:1: IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 219 OF 2000 The Executive Engineer, W.D. VI ( R & S ) P.W.D., Fatorda, Margao Goa. ... Appellant V e r s u s 1. Smt. Maria D'Costa, House No. 155, Sulebhat, Arossim, Goa. 2. Dy. Collector & S.D.O., Mormugao, Vasco-da-Gama, Goa. ... Respondents Mr. Manish Salkar, Additional Government Advocate for the Appellant. Mr. Joseph Vaz, Advocate for the Respondent No.1. CORAM: R. M. SAVANT, J. Dated: 3rd March, 2010. :2: ORAL JUDGMENT: 1. The above First Appeal is filed on behalf of the Executive Engineer, W.D. VI ( R & S ), P.W.D., Fatorda, Margao Goa, which arises out of the Judgment and Award dated 8.3.2000 passed by the learned IInd Additional District Judge, Margao Goa, in Land Acquisition Case No. 131/1993. The said Judgment and Award is in respect of a reference under Section 18 of the Land Acquisition Act, 1894 ( hereinafter referred to as the said Act ). 2. The Respondent herein was the Applicant in the said reference proceedings, who was the owner and in possession of the property under Survey No.120/2 of Village Utorda. Out of the said property the Government had acquired a portion admeasuring 245 square metres for the purpose of construction of road from Utorda to Arossim. The Notification in question under Section 4 of the Land Acquisition Act, came to be published in the Government Gazette dated 29.6.1989 and the Award under Section 11 came to be declared on 4.7.1991. The SLAO has granted compensation at the rate of Rs.25/- per square metre. The Respondent accepted the compensation under protest and moved an application before the :3: Collector for reference to be made to the Court under Section 18 of the Land Acquisition Act. The Respondent claimed that the market rate of the land in the vicinity was varying between Rs.250/- to Rs.300/- per square metre as on the date of the notification. The Respondent in support of her case examined three witnesses. AW1 who was her attorney one S. J. Costa, AW2 Francisco Xavier Fernandes, who is a witness to the Sale Deed dated 19.4.1988 at Exhibit AW1/C and the expert witness AW3 Shri Ernesto Moniz who had prepared the valuation report at Exhibit AW1/E. On behalf of the Respondent reliance was placed on the Sale Deed dated 19.4.1988 which was marked at Exhibit AW1/C which according to the Respondent was in close proximity in time and location to the acquired land and hence it was a comparable instance and could be relied upon for assessing the market rate. 3. The Reference Court framed the issue as to whether the Applicant has proved that the market rate of the acquired land was between Rs.250/- to Rs.300/- per square metre as on the date of the Notification. The Reference Court though held that the Respondent had failed to prove that the market rate of the acquired land was varying from Rs.250/- to Rs.300/- per square metre :4: however recorded a finding that the market rate of the land was Rs.162/- per square metre as on the date of the Notification. It would therefore be relevant to consider the evidence adduced by the Respondent in support of her case for enhancement. It has come in the evidence of AW1 S. J. Costa that all the amenities such as market, church, school, bank, college, post office, etc., are within a radius of about 600 metres from the acquired land. This statement has also been corroborated by AW3 Ernesto Moniz. It has also come in evidence that there are residential houses around the acquired land. It has also come in the evidence of AW1 S. J. Costa and AW3 Ernesto Moniz that regular public transport is available at a distance of about 600 metres away from the acquired land. Thus it could be safely inferred that the acquired land which is a level land had building potentiality and all the amenities were available within the close vicinity of the acquired land. As regards the market value of the land in view of the fact that the Sale Deeds by virtue of which the Respondent had purchased the land in question in the year 1975- 76 were more than 13 years prior to the date of Notification, the Reference Court has rightly held that they could not be relied upon. :5: The Reference Court was also of the view that in view of rise of the price of the land which is in the coastal belt on account of the tourism boom, the said Sale Deeds which were of the year 1975- 76 could not be relied upon for determining the market value of the acquired land. 4. Now coming to the Sale Deed dated 19.4.1988 at Exhibit AW1/C between Maria Luiza de Braganza Pereira and Peter Santana Fernandes, AW1 S. J. Costa has deposed that the said property is at a distance of about 2 kilometers from the acquired land. He has also stated that the nature of the said property is similar to that of the acquired land. The said property was sold at the rate of Rs.147/- per square metre. There is no dispute that the said Sale Deed was proved by examining AW2 Francisco Xavier Fernandes who was a witness to the said Sale Deed. The said Francisco has deposed that he has seen the property of the Respondent herein and he has stated that the nature of the Respondent's property is similar to that of the property covered by the Sale Deed. The evidence of AW3 Ernesto Moniz also discloses that he had verified the Sale Deed at Exhibit AW1/C for the purpose of determining the market rate of the acquired land. He :6: has deposed that the land covered by the Sale Deed is similar to that of the acquired land and that both the properties had similar potentialities for construction of house. He has also deposed that the amenities and services available in the Sale Deed land are identical with those available to the acquired land and that the acquired land was a level ground configuration having sandy soil formation. It would be pertinent to note that the said Sale Deed at Exhibit AW1/C was executed about one year prior to the date of publication of the Section 4 of the Notification and also situated close to the acquired land being only 2 kilometers away. The evidence on record inter-alia indicates that the land covered by the Sale Deed and the acquired land had similar advantages and the nature of the land was also the same. Considering the said factors, the Reference Court was right in holding that the Sale Deed at Exhibit AW1/C can be considered as a comparable instance and can be safely relied upon for determining the market rate of the acquired land. Since the market rate mentioned in the Sale Deed was Rs.147/- per square metre as on 19.4.1988, the Reference Court has added the rise in price of land at the rate of 10% per annum so as to work out the rate of Rs.162/- per square metre which is the enhancement granted to the Respondent herein. In :7: the teeth of the evidence of AW1 S. J. Costa and AW3 Ernesto Moniz who was an expert witness and in the absence of any evidence being led on behalf of the State and the acquiring body as regards the acquired land being close to the railway track and was affected by the setback as also in respect of the market rate, the Reference Court has rejected the contention sought to be urged on behalf of the acquiring body that the acquired land was affected by the railway track and setback. 5. Considering the well settled principles as enunciated in the case of Bhagwathula Samanna V/s Spl. Tahsildar and L.A.O. reported in AIR 1992 S.C. page 2298, wherein the Apex Court has laid down the guidelines to be applied whilst determining the market rate of the acquired land, it has been held that the market value of the land under acquisition has to be determined as on the crucial date of publication of the Notification under Section 4 of the Land Acquisition Act. The said determination has to be made on the basis that the valuer is a hypothetical purchaser willing to purchase land from the open market and is prepared to pay a reasonable price as on the day of the said Notification. The comparable instances have to be identified on the following :8: considerations :- (i) proximity from time angle, (ii) proximity from situation angle. 6. The Reference Court keeping in mind the said guidelines of the Apex Court, has considered the evidence on record and has reached a conclusion that the Respondent herein would be entitled to enhancement at the rate of Rs. 162/- per square metre. In my view, in the absence of any evidence being led by the Respondent and in the light of the Sale Deed at Exhibit AW1/C, the said enhancement cannot be faulted with. In that view of the matter, there is no merit in the above Appeal which is accordingly dismissed. R. M. SAVANT, J. at*