1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 206 OF 2005 1. Attorney of Fabrica of Raia Church Raia, Salcete, Goa .. Appellant (Original Claimant) Vs. 1. Deputy Collector (SDO) Sub-division Margao, Goa 2. Margao Municipal Council Margao, Goa .. Respondents Mr. M. B. Da Costa, Senior Advocate with Mr. J. A. Lobo with Ms. G. Xettigar, Advocates for the appellant. Mr. G. Shirodkar, Government Advocate for the respondent No.1. Mr. S. D. Padiyar with Mr. P. Arolkar, Advocates for the respondent No.2. CORAM :- A. S. OKA & F. M. REIS, JJ. Date on which submissions are heard :- 15 th June, 2010. Date of which judgment is pronounced : - 8 th July, 2010. JUDGMENT : (Per A. S. OKA, J) 2 The appellant, who is the original claimant has taken an exception to the judgment and award dated 4th April, 2005 passed by the learned District Judge, South Goa at Margao in Land Acquisition Case No.9 of 1995. 2. The acquisition is in respect of the land surveyed under Survey No.196/1 admeasuring 30,000 square meters situated at Sonsodo, village Raia, Salcete Taluka. The notification under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as 'the said Act') was published on 4th February, 1993. The acquisition was for garbage dumping yard. The Land Acquisition Officer by an award under Section 11 of the said Act offered market value at the rate of Rs.4/- per square meter apart from the value of the trees. In the application under Section 18 of the said Act, the appellant claimed the market value at the rate of Rs.400/- per square meter. By the impugned judgment and award, the market value has been fixed at the rate of Rs.16/- per square meter. 3. The learned Senior Counsel appearing for the appellant has taken us through the notes of evidence and documentary evidence on record. He has relied upon the 3 sale deeds at exhibits AW1/A, AW1/D, AW1/E, AW1/F and AW1/G. He submitted that the said sale deeds have been executed between the period 1990-1993 in respect of plots of land at a distance of 200 meters from the acquired land. He submitted that the lands covered by the sale deeds are comparable to the acquired land. He pointed out that the sale deeds show that the market value of the comparable land was Rs.199/- to Rs.200/- per square meter. He relied upon the Award dated 28th November, 1998 (AW1/C). He submitted that in respect of a comparable land situated at a distance of 200 meters, the District Court fixed the market value at the rate of Rs.200/- per square meter. He pointed out that the Award of the District Court is in respect of the area of 12250 square meters at Gogal, Margao. He pointed out that as the acquired land subject matter of the said Award is at a distance of 200 meters from the acquired land, the Award is in respect of a comparable land. The learned Senior Counsel appearing for the appellant pointed out that in the evidence of RW1 Mr. Pedro Morcos Coelho, certified copy of the sale deed dated 15th November, 1988 (at exhibit 43) in respect of the land admeasuring 1,17,075 square meters of land surveyed under Survey No.194/1 of Raia village was produced. He pointed out that the said sale deed 4 shows that the area of 1,17,075 sq.meters was purchased by one Socrates Valmiki Faleiro for the price of Rs.12 Lacs. He pointed out that the sale instances at Exh.AW1/A, AW1/D, AW1/E, AW1/F and AW1/G are in respect of the plots out of the said land. He pointed out that the said sale deeds show that within a span of 3 to 4 years, the market value increased to Rs.200/- per square meters from Rs.10.24 per square meter as reflected from the said sale deed at exhibit 43. He pointed out that the existing dumping ground is separated by a road and a part of the land of the appellant, which has not been the acquired. He submitted that as objection was raised to the existing dumping ground, the land subject matter of the appeal was acquired. He submitted that the land was acquired with a view to shift the garbage dumping ground to the acquired land. His submission is that in the circumstances, the existence of the garbage dumping ground on the other side of the road cannot be treated as a negative factor. He pointed out several positive factors including the fact that the acquired land is close to city of Margao. He submitted that the residential complexes had come up near the acquired land on the relevant date. He submitted that out of larger land held by the appellant, the acquired land was a leveled land. He relied upon the evidence of expert 5 valuers Mr. S. N. Bhende and Mr. Mahendra Kakule. He submitted that on the date of notification under Section 4(1) of the said Act, the land surveyed under Survey No.194/1 held by Socrates Valmiki Faleiro was a developed land, which was situated at a distance of 100 meters from the acquired land as disclosed in the evidence of RW1 Pedro Morcos Coelho. He submitted that on the relevant date, the market value of the acquired land was at least Rs.200/- per square meter. He pointed out that as a result of the acquisition of the acquired land, a large portion of the remaining land of the appellant has been severed from the acquired land. He pointed out that out of the land held by the appellant, a portion of the land between the acquired land and the road has not been acquired. He submitted that in view of the evidence of the experts, compensation on account of severance ought to have been granted. 