1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 82/2001 WITH STAMP NO.1887/2001 (CROSS OBJECTIONS) FIRST APPEAL NO. 82/2001 1. State of Goa, through the Land Acquisition Officer, Panaji, Goa. 2. Goa Housing Board. 3. The Conservator of Forests, Forest Department, Government of Goa, Panaji, Goa. ......... Appellants. Versus Communidade of Morombi-o-Piqueno, represented by Antonio D'Oliveira, Attorney of applicant, Merces, Goa. .......... Respondents. Mr. Guru Shirodkar, Addl. Government Advocate for the appellants. Mr. Ajit R. Kantak, Advocate for the respondent. STAMP NO.1887/2001 (CROSS OBJECTIONS) Communidade of Morombi-o-Piqueno, represented by Antonio D'Oliveira, Attorney of applicant, Merces, Goa. .......... Appellants. 2 Versus 1. State of Goa, through the Land Acquisition Officer, Panaji, Goa. 2. Goa Housing Board. 3. The Conservator of Forests, Forest Department, Government of Goa, Panaji, Goa .......... Respondents. Mr. Ajit R. Kantak, Advocate for the appellant. Mr. Guru Shirodkar, Addl. Government Advocate for the CORAM : S.C. DHARMADHIKARI & R.C. CHAVAN, JJ. Date : 5th August, 2008. ORAL JUDGMENT : (Per S.C. DHARMADHIKARI, J.) The State appeal is directed against the Award of the Reference Court in Land Acquisition Case No.8/1980 delivered on 29.1.2000. 2. The Reference was under Section 18 of the Land Acquisition Act, 1894 ( for short “LA Act”). The Respondents/original applicants are the owners of the land under acquisition. The State Government acquired 4269 sq. metres of land belonging to the respondents/applicants by virtue of a 3 Notification published under Section 4 of the LA Act in the Government Gazette on 20.8.1977. The public purpose was construction of commercial cum office premises of the Goa Housing Board. Out of the said area, an area of 4249 sq. metres is classified as cultivable waste land, 4 sq metres is classified as nallah and balance 16 sq. metres is classified as salt pan. The Land Acquisition Officer (LAO) awarded Rs.25/- per sq. metre for the cultivable waste land, Rs.20/- per sq. metre to salt pan land and no compensation for 4 sq. metres of nallah. The respondents in the Reference claimed Rs.200/- per sq. metre as flat rate of compensation. 3. The Reference proceeded and, it appears that initially the reference Court made an Award dated 29.6.1991. It awarded to the respondents /applicants a market rate of Rs.100/- per sq. metre for the area of the salt pan admeasuring 16 sq. metres and Rs.125/- per sq. metre for the paddy land/cultivable waste land and Rs.50/- per sq. metre for the nallah. 4. The State and others preferred an appeal, being First Appeal No. 88/91 against the said Award and by Judgment and Order dated 15.1.1998, this Court while setting aside the said Judgment and Award, remanded the case to the Reference Court for disposal. This Court granted liberty/ opportunity to the parties to adduce fresh evidence and the Reference Court 4 was directed to render its decision based upon the same. 5. After remand, the Reference proceeded. Respondent No.3 was added as party to the Reference. Both parties led evidence supplementary to the one already on record. Although there is some reference made by the learned Judge to these facts, it is not necessary to refer to the same. 6. The respondents/applicants examined their attorney and produced the Award of the Reference Court dated 13.2.1985 in LAC No. 19/80. Further, the respondents/applicants examined one Rue Ribeiro Santana, Architect and Valuer who produced his report at Exhibit AW.2/A and witness Ralim D'Souza, an Architect who prepared plans for development of the land, was also examined. The respondents herein i.e. the Acquiring Body and the State examined the Executive Engineer, the Assistant Conservator of Forests, one Range Forest Officer and the Executive Engineer of the Goa Housing Board as witnesses. 7. Oral arguments were canvassed by both sides and by the impugned Award rendered on remand, the Reference Court has directed that the claimants would be entitled to compensation on the basis that the salt pan land has a market value of Rs.100/- per sq. metre; the cultivable waste 5 land/paddy land has a market value of Rs.110/- per sq. metres and for the nallah Rs.50/- per sq. metre was determined as market value. The claimants were entitled to these sums and that is how the Reference was allowed in part. The compensation awarded by the LAO came to be enhanced in the aforesaid terms. The claimants were entitled to all other statutory benefits as well. It is this Judgment and Award of the Reference Court which is impugned in the First Appeal. Whereas, the original claimants are dissatisfied with that part of the Award which does not grant compensation at the rate of Rs.200/- per sq. metre in respect of the cultivable waste land. During the course of arguments, Mr. Kantak, learned Counsel appearing on behalf of the original applicant, however, restricted the claim to Rs.125/- per sq. metre in respect of the paddy land/cultivable waste land. 8. Mr. Shirodkar, learned Addl. Govt. Advocate