:1: IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 136 OF 2006 1. Deputy Collector (L.A.) Margao Goa. 2. The Executive Engineer, W.D. VI (Roads), Public Works Department, Margao Goa. … Appellants V e r s u s 1. Shri Jose Sebastiao Faleiro, ( since deceased, represented by the L.Rs) 1(a) Smt. Rosarina Faleiro, Aged 39 years, married, and her husband 1(b) Shri Antonio Pedro Crisanto Rodrigues, aged 48 years, Both r/o H.No.150, Palmar Grande, Chinchinim, Salcete Goa. 1(c) Smt. Santana Ofelia Faleiro, aged 33 years, married, and her husband, 1(d) Shri Inacio Mateus Nelson D'souza, aged 37 years, Both r/o H.No.446, Sirvodem, Navelim, Salcete Goa. 1(e) Shri John Placido Faleiro, aged 29 years, s/o late Jose Sebastiao Faleiro, 1(f) Shri Euveristus Cendrik Faleiro, aged 23 years, S/o late Jose Sebastiao Faleiro, :2: Both r/o H.No.564, Dongorim, Navelim, Salcete Goa. 2. Smt. Martina Paulina Fernandes e Faleiro, Widow of Jose Sebastiao Faleiro, Major in age, r/o H.No.564, Dongorim, Navelim, Salcete Goa. … Respondents Ms. S. Linhares, Additional Government Advocate for the appellants. Mr. A. F. Diniz, Advocate for respondent nos. 1(a) to 1(f) and 2. CORAM : F. M. REIS, J DATE : 13 th DECEMBER, 2011 ORAL JUDGMENT Heard Ms. S. Linhares, learned Additional Government Advocate appearing for the appellants and Shri A. F. Diniz, learned Advocate appearing for respondent nos. 1 (a) to 1(f) and 2. 2. The above appeal challenges the judgment and award dated 16.02.2006 passed by the learned District Judge, South Goa, Margao, in Land Acquisition Case No. 156 of 2000 whereby the reference filed by the respondents under Section 18 of the Land Acquisition Act, 1894 ( hereinafter referred to as “the said Act” ) was partly allowed and the compensation :3: for the land acquired was fixed at the rate of Rs.80/- per square metre. 3. Pursuant to notification under Section 4 of the said Act, the land belonging to the respondents admeasuring an area of 200 square metres was acquired by the appellants for improvement and black topping of road at Ravora, Nagmodem, Mandopa and Solpeaband in Village Panchayat Navelim. During the said acquisition proceedings, the portion of the property belonging to the respondents surveyed under No. 24/4 situated at Navelim, Salcete was intended to be acquired. The Land Acquisition Officer whilst passing the award under Section 11 of the said Act offered the compensation at the rate of Rs.10/- per square metre. Being dissatisfied with the said amount, the respondents sought a reference under Section 18 of the said Act for enhancement of compensation and claimed a sum of Rs.1000/- per square metre for the land acquired. By judgment and award dated 16.02.2006, the Reference Court partly allowed the reference and fixed the compensation for the land acquired at the rate of Rs.80/- per square metre. Being aggrieved by the said judgment and award, the appellants have preferred the present appeal. :4: 4. The learned Additional Government Advocate appearing for the appellants has assailed the impugned judgment and pointed out that the Reference Court has relied upon a sale deed which is a post notification sale deed which forms basis for fixing the compensation for the land acquired. The learned Counsel further pointed out that the Reference Court has not at all considered whether the sale deed plot is comparable to the land acquired and as such committed an error in enhancing the compensation for the land acquired. The learned Counsel further pointed out that there was a traditional access passing through the acquired land and as such this factor has not been taken into consideration by the Reference Court whilst fixing the compensation for the land acquired. The learned Counsel has taken me through the impugned judgment as well as the evidence on record and pointed out that the Reference Court has failed to take note of the fact that the land acquired was having dissimilarity as compared to the sale deed plot and has committed an error in enhancing the compensation for the land acquired. As such, the learned Counsel submitted that the appeal deserves to be allowed and the impugned judgment and award be quashed and set aside. :5: 5. On the other hand, Shri A. F. Diniz, learned Counsel appearing for respondent nos. 1(a) to 1(f) and 2 has supported the impugned judgment. The learned Counsel has pointed out that the evidence on record establishes that the land acquired had potentiality of being used for non agricultural purpose as according to him there is sufficient material on record to establish that the land acquired was in the vicinity of developed area where infrastructure facilities were available within the radius of one kilometer of the acquired land. The learned Counsel further pointed out that considering that the land acquired was in the vicinity of developed area, the land belonging to the respondents had high potentiality of being used for non agricultural purpose. The learned Counsel further pointed out that merely because the sale deed plot is within three months after the date of notification by itself cannot be discarded to form the basis to determine the market value of the land acquired as admittedly the acquisition did not give any benefit to the sale deed plot. The learned Counsel further pointed out that in the cross examination of the witnesses, there was nothing brought on record by the appellants to the effect that the acquisition had influenced the price in the sale deed. The learned Counsel further pointed out that considering the :6: material on record, the Reference Court was justified to make a deduction of 60% for fixing the price of the acquired land at the rate of Rs.80/- per square metre. As such, the learned Counsel submitted that there is no merit in the above appeal which deserves to be rejected. 