-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 16 OF 2004 WITH MISC. CIVIL APPLICATION NO. 414 OF 2004 AND FIRST APPEAL NO.21 OF 2004 FIRST APPEAL NO.16 OF 2004 WITH MISC. CIVIL APPLICATION NO. 414 OF 2004 1. Shri Krishna Gurudas Pai Angle, Age 53 years, occupation Chartered Accountant, married, 2. Sunita P. B. Angle, Age 59 years, wife of Bhagwant Janardhan Pai Angle, occupation housewife, married, both r/o H. No.557, Dandeavado, Chinchinim, Salcete, Goa. …...Appellants V e r s u s 1. The Land Acquisition Officer, South Goa Sub Division, Quepem, Goa. 2. The Executive Engineer, W.D. XXV P.W.D., Gogal, Margao. ….. Respondents Mr. Sudesh Usgaonkar, Advocate for the Appellants Mr. S. Vahidulla, Government Advocate for the Respondents. -2- A N D FIRST APPEAL NO.21 OF 2004 1. The Land Acquisition Officer, South Goa Sub- Division, Quepem, Goa. 2. The Executive Engineer, Works Division, XXV P.W.D., Gogal, Margao. …...Appellants V e r s u s 1. Shri Krishna Gurudas Pai Angale, 2. Sunita P. B. Angale, R/o H. No.557, Dandeavado, Chinchinim, Salcete, Goa. …...Respondents Mr. S. Vahidulla, Government Advocate for the Appellants Mr. Sudesh Usgaonkar, Advocate for the Respondents. CORAM: F. M. REIS, J. DATE : 3 rd September, 2010. ORAL JUDGMENT Both the above Appeals have been taken up together for final disposal as both the Appeals challenge the same Judgment and Award dated 13.10.2003, passed by the learned Addl. District Judge, South Goa, at Margao, in Land Acquisition Case no. 167/92. 2. The parties shall be referred in the manner as they so appear in the cause title of the impugned Judgment. -3- 3. The land of the applicants was acquired by the Respondents for the widening and improvement of National Highway 17 between kilometres 38/725-42/0, Margao to Collem Section (Part-II), pursuant to a Notification under Section 4 of the Land Acquisition Act, (hereinafter referred to as the 'said Act'), published in Official Gazette on 08.08.1988. By an Award passed under Section 11 of the said Act, the Land Acquisition Officer fixed the compensation at the rate of Rs.13/- per square metre besides the compensation for the structure existing therein. The land of the Applicants which has been acquired is admeasuring an area of 165 square metres from the property surveyed under no. 423/1 and an area of 347 square metres from the property surveyed under no. 423/12 of Chinchinim Village. Being dissatisfied with the amount awarded by the said Award, the Applicants sought a reference under Section 18 of the said Act for enhancement of compensation and claimed a compensation to the tune of Rs.300/- per square metre for the land acquired. Besides the said amount, the Applicants also claim a sum of Rs.4,500/- towards mango tree and Rs.4,000/- towards two coconut trees and Rs.1,500/- on account of a Jamul tree located in the acquired land. Apart from that, the Applicants also claimed compensation on account of the structure existing in the acquired land to the tune of Rs.5,27,780/-. The Applicants also claim that they are entitled for a sum of Rs.1,44,000/- towards loss of ... credits, etc., and Rs.50,000/- towards loss of premises. The Reference Court by the Judgment and Award dated 13.10.2003 has partly allowed the said reference and fixed the compensation for the land acquired at the rate of Rs.50/- per square metre besides statutory -4- benefits. The remaining claim of the Applicants came to be rejected. 4. Being aggrieved by the said Judgment and Award, the Applicants have preferred the present Appeal claiming enhancement to the compensation as determined by the Reference Court. On the other hand, the Respondents have also filed an Appeal challenging the same Judgment on the ground that the Reference Court was not justified to enhance the compensation for the land acquired. 5. The learned Counsel appearing for the Applicants has submitted that the Applicants shall restrict their claim only on account of the value of the land acquired and the compensation for the structure which was existing in the acquired portion of the land. He states that the Applicants shall not press for the claim on account of the compensation as claimed by the Applicants towards the trees existing in the acquired land and an amount on account of loss of business of credit and loss of the premises. As such, the Applicants are restricting their claim only with regard to issue nos. 1 and 3 as framed by the Reference Court in the impugned Judgment. The learned Counsel appearing for the Applicants has submitted that the Reference Court has totally misdirected himself in determining the market value of land as on the date of Section 4 Notification at the rate of Rs.50/- per square metre. He further submitted that the Applicants have produced comparable sale instances which demonstrate that the market value of land as on the date of Section 4 Notification was to the minimum sum of Rs.150/- per square metre. -5- He further submitted that the land of the Applicants was abutting the main road and, as such, had potentiality of being used for non agricultural purpose. He further submitted that the Applicants had a going business which was located in the premises which has been acquired pursuant to the above Notification. He further submitted that the Applicants also had one structure in the remaining portion of the land whereby part of it was used for commercial purpose whereas remaining portion was used for residential purpose. He further submitted that this evidence itself discloses that the land of the Applicants had potentiality of being used for non agricultural purpose. The learned Counsel has further pointed out that there was another portion of land which was acquired by the same Notification which was subject matter of First Appeal no. 101/2000 before this Court, wherein the compensation as awarded by the Reference Court at the rate of