1 IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 165/2004. Smt. Clara Viegas, wife of late Bruno Viegas, resident of House No. 1158, Loliem, Polem, Canacona. … Appellant. V/s The Executive Engineer, PWD., XIV, Fatorda, Margao, Goa. … Respondent Mr. A. Gaonkar, Advocate for the Appellant. Ms. Sapna Mordekar, Addl. Government Advocate for the Respondent. CORAM : F. M. REIS , J. DATE : 14 th October 2010 . ORAL JUDGMENT The above appeal challenges the judgment and award dated 21.4.2004, passed by the learned Addl. District Judge, South 2 Goa, Margao in LAC No. 288/1993. 2. Vide notification dated 26.11.1985, under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the said act'), the respondent sought to acquire land belonging to the appellant located in the property bearing survey No. 309/1 having an area of 625 sq. metres and from property surveyed under No. 309/3 having an area of 350 sq. metres for widening and improvement of National Highway 17. The Land Acquisition Officer (LAO for short) by award dated 23.4.1987fixed the market value of the acquired land at Rs. 10/- per sq. metre. Being dissatisfied with the said award, the appellant sought reference for enhancement of compensation and claimed an amount of Rs. 60/- per sq. metre for the land acquired. By judgment and award dated 21.4.2004, the Reference Court rejected the said reference being agricultural land. 3. Being aggrieved by the said award, the appellant preferred the present appeal. 4. The learned Counsel appearing for the appellant has assailed into the said judgment and submitted that the Reference Court 3 has totally misdirected in rejecting the reference. The learned Counsel further submitted that the appellant has produce sale instance at exhibit 13 which discloses that the price of the land was Rs. 75/- per sq. meter in the vicinity of the acquired land. The learned Counsel further submitted that the Reference Court totally ignored the sale instance and came to an erroneous conclusion that the appellant has failed to establish that the compensation offered by the LAO was inadequate. The learned Counsel as such submitted that the appeal deserves to be allowed and the impugned judgment be quashed and set aside and the compensation awarded by the LAO be enhanced as claimed by the appellant. 5. On the other hand, the Learned Addl. Government Advocate appearing for the respondent submitted that there is no evidence on record adduced by the appellant about comparability of the land acquired vis a vis the sale instance. She further submitted that the sale instance produced by the appellant is not at all comparable to the land acquired. The learned Addl. Government Advocate further submitted that the appellants have failed to establish that the price offered by the LAO is inadequate and consequently the appeal deserves to be rejected. 4 6. Having heard the learned Counsel and on perusal of the record, the following point arises for my determination in the present Appeal: POINT FOR DETERMINATION 1. Whether the Reference Court was justified to reject the reference filed by the appellant. 7. In support of the claim for enhancement of compensation, the appellant has examined Mrs. Clara Viegas as AW1. She has stated that the RTO, Out Post, Church, Excise Office, hotels, etc. are located within a radius of 2 kms. from the acquired land. She further stated that the electricity, water supply and telephone facilities were available around the acquired land. She has also stated that the property under Survey No. 309/1 was partly mixed garden and partly paddy field and the property surveyed under No. 309/3 was partly mixed garden. She further stated that the paddy field was fallow. In the cross examination she was unable to disclose the length and breath of the acquired land. She has further stated that the sale deed plot, referred in the sale instance is in village Maxem, Loliem and consists of a house, hut and coconut trees and that the price shown 5 therein includes all the said items. In cross examination she further stated that she was cultivating the paddy field prior to the acquisition. She further stated that the land acquired was coming within the road widening area. The sale deed produced by the appellant is at exhibit 13 and is dated 11.9.1989. 8. The next witness examined is Vikas Dessai who is an expert valuer. He has deposed that he had prepared his report in the year 1997. According to the said valuer, the market value of the acquired land as in December 1985 was Rs. 75/- per sq. metre. In the cross examination he has admitted that the land acquired was adjoining the original National High Way and that it was coming within the setback of the existing road. He has also admitted that the portion of the survey No. 309/3 was a paddy field. He has further stated that though in his affidavit he has stated about the existence of two mango trees, he is not aware whether they were still existing. He has further stated that the area of the acquired land could be used for FAR purpose. 9. The next witness examined is C.X. Menezes who has stated that he had visited the property in the year 2002 for the purpose 6 of assessing the valuation of the acquired land. In his cross examination he has stated that he could not give the length and breadth of the land acquired. He has stated the value of the land on agricultural view as well as the potential. 10. The learned Judge after appreciating the evidence on record has come to the conclusion that the land acquired was coming within the setback area and that the sale deed plot at exhibit 13 consisted of a house, hut and coconut trees and the price therein included all the said items. The Reference Court after perusing the report at exhibit 11 found that the said report was not based on any sale statistics. The report was itself prepared 12 years after the acquisition. The evidence of A.W.3 was not considered as when he visited the acquired land the road was already asphalted by the respondents. The evidence of A.w.3 was rightly rejected as he had visited the acquired land more than 10 years after the acquisition. The said report produced also does not disclose the basis on which the said valuation has been arrived at. The Reference Court found that the appellant failed to state the agricultural income of the acquired land and as such, the question of fixing the market value of the acquired land on yield basis would not arise. The Reference Court 7 also rejected the sale deed of the year 1989 as post notification sale instances. 11. On perusal of the evidence on record, I find that the appellant has failed to discharge the burden to prove that the price offered by the LAO was inadequate. The sale instance at exhibit 13 discloses that the subject matter of the plot therein was including a house, hut and coconut trees which belonged to the purchaser therein. As such, the price mentioned in the said sale deed cannot be considered as the true market price as the said sale deed plot had incumberances. Apart from that, the appellant failed to produce any evidence to establish similarity of the acquired land and sale deed plot. There is nothing in the evidence of the appellant with that regard. Besides that, the sale deed plot is of the year 1989 which is four years after the notification under Section 4 of the Act was issued in the present case. Nothing has been adduced by the appellant to substantiate that the land acquired under the sale deed plot had similar features and same potentiality. On the contrary, the land acquired was within the road widening area and subject to statutory restrictions and the potentiality of the remaining land as being capable of being used for construction purposes has not been established. As far as the 8 evidence of A.w.2 and A.w.3 is concerned, the Reference Court has rightly rejected the said evidence for cogent reasons. A.w.3 visited the property more than 10 years after the acquisition as such his evidence regarding yield of the acquired land will have no bearing for the purpose of fixing the market value of the acquired land. A.w.2 prepared the report 12 years after the acquisition and nothing was produced to prove the similarity to the acquired land and the sale deed plot when he visited the acquired land. The burden to establish that the price offered by the LAO was inadequate was on the appellant which she failed to discharge. As such, no infirmity is committed by the Reference Court in rejecting the said reference. The point for determination is answered accordingly. 12. There is no merit in the appeal, and as such the appeal stands dismissed with no order as to costs. F. M. REIS, J. MF/-