1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.139 OF 2005 1. Special Land Acquisition Officer (North Goa), Konkan Railway Corporation Limited, Amey Guest House, Davorlim Road, P.O. Navelim, Salcete Goa, 403 707. 2. Chief Engineer, Konkan Railway Corporation Ltd., Rawnfond, near Margao Railway Station, Margao-Goa. …. Appellants V/s Smt. Pedrina Fernandes Aquem-Baixo, Navelim, Salcete, Goa. …. Respondents Mr. E. Afonso, Advocate for the Appellants. Mr. S.S. Kakodkar, Advocate for the Respondents. CORAM : N.A. BRITTO, J. DATE : 30th NOVEMBER, 2010 JUDGMENT : Heard. 2. Challenge in this appeal is to the judgment/award dated 16/10/2003 of the learned Reference Court in LAC No.344/1995. 3. The Government acquired respondent's land admeasuring 2 2290 square metres from Survey No.264/6/1 and 543 square metres from Survey No.264/3. This land was acquired along with several other lands by virtue of notification issued under Section 4(1) of the Land Acquisition Act, 1894 published on Gazette dated 27/06/1991 for the purpose of construction of a new broad gauge line and slipper plant for the Konkan Railway. 4. By award dated 1/08/1994, the Land Acquisition Officer awarded `6.75 square metre for 2290 square metres of land and `25/- per square metre for 543 square metres. 5. The award of `6.75/- per square metre for 2290 square metres for tenanted land is not issue in this appeal, but what is in issue is the award of `25/- per square metre for 543 square metres of bharad land of Survey No.264/3. There is also no issue as regards the award of compensation for 42 structures and the wood value of 59 trees existing therein. 6. The learned Reference Court has enhanced the compensation payable to the respondents/applicants from `25/- per square metre to `80/- per square metre. This has been done on the basis of a sale deed dated 4/12/1990 – Exhibit AW1/D by which a plot of land 3 admeasuring 480 square metres was purchased by the respondent and her brother at the rate of `200/- per square metre situated at a distance of about 700 metres from the acquired property in which they have constructed their house in which they reside. 7. From the evidence produced by the respondent-applicant it can be seen that the land of Survey No.264/3 was a 'bhand' having about 55 coconut trees and 38 houses. According to the respondent/applicant, the said land was a plain land admeasuring about 60x10 metres which property the said applicant had purchased, built embankments put up by fencing and had carried out the said plantation and construction of long chawls containing about 38 structures which they had given on lease and people were residing in the said houses, and in fact it has been submitted by Shri Afonso that the said people had been subsequently rehabilitated by the appellant after the acquisition. 8. The learned Reference Court has used the sale deed dated 4/12/1990 as a guide to determine the compensation. The learned Reference Court has found that the acquired property under Survey No.264/3 being a bharad land could be considered to be suitable for construction, but held that the applicant had not proved that 4 there was road available to the acquired property under Survey No.264/3. 9. Shri Afonso, learned Counsel on behalf of the appellant submits that the acquired property under Survey No.264/3 had only a pathway and considering its size it had no potential for construction. Learned Counsel further submits that the fruit value paid for was not deducted. Learned Counsel further submits that considering the size of the acquired property there could not have been 38 tenants. 10. On the other hand, Shri Kakodkar, learned Counsel on behalf of the respondent/applicant has submitted that the deductions taken by the learned Reference Court are on the higher side, but concedes and in my view fairly, that the applicant has not challenged the impugned award either by way of an appeal or by way of cross- objections. Learned Counsel has also brought to my notice that Chalta No.6 of PT sheet No.516 situated in the same locality was acquired by the same notification and for the same purpose and this Court by judgment dated 31/08/2004 in First Appeal No.62/2002 in the case of Aurora M.F. do Barretto and Others, was pleased to order payment of compensation at the rate of `160/- per square 5 metre. Learned Counsel submits that the said First Appeal No.62/2002 arose from Land Acquisition Case No.314/1995 and in fact the judgment dated 31/08/2004 in First Appeal No.62/2002 was followed by consent of parties by the Division Bench in First Appeal No.240/2005 in the case of Mrs. Aurora Visitacao D'Silva E Diniz & Ors. and compensation fixed at the rate of `160/- per square metre and, therefore, there is no question of reducing the compensation payable at the rate of `80/- per square metre. It may be stated that in those cases also, like in this case, compensation awarded by the Land Acquisition Officer was `25/- per square metre, for bharad land. 11. As already stated, the applicant's property under Survey No.264/3 was a 'bhand' in which the applicants had built chawl like structures and had given them on rent. The submission that the said property was not suitable for construction was not at all raised before the learned Reference Court not even by way of suggestion and therefore such a submission cannot be accepted for the first time, in this appeal. The fact that the applicant had raised chawl like structures and had given them on rent would clearly suggest that the said property could have been put to construction use. The applicant had clearly stated in her evidence that the acquired 6 property under Survey No.264/3 was touching the Aquem-Navelim road i.e. the northern end of acquired property touched the old road running from Pandava Chapel to Navelim. Except for a bare suggestion to the contrary, the respondents had not lead any evidence to suggest that the acquired property under Survey No.264/3 was inaccessible and the very fact that there were several structures which were rented out would suggest that the acquired property was otherwise accessible and as stated by AW1/Orlando there was no need of any development as it was already developed. No evidence was brought forth by the respondents to say that the said structures were illegal or for that matter any notice of demolition was issued to the applicants in relation to the said structures. 12. That being the position, in my view, there was no question of further deduction of 30% being taken by the learned Reference Court for want of an access to the acquired property under Survey No.264/3. There is no dispute that the houses existing in the acquired property had electricity and all other facilities were available in the locality including the railway station, which was at a distance of about 500 metres, Office of Weights and Measures Department at a distance of about 100 metres, ESI hospital at a 7 distance of about 300 metres, etc. 13. In the circumstances, therefore there is no scope for reducing the compensation ordered to be paid at `80/- per square metre. I find there is no merit in this appeal and consequently the same is hereby dismissed. N.A. BRITTO, J. NH/-