1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 256 OF 2007 1. The Chief Executive Officer, Goa, Daman And Diu Industrial, Development Corporation, Panaji-Goa. .. Appellant Vs. 1. Sociedade Agricola dos Gaoncares De Cuncolim e Veroda, represented by its Chairman, Shri P. F. Lourenco Cuncolim, Salcete – Goa. 2. Dy. Collector (LA), Margao-Goa. .. Respondents Mr. M. S. Sonak, Advocate for the appellant. Mr. S. D. Lotlikar, Senior Advocate with Mr. H. Kankonkar, Advocate for the respondent No.1. Mr. S. Vahidulla, Additional Government Advocate for the respondent No.2. CORAM :- A. S. OKA & F. M. REIS, JJ. Date : - 21 st July, 2010. JUDGMENT : (Per A. S. OKA, J) Heard the learned Counsel appearing for the appellant and the learned Counsel appearing for the first respondent. The appeal arises out of the reference made 2 under Section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the said Act') at the instance of the first respondent. The land subject matter of acquisition has been surveyed under Survey Nos.304/1 to 304/3, 327/1 to 327/11, 328/1, 328/3 to 328/10, 329/1 to 329/15, 330/1, 330/3 to 330/7, 331/1 to 338/8, 333, 334/1 to 334/9, 335/1 to 335/10, 337, 323/0, 318/1 to 318/14, 318/17, 318/20, 318/22, 318/25, 318/28, 318/31 to 318/33, 320/1, 306, 317 of Village Cuncolim of Salcete Taluka belonging to Socieidade Agricola dos Gaoncares de Cuncolim e Veroda. The notification under Section 4 of the said Act was published on 28th May, 1987. The acquisition was for setting up an Industrial Estate. As pointed out earlier, the acquisition relates to aforesaid lands surveyed under different survey numbers by an Award under Section 11 of the said Act. The market value ranging from rate of Rs.1 to 1.50 per square meter was offered by the said Award. The first respondent claimed the market value at the rate of Rs.100/- per square meter in the reference under section 18 of the said Act. 2. When the appeal was taken up for final hearing on earlier occasion, we found that evidence in reference was recorded in common with another reference being Land Acquisition Case No.145/1997. That is the reason we had 3 called for the record of Land Acquisition Case No.145/1997. An Appeal being First Appeal No.186/2007 has been filed for challenging the Award made in the said Land Acquisition Case No.145/1997. 3. The learned Counsel appearing for the appellants has taken us through the evidence on record and findings recorded by the Reference Court. He pointed out that the lands surveyed under different survey numbers, which were acquired, have different features and considering those features, separate market value was fixed in respect of different pieces of the lands out of the acquired land. He submitted that this aspect has been completely overlooked by the Reference Court. He pointed out that the first respondent relied upon the Awards in Land Acquisition Case No.124/1992 and Land Acquisition Case No.317/1992 for adducing in evidence as regards comparability. He submitted that reliance could not have been placed on the Award subject matter of Land Acquisition Case No.317/1992 as it relates to comparably small area. He invited our attention to the Award in Land Acquisition Case No.317/1992 and pointed out that the area of the acquired land subject matter of the said Land Acquisition Case was 2250 square meters. Inviting our attention to the judgment in the said 4 Land Acquisition Case, he submitted that there is no evidence of similarity. He submitted that a copy of the judgment is not even exhibited and the same could not have been read in evidence. He pointed out that the said sale instance was not of a comparable land considering the vast area of the acquired land. He, therefore, submitted that the reference ought to have been rejected. 4. The learned Senior Counsel appearing for the first respondent pointed out that the Award in Land Acquisition Case No.317/1992 relates to the lands acquired under the same notification under Section 4 published on 28th May, 1987. He pointed out that the appellant is a party to the said Award and the Award was not challenged. He invited our attention to the evidence on record and submitted that evidence of comparability was adduced. He submitted that in fact the Reference Court while deciding Land Acquisition Case No.317/1992 found that the market value of the acquired land was at the rate of Rs.21/- per square meter, but a deduction of 33.33 % is already made and that is how the market value at the rate of Rs.14/- per square meter is arrived at. He submitted that no interference is called for with the impugned judgment and Award. 5 5. We have considered and submissions and we have perused the record. The first respondent examined one Rama S. Dessai, who relied upon the Award in Land Acquisition Case No.317/1992 and stated that the land subject matter of the Award is notified by the same notification under which the land subject matter of the present appeal has been acquired. He stated that lands subject matter of the said Award and the land subject matter of this case form part of the same larger land. He stated that the said acquired land in Land Acquisition Case No.317/1992 was a paddy field. Therefore, a lower rate of Rs.14/- per square meter was fixed. He stated that adjacent to the acquired land hundreds of houses have been constructed. 