appearing on behalf of the State in the first appeal contended before us that the instance land with regard to which the award was pronounced on 13.2.1985 in LAC No.19/80 belongs to the claimants themselves. That was acquired under Notification dated 12.7.1977. The purpose, more or less, is identical. There, the market value is determined at Rs.100/- per sq. metre. The instance land pertaining to which an Award was rendered, and which was relied upon in the instant Reference, has not been challenged by both sides. In other words, 6 the earlier Award dated 13.2.85 in LAC No.19/80 has gained finality. There is no challenge to the same. The parties have relied upon this Award as a piece of evidence. In such circumstances, the Reference Court, in the impugned Judgment and Order, has enhanced the amount to Rs.110/- per sq. metre in respect of the cultivable waste land. It has also gone ahead and awarded compensation in respect of the portions which have not been taken into consideration while awarding compensation. In such circumstances, the Award of the Court below which is impugned in the first appeal, cannot be justified. 9. That apart, the Reference Court has not believed the version of the witnesses examined by the original claimants. It is has also not given reasons for departure from the conclusions in the earlier Award. On the other hand, the land under acquisition has no development potential. In such circumstances, the instance which was placed before the Court below should not have been relied upon for enhancing the rate. In other words, the earlier award determines the market value of Rs.100/- per sq. metre. Therefore, alternatively and without prejudice, if the Reference Court was inclined to place reliance on the said instance, it should have awarded the same rate and there was no reason for enhancing it, more so, when in the earlier award there was reference to a sale deed. That sale deed was not produced by the 7 original claimants when the Reference was being argued and decided. Yet, another opportunity was granted by this Court by remanding the reference. Even after remand, that sale deed has not been produced. In such circumstances, no departure was called for and the reference Court erred in enhancing the sum of compensation. For all these reasons, the first appeal filed by the State Government should be allowed and the compensation scaled down to the extent indicated in the Award dated 13.2.1985. 10. On the other hand, Mr. Kantak, learned Counsel appearing for the original claimants submits that the Reference Court has erred in not relying upon the instance which was placed before it, in toto. He has taken us through the Award of the LAO in the instant case and has contended that the same LAO considered the claim for compensation in both the cases. In the earlier Notification of 12.7.1977 when the lands were acquired, the same Land Acquisition Officer in the case which is determined under the impugned reference has worked as the LAO and he was the best person to know the features of both the lands. In the Award itself he has stated that the land has development potential. He has referred to developments in and around the land under acquisition. He has extensively referred to the network of roads. In such circumstances, by no stretch of imagination can the land under acquisition or atleast the cultivable waste part of it, be said to be marshy and 8 not having development potential. Shri Kantak contended that the Reference Court, on remand, has completely reversed its earlier view of the matter. When the earlier version was placed before him, so also the evidence on remand, the learned Judge chose to rely upon the earlier version that the land has not been brought under cultivation for last 30 years. This is the only statement which has been culled out from the evidence on record and the Reference Court has granted the rate of Rs.110/- per sq. metre. When it has enhanced the compensation on the basis that the development potential has increased, then, there was no warrant for restricting the rate to Rs.110/-, but it should have been enhanced to Rs.125/- per sq. metre. Mr. Kantak has taken us through the depositions of witnesses and more particularly, that of Architect Ralim D'Souza. He was the Architect according to Shri Kantak to prepare development plans of the land under acquisition. There was a hotel complex proposed and the plans were, according to Shri Kantak, approved by the Town Planning Department. In such circumstances, and when the plans were undisputed even by the witnesses examined by the State and the Housing Board, then, the Reference Court, on remand, should not have restricted claim and enhanced compensation to Rs.110/- per sq. metre. On this count alone, the claimants have challenged the impugned Award and prayed that the cross objections be allowed accordingly. 9 11. Mr. Kantak, on instructions, makes a statement that the claimants are satisfied with the compensation awarded in respect of the salt pan and the nallah. 