1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 275 OF 2003 1) Mrs. Leopoldina Pereia e Mendonca, alias Leopoldina Mendonca Pereira, Utorda, Salcete, Goa, (since deceased) represented by her L.Rs: 1(a) Mr. Ivo Pereira Mendonca, son, major in age, 1(b) Mrs. Edith Varela, major in age, both residents at Porvorim, Bardez, Goa, 1(c) Mr. Roline Pereira Mendonca, son, major in age, and his wife 1(d) Mrs. Lira Sa Raimundo, major in age, both residents of Panaji, Goa. 1 (e) Mr. Blasco Enzo Piedade Pereira Mendonca, son, major in age, and his wife 1(f) Mrs. Caitana Pereira Mendonca, major in age, both residents of Utorda, Salcete, Goa; and 1(g) Ms. Maria Eulalia Shantal Pereira Mendonca, daughter, major in age, 2 unmarried, resident of Utorda, Salcete, Goa ….. Appellants V e r s u s 1) The Dy. Collector and S.D.O Mormugao, Vasco da Gama, Goa and 2) The Executive Engineer, Works Division VI (R & B), Public Works Department, Fatorda, Margao, Goa. ….. Respondents Mr. Ryan Menezes, Advocate for the Appellants. Mr. Vivek Rodrigues, Additional Government Advocate for the Respondents. Coram: A. P. Lavande, J. Reserved on: 25/11/2010. Pronounced on : 22 /12/2010 JUDGMENT: By this appeal, the appellants take exception to the judgment and award dated 18/8/2003 passed by the learned Additional District Judge, South Goa, Margao, in 3 Land Acquisition Case No.32 of 1994 rejecting the reference under Section 18 of the Land Acquisition Act, 1894 (“The Act” for short). 2. Vide notification dated 16/1/1988 issued under Section 4 of the Act which was published in the Official Gazette dated 31/3/1988, the Government of Goa acquired lands of several persons for public purpose namely – construction of road from Utorda Railway crossing to MDR in village Utorda. An area admeasuring 246 sq.metres bearing survey no.107/2, an area admeasuring 104 sq,metres bearing survey no.104/1 and an area admeasuring 950 sq.metres bearing survey no.63/7 all of village Utorda belonging to the appellants were parts of the acquired land. However, by notification dated 7/4/1989 issued under Section 6 of the Act, the areas of the plots of the appellants were reduced to 18540 and 475 sq.metres respectively. The appellant claimed Rs.150/- 4 per sq.metre. On 2/7/1991 the Land Acquisition Officer made the award and awarded compensation of Rs.26/- per sq.metre in respect of all the said lands. 3. In Land Acquisition Case no.32 of 1994, the appellants examined Blasco Pereira, AW.1, Nicalina Monteiro, AW.2, Esmie D'Costa, AW.3, and Ernest Moniz, AW.4, an expert. The appellants in support of their claim for higher compensation relied upon sale deed dated 27/10/1989 (Exhibit AW.1/B) by which a plot of land situated at a distance of 200 metres away from the acquired land was sold for Rs.140/- per sq.metre. The respondents also relied upon agreement of sale dated 28/4/1988 (Exhibit AW1/C) in respect of the sale deed. The respondents also relied upon sale deed dated 5/2/1989 (Exhibit AW1/E) between Aida Menezes Braganza and M/ s. Hospitality Resorts by which the property was sold at the rate of Rs.147.63 per sq.metre. They also relied upon 5 sale deed dated 1/12/1988 (Exhibit AW.1/F) between Rui D'Costa and Esmie D'Costa and Jose Alex Fernandes, by which the property was sold at the rate of Rs.150/- per sq.metre. They also relied upon sale deed dated 1/6/1987 between Lourdes Pereira and Nicolina Monteiro by which plot of land was sold at the rate of Rs.78/- per sq.metre. Another sale deed dated 27/10/1989 (Exhibit AW.4/B) between Maria Leopoldina Pereira Mendonsa and others and M/s. Hospitality Resorts by which an area admeasuring 22,300 metres for Rs.31,32,000/- was also relied upon. 4. The respondents herein examined one witness Mohan S. Karki, Technical Assistant and relied upon sale dated 3/10/1987 between Walfrido Antao and Mohammed Salim Pasha by which property admeasuring 76,675/- sq.meters of land was sold for Rs.20,00,000/-. 6 5. The Reference Court upon appreciation of the evidence led by the parties held that since the property of the appellants was not accessible by road and was accessible by traditional pathway which was passing through the property of the appellants and since the road has been constructed at the same place where the traditional access was passing, the said properties did not have any building potential or could not be put to any other use, the appellants were not entitled to any higher compensation. Consequently, the Reference Court rejected the reference. 6. Mr. Menezes, learned counsel appearing for the appellants submitted that the Reference Court has clearly erred in rejecting the reference on the ground that traditional access was passing through the property. He further submitted that some deduction could have been made by the Reference Court since the traditional access 7 was passing through the acquired land but the reference could not have been rejected in toto. In support of his submissions, Mr. Menezes relied upon an unreported judgment dated 27/9/2010 delivered by the learned Single Judge of this Court in First Appeal no.170 of 2003 (Fabrica of the Church of Benualim Vs. Deputy Collector and another). He further submitted that the Reference Court ought to have relied upon sale deed dated 1/6/1987 (Exhibit AW1/G) which was prior to publication of Section 4 notification and was in respect of a plot similar to the acquired land. He further submitted that the respondents have not seriously disputed that the acquired land was similar to the land in sale deed plot (Exhibit AW1/G). Mr. Menezes submitted that since the said sale deed was proximate in point of time and location, the same ought to have been relied upon by the Reference Court and the Reference Court ought to have allowed the reference by awarding higher compensation as claimed by the 8 appellants. 