1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.216 OF 2003. Mr. Rameshchandra Govind Pawaskar, r/o. Bucha, Alto-Porvorim, Bardez, Goa .. Appellant. Versus. 1) Dy.Collector (L.A.) & Land Acquisition Officer, Panaji, Goa 2) Goa Housing Board, A Statutory Board constituted under the Goa Housing Board Act, 1968 having its registered office at Porvorim, Bardez, Goa. .. Respondents Mr. R. Dada, Senior Advocate with Mr. Sudin Usgaonkar, Advocate for the Appellant. Ms. W.Coutinho, Government Advocate for the respondent No.1. Mr. C. A. Ferriera with Richard Almeida, Advocates for the respondent No.2. Coram :- S. C. DHARMADHIKARI & R. C. CHAVAN, JJ. Date of reserving the Judgment : - 24 th September, 2008. Date of Pronouncing the Judgment :- 26 th September, 2008. 2 ORAL JUDGMENT : ( PER S. C. DHARMADHIKARI) 1. This is an appeal by the original claimant in L.A.C. No.67/1999, who is aggrieved by the rejection of his reference under section 18 of the Land Acquisition Act, 1894 by the learned Additional District Judge, Panaji vide order dated 28.2.2003. The land under acquisition is a portion admeasuring 3,58,730 from Survey No.102/1 of village Colvale acquired for the public purpose of setting up of a Satellite Township proposed by Goa Construction, Housing and Finance Corporation Ltd, Panaji. The notification under section 4 was published on 9.6.1994 in the official gazette and on 16.6.1994 there was a corrigendum of even number dated 26.9.1994, which was issued on 19.9.1994. The Land Acquisition Officer declared his award on 9.2.1996 and he awarded compensation of Rs.18 per Square Metre. The appellant applicant accepted the same under protest and claimed enhancement at Rs.500 per Square Metres and, therefore, the reference. 2. The learned Additional District Judge permitted the appellant to lead evidence of his own and that of Valuer. The sale deeds dated 12.5.93, 22.4.93 and two sale deeds, which are also part of First Appeal No.101/2003 namely, sale deed dated 23.3.1990 and 27.10.1986 were allowed to be tendered and taken on record so also exhibited. In the cross-examination of the appellant applicant this is what has been 3 stated by him. “ The acq. land is part of industrial land. It is not true to sugg. that the acq. Land was an agricultural land and that it was not part of industrial land. It is true that the acq. land was originally owned by Communidade of Colvale. It is true that we have purchased the said land under agricultural tenancy act. It is true that the acq. land was tenanted agricultural land, and we have purchased the same under provisions of Agricultural tenancy Act.” 3. On the basis of the above it was contended before the learned Additional District Judge by the respondents that Goa Land Use (Regulation) Act has come into force from 2.11.90 and section 2 thereof has a non-obstante clause and, therefore, the land cannot be used for any purpose other than agriculture. This being the position, the land under acquisition has no construction potentiality. In such circumstances, the sale instances cannot be relied upon. Further, the claimant has not adduced any other evidence as regards the agricultural income and, therefore, the claim be rejected. 4. The appellant argued to the contrary and pointed out that the Land Use Act is a matter which has been raised merely to deny fair and just compensation for the acquisition of his lands. It was contended that the land was acquired for setting up a Satellite Township. It means 4 that it was suitable for construction purpose. The land abuts National Highway and it is at a distance of 300 metres. It is also nearing the limits of Mapusa town. The sale deeds and the valuation report indicate that the market rate of the acquired land was 350 per Square Metres as on the date of the notification. Further, in L.A.C. No.70/95, the Additional District Judge, Mapusa by a judgment and award dated 6.1.2003 determined market rate of the land under the same survey number admeasuring 9153 Square Metres at the rate of Rs. 140 per Square Metres. Therefore, it is erroneous to urge that there was no construction potential or the that the land is unsuitable for the construction purpose. 5. The learned Judge in the impugned award in para 7, 8 and 14 observed thus :- “7. As regards the location of the land it is not in dispute that the acquired land is situated at Colvalem within the jurisdiction of village Panchayat of Colvalem. It is also not in dispute that the acquired land is abutting the national highway. AW1 has deposed that the acquired land is at a distance of about 2.5 to 3 k.m. from Mapusa Municipal market. However this statement is believed by his own witness i.e. expert witness AW2 Shri Ravindra V. Tamba who has stated that the distance between the acquired land and the Mapusa Municipal market is 5 k.m. 5 8. As regrds thenature andpotential value of the acquired land the applicant as well as the expert witness AW2 Shri R. V. Tamba has deposed that the acquired land is suitable for construction purpose. It is the case of the applicant as well as the expert witness that the acquired land is in industrial zone and that the said land is suitable for industrial, commercial as well as for residential purpose. Both these witnesses have stated that all the amenities for utilizing the land for residential, commercial and industrial purpose are available in and around the acquired land. It may be mentioned here that the acquired land was admittedly an agricultural tenanted land. AW 1 has admitted that the land was originally owned by the Communidade of Colvalem and that he has purchased the said land under provisions of Agricultural Tenancy Act. 14. The applicant has not adduced any other evidence as regards the agricultural income derived from the said property and as such the market rate of the land also cannot be assessed on the basis of annual agricultural income. There is no other evidence to prove that the market rate of the acquired land was more than that awarded by the Land Acquisition Officer. This being the case the issue no.1is answered in the negative. Under the circumstances and in view of the discussion supra I pass the following order :- ORDER The reference is hereby dismissed. ” 6. It is in such circumstances that the learned Additional 6 District Judge, Panaji proceeded to reject and dismiss the Reference. 