IN THE HIGH COURT OF BOMBAY AT GOA, PANAJI FIRST APPEAL NO.32 OF 2003 AND FIRST APPEAL NO.53 OF 2003 First Appeal No. 32 of 2003 Shri Balchandra Anant Wagle, residing at Wagle Building, Tonca, Panaji, Goa. … Appellant (Org. Applicant) V E R S U S 1. Land Acquisition Officer, P.W.D. (Cell), Altinho, Panaji, Goa. 2. The Executive Engineer, W. D. III (P.H.E.), St. Inez, Panaji-Goa. … Respondents (Org. Respondents) Mr. M.S. Joshi, Advocate for the appellant. Mr. V. Rodrigues, Additional Government Advocate for the Respondents. First Appeal NO. 53 of 2003. 1. State of Goa, through the Land Acquisition Officer, PWD (Cell), Altinho, Panaji. 2 2. The Executive Engineer, W.D. III (PHE), St. Inez, Panaji. … Appellants V E R S U S Shri Balchandra Anant Wagle, resident of Panaji, Goa. …. Respondent Mr. V. Rodrigues, Additional Government Advocate for the appellants. Mr. M.S. Joshi, Advocate for the Respondent. CORAM : U.V. BAKRE, J. DATE: 23rd December, 2011. JUDGMENT: Both these appeals arise out of the judgment and award dated 31/7/2002 passed by the learned District Judge, North Goa ( 'Reference Court', for short), in Land Acquisition Case No.9/1995. 2. The parties shall be referred to in the manner in which they appear in the cause title of the said L. A. Case no. 9/1995. 3 3. By Notification issued under Section 4(1) of the Land Acquisition Act, 1894 ('L. A. Act', for short), the Government acquired land situated at Morombi-O-Grande at Panaji, for the purpose of laying additional conveying main for supplying water to Panaji city. This included an area of 1470 square metres of land from survey holding no. 259 of Morombi-O-Grande, belonging to the applicant. By award dated 23/1/1987, the Land Acquisition Officer, ('L.A.O.', for short), offered compensation at the rate of Rs.15/- per square metre. Not being satisfied with the said offer, the applicant sought reference under Section 18 of the L. A. Act, claiming that the market value of the acquired land at the relevant time was Rs. 225/- per square metre, which gave rise to the said L. A. Case No.9/1995. 4. The applicant examined himself as AW.1 and produced two sale deeds. He also examined a Government registered valuer namely Shri Pramod Dessai, an architect as AW.2, who 4 produced the valuation report. The applicant examined his nephew Shri Vassant Wagle as AW.3, who produced the Form no. I and XIV and the survey plan of survey no.259/1. The respondents, on the other hand, examined the Assistant Engineer, P.W.D., Panaji, Works Division III namely Anand Panchamukhi as RW.1 and another Assistant Engineer Sub- Div. III, Works Division III, P.W.D, Panaji, namely S.P. Jadhav as RW.2. 5. The Reference Court declined to rely upon any of the sale deeds produced by the applicant as also the valuation report. However, it has held that on account of the acquisition of the suit plot, the access of the applicant to the road has been cut off and he is forced to pass through the acquired land itself in order to have access to the unacquired portion of his property which has the area of more than 50,000 square metres. Considering the above, the reference court gave a flat increase of Rs.10/- per square metre to the offer made by the 5 L.A.O. and fixed the market value at the rate of Rs.25/- per square meter. 6. The applicant has filed the First Appeal No.32/2003 for enhancement, whereas, the respondents have filed the First Appeal No.53/2003 to set aside the impugned judgment and award. 7. Heard arguments. Learned Advocate Shri M.S. Joshi argued on behalf of the applicant, whereas, Learned Advocate Shri V. Rodrigues argued on behalf of the respondents. 8. Learned Advocate Shri M.S. Joshi argued that there is no basis for merely giving increase of Rs.10/- to the compensation fixed by the learned L.A.O., when the applicant had produced on record the sale transactions, pertaining to similar land, in the vicinity of the acquired land, evidencing 6 that the price of the land in that locality at the relevant time was much higher. He further argued that merely because the acquired land is a strip of land acquired for laying pipeline by the side of the road, it cannot be held that it had no value. He contended that since the acquired land is proved to be a part of a bigger property of the applicant, it had appropriate value just like the portion behind it. In support of his contention, he relied upon “State of Goa and Another Vs. Gopal Baburao Gaudo and others” [(2009) 10 SCC 686]. Learned Shri, Joshi, on behalf of the applicant, further argued that previously there was free access to the property of the applicant which, on account of the acquisition, has been blocked and on this count additional compensation has to be awarded to the applicant. 9. On the contrary, learned Advocate Mr. V. Rodrigues, on behalf of the respondents, argued that the pipeline has been laid underground, about one metre below the acquired land 7 and the land has not been fenced and therefore, the applicant cannot say that there is no access to the remaining portion of his property. He also pointed out that the evidence shows that there are other accesses to the applicant's property. Learned Advocate Shri Rodrigues showed that the sale deed Exhibt 14 pertains to a land along with a house and a structure and the value of the house and structure is not stated in the sale deed, due to which the value of the land, independently, cannot be ascertained. As far as the other sale deed Exhibit 15 is concerned, he argued that the same pertains to a house property, having a small area and therefore, the same also cannot be considered. According to Shri Rodrigues since a narrow strip of land on the boundary of the applicant's property has been acquired, the market value of Rs.15/- per square metre offered by the L.A.O. was just and reasonable. Shri Rodrigues argued that the evidence of RW.1 and RW.2 reveals that the applicant has access to enter his property and therefore, without any basis and without any reason, the 8 reference court has given a flat increase of Rs.10/- per square metre to the compensation fixed by the L.A.O, due to which the judgment and award is not sustainable and should be set aside. 