7. Per contra, Mr. Rodrigues, learned Additional Government Advocate appearing for the respondents submitted that the Reference Court has rightly not placed reliance upon the sale deeds relied upon by the appellants. In the alternative, he further submitted that the respondents have examined one witness Mohan S. Karki, who has placed reliance upon the sale deed dated 30/10/1987 which was proximate in point of time and considering the location also, the same could be relied upon for the purpose of fixing the market rate of the acquired land. He further submitted that since the sale deed is in respect of 76,675 sq.metres and the acquired lands are comparatively smaller in size, appropriate addition may be considered. 8. I have carefully considered the rival 9 submissions and perused the record and the judgment relied upon by Mr. Menezes. 9. In view of the rival submissions, the following points arise for determination in the appeal: I) Whether the Reference Court was justified in rejecting the reference on the ground stated in the impugned order? II) Whether the appellants are entitled to compensation at the rate of Rs.150/- per sq.metre in respect of the acquired land? 10. The Reference Court has refused to place reliance upon any of the sale deeds relied upon by the appellants and the respondents on the ground that the property acquired was not accessible by road and it was accessible by traditional access and the said access was passing through the acquired land. 10 11. Mr. Menezes is right in placing reliance upon judgment of this Court in the case of Fabrica of the church of Benaulim (supra) in First Appeal No.170 of 2003. This Court has held that merely because the traditionalaccess is passing through the acquired land, the same would not be a ground to hold that the acquired land had no building potential. This Court has held that appropriate deduction has to be made for the fact that the traditional access was passing through the acquired land. In the said case, this Court deducted 20%. Therefore, the approach of the Reference Court in rejecting the reference on the ground that the traditional access was passing through the acquired land is unsustainable in law. 12. The next question which arises for consideration is which sale deed out of the sale deeds relied upon by the appellants and the sale deed relied upon by the respondents can be relied upon for the purpose of 11 fixing the market rate of the acquired lands. In so far as sale deeds dated 27/10/1989 (Exhibit AW1/B), sale deed dated 5/2/1989 (Exhibit AW1/E), sale deed dated 1/12/1988 (Exhibit AW1/F) are concerned, the same are post-notification sale deeds, whereas sale deed dated 1/6/1987 (Exhibit AW1/G) relied upon by the appellants and sale deed dated 30/10/1987 (Exhibit 25) relied by the respondents are concerned they are pre-notification sale deeds. In so far as sale deed dated 30/10/1987 is concerned, the same is in respect of an area of 76675 sq.mtrs which was sold for Rs.20,00,000/-. Since the area sold by the said sale deed is quite large as compared to the acquired lands, I am of the considered opinion that it would not be appropriate to rely upon the said sale deed. 13. By sale deed dated 1/6/1987, a plot of land admeasuring 250 sq.mtrs was sold at the rate of Rs.78/- per sq.metre. According to Mr. Blasco Pereira, Aw.1 the 12 said plot was situated at a distance of about 250 sq.mtrs from the acquired land and the nature of the said sale deed land was similar to that of the acquired land. The said plot was not a developed plot and was not accessible by motorable road. In the cross examination, except the fact that there were few trees in the said plot and that the said plot was purchased for construction of a hotel, nothing tangible has been brought on record to discredit the version of Blasco Pereira. This being the position, I am of the considered opinion that the said sale deed can be taken into consideration for the purpose of fixing the market rate of the acquired land. In the present case, the notification under Section 4 of the Act was published on 31/3/1988 and the sale deed in Exhibit Aw1/G was executed on 1/6/1987, i.e after a period of almost ten months. Considering the yearly increase of 10%, the market rate of the sale deed plot in Exhibit Aw1/G as on the date of publication of Section 4 notification works out to Rs.84/- per sq.metre. 13 The sale deed plot did not have the disadvantage of an access passing through it, whereas the acquired land had the disadvantage of a traditional access passing through it. This being the position, I am of the considered opinion that it would be appropriate to deduct 20%. Thus, the market rate of the acquired land as on the date of publication of Section 4 notification works out to Rs.67.20/- per sq.metre which is rounded up to Rs.67/- per sq.metre. Therefore, the appellants would be entitled to compensation in respect of the acquired lands at the rate of Rs.67/- per sq.metre. 14. In view of the above discussion, the appeal is partly allowed. The market rate of the acquired lands is fixed at Rs.67/- per sq.metre. Needless to mention that the appellants are also entitled to all the statutory benefits under the Act. 15. The appeal stands disposed of in the aforesaid 14 terms with no order as to costs. A. P. Lavande, J. Ap/-