7. Aggrieved thereby, the appellant is in appeal. 8. Shri Dada, learned Senior Counsel appearing for the appellant contended before us that the Court below was in complete error in rejecting the reference. He submits that the Court below has erroneously accepted the arguments of the respondents and without there being any material, held that the Land Use Act is applicable. The learned Judge should not have dismissed the Reference as voluminous material was produced in support of the potentiality and suitability of the land under acquisition. There is no contrary evidence or dispute raised by the respondents. They merely proceeded on a suggestion to the appellant and his statement that he was a tenant in respect of the land, which was agricultural land. On this alone, the Court concluded that the Land Use Act would apply and that there is prohibition in future for using the land for Non-Agricultural purpose. He submits that apart from a misreading of the Land Use Act, the learned Judge has failed to take into account the provisions of the Goa Agricultural Tenancy Act as well. He took us through the relevant provisions of that Act to demonstrate that there is no embargo or absolute prohibition in using the agricultural land for Non-Agricultural purpose. He submits that a land, which is already part of an Industrial area and within its vicinity 7 there is development and availability of amenities or infrastructure facilities, has a potential for Non-Agricultural user and it cannot be assumed straightway that restrictions regarding user of the land allegedly appearing in section 2 would be a reason enough to reject the enhancement in the claim. If the land potentiality has been examined and assessed based upon the location of potentialities and suitability of the land, then, it is not clear as to how the learned Judge rejected the Reference. He submits that the observations and findings in paras 7 & 8 of the impugned award, so also para 14 are plainly inconsistent and contradictory. He submits that it is inconceivable that for certain portions of the same land, claim of enhancement is granted in part by another learned Additional District Judge, and yet, the learned Judge rejects and dismisses the Reference in toto. He submits that it is not fair on the part of the respondents to just rely upon the provisions of the Land Use Act and deny fair and just compensation to the applicant claimant. After complete evidence was led and that has been assessed and scrutinised, then, reading it in part and contending that land has no Non-Agricultural potential or is incapable of being used for Non- Agricultural purpose even in future, is improper and approach of the learned Judge, therefore, cannot be sustained. The impugned award, therefore, must be quashed and set aside. 9. Shri Dada has relied upon the decision of this Court in 8 First Appeal No. 204/2003 dated 16.4.2008. He submits that this judgment applies with full force to the facts of the present case. 10. Shri Dada also relies upon the notification published in the official gazette pertaining to the regional plan and its revision. He submits that proposed user in the regional plan as far as the present land is concerned, was expansion of Industrial Estate. He also relies upon the notification dated 14.3.1990 published in the official gazette. He also places reliance upon the decision reported in State of Maharashtra V. Babu Govind Gavate reported in AIR 1996 SC 904 , State V. Bapurao reported in AIR 1973, Bombay 231 (V 60 C 60) and a decision reported in Shafkat Husain V. Collector of Amraoti reported in AIR 1933 Nagpur 208. He has also placed reliance on the decision of Supreme Court in Bhagwathula V. Special Tahasildar & L.A.O. Visakhapatnam Municipality reported in AIR 1992 SC 2298, Administrator Genl. Of W.B. V. Collector, Varanasi reported in AIR 1988 SC 943. 11. On the other hand, Shri Ferreira, learned Counsel for the respondent No.2 submits that unlike F.A. No.101/2003, the respondents cannot be held guilty of raising the issue before this Court for the first time. He submits that the issue of Land Use Act was very much argued before the Reference Court. Before the Reference Court, reliance was 9 placed on the statements in the cross-examination of the applicant claimant. He submits that a reading of Land Use Act, makes it abundantly clear that it will prevail upon the regional plan under the Goa Town and Country Planning Act, 1974. It will also show that a tenant under the Agricultural Tenancy Act in whom the land is vested, cannot use it or allow it to be used for any purpose other than agriculture. This prohibition is absolute and there is no question of section 3 of the Land Use Act whittling down the same. In such circumstances, the law laid down by this Court in F.A. No.221/2003 dated 9.2.2005 will apply. He submits that the land cannot be compared with unencumbered and freehold land. He submits that in such circumstances, the Reference Court was right in rejecting and dismissing the Reference. Its judgment requires no interference. Consequently, the appeal be dismissed. 12. Shri Ferreira, learned Counsel has relied upon the following decisions in support of his above contentions :- i) M.B. Gopala Krishna and others V. Special Deputy Collector reported in (1996) 3 Supreme Court Cases 594 ii) Vatticherukuru Village Panchayat V. Nori Venkatarama Deekshithulu and Others reported in 1991 Supp (2) SCC 228. iii) Ganapati Devasthan Saunsthan Vs. The Collector reported in 2000(4) ALL MR 846. 