1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.23 OF 2004 Smt. Isabela Gama (deceased) represented by legal heirs 1. Shri ShankerJaganath Kuttikar, 2. Smt. Shantu Shankar Kuttikar, 3. Smt. Bhagai (Bhage) Anant Kuttikar, 4. Smt. Sitai Rama Kuttikar, 5. Smt. Kalyan Kuttikar, (All r/o. Curca, Santan, Tiswadi-Goa). 6. Mr. Jaganath Ranga Karmalkar, 7. Smt. Tulsai (Tulsye) Jaganath Karmalkar, 8. Smt. Yamuna Gano (Guno) Narvekar, (All r/o. Khandier, Carambolim, Tiswadi-Goa) (Appellant no.2 to 8 are represented by appellant no.1 as duly constituted attorney) …. Appellants V/s Special Land Acquisition Officer, (North Goa District) Konkan Railway Corporation, Having its office at Souza Tower, Panaji-Goa. …. Respondent Mr. G. Shirodkar, Advocate for the Appellants. Mr. E. Afonso, Advocate for the Respondent. CORAM : S.A. BOBDE & F.M. REIS, JJ. Reserved on : 16th JUNE, 2011 Pronounced on :12th August,2011 JUDGMENT : (Per F.M. REIS, J.) 2 The above appeal challenges the judgment and award dated 18/12/2003 passed by the learned Additional District Judge at Panaji in Land Acquisition Case No.43/1996, whereby the reference filed by the appellants came to be rejected. 2. Pursuant to a notification under Section 4 of the Land Acquisition Act, 1894, herein after referred to as “the said Act”, dated 13/06/1991, the respondents acquired land admeasuring an area of 27461 square metres from the property surveyed under no.110/10 and 850 square metres from the property surveyed under no.106/6 for the construction of a new BG line between Roha and Manglore in the villages of Ella and Carambolim in Tiswadi Taluka. The Special Land Acquisition Officer passed an award under Section 11 of the said Act and offered compensation at the rate of Rs.30/- per square metre. Being dissatisfied with the said amount, the appellants sought a reference under Section 18 of the said Act and claimed a sum of Rs.400/- for the land acquired. By judgment and award dated 18/12/2003, the reference Court rejected the reference filed by the appellants. Being aggrieved by the said judgment the appellants have preferred the present appeal. 3 3. Shri Shirodkar, the learned Government Advocate appearing for the appellants has submitted that the Reference Court has erroneously refused to allow the reference filed by the appellants for enhancement of compensation when there was material on record to show that the price offered by the Land Acquisition Officer was inadequate. The learned Counsel further submitted that the Reference Court has erroneously refused to rely upon the sale instances produced by the appellants which were the lands which were comparable to the land acquired and in the vicinity thereof. The learned Counsel has further submitted that he has examined an expert Shri Karan Kumar Gedam, who has evaluated the land acquired at the rate of Rs.350/- which has been erroneously discarded by the Reference Court. The learned Counsel further submitted that the land acquired was adjoining National Highway and had high potentiality of being used for non- agricultural purposes. The learned Counsel has further submitted that the appellants want to rely upon the judgment of this Court wherein the market value of land in the vicinity of the lands acquired has been determined. The learned Counsel has submitted that the appellants have filed an application for leave to produced additional evidence in the nature of the judgment/award passed in 4 other proceedings in respect of the lands which are located in the vicinity of the acquired land and comparable to the land acquired. The learned Counsel, as such, submitted that considering the said judgment the appellants are entitled for enhancement of compensation, and as such the matter be remanded to the Reference Court. 4. On the other hand, Shri E. Afonso, the learned Counsel appearing for the respondents has supported the impugned judgment. The learned Counsel has submitted that the Reference Court has rightly rejected the reference filed by the appellants. The sale instance produced was a post notification sale deed which cannot be the basis for the purpose of determining the market value of the acquired land. With regard to the judgment sought to be produced by the appellants before this Court, Shri Afonso has submitted that there is no evidence on record to establish comparability of the land acquired with the land which was subject matter of the said instances and, as such, the question of relying upon the said judgment/award would not arise. The learned Counsel, as such, submitted that the appeal deserves to be rejected. 5 5. Having heard the learned Counsel and on perusal of the record, the following point for determination arises in the present appeal: POINT FOR DETERMINTION: Whether the Reference Court was justified to reject the reference filed by the appellants. 6. On perusal of the impugned judgment, we find that the Reference Court has rightly rejected the Sale Deed of the year 1997 which was a post notification Sale Deed produced by the appellants in support of their claim for enhancement of compensation. The Reference Court by justifiable reasons has discarded the said sale instances, but however, considering the application filed by the appellants to produce additional evidence, we find that merely producing the said judgments would not establish the case of the appellants for enhancement of compensation. The judgment and award sought to be relied upon by the appellants consist of the judgment dated 5/07/2010 passed by the Division Bench of this Court in First Appeal No.103/2001, judgment dated 15/10/1998 in First Appeal No.87/1996, judgment dated 20/06/2001 passed in First Appeal No.234 and 233 of 2000 and judgment dated 6 30/07/2008 passed in First Appeal No.145/2003. Merely producing the said judgments, it will not be possible for this Court to consider as to whether the subject matter of the lands acquired in the said proceedings are comparable to the land acquired in the present case. The appellants would have to subscribe accordingly the judgments wherein the lands are comparable to the land acquired and without adducing such evidence, the said judgments cannot be considered for the purpose of determining the market value of the acquired land. This Court has held that for relying upon any instances as the basis for determining the market value of the acquired land, it is very essential to establish the comparability of the land acquired and the land which is subject matter of the said instances. In the present case, we find no such evidence produced by the appellants to show that the land acquired and the land which was subject matter of the said sale instance were comparable or similar in nature. As such, in the interest of justice considering that the land has been lost in acquisition, we find it appropriate to remand the matter to the Reference Court to decide the reference afresh after giving an opportunity to the appellants to produce the said judgments mentioned in the said application dated 14/06/2011 and adduce evidence to establish the comparability of the land 7 acquired with the land which was subject matter of the sale instances. No doubt, the respondent would be entitled to lead evidence in rebuttal to dispute the said contention of the appellants. All contentions of the parties are left open. The point for determination is answered accordingly. 7. In view of the above, we pass the following order: O R D E R (i) The appeal is partly allowed. (ii) The impugned judgment and award is quashed and set aside. (iii) Land Acquisition Case No.243/1996 is restored to the file of the Reference Court. (iv) The Reference Court is directed to decide the said reference afresh after allowing both the parties to lead further evidence in the light of the observations made herein above in accordance with law. (v) The appeal stands disposed of accordingly with no order as to costs. (vi) Parties are directed to appear before the Reference Court on 12/09/2011 at 10.00 a.m. S.A. BOBDE, J. F.M. REIS, J. NH/-