12. With the able assistance of the learned Counsel appearing for the parties, we have perused the impugned Award. We have also perused the Award dated 13.2.85, rendered in LAC No.19/80 which was exhibited as a piece of evidence. We have also gone through the depositions of some of the witnesses. The undisputed position is that the Reference was earlier decided and the claim for enhanced compensation was not granted in full. The claimants were awarded compensation by the Reference Court at the rate of Rs.100/- per sq. metre for salt pan admeasuring 16 sq. metres; compensation of Rs.125/- per sq. metre for paddy land and Rs. 50 per sq. metre for nallah. Thus, the enhancement claimed at the rate of Rs.200/- per sq. metre by the original claimants was not awarded on earlier occasion as well. The State and Acquiring Body, being aggrieved by this Judgment and Award, preferred an appeal to this Court and by this Court's Order dated 15.1.98, the earlier Judgment and Order was set aside and this very reference was restored to the file of the Court below for adjudication afresh. Thus, the Claimants consented to remand. Now, they cannot rely upon their version recorded prior to remand, nor can they rely upon the earlier Award which is set aside. 10 12. After afresh adjudication was undertaken, all that has come on record is the Award in LAC No.19/80. The learned District Judge in paragraph 13 of the Judgment and Order has observed that the claimants heavily relied upon this instance/Award for claiming enhancement in compensation. The learned Judge in paragraph 12 earlier has referred to the evidence of Rui Ribeiro Santana and concluded that the version cannot be accepted. The reasons assigned are that the said Santana had taken into consideration other documents, including awards and sale deeds in his report. However, Shri Santana has placed reliance upon two sale deeds, one dated 16.4.66 by which one Neogi had sold a plot of land at the rate of Rs.50/- per sq. metre and another sale deed dated 31.3.1973 by which one Rajendra Deshprabhu had sold another plot of land at the rate of Rs.225/- per sq. metre. Both these sale deeds have not been proved by the original claimants. They had an opportunity and could have very well proved the sale deeds. However, they chose only to rely upon the Award in the earlier land acquisition case. The earlier land acquisition case arose out of an acquisition of the claimants' land. The features of the lands covered by the said Reference and the Award are considered by the Reference Court in paragraph 14 of the impugned Judgment and Award. The learned Judge has referred to these features. However, when the sale deeds which were relied upon in the 11 earlier reference were not exhibited and proved, the Court below was right in considering the claim laid by the respondents for enhanced compensation on the basis of this award itself. The learned Judge, therefore, has assigned cogent and satisfactory reasons while determining the claim. The learned Judge has referred to the development potential and it is not correct to urge that the same has been ignored. 13. The learned Judge in para 15 of the impugned Award has also considered the very arguments of Shri Kantak which have been raised before us. The reasons assigned by him for not accepting the claim for enhanced compensation in full cannot be said to be such as could be vitiated in law. It is not as if they can be termed as perverse or based on no materials. There is a reference to each of the materials placed before him, including the award dated 13.2.85. The learned Judge has permitted the parties to rely upon further materials and that is evident from a perusal of paragraphs 15 and 16 of the impugned Judgment and Award. The argument before us of the learned Addl. Govt. Advocate that the learned Judge while relying upon the said Award has not given any reasons for enhancing the compensation, is not sound and cannot be accepted. The learned Judge while relying upon the Award, granted compensation by fixing the market value of the land at Rs.110/- per sq. metre. In the said Award which was rendered on 13.2.1985, 12 the Reference Court enhanced the market value from Rs. 20/- to Rs.100/- per sq. metre. In the instant case, the learned Judge has enhanced it to Rs.110/- per sq. metre for the cultivable waste land admeasuring 4249 sq. metres, Rs.50/- per sq. metre for the nallah and Rs.100/- for 16 sq. metres of salt pan area. We do not see any ground to interfere with the same. It is not as if some excessive or exorbitant rate has been determined as market value. Taking into account the features of the land and comparing it with the instance relied upon, so also noting the development potential, the learned Judge enhanced the rate of Rs.110/- per sq. metre for cultivable waste land. It is not something which could be termed or said to be excessive or exorbitant or totally unjustified in the peculiar facts and circumstances. The rate awarded is reasonable and is determined by taking into consideration the materials produced. In these circumstances, we see no reason to set aside the Award of the Reference Court at the instance of the State Government. State appeal is, therefore, dismissed. No other point has been argued by the learned Addl. Govt. Advocate in so far as State appeal is concerned. 