4. The learned Counsel appearing for the second respondent (Acquiring Body) submitted that the acquired land is situated on one side of the road and that the land abutting the other side of the road is being used as a garbage dump for last several years. He submitted that there is no direct access to the acquired land. He submitted that the 6 acquired land consists of a difficult terrain and it is a hilly land. Inviting our attention to the evidence of the witnesses examined by the second respondent, he submitted that in the regional plan, the acquired land is shown as a social forest. He submitted that the acquired land had no potential for non- agricultural use. He pointed out that there is no evidence on record to show that the Award at exhibit AW1/C was in respect of a comparable land. He pointed out that the land subject matter of the said Award is situated in a different village. He pointed out that the sale deeds relied upon by the appellant are in respect of developed sub-divided smaller plots of land having an area of less than 1000 square meters. He submitted that the land surveyed under Survey No. 194/1 developed by Valmiki Faleiro was not at all comparable with the acquired land and in any event, the said land is situated towards the side of Margao city. He submitted that the said land bearing Survey No.194/1 was sold in the year 1988 at the rate of Rs.10/- per square meter. At that time, it was undeveloped land, which was better located than the acquired land. He submitted that even if 10 % escalation is granted, the market value will not exceed Rs.16/- per square meter. He submitted that no interference is called for with the impugned judgment and award. The learned Additional 7 Government Advocate also supported the impugned judgment and award. 5. We have given careful consideration to the submissions. The appellant examined Mr. Ferdinand Esteves, the attorney of the appellant. It must be noted that the purpose of the acquisition is dumping yard at Sonsode. The area of the acquired land is 30,000 square meters. The witness Ferdinand stated that only a part of the entire property surveyed under Survey No.196/1 has been acquired. He pointed out that the acquired portion is in the middle of the property. He stated that the acquired portion was a leveled and barren land. He stated that the acquired land was situated at a distance of 4 Km from Margao city. He stated that the land surveyed under Survey No.194/1 developed by Valmiki Faleiro is at a distance of 200 meters from the acquired land. He stated that on the said developed land, a residential colony has come up. According to the witness, Manovikas High School is at a distance of 200 meters from the acquired land and veterinary hospital is at a distance of 300 meters. He stated that even before publication of notification under Section 4 of the said Act, electricity, telephone and water connection facility was 8 available in the area. He stated that there was a public road abutting the property of the appellant and there is regular transport facility available. The witness stated that the land subject matter of sale deed dated 15th June 1990 at exhibit AW1/A was situated at a distance of 200 meters from the acquired land. He stated that the land subject matter of Award at exhibit AW1/C was at a distance of 200 meters from the acquired land. He stated that the said land is closer to Margao. He stated that even land subject matter of sale deed at exhibit AW1/D was at a distance of 200 meters from the acquired land and nature of the land subject matter of the sale deed was the same as the acquired land. In the cross-examination, he admitted that on the southern side of the road abutting the land held by the appellant, garbage was being dumped. He stated that as objection was raised to dumping of garbage on the said land on the other side of the road, acquisition of the acquired land was initiated. In the cross-examination, he could not disclose the expenditure incurred by Valmiki Faleiro on the development of land surveyed under Survey No.194/1. He admitted that there were no residential houses in the entire property of the appellant and there was no water, electricity and telephone facility available to the property. He admitted that the sale 9 deeds at exhibit AW1/A, AW1/D, AW1/E, AW1/F