10. I have gone through the entire material on record. 11. The point that arises for determination is as to the proper value of the acquired land. 12. In the case of “Gopal Baburao Gaudo and others”(supra), a long strip of land measuring two thirds of acre adjoining the highway was acquired. The Hon'ble Supreme Court has held that the same cannot be treated as land without value or without any potential for development, merely on the ground that law relating to highways prohibited construction on either side of the highway, up to a depth of 40 metres from centre of highway. It has been further held that 9 potential of such land could be realized by annexing or merging said strip of land with land to its rear, in which event the strip of land would become “access” to rear side land from main road and would also become frontage of the aggregate land, thereby enhancing potential and value of rear side land, as also creating a potential for its own use. Learned Advocate Mr. Joshi, therefore, contended that the acquired land with the portion behind should have been taken as land comparable to the land of the two sale deeds produced by the applicant and after making appropriate deductions, the market value ought to have been determined. 13. Considering the principles laid down by the Hon'ble Supreme Court in the case of “Gopal Baburao Gaudo and others” (supra), it is certain that merely because a strip of land is acquired, it cannot be treated as land without value and without any potential for development. In the case of “State of West Bengal Vs Bibhuti Bhusan Chatterjee and 10 ors.”(AIR 1959 Calcutta 572), a strip of land having width of 6 feet, by the side of a public lane was acquired for widening that lane. It was contended that a strip of 6 ft. width should be valued on the basis of valuation of similar strips and, as a strip of 6 ft. width cannot constitute a building site, in valuing it, the standard of valuation of building plots cannot be of any assistance. Rejecting the above contention, the Division Bench of the Calcutta High Court held that the acquired strip would be valued as part of the claimant's plot taking into account its (that is claimant's plot's) value to the owner with all its existing advantages and all its possibilities and potentialities. 14. AW.1 who is the applicant, has stated that the unacquired portion of his property is about 50,000 square metres in area, which fact is not denied. Even otherwise, AW.3, the nephew of the applicant has produced on record Form No. I and XIV of survey no.259/1 as Exhibit 24 which 11 shows that the area of the survey holding no.259/1 is 51,513 square metres. The survey plan produced by AW.3 reveals that the said property of the applicant was adjacent to the road. AW.1 has also stated that the acquired land is adjoining the Merces-Chimbel public road and that the Merces market, the church of Merces, Government school, Village Panchayat office, bank etc. are within a radius of one kilometre away and that there is a bus stop just next to the acquired land. AW.1 has stated that along the said road there is electricity line and water pipe line passing. AW.1 has stated that the K.T.C Bus Stand at Panaji is about 3 kilometres from the acquired land. AW.1 has further stated that in the unacquired portion, development by sub-division could be undertaken by making plots for construction. He has further stated that on account of the acquisition of the suit plot, his access to the road is cut off and he is forced to pass from the suit plot itself. I have perused the cross-examination of AW.1 and I find that his evidence is not shaken. 12 15. The evidence of RW.1 and RW.2 reveals that the acquired land was abutting the road. Though RW.1 and RW.2 have stated that there was no electricity and tap water facility in the acquired land, however they do not say that such facility was not available alongside the road. The fact that the land was acquired for laying additional conveying main for supplying water to Panaji city, itself shows that there was previously existing water pipeline. As pointed out by learned Advocate Shri Joshi, RW.1 came to Goa for the first time in 1981 and has no personal knowledge about this case and according to him he has deposed on the basis of the records of his office. RW.1 therefore cannot be relied upon. RW.2 does not say that there was no transport facility available to the acquired land. According to RW.2 transport facility to the acquired land was very poor. He says that there was no construction activity in the vicinity of the acquired land. But the sale deed, Exhibit 14, produced by the applicant, read with 13 the deposition of AW.1 shows that in the year 1983 there was subdivided plot containing the house and a structure across the road with reference to the acquired land. AW.1 has stated that there was development about 500 metres away from the acquired land where new buildings had come up. In his cross- examination, AW.1 has even named the owners of those new buildings as Dr, Rivankar, Mr. Kamat and Mr. Shirodkar. 