1 IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 231/2004. 1. Special Land Acquisition Officer (North Goa) Konkan Railway Corporation Limited, Amey Guest House, Davorlim Road, P.O. Navelim, Salcete, Goa, 403 707. 2. The Chief Engineer, Konkan Railway Corporation Ltd., Rawanfond, Near Margao Railway Station, Margao, Goa. … Appellants. V/s 1. Shrirand Devrai Raicar and others, H.No. 83, Palolem, Canacona, Goa. 2. Anant Devari Raikar, H.No. 68, Palolem, Canacona, Goa. (expired by his L.R's) 2(a) Smt. Mohini Anant Raikar, 2(b) Shri Kishore Anand Raikar, 2(c) Shri Sudesh Anand Raikar, 2(d) Shri Laxmikant Anand Raikar, All r/o Palolem, Canacona, Goa. … Respondents. 2 Mr. E. Afonso, Advocate for the Appellants. Mr. P. A. Kamat, Advocate for the respondents. CORAM : F. M. REIS , J. DATE : 21 st October 2010 . ORAL JUDGMENT The above appeal challenges the judgment and award dated 30.10.2003 passed by the learned IIIrd Addl. District Judge, South Goa, Margao in LAC No. 177/1995. 2. Pursuant to the notification dated 11.6.1991 published in the Official Gazette dated 27.6.1991, under Section 4 of the Land Acquisition Act (hereinafter called the said Act) land belonging to the respondents admeasuring an area of 6500 sq. metres from the property surveyed under Nos. 54/9 54/13 and 54/16 situated at Nagorcem, Palolem village of Canacona Taluka was acquired for the construction of new Broad Gauge line for the Konkan Railway. The Land Acquisition Officer (LAO for short) by an award dated 9.12.1993 under Section 11 of the said Act offered compensation at the rate of Rs. 17/- per sq. metre for the land acquired besides 3 compensation towards the wood value and fruit value of 50 trees and for the compound wall existing therein. Being dissatisfied with the said amount, the respondents sought reference under Section 18 of the Act for enhancement of the compensation and claimed sum of Rs. 150/- per sq. metre for the land acquired. The Reference Court by judgment and award dated 30.10.2003 fixed the market value of the acquired land at the rate of Rs. 32/- per sq. metre for an area of 6500 sq. metres besides statutory benefits. Being aggrieved by the said judgment and award, the Appellants have preferred the present appeal. 3. The learned Counsel appearing for the appellants has assailed the impugned judgment and submitted that the acquired land had no development potentiality and as such Reference Court erred in fixing the market value of the acquired land at the rate of Rs. 32/- per sq. metre. He further submitted that there is no evidence adduced by the respondents to substantiate their claim for enhancement of compensation. The learned Counsel took me through the evidence on record and pointed out that the acquired land was not suitable for any non agricultural purposes. He further submitted that the Reference Court has totally erred in giving escalation of 10% per annum and there was no evidence on record to substantiate that in the vicinity of 4 the acquired land there was any demand for land and admitted that the land acquired was in rural area. He further submitted that the conclusion that the land acquired was from rural area its escalation should have been about 1 to 2 % as no evidence has been adduced by the respondents to substantiate that the escalation was to the extent of 10% per annum. The learned Counsel as such submitted that the impugned judgment deserves to be quashed and set aside. 4. On the other hand, Mr. P. A. Kamat, learned Counsel appearing for the respondent has supported the impugned judgment. He submitted that the Reference Court came to the correct conclusion that the market value of the land was Rs. 32/- per sq. metre. He further submitted that the compensation has been fixed on the basis of the award at exhibit AW1/A wherein the compensation has been fixed at Rs. 20/- per sq. metre in respect of the land which was acquired pursuant to the notification published in the Official Gazette dated 12.8.1986. He further submitted that the award passed at exhibit AW1/B by the Reference Court was on the basis that the escalation was at the rate of 10% per annum. He further submitted that the law is well settled that the land price in Goa have been increasing and as such the escalation of 10% is just and proper. On being questioned as 5 to whether evidence was adduced by the respondent to substantiate that the price had escalated at the rate of 10% per annum, the learned Counsel submitted that no evidence has been adduced by the respondents to that effect but pointed out that the respondents have established that the rate of escalation is at least 7% to 7.5% per annum even though the land is in rural area. 5. Upon hearing the learned Counsel and on perusal of the record, the following point for determination arises in the present Appeal: POINT FOR DETERMINATION 1. Whether the Reference Court was justified to fix the market value of the acquired land at the rate of Rs. 32/- per sq. metre? 6. On perusal of the records, I find that the Reference Court was justified to fix the market value of the acquired land on the basis of the award which is at exhibit Aw1/A and AW1.B. There is no dispute that the land subject matter of award at exhibit AW1/A was pursuant to the notification published in the year 1986. But the award at exhibit AW1/B is on the basis of award at exhibit AW1/A 6 after granting an escalation at 10% per annum. Admittedly, as fairly conceded by the learned Advocate for the respondents, no evidence has been adduced by the respondents to substantiate such escalation in rural area where land has been acquired. There is no dispute that the land which has been acquired is in rural area and not in any urban/semi urban area. The Apex Court in the judgment reported in (2008) 14 SCC 745 in the case of General Manager, Oil and Natural Gas Corporation Ltd. Vs. Rameshbhai Jivanbhai Patel and anr. has held at para 14 thus:- 14. On the other extreme, in remote rural areas where there was no chance of any development and hardly any buyers, the prices stagnated for years or rose marginally at a nominal rate of 1% or 2% per annum. There is thus a significant difference in increases in market value of lands in urban/semi-urban areas and increases in market value of lands in the rural areas. Therefore, if the increase in market value in urban/semi-urban areas is about 10% to 15% per annum, the corresponding increases in rural areas would at best be only around half of it, that is, about 5% to 7 7.5 % per annum. This rule of thumb refers to the general trend in the nineties, to be adopted in the absence of clear and specific evidence relating to increase in prices. Where there are special reasons for applying a higher rate of increase, or any specific evidence relating to the actual increase in prices, then the increase to be applied would depend upon the same.” Considering the said judgment of the Apex Court, as the land which is acquired is more than 5600 sq. metres and is located in a rural area and is at a distance of about 50 metres from Palolem road, I find that the escalation should be fixed at the rate of 5% per annum on cumulative basis. The respondent has failed to adduce any evidence to establish the rate of escalation prevailing in the vicinity of the acquired land. The land which is subject matter of award at exhibit AW1/A is at a distance of 50 metres from the acquired land. There is no dispute that the acquired land was not adjoining the public road. The demand for land in such cases is much less as to the lands which are adjoining the public roads. Considering all the factors and location of the acquired land the market value thereof is to be fixed on 8 the basis of escalation at the rate of 5% per annum. The contention of learned Counsel for the respondent to grant escalation at the rate of 7% per annum cannot be accepted as no evidence is available on record to substantiate the said contention. The amount as such works out to Rs. 27/- per sq. metre. The point for determination is answered accordingly. 7. In view of the above, I pass the following: O R D E R i. The appeal is partly allowed. ii. The impugned judgment is modified. The market value of the acquired land is fixed at Rs. 27/- per sq. metre. iii. The rest of the award granting statutory benefits is confirmed. The appeal is disposed of with no order as to costs. F. M. REIS, J. MF/-