Rs.100/- per square metre came to be confirmed. He further pointed out that the Land Acquisition Officer had in fact valued the land of the Applicants as well as the land of the Applicants in First Appeal no. 101/2000 at the same rate of Rs.13/- per square metre. He further submitted that this itself shows that the land of the Applicants and the land which was subject matter of the acquisition in the said First Appeal are similar in nature. The learned Counsel has further submitted that the Reference Court had erroneously discarded the expert evidence adduced by the Applicants on the ground that the said expert Shri Vikas Dessai, had visited the property only after the structure had been demolished. He further pointed out that he has filed an application to produce additional evidence on record under Order 41 Rule 27 of C.P.C. to demonstrate that the possession of the -6- structure was handed over to the Land Acquisition Officer only in the year 1995 and the expert had visited the property before the said date. The learned Counsel has submitted that in view of the said Judgment passed by this Court in First Appeal no. 101/2000, the Applicants are entitled for atleast an enhancement to the tune of Rs.100/- per square metre. Apart from that, he submitted that the Applicants are also entitled for the value of the structure as assessed by his expert as the reason for discarding the said evidence are erroneous. 6. On the other hand, Shri Vahidullah, the learned Addl. Government Advocate for the Respondents, has disputed the contention advanced by the learned Counsel for the Applicants. He submitted that the Reference Court has erroneously come to the conclusion that the market value of land as on the date of Section 4 Notification was Rs.50/- per square metre. He further submitted that the Reference Court had erroneously relied upon the sale instances which have not been duly proved to come to the conclusion that the market value of land as on the date of Section 4 Notification was Rs.50/- per square metre. The learned Counsel has taken me through the evidence on record and pointed out that the Applicants have miserable failed to establish that the amount offered by the Land Acquisition Officer was inadequate. As such, he submitted that the impugned Judgment cannot be sustained as far as the enhancement of compensation for the land acquired is concerned. With regard to the production of the documents referred in the said application filed by the Applicants under Order 41 Rule 27 -7- of C.P.C., the learned Counsel submitted that in case the said application is allowed, the Respondents should be given an opportunity to dispute the correctness of the said contention of the Applicants. He further submitted that in case the said application is allowed, the matter deserves to be remanded for fresh adjudication by the Reference Court. With regard to the contention of the learned Counsel in respect of the land which was subject matter of the First Appeal no. 44/2004, the learned Adddl. Government Advocate has submitted that there is no evidence on record to show the comparability of the land acquired with the land which was subject matter of the land of the Applicants in the said First Appeal. He went through the notes of evidence and pointed out that there is no evidence at all adduced by the Applicants on that count. 7. Having heard the learned Counsel for the parties and on perusal of the record, the following points arise for determination in the present Appeal. POINTS FOR DETERMINATION 1. Whether the Reference Court was justified to fix the market value of land as on the date of Section 4 Notification to Rs.50/- per square metre ? 2. Whether the Reference Court was justified to reject the claim of the Applicants on account of the compensation towards the structure existing in the acquired land. -8- 8. On perusal of the record, I find that Aw.3, who has been examined is Gilman Coutinho. The said witness is the Respondent no.5 in First Appeal no. 101/2000. The said witness has deposed that he had purchased two plots namely plot B and C of the property known as 'Zambucatem” situated at Chinchinim, by two separate Sale Deeds dated 13.08.1985. By the said Sale Deeds, the plots were purchased at the rate of Rs.175/- per square metre. On perusal of the Sale Deed at exhibit Aw.1/E, I find that the said Gilman Coutinho was one of the vendor to the said Sale Deed. He has further stated that subsequently part of this plot B admeasuring an area of 165 square metres was acquired by the Government for the purpose of widening the National Highway and that thereafter he had sold the remaining part of the land at the rate of Rs.250/- per square metre by Sale Deed dated 28.09.1990. The said Sale Deed dated 28.09.1990 is at exhibit Aw.1/C. The plan attached to the said Sale Deed shows that part of the said plot was also acquired for the road widening which is the subject matter of the acquisition in the present case. On perusal of the said Judgment, I find that the subject matter of the acquisition in First Appeal no.101/2000 is the property surveyed under no. 421/2 and the subject matter of the said Sale Deed is surveyed under no. 421/2-A, which appears to be the same property. On going through the evidence adduced by the Applicants, I find that there is no appreciable evidence on record to show the comparability of the land acquired which is surveyed under no. 423/1 and 423/12 vis a vis the land which was subject matter of the land in First Appeal no.101/2000. The learned Counsel appearing for the Respondents was justified to contend that -9- there is no evidence to substantiate the contention of the learned Counsel for the Applicants to the effect that both the lands are comparable. The Applicants will have to adduce evidence to establish the comparability between both the said lands. The Apex Court in the Judgment