-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 109 OF 2004 1. Deputy Collector (L.A.) Margao, Goa. 2. The Executive Engineer, Goa Housing Board, Alto Betim, Porvorim, Bardez, Goa. 3. The Executive Engineer, Goa Housing Board, South Goa Division, Gogal, Margao, Goa. ...... Appellants V e r s u s Shri Gilman Fernandes, r/o. Aliades Building, Near Post Office, Abade Faria Road, Margao, Goa. (All above addresses are registered addresses) ...... Respondents Mr. P. A. Kamat, Advocate for the Appellants. Mr. V. G. P. Dukle, Advocate for the Respondent. CORAM: SWATANTER KUMAR, C.J. & N. A. BRITTO, J. DATE: 22 nd January, 2009. ORAL JUDGMENT (Per SWATANTER KUMAR, C.J.) The challenge in the present appeal is to the correctness and legality of the Judgment dated 11.02.2004, passed by the Addl. District Judge, South -2- Goa, at Margao. The Deputy Collector has challenged the enhancement granted by the Reference Court on the following grounds : (i) The enhancement from Rs.90/- to Rs.225/- per square metre is without any evidence and in fact is arbitrary. (ii) No evidence had been led by the claimant to prove that Exhibit 18 is comparable instance for determining the fair market value of the land as on the date of notification. (iii)The Sale Deeds exhibit 17 and 18 are not relevant pieces of evidence as they relate to a different Village than the acquired land. These arguments can be dealt with by us together as they would require common discussion. 3. Notification under Section 4 of the Land Acquisition Act was dated 28.08.1995 and was published on 15.12.1995. The Collector while making an Award in terms of Section 11 of the Act granted compensation at the rate of Rs.2/- and Rs.19/- per square metre. The total land of the claimant which was acquired was admeasuring 7125 square metres. Dissatisfied with this Award, the claimant preferred a reference under Section 18 of the Act which was decided by the Reference Court under the impugned Judgment and where he asked the compensation payable to him at the rate of Rs.225/- per square metre with all statutory benefits. In this case, the appellants did lead evidence in rebuttal. It is a settled principle that primary and the main burden lies on the claimant to prove all required essentials for claiming enhancement of compensation but once such an onus is discharged, it is not correct to say that there is no onus to be discharged upon the Respondents in relation to determination of the fair market -3- value in terms of Section 23 of the Act. It is expected by the Respondents whether a Government or the Body for whom the land is acquired, to lead appropriate evidence to substantiate the claim that the Collector was correct or that the claimant is not entitled to claim compensation in terms of Section 18 of the Land Acquisition Act. 4. Be that as it may, in the present case, the claimant had produced oral as well as documentary evidence. The main evidence which requires discussion for dealing with the contentions raised is the affidavit that the claimant himself, as Pw.1, has filed. The affidavit is dated 27.08.2003, which was a detailed affidavit. Along with this affidavit, two Sale Deeds were tendered at Exhibit 17 and 18 respectively. Both these exhibits do not relate to the sale of the land from the same Village Cuncolim while the Sale Deeds related to the adjoining Village Chinchinim. It is not in dispute before us that the said lands of the sale instances, were at a distance of one kilometre. 5. In the affidavit filed by Pw.1, it was specifically averred that the acquired land is situated along the National Highway No. 17 and all types of commercial activities were being carried out on that land. It is also stated that the land was situated in a commercial and industrial area and there was a petrol pump, general hospital, motor garages, ice factory and religious place consisting of Holy Cross and a Chapel. Besides these, other details with regard to the amount of compensation payable to the claimant on the basis of the Sale Deeds -4- and that they refer to different Villages was also discussed. It is interesting to note that the Pw.1 was cross examined at some length but not even a suggestion was put to him that the land acquired was at a different location and potential than the sale instance land at exhibit 18. It was certainly expected by the Respondents to ask appropriate questions to this witness to ensure what is now sought to be argued before us. The foundation, therefore, was laid in the cross examination. We have no hesitation in noticing that the cross examination does not depict even remotely that the sale instance land at exhibits 17 and 18 was not a comparable instance land and had totally different location, potential and value. The learned Reference Court relied upon exhibit 18, where the sale instance was registered on 23.09.1990 and the land was sold at the rate of Rs.250/- per square metre. This was admittedly nearly five years prior to the date of notification under Section 4 of the Act. After considering the various aspects and relying upon the sale instances primarily, the learned Reference Court also discussed the location and potential of the land and awarded compensation. The following conclusions and the discussions of the Reference Court can be used before this Court : "The reference is partly allowed. The rate of compensation of the acquired land, admeasuring 6625 sq. mtrs. is fixed at Rs. 225/- per square metre. The applicant shall be entitled for 30% solatium on the value of the land and additional amount at the rate of 12% per annum on the said value for the period commencing from 15/12/1995 (date of -5- publication of Notification under Section 4 of the Land Acquisition Act) to the date of the award, or the date of taking possession of the land whichever is earlier in terms of Section 23(1-A) of the said Act. On excess amount of compensation awarded by this Court, the applicant shall be entitled to 9% interest per annum for the first year from the date on which the Land Acquisition Officer took possession of the land and at the rate of 15% per annum from the second year, till the excess sum is paid in Court, in terms of Section 28 of the Land Acquisition Act. The amount already paid to the applicant towards land shall be adjusted accordingly. Costs are assessed at Rs. 1,000/-. " 6. The learned Counsel appearing for the appellant has not been able to show as to how the above findings recorded by the Reference Court are contrary to the record or that what is argued that the enhancement awarded is based on no evidence, is sustainable. We may also notice here that in the Award made by the Collector, there is no observation that the lands had any inferiority in terms of valuation or otherwise. It will be useful to notice at this stage that an affidavit of the Respondents was filed by one Shri S. R. Kurade, the Executive Engineer and in his cross examination he clearly admitted that : "I am aware that at para 22 of the award at abet.4 at stated that the land under acquisition of suitable for construction of residential as well as commercial bldg. I agree with the statement made by the LAO at para 22 of the award. I have seen that acquired land. The acquired land is bounded on the west by the National -6- High Way (NH-17). There is no road on the eastern side of the acquired land. There is no house in the adjacent property on the eastern side at the distance of about 6 mtr. away from the distance boundary of acquired land. It is not true to suggest that there is house in the adjacent property which towards the eastern side it is not true to suggest that there is a road in between the eastern boundary of the acquired land and the said house." 7. While noticing the above oral as well as documentary evidence, the Reference Court rightly applied the principle of reduction and while giving increase for the intervening period of five years, it made reduction by 40% which is just, fair and equitable. 8. For the reasons aforestated, we do not see any reason to interfere in the impugned Judgement passed by the Reference Court and hence the same is accordingly dismissed with no Order as to costs. CHIEF JUSTICE JUDGE arp/*