- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 102 OF 2004 1 Deputy Collector, (L.A.) Margao Goa. 2 The Executive Engineer, Works Division, VI(R-S), PWD, Fatorda, Margao, Goa. ........ Appellants. Versus Shri Antonio Mariano Rodrigues, R/o. H. No. 1372, Majiiwado, Benaulim, Salcete, Goa. ........ Respondent. Mr. Amey Kakodkar, Additional Government Advocate for the Appellants. Mr. Shivan Dessai, Advocate for the Respondent. CORAM:-F. M. REIS, J. DATE:-3 rd SEPTEMBER, 2010. ORAL JUDGMENT The above Appeal challenges the Judgment and Award dated 25th September, 2003, passed by the learned Additional District Judge, South Goa, Margao in Land Acquisition case no. 75/2001. Land of the Respondent was acquired by the Appellants admeasuring an area of 800 square metres from the property surveyed under no. 5/2 - 2 - of village Benaulim for the purpose of construction and black topping of Tambdimati Majilvado main Varca Margao road no.4 and Pequeno Pulwado road in village Panchayat of Salcete Taluka by the notification under section 4 of the Land Acquisition Act( hereinafter referred to as 'the said Act'), dated 25th January, 1991, and published in official Gazette dated 28th February, 1991. 2. By an Award dated 30th November, 1995, the Land Acquisition Officer fixed the compensation at the rate of Rs.8/- per square metre. 3. Being dissatisfied with the said Award, the Respondent preferred a reference for enhancement of the compensation under section 18 of the Act and claimed a compensation to the tune of Rs.300/- per square metre for the land acquired. 4. By Judgment and Award dated 25th September, 2003, the Reference Court has partly allowed the said reference and fixed the compensation for the land acquired at the rate of Rs.65/- per square metre. - 3 - 5. Being aggrieved by the said Judgment and Award, the Appellants have preferred the present appeal. The learned Additional Government Advocate Mr. Amey Kakodkar appearing for the Appellants has assailed the impugned Judgment and submitted that there is no evidence on record of the Reference Court to come to the conclusion that the Respondent is entitled for enhancement of compensation . He further pointed out that the sale deed relied upon by the Reference Court of the developed plot is not at all comparable with the land acquired. Learned Counsel further pointed out that the sale deed land is 1 kilometre from the acquired land which cannot form the basis for determining the market value of the land acquired. Learned Counsel further submitted that the land of the Respondent was not developed land and as such the deduction on account of development ought to have been 75%. The learned Counsel further submitted that the Reference Court has totally erred in making deductions on reducing balance. Learned Counsel further submitted that the Respondent has failed to establish by any cogent evidence that the amount offered by the Land Acquisition Officer was inadequate and as such the reference ought to have been rejected. 6. On the other hand the learned Advocate Mr. Shivan - 4 - Dessai appearing for the Respondent has supported the impugned judgment. He further submitted that the sale deed produced by the Respondent at exhibits 14 and 15 are developed plots which are located in the vicinity of the acquired land. He further pointed out that the Reference Court has made the requisite deduction at the rate of 40% on account of dissimilarity and further 25% on account of disadvantage that the acquired land was not adjoining the main road. He further pointed out that in fact the deductions which has been effected are exorbitant considering the nature of the land acquired and the sale deed plot and as such no interference is called for in the impugned Judgment. 7. Having heard the learned Counsel for the Appellants and the Respondent and on perusal of the records, the following point for determination arise in the present appeal:- POINT FOR DETERMINATION Whether the Reference Court was justified to fix the market value of the land acquired at the rate of Rs.65/- per square metre? 8. AW1 Mr. Domnic Cruz Rodrigues, in his deposition has deposed that the acquired land is part of the property where the - 5 - ancestral house of the Respondent is located. He has further stated that the land acquired is part of property surveyed under no. 5/2 which is garden land. He further stated that the acquired land is a levelled land and is close to the main road proceeding from Margao to Varca. He has further stated in his affidavit that the said property was accessible by a kaccha road. In support of his claim he has produced a sale deed dated 20th October, 1989 in respect of the transaction of the land which is located at a distance of 100 metres from the acquired land. He has further stated that both the lands are similar and price was Rs.140/- per square metre. The said sale deed is at Exh. 14. He has also produced another sale deed dated 5th July, 1989 which is at Exh. 15, which is also in respect of the same land and the price was fixed at Rs.140/- per square metre by the same vendors. In the cross examination he has stated that his ancestral house is situated in the un-acquired part of the acquired land. He has further admitted that both the sale deeds plots produced by him are developed plots and that the adjoining properties are not sub-divided and developed. The next witness examined by the Respondent is Mr. Orlando Joao Mesquita, who is a vendor to the sale deed dated 5th July, 1989 as well as to the sale deed dated 20th October, 1989. He has confirmed the contents of the said sale deeds and has sated that the sale deed plot is at a distance - 6 - of 50 metres from the acquired land. He has further stated that there are many houses situated in the vicinity of the acquired land. In the cross examination he has stated that he does not recollect the price at which the sale deeds plots were purchased. The next witness examined by the Respondent is Mr. Udai Dharma Sawant, who is a purchaser of the sale deed dated 5th July, 1989 and confirmed the contents of the said sale