reported in 2009 (9) S.C.C. 289 in the case of Attar Singh v. Union of India, has held at para 7, 8 & 10 thus : “7. It is now a well-settled principle of law that determination of the market value of the land acquired indisputably would depend upon a large number of factors including the nature and quality thereof. The norms which are required to be applied for determination of the market value of the agricultural land and homestead land are different. In given cases location of land and in particular, closeness thereof from any road or highway would play an important role for determination of the market value wherefor belting system may in appropriate cases may be resorted to. The position of the land, particularly in rainy season, existence of any building, etc. also plays an important role. A host of other factors including development in and around the acquired land and/or the potentiality of development will also have a bearing on determination of the fair market value of the land. 8. Determination of the market value of the land may also depend upon the facts and circumstances of each case, amongst them would be the amount of consideration mentioned in a deed of sale executed in respect of similarly situated land near about the date of issuance of notification in terms of Section -10- 4(1) of the Act; in the absence of any such exemplars, the market value can be determined on yield basis or in case of an orchard on the basis of number of fruit-bearing trees. 9. ... 10. This Court in Union of India v. Pramod Gupta on the question of determination of market value opined: (SCC p. 21, paras 24-26) “24. While determining the amount of compensation payable in respect of the lands acquired by the State, the market value therefor indisputably has to be ascertained. There exist different modes therefor. 25. The best method, as is well known, would be the amount which a willing purchaser would pay to the owner of the land. In absence of any direct evidence, the court, however, may take recourse to various other known methods. Evidences admissible therefor inter alia would be judgments and awards passed in respect of acquisitions of lands made in the same village and/or neighbouring villages. Such a judgment and award, in the absence of any other evidence like the deed of sale, report of the expert and other relevant evidence would have only evidentiary value. 26. Therefore, the contention that as the Union of India was a party to the said awards would not by itself be a ground to invoke the principles of res judicata and/or estoppel. Despite such awards it may be open to the Union of India to question the entitlement of the respondent claimants to the amount of compensation and/or the statutory limitations in respect thereof. It would also be open to it to raise other contentions relying on or on the basis of other materials brought on record. It was -11- also open to the appellant to contend that the lands under acquisition are not similar to the lands in respect whereof judgments have been delivered. The area of the land, the nature thereof, advantages and disadvantages occurring therein amongst others would be relevant factors for determining the actual market value of the property although such judgments/awards, if duly brought on record, as stated hereinbefore, would be admissible in evidence.” 9. In such circumstances, I find that in the interest of justice, the Applicants should be permitted to lead further evidence in support of their said contention that the land acquired is comparable with the land which was subject matter of First Appeal no.101/2000 in the light of what has been stated hereinabove. For that purpose, the matter will have to be remanded for deciding the reference filed by the Applicants afresh after giving an opportunity to both the parties to lead evidence on that count. The first point for determination is answered accordingly. 9. With regard to the second point for determination, I find that the Reference Court has rejected the report of the expert only on the ground that he had visited the acquired land after the structure had been demolished. The documents which have been produced by the Applicants in the above application suggest that the possession of the acquired land was taken only after 10.01.1985. This document would be relevant for the purpose of considering whether the expert report can be considered by the Reference Court for the purpose of determining the value of the structure which was -12- existing in the acquired portion of land. No doubt, the Respondents will be entitled to rebut any such evidence adduced by the Applicants. Considering that the matter is being remanded for fresh adjudication as far as market value is concerned, I find that Respondents will be entitled to lead evidence in support of their contention that the amount offered by the Land Acquisition Officer whilst passing the Award under Section 11 of the said Act is just and proper. The second point for determination is answered accordingly. 10. In view of the above, I pass the following : ORDER (i) Both the Appeals are partly allowed. (ii) The impugned Judgment and Award passed by the Reference Court dated 13.10.2003, is quashed and set aside. (iii) The application under Order 41 Rule 27 of C.P.C. is allowed. The applicants are permitted to examine the witnesses to produce additional evidence as prayed for in the said application. (iv)The Reference Court is directed to decide issue nos. 1 and 3 afresh after giving both the parties an opportunity to lead evidence in the light of the observations made herein above, in accordance with law. (v) The parties are directed to appear before the Reference -13- Court on 12.10.2010 at 10.00 a.m. and abide by further directions of the Reference Court. (vi)The Appeals stand disposed of accordingly with no orders as to costs. F. M. REIS, J. arp/*