10 13. While deciding the accompanying first appeal being first appeal No.101/2003, which was heard along with this appeal, we have referred to the settled principles that go into determining the market value of a land, including an agricultural land, under acquisition, for the purposes of awarding compensation to the person interested therein. We have referred to the principles laid down in Suresh Kumar V. T. I. Trust, Bhopal reported in AIR 1989 SC 1222 which read thus : “ 9. It is true that the market value of the land acquired has to be correctly determined and paid so that there is neither unjust enrichment on the part of the acquirer nor undue deprivation on the part of the owner. Dr. Singhvi argues that failing to consider potential value is an error of principle. It is an accepted principle as was laid down in Narayana Gajapatiraju V. Rev. Divisional Officer, AIR 1939 PC 98 that the compensation must be determined by reference to the price which a willing vendor might reasonably expect to obtain from willing purchaser. The disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy it must alike be disregarded. Neither must be considered as acting under compulsion. The value of the land is not to be estimated at its value to the purchaser but this does not mean that the fact that some particular purchaser might desire the land more than others is to be disregarded. The wish of a particular purchaser, though not his compulsion, may 11 always be taken into consideration for what it is worth. Any sentimental value for the vendor need not be taken into account. The vendor is to be treated as a vendor willing to sell at the market price. Section 23 of the Land Acquisition Act, 1894, enumerates the matters to be considered in determining compensation. The first to be taken into consideration is the market value of the land on the date of the publication of the Notification under S.4(1). Market value is that of a willing vendor and a willing purchaser. A willing vendor would naturally take into consideration such factors as would contribute to the value of his land including its unearned increment. A willing purchase would also consider more or less the same factors. There may be many ponderable and imponderable factors in such estimation or guess work. Section 24 of the Act enumerates the matters which the Court shall not take into consideration in determining compensation. Section 25 provides that the amount of compensation awarded by the Court shall not be less than the amount awarded by the Collector under S.11. As was observed in N. Gajapatiraju (Supra) sometimes, it happens that the land to be valued possesses some unusual, and it may be, unique features, as regards its position or its potentiality. In such a case the court has to ascertain as best as possible from the materials before it what a willing vendor might reasonably expect to obtain from a willing purchaser, for the land in that particular position and with that particular potentiality. In the instant case also the acquired land possesses some important features being located within the Corporation area and its potentiality for being developed 12 as a residential area. In such a situation in determining its market value, where there was no sufficient direct evidence of market price, the Court was required to ascertain as best as possible from the materials before it, what a willing vendor would reasonably have expected to obtain from a willing purchaser from the land in this particular position and with this particular potentiality. It is an accepted principle that the land is not to be valued, merely by reference to the use to which it has been put at the time at which its value has to be determined, that is, the date of the notification under S.4, but also by reference to the use to which it is reasonably capable of being put in the future. A land which is certainly or likely to be used in the immediate or reasonably near future for building purposes but which at the valuation date is waste land or has been used for agricultural purposes, the owner, however, willing a vendor he is, is not likely to be content to sell the land for its value as waste or agricultural land as the case may be. Th possibility of its being used for building purposes would have to be taken into account. However, it must not be valued as though it had already been built upon. It is the possibilities of the land and not its realised possibilities that must be taken into consideration. In other words, the value of the land should be determined not necessarily according to its present disposition but laid out in its lucrative and advantageous way in which the owner can dispose it of. It is well established that the special, though natural, adaptability of the land for the purpose for which it is taken, is an important element to be taken into consideration in 13 determining the market value of the land. In such a situation the land might have already been valued at more than its value as agricultural land, if it had any other capabilities. However, only reasonable and fair capabilities but not far-fetched and hypothetical capabilities are to be taken into consideration. In sum, in estimating the market value of the land all of the capabilities of the land, and all its legitimate purposes to which it may be applied or for which it may be adapted are to be considered and not merely the condition it is in and the use to which it is at the time applied by the owner. The proper principle is to ascertain the market value of the land taking into consideration the special value which ought to be attached to the special advantage possessed by the land; namely, its