1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.71 OF 2004 1. Shri Cholu D. Rosar, 2. Smt. Gangu C. Rosar, 3. Smt. Abolem M. Rosar, 4. Shri Vitu Rosar, 5. Smt. Shevtu V. Rosar, 6. Shri Mahadeo Rosar, All r/o Molar, Ella, Old Goa, Tiswadi Goa. … Appellants V/s Special Land Acquisition Officer, North Goa District ( K.R.C.), Panaji Goa. … Respondent Mr. P.A. Kholkar, Advocate for the Appellants. Mr. E. Afonso, Advocate for the Respondent. CORAM : S.A. BOBDE & F.M. REIS, JJ. Reserved on : 16th JUNE, 2011 Pronounced on :12th August,2011 JUDGMENT : (Per F.M. REIS, J.) The above appeal challenges the judgment and award dated 18/12/2003, passed by the learned Additional District Judge at Panaji in Land Acquisition Case No.244/1996. 2. Pursuant to a notification under Section 4 of the Land 2 Acquisition Act, 1894, herein after referred to as “the said Act”, dated 13/06/1991, Government acquired an area of 19564 square metres from the property under survey no.110 (part) situated at Ella village of Tiswadi Taluka for the construction of a new BG line between Roha and Mangalore in the village of Ella and Carambolim. By an award under Section 11 of the said Act dated 3/01/1994, the Land Acquisition Officer offered a compensation for the land acquired at the rate of Rs.30/- per square metre. Being dissatisfied with the said amount, the appellants preferred a reference under Section 18 of the said Act for enhancement of compensation and claimed a sum of Rs.400/- per square metre for the land acquired. By the judgment and award dated 18/12/2003, the learned Reference Court rejected the reference filed by the appellants. 3. Shri P.A. Kholkar, the learned Counsel appearing for the appellants has assailed the impugned judgment and pointed out that the appellants have produced the sale instances in respect of the lands situated in the vicinity of the acquired land which clearly disclose that the price offered by the Land Acquisition Officer is inadequate. The learned Counsel further submitted that the 3 Reference Court was not justified to come to the conclusion that the Sale Instances produced by the appellants are not comparable. The learned Counsel further submitted that the Reference Court erroneously rejected the report of the valuer produced by the appellants. The learned Counsel further submitted that this Court has passed awards in respect of lands situated in the vicinity of the acquired land wherein the compensation has been fixed at a much higher rate than the one offered by the Land Acquisition Officer with regard to the acquisition much prior to the acquisition in the present case. The learned Counsel further submitted that merely because part of the land is agricultural land by itself does not disentitle the appellants for seeking enhancement of compensation considering the potentiality of the land acquired. The learned Counsel further submitted that the land acquired in the present case and the land which is subject matter of the First Appeal No.23/2004 is in respect of the same notification and, as such, the appellants desire to produce the same judgments and awards based on which this Court has disposed the said appeal and remanded the matter to be decided afresh after giving an opportunity to the appellants to lead further evidence. The learned Counsel further submitted that similar orders be passed in the above appeal. 4 4. On the other hand, Shri E. Afonso, the learned Counsel appearing for the respondent has supported the impugned judgment. The learned Counsel further submitted that the Sale Deed at Exhibit 26 is a post notification Sale Instance and cannot form the basis for the purpose of fixing the market value of the acquired land. The learned Counsel further submitted that the appellants have not brought any cogent evidence on record to establish that the price offered by the Land Acquisition Officer is inadequate. The learned Counsel further submitted that there is no infirmity in the impugned judgment and the appeal deserves to be rejected. With regard to the contention of the appellants to the effect that they want to produce some additional evidence in the nature of the judgments and awards passed by this Court the learned Counsel has submitted that merely producing the said documents would not advance the case of the appellants for enhancement of compensation, considering the fact that the comparability of the land acquired has not been established by the appellants. The learned Counsel further submitted that in case the matter is remanded, liberty should be given to the appellants to lead further evidence to determine the market value of the acquired land. 5 5. Having heard the learned Counsel and on perusal of the record, the following point for determination arises in the present appeal: POINT FOR DETERMINATION : Whether the Reference Court was justified to reject the reference filed by the appellants. 6. We have duly considered the rival contentions of the learned Counsel and have also perused the records. The Reference Court was justified to reject the Sale Instance at Exhibit 26 for the purpose of fixing the market value of the acquired land. Admittedly, the said Sale Deed is a post notification which was executed after four years from the date of Section 4 notification. As such, the Reference Court was justified to discard the said sale instance for the purpose of fixing the market value of the land acquired. 7. The above appeal was heard along with First Appeal No.23/2004 in view of an order passed by this Court dated 12/04/2004. The parties agree that the land involved in both the appeals were sought to be acquired pursuant to the same 6 notification. Considering the contention of Shri Kholkar to the effect that the appellants desire to produce the judgments/awards passed by this Court determining the market value of the land in other land acquisition proceedings, which according to him are comparable to the land acquired, we find that on the basis of the evidence on record there is nothing to suggest the comparability of the land acquired herein with the land which was subject matter of the said judgments referred to by this Court whilst disposing of First Appeal No.23/2004. The matter therein has been remanded to the Reference Court for fresh decision of the reference after permitting the appellants to produce the judgments and awards passed by this Court and adduce evidence to establish the comparability, if any. No doubt the respondents will be at liberty to lead evidence in rebuttal to dispute any such evidence adduced by the appellants. For the reasons stated in the said judgment passed today there is no reasons not to pass similar orders in the present proceedings. The point for determination is answered accordingly. 8. In view of the above, we pass the following order: 7 O R D E R (i) The appeal is partly allowed. (ii) The impugned judgment and award dated 18/12/2003 is quashed and set aside. (iii) The Land Acquisition Case No.244/1996 is restored to the file of the Reference Court. (iv) The Reference Court is directed to decide the said reference afresh after allowing both the parties to lead further evidence in the light of the observations made above in accordance with law. All contentions of the parties are left open. (v) The appeal stands disposed of accordingly with no order as to costs. (vi) Parties are directed to appear before the Reference Court on 12/09/2011 at 10.00 a.m. S.A. BOBDE, J F.M. REIS, J. NH/-