobo. 3 6. Mr. Aires Manoel do Carmo Sebastiao Lobo. House No.E-279, Rua Luis de Menezes, Panaji, Goa. ........ Respondents. Mr. G. Shirodkar, Government Advocate for the Appellants. Mr. M. B. D'Costa, Senior Advocate with Mr. J. A. Lobo, Advocate for the Respondents. CORAM :- F.M. REIS, J. DATE :- 8th MARCH, 2011. J U D G M E N T : The above appeal challenges the judgment and award dated 9/06/2003 passed in Land Acquisition Case No.44/1993, by the learned Additional District Judge, South Goa, Margao. 2. By a notification issued under Section 4 of the Land Acquisition Act, 1894, hereinafter referred to as 'the said Act', dated 18/01/1990, published in the Official Gazette on 31/01/1990, land was acquired for the construction of the road from Mungul- Calata via Seraulim from Margao to Nuvem Majorda road. By an award dated 13/05/1992, the Land Acquisition Officer offered compensation at the rate of Rs.30/- per square metre for the land acquired. The land which was sought to be acquired belonging to the respondents was surveyed under no.6/2 of Seraulim village, 4 admeasuring an area of 475 square metres. Being dissatisfied with the said amount, the respondents sought a reference under Section 18 of the said Act and claimed the compensation for the land acquired at the rate of Rs.200/- per square metre. By judgment and award dated 9/06/2003, the learned Reference Court partly allowed the said reference and fixed the market value of the land acquired at the rate of Rs.85/- per square metre. The Reference Court has also awarded compensation towards severance charges to the extent of 60% for two small pieces of land admeasuring 141 square metres and 292 square metres located on the northern side of the proposed land acquired. Besides the said amount, the learned Judge awarded statutory benefits. Being aggrieved by the said judgment, the appellants have preferred the present appeal. 3. Shri Guru Shirodkar, the learned Government Advocate appearing for the appellants has assailed the impugned judgment and pointed out that the Reference Court was not at all justified to enhance the compensation as offered by the Land Acquisition Officer. The learned Government Advocate has further submitted that in respect of the same notification, this Court in First Appeal No.135/2003 by judgment dated 24/11/2010 had fixed the compensation for the land acquired therein surveyed under 5 no.117/1 of village Murda, Pequeno (Seraulim) at the rate of Rs.65/- per square metre. The learned Counsel further submitted that the land acquired in the present case and the land which was the subject matter of the said acquisition was pursuant to the same notification. The learned Counsel further submitted that, as such, the question of awarding compensation for the land acquired at the rate of Rs.85/- per square metre would not arise. The learned Government Advocate further pointed out that there is no evidence on record to substantiate the claim of the respondent to the effect that they are entitled for any severance charges. The learned Counsel further took me through the notes of evidence and pointed out that there is no evidence adduced by the respondents to substantiate their claim that in view of the acquisition the remaining land of the respondent got severed and, as such, the same cannot be used for any purpose. The learned Counsel further submitted that though the two pieces of land remained for the respondents there can be no dispute that such pieces can be used for some benefit for the respondent. The learned Counsel, as such, submitted that the impugned judgment and award deserves to be quashed and set aside. 4. On the other hand, Shri M.B. Da Costa, the learned Senior 6 Counsel appearing for the respondents has supported the impugned judgment. The learned Senior Counsel pointed out that the respondents have adduced sufficient evidence on record to substantiate their claim that the price offered by the Land Acquisition Officer is inadequate. Learned Senior Counsel further took me through the evidence on record and pointed out that the respondents have produced sale instances to establish that the respondents are entitled for enhancement of compensation. The learned Senior Counsel further submitted that in view of the acquisition, the land of the respondents got severed and the two pieces of land admeasuring an area of hardly 141 square metres and 292 square metres actually have become totally useless as the same cannot be used for any purpose. The learned Senior Counsel further submitted that the shape of the said two pieces is triangular in nature and as such said pieces would be consumed for a set back area, considering that the respondents have no other land beyond the said two portions. The learned Senior Counsel, as such, submitted that the land acquired in the present case and the land which was the subject matter of the said First Appeal No.135/2003, are not similar in nature, and as such there is no justification for any interference in the impugned judgment. 7 5. Having heard the learned Counsel and on perusal of the records, the following points for determination arise in the present appeal: POINT FOR DETERMINATION: (i) Whether the Reference Court is justified to fix the market value of the acquired land at the rate of Rs.85/- per square metre. (ii) Whether the Reference Court was justified to fix the compensation towards the severance charges at 60% in respect of the two pieces of land admeasuring an area of 141 square metres and 292 square metres. 6. Dealing with the first point for determination, the respondents in support of their claim for enhancement have examined as AW1/Arthur Lobo. He has stated that the total area of the property belonging to them and surveyed under no.6/2 situated in Seraulim has a total area of 3850 square metres, but however, an area of 788 square metres was sold in May, 1972. The property acquired was a coconut garden and there was a footpath access to the said property. He has produced the plan at Exhibit AW1/A to show the acquired land. He has further stated that the acquired land is about 800 metres from the railway station, besides church, market, school, bank, etc. He has produced the sale deed at Exhibit 8 AW1/B in respect of a transaction located at a distance of 1 kilometre from the acquired land which had a motorable access. He has further stated that one Maria Cristina Afonso had purchased the part of the land surveyed under no.6/2 in the year 1972 and the said portion has not been acquired. He has further claimed severance charges at 60% of the market value of the land acquired. In his cross-examination, he has admitted that the sale deed plots produced by him are beyond the railway land. Next witness examined is