1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 250 OF 2005 Communidade of Shiroda, Ponda, Goa 403 103. ........ Appellant. V/s. 1. Asst. Director of Industries and Mines and Special Land Acquisition Officer (IDC), 2. Managing Director, Goa Daman & Diu Industrial Development Corporation, Shree Saraswati Mandir, 2nd floor, 18th June Road, Panaji, Goa. ....... Respondents. Mr. R. G. Ramani, Advocate for the appellant. Mr. M. S. Sonak, Advocate for respondent No.2. CORAM :- A.S. OKA & F.M. REIS, JJ. Date of reserving the judgment : 17/06/2010 Date of pronouncing the judgment : 07/07/2010 J U D G M E N T : (Per A.S. OKA, J.) The original claimant in a reference under Section 18 of 2 the Land Acquisition Act, 1894 (hereinafter referred to as “the said Act”) has taken an exception to the Judgment and Award dated 13th June, 2005 passed by the learned District Judge, North Goa, Panaji. By the impugned Judgment and Award, the reference has been dismissed. 2. The acquisition relates to the land bearing survey Nos.491/1 and 492/2 of Village Shiroda of Ponda Taluka admeasuring 1,05,100 sq. metres. The Notification under Section 4(1) of the said Act was published on 1st September, 1994. An award under Section 11 of the said Act was made on 2nd January, 1996 by which the market value was offered at the rate of Rs.5/- per sq. metre. The claim made by the appellant in the reference was for market value at the rate of Rs.50/- per sq. metre. 3. The appellant is the Communidade of Shiroda. The appellant examined Shri Chandrakant Shenvi Hede, Attorney of the appellant-Communidade. The appellant also examined Shri B.K. Khandeparkar, Architect and Registered Valuer. Lastly, the appellant examined Shri Mahadev J. Hede, President of the appellant- Communidade. The appellant relied upon the opinion and evidence of 3 Shri Khandeparkar. The appellant also relied upon three sale deeds at Exhibits 19, 20 and 21. Apart from the sale deeds, the appellant also relied upon an Award at Exhibit 16 where a land bearing Survey No.485/2 of the same Village admeasuring 1000 sq. metres was acquired by the State Government for construction of a market complex. The market value at the rate of Rs.40/- sq. metre was offered in the said case. 4. The learned Counsel appearing for the appellant has taken us through the notes of evidence, as well as the documents filed on record. He pointed out that the Award at Exhibit 16 was in respect of the acquisition of another portion of the land of the appellant. He pointed out that the Award related to an area of 1000 sq. metres, where the Notification under Section 4(1) of the said Act was published on 4th May, 1989. The learned Counsel submitted that this was a case of a comparable land and on the basis of the market value reflected from the Award at Exhibit 16, the market value of the acquired land in the present case, on the relevant date, should have been calculated by taking escalation at the rate of 15 % per year. He submitted that various important factors such as the fact that the acquired land was 4 situated at a distance of about 200 metres from the main road and that it was accessible to the main road by a katcha road have not been considered by the reference Court. He pointed out that all the infrastructural facilities were available in the neighbourhood of the acquired land. He submitted that the land subject-matter of the Award at Exhibit 16 was also an undeveloped land and was comparable in all respects with the land subject-matter of the present appeal. He pointed out that the sale instance of sale deed dated 10th August, 1988 at Exhibit 19 was in respect of a land admeasuring 48,700 sq. metres from the same village. He pointed out that the sale deed dated 20th March, 1989 at Exhibit 20 is in respect of an area of 1192 sq. metres which was a developed and sub-divided plot. Lastly, he pointed out that in case of a developed plot having an area of 306 sq. metres, the sale deed dated 21st February, 1994 at Exhibit 21 discloses market value of Rs.100/- per sq. metre. He submitted that merely because the acquired land was vesting in the Communidade, the aforesaid instances could not have been discarded by the reference Court. He submitted that the appellant could not have been denied the compensation on the erroneous ground that the land held by the appellant was not a freehold land. He, therefore, submitted that the reference ought to have 5 been allowed. 