14. Coming to the cross objections, the only argument that is canvassed by Shri Kantak is that the LAO himself found substance in the contention of the original claimants based upon potentialities for development. He was aware that the potential is increasing day by day. 13 Therefore, he himself increased the compensation in the subsequent case by 25 % in so far as cultivable waste land is concerned. He was the best person to have considered the factual materials and position at the site. He had visited the site on both the occasions. In such circumstances, and when the Award itself sets out the potential, there was no reason to disbelieve the version of the original claimants even after the remand. 15. We see no substance in this contention either. The original claimants have also accepted the rate under the earlier award as final. They were owners of the land under the earlier award as well. The earlier award considered the potentialities and determined the market rate. It might be that the earlier award pertained to the salt pan area and there was no cultivable waste land or the paddy land involved at that time. That alone is not determinative or a distinguishing feature in this case. Even after two opportunities being granted, the original claimants did not produce the sale deed, but they chose to rely upon certain observations of the LAO. That, by itself, is not enough to claim enhanced compensation at the rate of Rs.200/- per sq. metre before the reference Court or now restrict it to Rs.125/- per sq. metre. It is not as if the original claimants had no opportunity to prove their case. The claimants on both the occasions i.e. prior to remand and subsequently failed to prove their claim at Rs.200/- per sq. metre in respect 14 of the cultivable waste land. However, the evidence led after remand and upon which reliance has been placed is that of an Architect. The Architect has relied upon the fact that he was engaged for designing the project of a hotel block and conference hall. This was his deposition recorded on 20.7.90. After remand, he stepped into the witness box on 21.9.99 and deposed that Ambedkar Park is constructed on the acquired land. He has also deposed on plans of the land under acquisition. He has set out the features with regard to the adjoining roads and buildings. He has also referred to the proposed construction. 16. However, in his cross examination he has been unable to point out as to the exact area acquired by the Housing Board in this case or the exact area acquired by EDC in case No.19/80. Question was posed to him subsequently as to how much area out of 2000 sq. metres was entrusted to him for development and the witness was unable to answer it. He was deposing on the basis of site plan. But he did not remember, in detail, the same. He did not produce the site plan either. He stated that he closes files of more than 10 years or so. He was unable to give dimensions of the land under acquisition. He stated that he was requested to draw the said project in 1972. He does not recollect anything with regard to the project or the plans. He did not give any specifications as to how much of the salt pan is covered 15 by the proposed development and how much area of the paddy field was covered by his plans. He did not know as to whether the plans were approved by the Town Planning Department. Mr. Kantak urged that the plans have been approved. But this is the state of deposition of the Architect who has been engaged by the claimants themselves. In such circumstances, relying upon the depositions of the witnesses examined by the Acquiring Body is not enough to prove the claim for enhanced compensation. The learned Reference Court has rightly disbelieved the versions. The learned Reference Court has assigned cogent reasons for disbelieving Architect Rui Ribeiro Santana. It is apparent that the claimants earlier claimed Rs.200/- per sq. metres and now desire to scale it down to Rs.125/- per sq. metre and that too on the basis of the earlier Award in this very case, which demonstrates that they were unable to prove their case in toto. The reference Court, taking into consideration all facts and circumstances and applying the settled principles, determined the market value at Rs.110/- per sq. metre in respect of the cultivable waste land and we do not see any justification to enhance it to Rs.125/- per sq. metre and that too by relying upon the very materials which have been extensively referred to in the impugned Judgment and Order. 17. In the result, we are not in agreement with Shri Kantak that the claim for enhanced compensation, as made in the cross objection, deserves 16 to be granted. 18. In the result both, the appeal and the cross objection fail. However, in the circumstances, there will be no order as to costs. S.C. DHARMADHIKARI, J. R.C. CHAVAN, J. ssm.