6. The learned Counsel appearing for the appellant has raised objection to the admissibility of a copy of the judgment in evidence. A copy of the judgment in Land Acquisition Case No.317/1992 was produced in the companion Land Acquisition Case No.145/1997 along with the application at exhibition 21(D). The said Land Acquisition Case and the Land Acquisition Case subject of present Appeal were heard together by recording common evidence. We have perused the evidence of Mr. J. J. Rego – first witness examined by the claimant in the said Land 6 Acquisition Case No.145 of 1997. In the evidence, the witness relied upon the said decision in Land Acquisition Case No.317/1992. We find that the said witness has been cross-examined on the comparability of the land subject matter of the said Land Acquisition Case No.317/1992. It appears that when evidence of the said witness was recorded, a copy of the judgment in the said land acquisition case was not placed on record. The cross-examination of the said witness was recorded on 30th July, 2005. A copy of the judgment appears to have been subsequently produced on 1st March, 2006. We must note here that there were two other witnesses examined by the Applicants in the said land acquisition case, who were also cross-examined on the said decision in Land Acquisition Case No.317/1992. Therefore, we reject the objection raised by the learned Counsel appearing for the appellant regarding the admissibility of the judgment in the said case. As noted earlier, the appellant is a party to the said decision and it appears that the said decision was not challenged by the appellant. 7. Coming back to the evidence recorded in the present case, the first witness examined by the first respondent relied upon the judgment and Award in Land Acquisition Case No.317/1992 by stating that the land 7 subject matter of the said case is a part of the land subject matter of the present appeal. Perusal of the cross- examination shows that there is hardly any challenge to the version of the witness. The cross-examination of the witnesses made in Land Acquisition Case No.145/1997 appears to be with reference to the location of the land subject matter of the said reference. An expert witness Mr. Vikas Dessai was examined in the said companion land acquisition case. In the cross-examination, the witness admitted that the land subject matter of Land Acquisition Case No.317/1992 was a paddy field. We have also perused the judgment of the said case. In paragraph No.16 of the Judgment, the Reference Court noted that a part of the acquired land was a paddy land and remaining was a barren land. In fact, it was noted that a part of the land was tenanted land. However, the Reference Court considered the non-agricultural potential of the said acquired land and found that the market value was Rs.21/- per square meter. It must be noted here that Section 4 notification in the said case is the same i.e. dated 28th May, 1987. The Goa Land use (Regulation) Act, 1991 was not in force on the relevant date and, therefore, there was no prohibition on non-agricultural use of the agricultural land on that date. 8 8. Considering the fact that the appellant has not challenged the decision in Land Acquisition Case No.317/1992 and considering the fact that the case arises out of the same notification under Section 4 of the said Act, the said decision certainly affords the basis for arriving at the market value of the acquired land in the present case. Hence, we find no error in the finding of the learned Trial Court when it was held that it was a comparable land. As stated earlier, the area of the land subject matter of Land Acquisition Case No.317/1992 was only 2250 square meters and considering the area, after arriving at market value at the rate of Rs.21/- per square meter, a deduction of 1/3rd was made by the Reference Court. In the present case, two negative factors will have to be considered. One is a very large area of more than one lac square meters of the acquired land and the second is that different portions of the acquired land have different features. Therefore, while fixing the market value of the acquired land on the basis of the said decision, a further 20 % deduction will have to be made from the rate of Rs.14/- per square meter. Therefore, the market value in the present case will be Rs.11.20 per square meter. 9 9. Hence, the appeal must succeed in part and we pass the following order : (i) The impugned judgment and Award is modified and the market value of the acquired land is reduced to Rs.11.20 per square meter. (ii) Rest of the Award stands confirmed. (iii) The appeal is partly allowed in above terms with no order as to costs. (iv) The Registrar shall complete the exercise of calculation of the amount payable to the first respondent as per modified Award within a period of four weeks from today. Thereafter, the Registrar will permit the first respondent to withdraw the amount payable to the first respondent as per the modified Award with interest accrued thereon. Balance amount with interest thereon shall be paid to the appellant. A. S. OKA, J F. M. REIS, J. SMA