-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 119 OF 2004 1. The Special Land Acquisition Officer, Salaulim Irrigation Project, Gogal – Margao Goa. 2. The Executive Engineer, Works Division XI, Irrigation Department, Gogal, Margao, Goa. …... Appellants V e r s u s 1. Shri Ganesh Gopal Bairali, son of late Gopal Ganesh Bairali. 2. Smt. Ashal Krishna Bairali, R/o. Bairaliwaddo, Nagorcem – Canacona, Goa. ….. Respondents Mr. A. Kakodkar, Additional Government Advocate for the Appellants. Mr. R. G. Ramani, Advocate for the Respondents. CORAM: F. M. REIS, J. DATE : 17 th SEPTEMBER, 2010. ORAL JUDGMENT The above Appellants take exception to the judgment and award dated 1/04/2004 passed by the learned Additional District Judge, South Goa at Margao in Land Acquisition Case No.486/1995. -2- 2. Vide notification no.22/77/92-RD, dated 27/04/1992, issued under Section 4 of the Land Acquisition Act (herein after referred to as ‘the said Act’) published in the Official Gazette dated 1/05/1992 the land belonging to the Respondents was intended to be acquired for the construction of the branch canal of the minor irrigation scheme of Chapoli Dam at Nagorcem- Palolem village Canacona Taluka. The area of the land acquired was 950 square metres in respect of the property surveyed under no.180/2 of the said village. By an award passed under Section 11 of the said Act, dated 9/03/1995, the Land Acquisition Officer awarded compensation at the rate of Rs.4.50 per square metre for the land acquired. Besides the said amount a sum of Rs.5,351/- was paid on account of 20 trees which were existing in the acquired land. Being dissatisfied with the said award, the Respondents filed a reference under Section 18 of the said Act for enhancement of compensation and claimed an amount of Rs.100/- per square metre for the land acquired. By judgment and award dated 1/04/2004, the learned Additional District Judge, South Goa Margao partly allowed the said reference and awarded excess compensation for the land acquired at the rate of Rs.18/- per square metre for an area of 950 square metres. Being aggrieved by the said judgment, the Appellants have preferred the present appeal. 3. The learned Additional Government Advocate appearing for the Appellants has assailed the impugned judgment and submitted that the sale instance produced by the Respondents is not comparable to the land acquired. He further submitted that the land acquired was an agricultural -3- property which had no potential for development and that the sale deed dated 20/03/1991 is not at all comparable with the land acquired. He further submitted that there is no evidence adduced by the Respondents to establish the similarity of the land acquired vis-a-vis the said sale instance. The learned Counsel has taken me through the evidence on record and submitted that there is no material adduced by the Respondents to establish their claim for enhancement in the compensation as offered by the Land Acquisition Officer. He as such submitted that the impugned judgment and award deserves to be quashed and set aside. 4. On the other hand, Shri R. G. Ramani, the learned Counsel appearing for the Respondents has supported the impugned judgment and submitted that the Reference Court has rightly determined the market value of land as on the date of Section 4 notification. He further pointed out that the sale instance produced by the Respondents which is dated 20/03/1991 is comparable to the land acquired. He further submitted that the Reference Court has rightly relied upon the said sale deed to fix the market value of land as determined in the impugned judgment. The learned Counsel has taken me through the notes of evidence and submitted that there is sufficient evidence on record to come to the conclusion that the price offered by the Land Acquisition Officer in the award was inadequate. He further submitted that there is no infirmity in the judgment of the Reference Court and as such no interference is called for in the impugned judgment and award. -4- 5. Having heard the learned Counsel for the Appellants and the Respondents and on perusal of the records, the following point for determination arise in the present appeal. POINT FOR DETERMINATION Whether the Reference Court is justified to award an excess amount of Rs.18/- per square metre for the land acquired? 