and AW1/G were in respect of subdivided and levelled plots on which houses have been constructed upon. He stated that all facilities like water, electricity, telephone etc. are available to the said subdivided plots. The witness admitted that he was not aware about the nature, length and width of the land subject matter of award at exhibit AW1/C. 6. Another witness examined by the appellant is Mr. Socrates Valimiki Faleiro, who is the vendor under the sale deeds at exhibits AW1/A, AW1/D, AW1/E, AW1/F and AW1/G. He has disclosed the area of the lands subject matter of the said sale deeds. The area of the lands subject matter of the said sale deeds ranges from 310 square meters to 710 square meters. He stated that the land developed by him lies on the eastern boundary of Margao city. He admitted that the acquired land was situated on the left side of Margao-Curtorim road and there is a garbage yard abutting the said road on the right hand side. In the cross- examination, he could not disclose the exact cost incurred by him on the development of the land surveyed under Survey No.194/1. He stated that he developed the said land between the years 1988 to 1990. 10 7. Another witness examined by the appellant is Mr. S. N. Bhende, who is an expert valuer. Another expert Mr. Mahendra Kakule also deposed before the Court. Their evidence is in the nature of opinion evidence on the sale instances relied upon by the appellant. Another witness examined by the appellant is Mr. Jose Almeida. However, much reliance has not been placed by the appellant on his evidence. 8. The evidence adduced by the appellant brings on record the following aspects : (i) The acquired land is a part of the larger land surveyed under Survey No.196/1 held by the appellant. (ii) The land of the appellant is situated on the left side of Margao-Curtorim road. (iii)On the right side of the said land, there is a garbage yard of Margao Municipal Council, which was in existence much prior to the notification under Section 4 of the said Act. (iv)There were no residential houses on the entire land of the appellant and there was no water, electricity or 11 telephone facilities available on the land of the appellants. Moreover, the acquired portion of the land was not abutting the aforesaid road. These negative factors will have to be borne in mind while fixing the market value of the acquired land. 9. The second respondent examined Shri Pedro Morcos Coelho. He stated that the acquired land lies at a distance of 200 meters from the Margao-Curtorim Road. He stated that the land Surveyed under Survey No.196/1 is undulated land covered with wild bushes and forest growth and the main block of the acquired land is in the shape of a valley. In the cross-examination, he stated that the reference to valley in his examination-in-chief was to low lying portion between the two hills. He stated that the acquired land was in social forestry zone and he denied the correctness of the suggestion that the land was classified as a settlement zone. In the cross-examination, he produced sale deed dated 15th November, 1988 in respect of the land surveyed under Survey No.194/1 of village Raia. He stated that the said land subject matter of sale deed dated 15th November, 1988 (exhibit 43) was developed by Mr. Faleiro 12 and the sale deeds at exhibits AW1/A, AW1/D, AW1/E, AW1/F and AW1/G were executed in respect of the developed sub- plots by Mr. Faleiro. 10. The second respondent examined Mr. James Mathews, Town Planner. He stated that the land bearing Survey No.196/1 of Raia village partly falls in social forestry zone and partly in settlement zone from the year 1986 till date. He stated that the western portion of Survey No.196/1 was classified as a social forestry zone whereas eastern part of it is in the settlement zone. He stated that approximately less than area of 10,000 square meters of the acquired land falls in social forestry zone and remaining is in the settlement zone. There is a certificate of Town Planner at exhibit 38 which records that a part of the land under acquisition is shown in a social forestry zone in the regional plan and part is in a settlement zone. In the cross- examination, the witness admitted that village Raia is not included in the Outline Development Plan of city of Margao. The witness Mahendra Kakule was permitted to be recalled by the appellant as the second respondent produced a sale deed at exhibit 43.. He stated that the development cost incurred by the owner of the land surveyed under Survey 13 No.194/1 is around 40 %. 