Mr. Ernesto Moniz, who is an expert. He has stated in his deposition that in the year 1984, the land acquired was accessible by a traditional path and that the motorable road was at a distance of about 800 metres from the acquired land. He has further produced the report which is at Exhibit AW2/A. He has further stated that the property of the respondents have been divided into three portions as depicted in the plan. He has further stated that the part 'B' and part 'C' of the area shown in the plan have become useless. He has stated that the shape of the said two pieces are irregular in shape. He has further stated that the land acquired has not been affected by the sale effected in the year 1972. On the basis of the sale instance, he has valued the land at the rate of Rs.300/- per square metre. He has further stated that no construction can be put up in the said two pieces of land shown in 9 part 'B' and 'C' in his plan. On perusal of the plan attached to the said report the said two pieces of land which have been severed are irregular in shape and appear to be triangular in nature. The next witness examined is AW3/Antonio Jose Luis Rebello, who was a party to the sale deed at Exhibit AW1/C. The appellants examined Shri P.P. Raikar as RW1, who has stated that the acquired land was basically a coconut garden and that there were houses in the vicinity of the acquired land. He has further admitted that the land of the respondents was divided into two parts on account of the said acquisition. He has further stated that one piece of land admeasures 300 square metres and the other one 125 square metres. He has further stated that the piece of 125 square metres can be used to instal a gada and a piece of 300 square metres can be used for construction of the house. In the cross-examination, he has stated that he had visited the acquired land one week before his deposition for the first time and that the area of the severed portion was given by approximation. He has further stated that he is aware what is the set back to be kept while constructing a road. 7. The learned Judge while passing the impugned judgment has come to the conclusion, after appreciating the evidence on record that the market value of the land is to be fixed at Rs.85/- per square 10 metre relying upon the awards passed in Land Acquisition Case No.43/1993 in respect of the property surveyed under no.117/1 situated at Murda. The First Appeal No.135/2003 was preferred by the appellants challenging the said judgment passed in Land Acquisition Case No.43/1993. This Court by judgment dated 24/11/2010 has modified the compensation awarded therein and fixed the market value of the acquired land at the rate of Rs.65/- per square metre. For the reasons stated in the said judgment, I find that the market value of the land in the present case is also to be fixed at the rate of Rs.65/- per square metre as in fact the impugned judgment was passed on the basis of the value fixed in the same proceedings. The learned Senior Counsel appearing for the respondents was unable to point out any reason as to why any different compensation is to be awarded in respect of the land acquired in the present proceedings. The compensation in respect of the land acquired is accordingly fixed at the rate of Rs.65/- per square metre. The first point for determination is answered accordingly. 8. Dealing with the second point for determination in respect of the severance charges, the Reference Court on the basis of the plan at Exhibit AW1/A has found that the land which was acquired for 11 the construction of the road has severed the land of the respondent into three parts. The learned Judge further found that on the basis of Exhibit AW1/D, earlier the land was one unit and the same has been divided into three portions. The learned Judge on the basis of the evidence adduced by the respondents has found that the only allegation on the part of RW1 was that one of the portions which has been surveyed can be used for a gada. I find that this itself shows that in view of the severance of the land, the value of the remaining portion of the land belonging to the respondents has considerably diminished, as the said portion could not be used to its optimum potential on account of the said acquisition. On perusal of the plan, the shape of the two portions which have been surveyed itself discloses that even though one of the portion is admeasuring an area of 292 square metres, considering the statutory restrictions imposed to maintain a set back from existing center of the road the severed portions shown by letters 'B' and 'C' in the plan produced by AW2 cannot be used for any construction purposes. The value of the said land has substantially reduced for the respondents. The Reference Court has, as such, come to the conclusion that the respondents would be entitled for severance compensation to the extent of 60% of the value of the said two portions. 12 9. Considering the material on record and on the basis of the evidence of RW1, who states that one portion can be used only for installing a gada, even assuming the said aspect is to be accepted it suggests that the respondents would be entitled for severance compensation. I find no infirmity committed by the Reference Court to award 60% of the said value towards severance charges. The said 60% would be from the market value of Rs.65/- determined while deciding the first point for determination. The judgment relied upon by the learned Government Advocate reported in 2006 (1) Bom.C.R. 185 in the case of Arvind Bhaskar Limaye V/s. State of Maharashtra, is not applicable to the facts of the present case. In the said case, there was no evidence to establish the claim for any severance charges. On the contrary, in the present case RW1 himself has admitted that the severed portion could be used only for installing a gada which itself discloses that the respondents would suffer damages on account of the severance of the property of the respondents due to the acquisition. The second point for determination is answered accordingly. 10. In view of the above, I pass the following order: 13 O R D E R (i) The appeal is partly allowed. (ii) The impugned judgment and award dated 9/06/2003 is modified and the compensation for the land acquired admeasuring an area of 475 square metres is fixed at the rate of Rs.65/- per square metre. (iii) The severance charges in respect of the said two portions of the land admeasuring an area of 141 square metres and 292 square metres is fixed to the extent of 60% i.e. Rs.39/- per square metre. (iv) The remaining part of the award granting statutory benefits is confirmed. (v) The appeal stands disposed of accordingly with no order as to costs. F.M. REIS, J. NH/-