6. AW1 in his evidence has stated that his property is situated on the right hand side of the highway if one goes from Margao to Karwar and is situated just behind the petrol pump at Gudi . He has further stated that his land was at a distance of 300 metres away from the existing National Highway and that there is a road of 3 metres width to go to his property up to 200 metres from the highway. He has further stated that the land is a paddy field with a small portion which is bharad. He has produced a sale deed which is at Exhibit AW1/A. He has further stated that about 50 metres from the acquired land there is a house of one Mohan Komarpant which is located in a paddy field. There is also a temple near the said house which is also located in a paddy field. He has further stated that he has constructed a bar which is located in the paddy filed and existing for last 13 to 14 years. He has produced a sale deed dated 20/03/1991 which is at Exhibit AW1/B in respect of the property which is at a distance of 150 metres from the acquired land. The acquired land is also stated to be at the same level as the sale deed land. In the cross-examination, he has stated that 700 square metres is paddy field -5- land and the remaining is bharad land. He has further stated that within a distance of 100 metres there is a property where there are 10 to 12 houses. He has further stated that he does not have any documents to establish the yield of the paddy field. 7. The next witness examined is AW2 Dayanand Bhareli who has stated that the Respondent is his brother. He has further stated that he has purchased a plot at a distance of 36 metres from the highway. The said sale deed is at Exhibit AW1/B. He further stated that he purchased the said land at the rate of Rs.50/- per square metre. He has further stated that the approach to the said plot is by a footpath from the main road. In the cross- examination he has stated that the land of the sale instance is closer to the road than the paddy field. The next witness AW3 Leao D’Mello who has produced the sale deed dated 19/01/1987 which is at Exhibit 16. In the cross- examination, he has stated that the said land is bharad land and partly paddy field land which his wife had purchased. He has further stated that the distance from the acquired land is 200 metres. He has further stated that the said land was never cultivated after they had purchased. 8. The Reference Court while passing the impugned judgment after examining the evidence on record has found that the sale deed at Exhibit AW1/B is in respect of a plot of 300 square metres surveyed under no.191/3 and that there is no mention therein that the said plot was a paddy field. The learned Judge has further found that the nature of the land of the said sale -6- deed differs from the nature of the land acquired as the acquired land was a paddy field while the sale deed plot was not a paddy field. The learned Judge has further held that the paddy fields would require expenditure to convert for non-agricultural purposes which was also another question to be considered for determining the market value of land. Another difference considered by the Reference Court is that National Highway-17 is just 36 metres from the sale deed plot. The learned Judge on the basis of the evidence on record has found that sale deed at Exhibit AW1/B is comparable to the land acquired and after effecting the deductions on account of dissimilarities fixed the compensation for the land acquired. The learned Judge has found that the said sale instance could form basis for determining the market value of the Act. After giving an appreciation of 10% per annum, for the period of one year, the Reference Court has fixed the price at Rs.55/- per square metre. Considering the demerits and disadvantages of the acquired land vis-a-vis the sale instance, the learned Judge has deducted 50% and determined the market value of the land acquired at the rate of Rs.27.50 per square metre. The learned Judge for the reasons recorded has rightly discarded the sale instance dated 19/01/1987 at Exhibit 16 as the same was not comparable with the acquired land. The learned Judge after deducting a sum of Rs.4.50 awarded by the Land Acquisition Officer has further deducted a sum of Rs.5/- per square metre towards the value of the trees which have been separately assessed by the Land Acquisition Officer and fixed an amount payable to the Respondents at the rate of Rs.18/- per square metre for an area of 950 square metre of the acquired land. -7- 9. Considering the said disadvantages of the acquired land vis-a-vis the sale deed at Exhibit AW1/B, I find that the Reference Court was justified to effect a deduction of 50% on account of said dissimilarities. There is no infirmity committed by the Reference Court in fixing the market value of land at the rate of Rs.27.50 per square metre and direct the payment of compensation of Rs.18/- per square metre for the land acquired. The amount fixed by the Reference Court is on the basis of well settled principles of law. The sale deed at Exhibit AW1/B can form the basis for determining the market value of the acquired land. The sale deed plot is located in the vicinity of the acquired land. The amount fixed by the Reference Court cannot be stated to be excessive or exorbitant. The point for determination is answered accordingly. 10. There is no merit in the above appeal and as such the appeal stands dismissed with costs. F. M. REIS, J. at*