11. The appellant has relied upon Award of the District Court in Land Acquisition Case Nos. 7, 8 and 9 of 1985. It appears from the award that the acquisition was of the land at Gogal, Margao City and the purpose of acquisition was for Irrigation Complex. It must be noted that there is no evidence on record to show as to how the acquired land falling in outskirts of the city was comparable to the land in Margao City. 12. Mr. Faleiro acquired land surveyed under Survey No.194/1 admeasuring 1,17,075 square meters by a sale deed dated 15th November, 1988. The rate reflected from the said document is Rs.10.24 per square meter as on 15th November, 1988. The sale deeds at exhibits AW1/A, AW1/D, AW1/E, AW1/F and AW1/G are in respect of the plots of land out of the aforesaid larger land. All the said plots are having area of less than 1000 square meters. The plots are subdivided, leveled and developed plots. Mr. Faleiro himself stated that the plots subject matter of the said sale deeds were subdivided and developed plots, which were levelled. Considering the fact that the said sale deeds are in respect of 14 subdivided and developed plots having all the facilities such as electricity, water supply etc. and considering the fact that the said sale deeds relate to plots having area of less than 1000 square meters, the said sale deeds will have to be discarded as the same cannot be said to be in respect of comparable lands. Hence, we hold that the sale deeds do not relate to comparable lands. 13. Now what remains to be considered is exhibit 43, which is a sale deed dated 15th November, 1988 in respect of the land surveyed under Survey No.194/1. Mr. Faleiro had purchased the said land at the price of Rs.10.24 per square meter. The area of the said land is very large i.e. 1,17,075 square meters. The rate of the market value reflected is Rs.10.24 per square meter as on 15th November, 1988. RW1 Mr. Pedro admitted that the land subject matter of the said sale deed was at a distance of 100 meters from the acquired land. The land was admittedly undeveloped in the year 1988. Thus, the acquired land and the land subject matter of exhibit 43 on the date of execution of sale deed were similar lands. Looking to the distance between the acquired land and the land subject matter of exhibit 43, the land subject matter of exhibit 43 on the date of execution of sale deed was 15 certainly comparable to the acquired land. Therefore, the sale deed at exhibit 43 affords a basis for determination of market value. It must be noted here that the said land subject matter of sale deed at exhibit 43 was developed from 1990 onwards till 1993. The subdivided and leveled plots were sold at the price of Rs.200/- per square meter. This indicates enormous rise in the prices of the immovable properties in the area. Moreover, on the plots subject matter of the sale deeds at exhibits AW1/A, AW1/D, AW1/E, AW1/F and AW1/G, houses were already constructed on the relevant date in the present case. 14. While fixing the market value of the acquired land on the basis of the said sale instance at Exhibit 43, which reflects the market value as on 15th November, 1988, it must be borne in mind that the area of about 10,000 square meters out of the acquired land is in zone of social forest and the rest is in settlement zone. In respect of the land subject matter of the sale deed, after development, the price escalated by nearly times within a span of three to four years. However, considering negative factors, for determining the market value of the acquired land admeasuring 30,000 square meters on the basis of the 16 market value of the land admeasuring 1,17,075 square meters at the rate of 10.24 square meters, escalation will have to be granted at the rate of 15 % compounded per year from 15th November 1988 till the notification under Section 4 dated 4th February, 1993 in the present case. Moreover, the area of the acquired land is only 30,000 square meters, which is less than 1/3rd of the area of the land subject matter of exhibit 43. If 15 % per year escalation is granted on cumulative basis for a period of four and half years, the market value will be Rs.19.27, which can be rounded off to Rs.19.50 per square meter. To that extent, the market value of the acquired land will have to be enhanced. 15. An argument is made by the learned Senior Counsel for the appellant that the compensation on account of severance of the remaining land will have to be granted. It must be noted here that no such claim has been made by the appellant in the application under Section 18 of the said Act. Therefore, there is no issue framed on the said aspect. Moreover, there is no sufficient evidence adduced to quantify the compensation on account of severance. Hence, the claim made on that behalf cannot be accepted. 17 16. We dispose of the appeal by passing following order : (i) The impugned award is modified. We direct that the market value of the acquired land shall be Rs.19.50 per square meter. (ii) Rest of the impugned award is maintained. (iii) The appellant shall be entitled to proportionate costs of the appeal. A. S. OKA, J F. M. REIS, J. SMA