1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 295 OF 2005 Mr. Ganasham Bhikaji Lad R/o. H. No.M-11, Housing Board Colony, Vidhayanagar, Margao, Goa. a) Divakar Ganasham Lad b) Ramabai Divakar Lad Both residents of H. No.M-11, Housing Board Colony, Vidhayanagar, Margao Goa. c) Ramesh Ganasham Lad d) Neeta Ramesh Lad Both residents of H. No.M-11, Housing Board Colony, Vidhayanagar, Margao Goa. e) Gurunath Ganasham Lad f) Rewati Gurunath Lad Both residents of 769, Vidhayanagar, Margao, Salcete, Goa. g) Annapurna G. Lad Resident of H. No.M-11, Housing Board Colony, Vidhyanagar, Margao, Goa. ... Appellants 2 versus 1. Land Acquisition Officer P.W.D.(Cell), Altinho, Panaji, Goa. 2. Executive Engineer, Works Division(III) P.W.D.(R) Mapusa, Bardez, Goa. ... Respondents Shri S. Samant, Advocate for the Appellants. Shri G. Shirodkar, Government Advocate for the Respondents. CORAM : F. M. REIS, J. DATE : 8TH APRIL, 2011. ORAL JUDGMENT The above appeal challenges the Judgment and Award passed in Land Acquisition Case No.83 of 2004 dated 18-7-2005. Pursuant to a notification under Section 4 of the Land Acquisition Act, 1894(hereinafter referred to as the said Act) land was acquired for widening of Chopdem-Keri M.D.R., Phase I from Chopdem-Mandrem in Pernem Taluka pursuant to a notification which was published on 1-12-2000. Amongst the land which was acquired, a portion of the property belonging to the appellants surveyed under Nos.30/8 and 31/18 3 situated in village Agarwada was intended to be acquired for the said purpose admeasuring an area of 700 sq. meters and 375 sq. meters, respectively. By an award passed under Section 11 of the said Act, the Land Acquisition Officer awarded compensation for the land acquired at the rate of Rs.20/- per sq. meter. 2. Being dissatisfied with the said amount, the appellants sought a reference under Section 18 of the said Act claiming Rs.400/- per sq. meter for the land acquired. The Reference Court by Judgment and Award dated 18-7-2005 rejected the reference filed by the appellants. 3. Being aggrieved by the said Judgment, the appellants have preferred the present appeal. 5. Shri S. Samant, learned Counsel appearing for the appellants has assailed the impugned Judgment and pointed out that though the Reference Court came to a conclusion that the sale instance produced by the appellants at Exh.14 was comparable to the land acquired the only ground on which the reference came to be rejected was that the land was within the road widening area. Learned Counsel has taken me through 4 the evidence and pointed out that the distance from the acquired plot was 1 to 1 ½ km. He further submitted that the acquired land had similar features, and that the land acquired was better located. Learned Counsel has also taken me through the sale deed and pointed out that the sale deed plot was in fact not a developed plot but was only a portion of the land which was sought to be sold pursuant to the said sale deed. Learned Counsel further took me through the plans produced before the Reference Court and pointed out that the property which is surveyed under No.30/8 is leveled land and adjoining the main road and had high potentiality. Learned Counsel also pointed out that the land surveyed under No.31/18 had already a structure therein and was suitable for non agricultural purpose. The learned Counsel relied upon the Judgment of the Apex Court reported in ((2009) 10 SCC 686 in the case of State of Goa and another v. Gopal Baburao Gaudo and others. Learned Counsel further submitted that the Division Bench of this Court has also on the basis of the said Judgment has come to the conclusion that the land cannot be considered to be without any value in case the land owner has land beyond the land which was subject matter of the acquisition. Learned Counsel as such pointed out that the Reference Court was not justified to reject the reference and prayed that the appellants 5 should be awarded compensation as mentioned in the sale instance at Exh.14. 6. On the other hand, Shri G. Shirodkar, learned Government Advocate for the respondents has supported the impugned Judgment. Learned Government Advocate has pointed out that the sale deed plot cannot be said to be comparable sale instance, as the land which was acquired was widened for road and as such could not be used for construction purposes. Learned Government Advocate took me through the evidence on record and pointed out that the sale deed land is a developed plot. Learned Government Advocate has taken me through the evidence on record and pointed out that AW1/Ramesh has admitted that the sale plot was a developed plot. Learned Government Advocate has further submitted that considering the overall evidence on record no interference is called for in the impugned Judgment. 