deed and further stated that the distance from the property of the Respondent to the sale deed plot is 50 metres. In the cross examination he has stated that the distance between the acquired land and the sale deed plot is 50 to 75 metres. He has further stated that his property is towards the left side of the acquired land. 9. On perusal of the sale deed at Exh. 14, I find that the subject matter of the said sale deed plot no. 17 is bounded towards east by 3 metres access road, west by plot no.18, North by the property of heirs of Fr. Alfredo De Silva, and towards south by 10 metres access road. The other plot no.18 is also bounded on the south by a 10metres access road. The recitals of the sale deed also suggest that the land was converted by a sanad dated 2.12.1988 and that the sub division was also approved by Southern Development Planning Authority by order dated 5th May, 1989. The records further - 7 - suggest that the sale deed plot which is at exhibit 14 is located in the vicinity of the acquired land which are stated to be at a distance of 50 to 75 metres from the acquired land. The sale deed dated 5th July, 1989 also indicate that the sub division was already approved by the Statutory Authority. The said sale instance at exhibit 14 can form the basis to determine the compensation of the acquired land. The said sale instance is dated October, 1989 and the present acquisition is in January, 1991. Giving an escalation of 10% for the first year, the amount works out to Rs. 154/- per square metre. There is no dispute that the land acquired was not a developed land and for the purpose of development substantial deduction would have to be effected. The Apex Court in the Judgment reported in 2010(1) SCC 444 in the case of Subh Ram v. State of Haryana has held at paras 12, 13, 14 and 15 as under:- 12. In a standard layout with plots measuring say 2500 sq ft (50' x 50') each, to provide road access to each plot, it will be necessary to provide a road after every two rows of plots. If the depth of each plot is 50', and if the road width is 25 ft, then for every two strips of plots, there will have to be a strip of road of 25 ft. This means a minimum of 25% of the total land area will be utilised for roads. A typical layout will also have cross-roads, and areas earmarked for park, and/or community - 8 - areas. Consequently non-saleable area (area which cannot be sold as plots) would be around 30% to 40% of the total area. 13. Therefore, in the hypothetical layout method of determination of market value, as a first step, the areas that will be used up for roads, drains, parks/playgrounds and community areas, will have to be excluded from the total extent of the acquired land. The standard deduction in this behalf is one- third (33%). 14. But merely deducting the areas required for roads, drains, parks and community areas, will not convert a large tract of agricultural or undeveloped land into a developed residential layout. For that, considerable financial outlay has to be made. The land will have to be levelled. The land will have to be converted from agricultural use to non- agricultural residential use by paying necessary fees/fine to the Revenue/development authorities. Then the roads will have to be asphalted or concreted. Drains will have to be dug and lined with reinforced cement concrete or stone, for drainage of rainwater. Electricity, water, and sewage lines will have to be laid. Deposits will have to be made to the authorities dealing with electricity, water and sewage removal. The development will also involve the service of surveyors, engineers and developers. All these - 9 - involve considerable expenditure. Further, as there will be a time gap between the expenditure for development and the actual sale of plots, the cost of development will also have an element of interest on investment. The developer who undertakes the development and invests the monies for development would also expect a reasonable profit when the plots are sold. All these expenditure and factors are standardised into another one-third (33%) deduction towards expenses of development. 15. Thus, if the valuation of a large extent of agricultural or undeveloped land is to be based on the sale price of a small developed plot in a private layout, then the standard deductions should be one-third (for roads, etc.) plus one-third (for expenditure of development), in all two-thirds (or 67%), as “development cost” from the value of small plot. The percentage of deduction may however vary between 20% to 75% depending on several circumstances (see Lal Chand v. Union of India3, paras 8 and 9 for illustrations of such circumstances). 10. Considering the said judgment of the Apex Court, and the dissimilarity of the acquired land and the sale deed plots as mentioned by the Reference Court in the impugned judgment, the deduction of a - 10 - total 60% would bejust and proper as the respondents have failed to adduce evidence to enable the Court to ascertain the actual amount to be fixed for the purpose of the development in the evidence of AW2 and AW3 who were parties in the said sale instances. The amount as such is rounded up to 61/- per square metre. I accordingly fix the market value of the acquired land as on date of section 4 notification at the rate of Rs.61/-per square metre. To that extent, the impugned Judgment is to be modified. Point for determination is answered accordingly. 11. In view of the above, I pass the following:- i. The Appeal is partly allowed. ii. The impugned Judgment and Award dated 25th September, 2003 is modified and the market value of the land acquired is fixed at Rs. 61/- per square metre. Remaining part of the Award granting statutory benefits is confirmed. iii. Registrar is directed to compute the amount payable to the Respondent in accordance with above Judgment and disburse the said amount with accrued interest. The excess amount deposited - 11 - shall be refunded to the Appellants with accrued interest there on. iv. The Appeal stands disposed of accordingly with no Order as to costs. F. M. REIS, J. vn*