16. In view of the above, it is established that the acquired land is a portion of a bigger property, adjoining a public road and which was suitable for construction and it had the required amenities within a radius of one kilometre. 17. As far as the valuation report prepared by AW.2 Shri Pramod Dessai is concerned, in my view, the same has been rightly rejected by the reference court. AW.2 has stated that he inspected the acquired land and the remaining property of the applicant in the year 1990 for the purpose of assessing 14 the market value of the acquired land and prepared the report of valuation (Exhibit 21) on 10/10/2001. The date of publication of notification under Section 4(1) of the the L. A. Act is 24/3/1983, which means that AW.2 had inspected the acquired land about seven years after the publication of the said notification and had prepared the valuation report about eleven years after the said inspection. Relying upon the case of “Sadguru R. Kolmule Vs. Dy. Collector of North Goa, Division, Panaji, Goa” [1996 (1) Goa law Times 8], the learned reference court has refused to rely upon the valuation report and rightly so. 18. In the case of “Printers House Pvt. Ltd. Vs. Cold Storage And Food Products”[(1994) 2 SCC 134], the Apex Court has held that the best evidence for determining the market value of the acquired land could be an authentic transaction of sale relating to the very acquired land or a portion thereof or any other land which could be favourably 15 compared with the acquired land. 19. A perusal of the sale deed, Exhibit 14 produced by AW.1 reveals that the plot which was out of a bigger sub- divided property, sold by the said sale deed dated 18/5/1983, contained a house and another structure. The value of the said house and structure is not known. Therefore, as has been rightly argued by learned Advocate Shri V. Rodrigues, there is no scope for use of this sale deed transaction for determination of the market value of the acquired land. 20. AW.1 has produced another sale deed at Exhibit 15 which is dated 19/5/1983, which pertains to a house property. The date of publication of notification under Section 4(1) of the Land Acquisition Act being 24/3/1983, the transaction of the sale deed Exhibit 15, though is post notification, however, it is in very close proximity as far as time factor is concerned. In the case of “Chimanlal Hargovinddas Vs 16 Special Land Acquisition officer, Poona”(AIR 1988 SC 1652), it has been held that even post notification instances can be taken into account (1) if they are very proximate,(2) genuine and (3) the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects. There is nothing on record to suggest that the purchaser of the sale deed (Exhibit 15) was motivated in the manner as above. By this sale deed at Exhibit 15, land measuring 242.22 sq.metres situated at village Morda has been sold for Rs.40,000/- that is at the rate of Rs.165/- per square metre. It is seen from the sale deed that this is not a plot out of a sub-divided property. AW.1 has stated that the plot of this sale deed is about 1 and 1/2 kilometre away from the acquired land and is at the entrance of Merces village. AW.1 has stated that the sale deed plot is also a coconut grove, similar to the acquired land. In his cross-examination a suggestion was put to AW.1 whether amenities like Panchayat office, church etc. are near to the 17 plot under Exhibit 15, than the acquired land. AW.2 answered that those amenities lie equi-distance both from the acquired land as also from the plot under Exhibit 15. It is, therefore, established that the nature of plot in sale deed, Exhibit 15 is similar to that of the acquired land. In my view, therefore, this transaction should be the best for determination of the market value of the acquired land. 21. The property of the applicant, of which the acquired land forms a part, is very vast being of more than 50,000 square metres in area, as compared to the plot of the sale deed at exhibit 15, which is very small being only 242.22 square metres. The property of the applicant was abutting the public road which means that some portion would have gone into road widening area, which is not the case with the sale deed plot. The acquired land is situated in inner part of village Merces and the KTC Bus stand of Panaji is about 3 kilometres away from it whereas the sale deed plot is at the 18 entrance of village Merces and is nearer to Panaji. The property of the applicant is hilly whereas the plot of the sale deed is flat. The above are major disadvantages to the property of the applicant of which the acquired land forms part, as compared to the sale deed plot. On account of the acquisition, the applicant cannot directly approach the public road and has to pass over the acquired land below which the water pipe line has been laid. Keeping all the above factors in mind, I am of the view that a deduction of 70% in the price of the plot of the sale deed(Exhibit 15) should be made to arrive at the market value of the acquired land. Said deduction brings the price of Rs. 165/- down to Rs. 49.50/- per square metre (rounded up to Rs. 50/- per square metre). 22. In the result, the appeal no. 32 of 2003 is partly allowed whereas the appeal no. 53 of 2003 is dismissed. The land value awarded by the reference court i.e. at the rate of Rs. 25/- per square metre is enhanced to Rs. 50/- per square 19 metre. Subject to the above variation, the award of the reference court below will stand. Let a fresh award be drawn up by the reference court. The computation of the compensation payable to the applicant shall be made by the reference court. The appeals stand disposed of accordingly. U. V. BAKRE, J. Ap/- 20