proximity to developed urbanised areas. ” 14. The reproduced passage from the said judgment makes it clear that the possibility of the land being used for building purposes would have to be taken into account. However, It must not be applied as if it is built upon. It is possibilities of the land and not its realised possibilities that must be taken into consideration. In other words, the value of the land should be determined not necessarily according to its present disposition but laid out in its lucrative and advantageous way in which the owner can dispose it off. It is well established that the special, though natural, adaptability of the land for the purpose for which it is taken, is an important element to be taken into consideration 14 in determining the market value of the land. In such a situation the land might have already been valued at more than its value as agricultural land, if it had any other capabilities. However, only reasonable and fair capabilities but not far-fetched and hypothetical capabilities are to be taken into consideration. The proximity of land under acquisition to develop urbanised areas is a relevant principle. In estimating the market value of the land by capabilities, all legitimate purposes to which it may be applied or for which it may be adapted are to be considered and not merely the condition it is in and the use to which it is at the time applied by the owner. 15. This view has been consistently followed in later decisions of the Hon'ble Supreme Court. The view has also been followed by a Division Bench of this Court in the case of State of Maharashtra and another Versus Aniruddha Shriram Ganorkar and others reported in 1993(2) Maharashtra Law Journal 1575. There, the potentiality of development for purposes other than agricultural user was taken into account, more so because the area has assumed an urban character and ceasing to be of rural or agricultural nature was held to be relevant in determining the market value and arriving at the figure of compensation. The view taken in Suresh Kumar's case has been followed in Ravinder NarainV. Union of India reported in AIR 2003 SC 1987 and one of the later decision reported in Atma Singh V. State of Haryana reported in 15 2008(2) SCC 568 and prior thereto Lucknow Development Authority V. Kishna Gopal Lahoti reported in 2008(1) SCC 554. However, we need not go into a larger controversy and consider the argument of Shri Dada that the Division Bench Judgment of this Court in First Appeal No.221/2003 dated 9/2/2005 does not lay down the correct law. He presented to us several shades of controversy. He submits that the restriction on user of the land for purposes other than agricultural is on the tenant under the Agriculture Tenancy Act. The same may not bind the purchaser straightway. More so, when user can be changed under Revenue Laws of the State. He submits that Section 3 of the Act exempts the provisions of the same in matters of acquisition of the land under Land Acquisition Act for public purpose. He submits that land belonging to small farmers, agriculturists are often acquired for public purposes. If the view taken by the learned Judges is accepted, then, such owners or holders will never get fair and just compensation for their land. It would mean that they must lead evidence with regard to only agricultural potential of the land and the compensation will be arrived at only on that basis. That will be doing injustice to them as it is a practical reality that agricultural lands are acquired for varied purposes including setting up of Industrial Township, residential colonies, economic zones, and even education and research, so also health complexes. Therefore, the lands are put to all uses by the purchasers including acquiring bodies for whom the acquisition is done 16 by the State. They exploit its full potential in the market. However, when paying compensation at the time of acquisition, only agricultural potential if considered, then, the very purpose of enacting section 23 in the Land Acquisition Act would be frustrated. He submits that there is nothing in the Land Acquisition Act, which calls for making a distinction in cases of agricultural lands and restricting the claim for compensation only to the user as agriculture, without building potential or Non-Agriculture uses, of varied nature being considered. If the Land Acquisition Act does not prohibit expressly such considerations and factors, then, the State, which is acting in public interest, should not deprive the owner or holder of agricultural lands from compensation at market rates. That would mean the State is disobeying the mandate of Article 300-A of the Constitution of India, so also Article 14 thereof by discriminating between the owners of agricultural and Non-Agricultural lands or partly agricultural and partly Non-Agricultural lands. He submits that if the view taken by the Division Bench is accepted then, what would follow is that the Land Use Act becoming vulnerable and capable of being challenged as ultra vires under Article 14 and 300A of the Constitution of India. For all these reasons he submits that this Court should hold that the view taken is Per incuriam. 16. We decline to do so because we are of the view that the matter can be decided on facts itself. It is well settled that larger and 17 wider constitutional issues should not be decided unless it is really necessary to do so. If conclusions, in cases of the present nature can be based on facts, then, it is futile to go into wider questions. Therefore, we keep open all contentions about the correctness of the views of the Division Bench. 17. What we find from the facts of the present case, is that undisputedly, survey No.102 is a larger area belonging to the appellant. The area under acquisition in the present case is 3,58,730.00 Square Metres. The