5. The learned Counsel appearing for the second respondent (acquiring body) submitted that there are restrictions on transfer of a land of the Communidades and, therefore, this Court has held that the Communidades' land cannot be said to be a freehold land. He submitted that the land of the Communidade is not comparable with a freehold land held by any other person. He submitted that apart from the fact that the sale deeds at Exhibits 21 and 21 were in respect of very small areas, the sale deeds were not in respect of the lands held by the Communidade. He submitted that the sale deed at Exhibit 19 was again not in respect of the land held by the Communidade. He therefore submitted that the sale deeds were not in respect of comparable lands. He submitted that the Award at Exhibit 16 was not in respect of a comparable land and in any event, it was in respect of a very small plot admeasuring 1000 sq. metres. He submitted that the Award at Exhibit 16 will have to be also discarded. He submitted that the appellant has not discharged the burden of establishing that the market value offered by the Land Acquisition Officer was inadequate. 6 He submitted that no interference is called for in this first appeal. 6. The first question is regarding the effect of restrictions on transfer of a land of a Communidade. The learned Counsel appearing for the second respondent relied upon a decision of this Court in the case of Communidade of Candolim, represented by its Attorney vs. Deputy Collector (North) Panaji, Goa, [2005(1) Goa L.R. 25]. He also invited our attention to another decision of the same Bench in the case of Communidade of Kerim, Goa vs. Land Acquisition Officer, Ponda Goa and ors., [2005 (1) Goa L.R. 433]. He also fairly invited our attention to the view taken by this Court in First Appeal No.158/2003 (Communidade of Sancoale vs. Government of Goa and another), decided on 8th August, 2008. 7. We may mention here that all the aforesaid decisions were considered by this Court in the Judgment dated 24th June, 2010 in First Appeals No.283 of 2002 and 103 of 2003. After considering the aforesaid decisions, as well as the law laid down by the Apex Court in certain decisions, this Court in para 15 held thus : “15. The aforesaid decision does not contain exhaustive list of negative factors. In case of a land held by a Communidade, the restriction on 7 transfer will be one of the negative factors, which will have to be considered while fixing the market value. Taking into consideration the said negative factor, some deduction will have to be made depending upon the facts of a particular case while fixing the market value on the basis of a comparable sale instance of a freehold land. In the case of Krishna Yachendra Bahadurvaru Vs. The Special Land Acquisition Officer; AIR 1979 SC 869, the Apex Court held that the process of determination of the market value invariably involves the evaluation of many imponderables and hence it must necessarily be to some extent a matter of conjecture or guess. Therefore, we find that the submission that the market value of the land vesting in Communidade cannot be determined on the basis of sale instance of a comparable freehold land, will have to be rejected by holding that the market value of a land vesting in Communidade can be determined on the basis of comparable sale instance of a freehold land by making appropriate deductions considering the peculiar facts of the case on account of restrictions on transferability of the acquired land vesting in Communidade . ” (underline supplied) 8 In view of the law laid down by this Court in the aforesaid decision, now we proceed to consider the evidence adduced by the appellant. 8. The appellant examined its Attorney Mr. Chandrakant Shenvi Hede. He stated that the acquired land was situated at Pandegal, Shiroda and was slightly rocky and barren land. He stated that the land was situated at a distance of 300 metres from the main Ponda-Shiroda road and was accessible from the main Shiroda-Ponda road by motorable katcha road, having width of 4 metres. He stated that amenities like electricity, water and transport were available adjacent to the acquired land where there was a housing colony in existence at the time of acquisition. He stated that the acquired land was at a distance of about 500 metres from Gomantak Ayurvedic College, 1000 metres from Shiroda market, 500 metres from Government Primary Centre, 1000 metres from Kamaxi Homeopathic College and 300 metres from the Police Station. In the cross examination, he admitted that the acquired land had slopes on all four sides. He stated that the land was rocky in some places. He clarified that there were some boulders in some places on the acquired land. He denied the correctness of the suggestion that the acquired land was not 9 suitable for construction of residential buildings. 