6. Upon hearing the learned Counsel and on perusal of records, the following point for determination arises in the present appeal : POINT FOR DETERMINATION Whether the Reference Court was justified to fix the compensation for the land acquired at the rate of Rs.80/- per square metre ? 7. In support of their claim of enhancement of the compensation, the respondents have examined respondent no.1(c) as AW1. In her affidavit in evidence, the said respondent has stated that the land acquired is situated in the Navelim Village in the centre of said Village. Apart from that, there are also averments in the affidavit to the effect that the infrastructure facilities were available within the radius of about one kilometre from the land acquired. In the cross examination of AW1, the said fact has not been disputed. :7: Besides that the respondents have also examined AW2 who has stated that the land acquired had potentiality of being used for non agricultural purpose considering the development in the vicinity of the acquired land. The respondents have also examined an expert as AW3. In his deposition he has given in detail the infrastructure facilities which were available in the vicinity of the acquired land. Apart from that, AW3 has also produced the croqui depicting the acquired land and the sale deed plot. On perusal of croqui, I find that the sale deed plot is located in the vicinity of the acquired land at a distance of about 2 kms from the acquired land. Taking note of the fact that the Reference Court has come to the conclusion that the land acquired had potentiality of being used for non agricultural purpose and as the sale deed plot is located in the same village and in the vicinity of the acquired land, I find that the Reference Court was justified to rely upon the sale deed at Exhibit 18 as the basis for fixing the market value of the acquired land. 8. The contention of the learned Addl. Government Advocate appearing for the appellants to the effect that the sale deed plot is post notification sale deed which cannot be relied upon has no substance. The law is well settled that :8: even post notification sale instance can be considered for determining the market value of the acquired land in cases in which the acquisition has not influenced the price in the sale deed plot. In the present case, considering the croqui as well as the other material on record, it is not in dispute that the road which has been constructed pursuant to acquisition in the present case is not passing through the land which was the subject matter of the sale deed plot. Hence, the acquisition did not have any bearing in the price in the sale deed plot. The appellants have not produced any sale instance to rebut the evidence adduced by the respondents. Hence, I find that the Reference Court was justified to rely upon the sale deed plot at Exhibit 18 as the basis for fixing the market value of the acquired land. 9. With regard to the contention of learned Additional Government Advocate appearing for the appellants that the acquired land was part of the traditional access, I find that on perusal of the award passed by the Land Acquisition Officer under Section 11 of the said Act, nothing to that effect was taken into consideration whilst making such award. Apart from that, merely because such traditional access was existing does not by itself disentitled the respondents from receiving a :9: just and proper compensation for the land acquired. The Reference Court whilst considering the dissimilarity vis-a-vis sale deed plot has deducted 40% on account of development charges and further deducted 20% on account of the fact that the acquired land did not have motorable access. Considering the said deductions, I find that the Reference Court has taken care of such dissimilarities of the acquired land with the sale deed plot on account of any traditional access which was passing through the acquired land. It is also to be noted that normally such traditional access have a width of half metre whereas the land acquired was admittedly having a width of three metres. As such, merely because such traditional access allegedly existed by itself does not warrant any further deduction in the compensation fixed by the Reference Court by the impugned judgment. 10. On perusal of evidence on record and material produced by the respondents, I find that the compensation fixed by the Reference Court at the rate of Rs.80/- per square metre is just and appropriate in the facts of the case. The compensation fixed by the Reference Court cannot be said to be exorbitant and unjust. On the basis of evidence produced by the parties, the Reference Court has rightly fixed the :10: compensation for the land acquired. No interference is called for in the amount fixed by the Reference Court as the compensation for the land acquired. The point for determination is answered accordingly. 11. In view of the above, I find no merit in the above appeal and the same stands accordingly dismissed with no order as to costs. F. M. REIS, J at*