7. Having heard the learned Counsel, the following point for determination arises:- 1. Whether the Reference Court was justified to reject the reference? 6 8. On perusal of the impugned Judgment, the Reference Court has held that the sale instance at Exh.14 was comparable and in the vicinity of the land acquired and has come to the conclusion that there is no difficulty to hold that the plot surveyed under No.31/18 was fit for construction purposes. Learned Judge further held that so far as the plot surveyed under No.31/18 is concerned, the same were leveled land and that the plot surveyed under Nos. 30/8 and 31/18 were plain, leveled lands with all infrastructural facilities available for its development. The findings given by the Reference Court to that effect have not been challenged by the respondents in the present appeal nor has the learned Government Advocate pointed out any infirmity therein. Hence, I proceed on the assumption that the land acquired in the present proceeding was suitable for construction purposes. The learned Reference Court whilst rejecting the reference has come to the conclusion that merely because the land was coming within the road widening area the same had no potential value and as such, the same could not be used for any construction purposes. This aspect is no longer res integra in view of the Judgment of the Apex Court in the case of State of Goa and another v. Gopal Baburao Gaudo and others(supra). 7 9. The Apex Court has held at paras 4 and 5 thus:- “4. A long strip of land measuring more than two-thirds of an acre lying alongside and adjoining the highway cannot be treated as a land without value or without any potential for development, merely on the ground that the law relating to highways prohibited construction on either side of the highway, up to a depth of 40 m from the centre of the highway. All that was required to create or realise potential of such land was to annex or merge the said strip of land with the land to its rear. In that event, the strip of land will become the “access” to the rear side land from the main road and will also become the frontage of the aggregate land, thereby enhancing the potential and value of the rear side land, as also creating a potential for its own use. 5. The contention that a land adjoining the highway should be treated as having no development potential(and therefore as land without much value except as ordinary agricultural land), while considering the lands to its rear which are farther away from the road, or other adjoining lands of the same extent, but having more depth(so as to extend beyond the 40 m margin) as having potential for development, is illogical and cannot be accepted”. 8 10. Considering the Judgment of the Apex Court as there is no dispute that the appellants were owing land beyond the land which was coming within the road widening area, it cannot be said that the land coming within the road widening area has no potential value. As such the sale deed at Exh.14 can form the basis to fix the compensation for the land acquired in the present case. 11. The sale deed at Exh.14 demonstrated that an area of 200 sq. meters was sold at the rate of Rs.100/- per sq. meter. On perusal of the boundaries mentioned therein, I find that one of the boundary is another plot towards the eastern side. No doubt, on perusal of the said deed it appears that the main road is further towards the eastern side of the sale deed plot, considering all the factors stated therein the sale deed plot is a developed plot. The land acquired was coming within the road widening area and on account of such dissimilarities a deduction of 15% would be just and proper as the appellants would otherwise be able to avail of only 50% of the FAR whilst developing the remaining land. Apart from that, as the sale deed plot was a developed plot a deduction towards development charges would be 30% considering the area and location. Hence a total deduction would be 45% from the price as mentioned at 9 Exh.14 would have to be effected. The amount as such works out to Rs.55/- per sq. meter. The compensation for he land acquired is fixed at Rs.55/- per sq. meter. The Reference Court was not right in refusing the compensation. In view of the Judgment of the Apex Court, the finding of the Reference Court cannot be sustained. The point for determination is answered accordingly. 12. In view of the above, I pass the following order:- ORDER 1. The appeal is partly allowed. 2. The impugned Judgment and Award dated 18-7-2005 is quashed and set aside. 3. The reference filed by the appellants is partly allowed and the compensation is fixed at Rs.55/- for the land acquired. 4. Needless to say that the appellants would be entitled under Sections 23(1)(A), 23(2) and 28 of the said Act in accordance with law. 5. The appeal stands disposed of accordingly with no order as to costs. F. M. REIS, J. RD