9. The appellant examined Mr. B.K. Khandeparkar, Architect and Valuer. He stated that the acquired land was in orchard zone. He stated that the acquired land was slightly rocky and barren. He also deposed that it was at a distance of 300 metres from Ponda-Shiroda road and it had motorable access of katcha road having width of 4 metres. He also deposed that all amenities were available in the vicinity of the acquired land. In the cross examination, he admitted that the acquired land is uneven because of rocky terrain. He stated that the acquired land was an undeveloped land and it did not have infrastructural facilities like internal roads, drainage, open spaces, etc.. He admitted that though there was no source of water for the acquired land, the water pipe lines were passing through the adjoining land even as on the date of notification under Section 4 of the said Act. 10. The appellant examined Mr. Mahadev J. Hede, its President. His deposition is on the lines of deposition of Mr. Chandrakant Shenvi Hede. He admitted that the land between the acquired land and the main road is not owned by the appellant. He admitted that the acquired land was an undeveloped land. 10 11. The aforesaid evidence as regards the location and the nature of the acquired land has been considered by the refernce Court. It must be noted here that the Award under Section 11 of the said Act records that the acquired land is at a distance of about 200 metres from the Borim-Sanvordem road, which is a tarred road. The award also mentions that there is a katcha motorable road leading from the main road for reaching the acquired property. In the award, it is also stated that there were few residential houses on the junction where the katcha road meets the main road. Thus, the award itself notes that there were residential houses in the vicinity of the acquired land. The award under Section 11 is in the nature of an offer by the State Government. The State Government is bound by the statements made in the Award. The statements made in the award can be surely treated as admissions on the part of the State Government. 12. There are three sale deeds relied upon by the appellant. The first sale deed dated 10th August, 1988 is at Exhibit 19. The said sale deed relates to the land surveyed under Survey no.467/1 admeasuring 48,700 sq. metres. The sale deed relates to Shiroda 11 Village. Rate reflected from the said sale deed is Rs.10.78 per sq. metre. The second sale deed relied upon by the appellant is at Exhibit- 20 which is dated 20th March, 1989. By the said sale deed, a plot of land admeasuring 1192 sq. metres, out of the land subject-matter of sale deed at Exhibit 19, was sold at price of Rs.65/- per sq. metre. The third sale deed at Exhibit 21 is dated 21st April, 1994, which is again in respect of part of the property of sale deed at Exhibit-19. The plot subject-matter of the sale deed is a developed and sub-divided plot, admeasuring 306 sq. metres, which was sold at the price of Rs.100/- per sq. metre. A perusal of the evidence of the three witnesses examined by the appellant shows that they have not stated anything as regards the nature and location of the lands covered by the three sale deeds. The witness Mr. Chandrakant Shenvi Hede admitted in the cross examination that the land subject-matter of the sale deed at Exhibit 21 was at a distance of 2 kms. from the acquired land. Even the expert witness in his deposition has not even disclosed the distance between the lands forming part of the three sale deeds and the acquired land. Moreover, the sale deeds are not in respect of the lands held by the Communidade. There is no evidence of comparability. Therefore, the learned reference Court was right in rejecting the said sale deeds. 12 At the highest what can be said is that the sale deeds reflect a trend of rise in the market value of the lands in the Village. 13. The only other piece of evidence relied upon by the appellant is the award at Exhibit 16. The said award under Section 11 of the said Act relates to acquisition of a land admeasuring 1000 sq. metres, out of the land surveyed under Survey No.485/2 of the same village. The date of notification under Section 4 in respect of the said land is 15th March, 1989. The market value of Rs.40/- per sq. metre was offered under the said award. It must be stated here that the said land was owned by the appellant Communidade. The first witness examined by the appellant Mr. Chandrakant Shenvi Hede was cross examined on the award at Exhibit 16. It is brought on record in the cross examination of the said witness that the land subject-matter of award at Exhibit 16 was a part of a hillock and it was a slopping land. He denied the correctness of the suggestion that the land was a plain levelled land. However, he admitted that the land subject-mater of the award was adjacent to Ponda-Shiroda road. Thus, what is brought on record in the cross examination is that the land subject-matter of the award at Exhibit 16 was a part of hillock. The acquired land is also 13 stated to be hilly land and a part of it