1 IN THE HIGH COURT OF BOMBAY AT GOA First Appeal No.174 of 2003 Special Land Acquisition Officer, (SIP), I.D. Complex, Gogol, Margao, Goa. .... Appellants V e r s u s V.M. Salgaonkar and brothers Ltd., Salgaonkar house, Francisco L. Gomes Road, Vasco-da-Gama. ..... Respondents. Mr. M. Salkar, Additional Government Advocate for the Appellants. Mr. A.F. Diniz, Advocate for the Respondent. Coram: A. P. Lavande, J. Date: 23rd September, 2010. ORAL JUDGMENT: By this appeal the appellant takes exception to the judgment and award dated 10/2/2003 passed by the learned Additional District Judge, South Goa, Margao, in Land Acquisition Case no.165 of 1994 partly allowing the reference under Section 18 of the Land Acquisition Act 2 (“The Act” for short). 2. Vide notification dated 19/10/1986 issued under Section 4 of the Act which was published in the Official Gazette dated 20/11/1986, the Government of Goa acquired lands of several persons for laying pipeline and service road at Raia and Nuvem of Salcete taluka. An area admeasuring 1550 sq.metres bearing survey no.360 of village Raia belonging to the respondents was part of the acquired land. The Land Acquisition Officer made the award dated 31/5/1989 and fixed the market rate of the acquired land at Rs.10/- per sq.metre. The respondent sought reference under Section 18 of the Act and claimed Rs.50/- per sq.metre. They also claimed damages in the sum of Rs.7135/- on account of loss of 24 cashew trees, Rs.2800/- towards damages of 40 metres rubble wall, Rs. 60,000/- by way of damages sustained for reasons of acquisition injuriously affecting the northern part surveyed 3 under no.360 of village Raia and Rs.2000/- towards severance of a triangular piece of land admeasuring 40 sq.metres on the ground that 40 sq.mtrs of the land was rendered useless. 3. In Land Acquisition Case No.165 of 1994, the respondents (hereinafter referred to as claimants) examined four witnesses namely, M. K. Kavlekar, AW.1, Sakaram Bende, AW.2, an expert, Jerry Fernandes, AW.3 who had executed sale deed dated 16/3/1985 in respect of the plot in Raia and VikasDessai, AW.4 another expert. 4. The appellant did not lead any evidence. The Reference Court fixed the market rate of the acquired land at Rs.35/- per sq.metre and rejected prayer for damages towards loss of trees. The Reference Court granted Rs. 792/- towards the value of part of rubble wall which was demolished; damages of Rs.60,000/- claimed by the 4 respondents were rejected. The Reference Court held that the respondents were entitled to severance charges without quantifying the same. 5. Mr. Salkar, learned Additional Government Advocate appearing for the appellant submitted that the reference court erred in placing reliance upon sale deed Exhibit (AW3/A) in respect of which no evidence was led either about its nature and distance from the acquired land. He further summited that the Reference Court committed an error while coming to the conclusion that the value of the sale deed plot would be Rs.50/- on the date of publication of Section 4 notification was published on 20/11/1986. He therefore submitted that the Reference Court has clearly erred in enhancing the compensation in favour of the respondents without any evidence having been produced by the respondents in support of their claim. 5 6. Per contra, Mr. Diniz learned counsel appearing for the respondents submitted that the Reference Court without any reason discarded sale deed dated 12/11/1986 by which a plot admeasuring 4925 sq.metres was sold by sale deed dated 12/11/1986 for Rs.59,040/- i.e. at Rs.120/- per sq.metre. He further invited my attention to the evidence of Vikas Dessai, AW.4 who deposed that the said plot was at a distance of 1 km from the acquired land and was situated in the same village of Raia. Vikas Dessai further deposed that the sale deed plot was a developed land which was accessible by a kacha road and was about 300 kms from Margao-Ponda road. Mr. Diniz therefore submitted that the Reference Court ought to have considered the said sale deed for the purpose of fixing the market rate of the acquired land and if the said sale deed was considered by the Reference Court then even if deduction of 70% is made from the sale price mentioned in the said sale deed, yet the market rate of the acquired land 6 fixed by the Reference Court cannot be faulted. 7. In rejoinder, Mr. Salkar submitted that the plot sold by sale deed dated 12/11/1986 cannot be compared to the acquired land, since the acquired land was in a hilly portion and undeveloped, although sanad for conversion was granted in respect of the said land. He, therefore, submitted that the Reference Court was justified in not placing reliance upon the said sale deed. 8. I have considered the rival submissions and carefully perused the record. 9. In view of the rival submissions and findings given by the Reference Court, the following point arises for determination in the appeal: Whether the market rate of the acquired land fixed by the Reference court at Rs.35/- per sq.metre is just and 7 proper. If not, what was the market rate of the acquired land in the date of publication of Section 4 notification? 10. As stated above, the claimants examined four witnesses and primarily relied upon two sale deeds i.e. sale deed dated 16/3/1985 (Exhibit AW.3/A) and sale deed dated 12/11/1986 (Exhibit AW.1/A). The Reference Court placed reliance upon sale deed dated 16/3/1985 regarding which there was absolutely no evidence regarding either nature of the land or the distance from the acquired land. Therefore, in my opinion, Mr. Diniz is right in contending that the Reference Court ought to have relied upon the sale deed dated 12/11/1986 which was executed just about a week before the publication of notification and was at a distance of about 1 km. from the acquired land, as deposed by Vikas Dessai, AW.4. It is also pertinent to note that the fact that plot sold by sale deed dated 12/11/1986 was at a distance of about 1 km form the acquired land has not even 8 been challenged by the appellant during the cross examination of Vikas Dessai. It is well settled that for the purpose of fixing the market rate of the acquired land, sale deed which is proximate in point of time and location has to be considered. Applying this principle the Reference Court has clearly erred in not relying upon sale deed dated 12/11/1986. As stated above, the plot sold by sale deed dated 12/11/1986 was a developed plot at a distance of about 1km. from the acquired land and was accessible by a kacha road and situated at a distance of 300 kms. from Ponda-Margao road. There is no dispute that the acquired land was undeveloped although sanad was granted for conversion and it was an internal plot of land and the nature of the land was sloppy. This being the position, the appropriate deduction has to be made for the purpose of fixing the market rate of the acquired land vis-a-vis, the plot sold by sale deed dated 12/11/1986. On account of development, location and nature of the acquired land, 9 even if 70% is deducted from the sale price mentioned in the sale deed dated 12/11/1986, the market rate of the acquired land comes to Rs.36/- per sq.metre. Therefore, the market rate of Rs.35/- per sq.metre fixed by the Reference Court cannot be said to be patently illegal or without any basis, although the reasons given by the Reference Court for fixing the market rate of the acquired land cannot be justified. 11. In view of the above discussion, I am of the considered opinion that the market rate of the acquired land fixed at the rate of Rs.35/- per sq.metre by the Reference Court cannot be faulted, although for different reasons as mentioned above. The Reference Court after holding that the respondents were entitled to compensation towards severance charges without quantifying the amount has answered issue no.5 in the affirmative, since the market rate of the acquire land is fixed at Rs.35/- per 10 sq.metre, the respondents are held entitled to severance charges at the rate of Rs.35/- per sq.metre i.e Rs.1400/- (Rupees One thousand four hundred only). 12. For the reasons aforesaid, I do not find any merit in the present appeal. Therefore, the appeal is dismissed leaving the parties to bear their own costs. A. P. Lavande, J. Ap/-