is rocky land. The expert witness examined by the appellant has not deposed anything about the land subject-matter of the award at Exhibit 16. Therefore, there is no cross examination on the said aspect. The third witness examined by the appellant Mr. Mahadev Hede denied the correctness of the suggestion that the land subject-matter of the award at Exhibit 16 is a levelled land and that it was in the level with the public road. He admitted that Shiroda market is closer to the land subject-matter of Award at Exhibit 16 as compared to the acquired land. Thus, the evidence on record shows that the land subject-matter of the award at Exhibit 16 is a land held by the Communidade in the same Village. The nature of the acquired land and the land subject-matter of the award at Exhibit 16 appears to be the same, except for the fact that the land subject-mater of the award at Exhibit 16 was touching the main road and that its area is only 1000 sq. metres. Both the lands were not developed. There was no reason for the reference Court to have discarded the said evidence only on the ground that the award was in respect of relatively a small area of 1000 sq. metres. Only on that ground the said award could not have been rejected. Perhaps the only difference between the acquired land and the land subject-matter of award at Exhibit 16 is that the land 14 subject matter of award at Exhibit 16 was touching the main road and that the area is much smaller than the acquired land. In case of both the lands there were restrictions of transferability, as both the lands were owned by the appellant Communidade. As stated earlier, Section 4 notification in respect of the land subject-matter of the award at Exhibit 16 is of 15th March, 1989 and in the present case, the relevant date for determination of market value is 1st September, 1994. So, there is a gap of about 5 years between the relevant date in the present case and the relevant date in case of award at Exhibit 16. The award at Exhibit 16 affords a reasonable basis for computing the market value of the acquired land. The market value as reflected from the award at Exhibit 16 is Rs.40/- per sq. metre. As the market value as on 1st September, 1994 will have to be determined on the basis of market value of Rs.40/- as of 15th March, 1989, some escalation will have to be granted. However, there is a positive factor in respect of the land subject matter of Award at Exhibit 16 that the land was touching the main road. Whereas the acquired land was situated at a distance of 300 metres from the main road. Only a katcha road having a width of 4 metres was available for approaching the acquired land. Considering this negative factor in respect of the acquired land, even if some 15 escalation is granted for determination of the market value as on 1st September, 1994, the market value will have to be brought down on account of the negative factors. Considering the fact that even the katcha road was passing through the property which was not owned by the appellant, and considering the negative factors in respect of the acquired land, the market value of the acquired land on the relevant date can be taken at Rs.40/- per sq. metre. A further deduction will have to be made on account of largeness of the acquired land which admeasures 1,05,500 sq. metres. A deduction of 50 % will have to be made on that count. After making deduction of 50 %, the market value will have to be taken as Rs.20/- per sq. metre. As stated earlier, the market value has been fixed by the Land Acquisition Officer at the rate of Rs.5/- per sq. metre. Therefore, the appellant will be entitled to enhancement by Rs.15/- per sq. metre. The appellant will be also entitled to all statutory benefits under the said Act. Hence, the appeal must succeed in part and we pass the following order : (A) The impugned Judgment and Award is set aside. (B) Land Acquisition Case No.205/1996 is partly allowed. (C) In addition to the market value at the rate of Rs.5/- per sq. metre, the appellant will be entitled to the market value of Rs.15/- per 16 sq. metre. (D) In addition to the enhancement in the market value, the appellant will be entitled to statutory benefits under Section 23(1A), Section 23(2) and Section 28 of the Land Acquisition Act, 1894. (E) The appellant will be entitled to proportionate costs of the appeal and reference from the respondents. (F) The exercise of calculating the amount of compensation payable in terms of the modified award shall be carried out by the reference Court within a period of two months from today. (G) Time of six weeks is granted to deposit the balance amount. (H) The time of six weeks shall be computed from the date on which the determination of compensation is made by the reference Court. A.S. OKA, J. F.M. REIS, J. ssm