-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 318 OF 2003 Communidade of Cortalim, Through its Attorney Dr. Peter Carvalho, H. No.116, Nauta, Cortalim – Goa. …... Appellant V e r s u s 1. Dy. Collector (L.A.), Margao, Goa. 2. The Administrative Officer, Goa, Daman and Diu Industrial Corporation, Panaji. …... Respondents Mr. Peter Carvalho, In Person, Special Attorney on behalf of the Appellant. Mr. S. Vahidulla, Government Advocate for Respondent No.1. Mr. M. S. Sonak with Mr. J. Supekar, Advocate for Respondent No.2. CORAM : A. S. OKA F. M. REIS, JJ. Judgment Reserved on : 28 th June, 2010. Judgment Pronounced on : 5 th August, 2010. ORAL JUDGMENT (Per F. M. Reis, J.) The Appeal challenges the Judgment and Award dated 8th August, 2003 passed by the learned District Judge, South Goa, Margao, in Land Acquisition Case no. 135/1997, whereby the reference preferred by the Appellants under Section 18 of the Land Acquisition Act, 1894, (hereinafter referred to as 'the said Act'), came to be dismissed. By notification dated 8th January, 1990, issued under -2- section 4 of the Land Acquisition Act and published in the Official Gazette dated 22nd March, 1990, the Respondents acquired land admeasuring an area of 759062 square metres located at different places on Verna plateau for the expansion of the Verna Industrial Estate (Phase II). One of the properties sought to be acquired by the said notification was an area of 3140 square metres surveyed under no. 158 (part) of Village Cortalim, belonging to the Appellants. In the Award passed under Section 11 of the said Act, dated 19th April, 1993, the said land belonging to the Appellants was classified as first bharad and the compensation awarded to the Appellant was at the rate of Rs.10/- per square metre. Being dissatisfied with the said compensation, the Appellants sought a reference under Section 18 of the said Act for enhancement of compensation and claimed an amount of Rs.200/- per square metre. The learned District Judge after framing the issues and recording the evidence, dismissed the reference filed by the Appellants. 2. Being aggrieved by the said Judgment and Award dated 8th August, 2003, the Appellant has preferred the present Appeal. 3. Shri Peter Carvalho, Special Attorney of the Appellants argued in person and contended that the learned District Judge has erroneously held that the Appellants had failed to establish that they were entitled for enhancement of compensation. He further contended that the learned Judge had appreciated the evidence on the basis that the location of the land acquired belonging to the Appellants had not been established when such consideration was not all relevant for the the purpose of determining the market value of the land acquired. He further submitted that the witnesses examined by the Appellants had pointed out -3- that the land acquired was in the vicinity of the developed area which had high potentialities of being used for non-agricultural purposes. He further pointed out that the Appellants had adduced evidence to substantiate their claim for enhancement of compensation. The said attorney further stated that the Appellants had produced sale deed dated 24th April, 1987, wherein an area of 150 square metres was sold at the rate of Rs.120/- per square metre in respect of the land surveyed under no. 47/16. He also pointed out that another Sale Deed was produced by the Appellants wherein the price was fixed at Rs.176.47 per square metre for a an area of 425 square metres for the property surveyed under no. 155/4. He further stated that by Sale Deed dated6th November, 1989, an area of 175 square metres was sold at the rate of Rs.225/- per square metre. He further pointed out that by another two sale deeds dated 21st September, 1989 and 23rd April, 1991, properties sold in Cortalim admeasuring an area of 34.32 square metres and 325 square metres respectively, were sold at the rate of Rs.275/- per square metre and Rs. 200/- per square metre. He further contended that the said Sale Deeds are in the same Village and could be compared for the purpose of determining the compensation in the present case. He further submitted that merely because there were some discrepancies in the depositions of the witnesses, the evidence adduced by the Appellants was erroneously discarded by the Reference Court. He further submitted that the land of the Appellants was flat land and could be used for non agricultural purpose and, as such, the Reference Court had erroneously rejected the reference sought by the Appellants. With regard to the contention that the land of the Appellants was Communidade land as such had no potential value, the said Attorney pointed out that the Code of Communidade only imposes a restriction to transfer the land subject to obtaining the permission -4- from the concerned authorities and there is no bar for transferring the land provided that the conditions as envisaged under the code of Communidade are complied with. He further stated that merely because such restrictions are imposed by the code of Communidade, it does not imply that the land of the Appellants had no potentiality for being used for non agricultural purpose. He accordingly stated that the Appellants had made out a case for enhancement of compensation and, as such, the impugned judgment and Award deserves to be quashed and set aside. 4. On the other hand, Shri M. S. Sonak, the learned Counsel appearing for the Acquiring Body, supported the impugned Judgment. He submitted that the Reference Court had minutely gone into the evidence adduced by the Appellants and had come to the conclusion that in view of the discrepancies of such evidence, the said witnesses could not be relied upon. He further submitted that the Appellants had failed to adduce any appreciable evidence to demonstrate the comparability of the land acquired with the sale deed plot. He further submitted that considering the area of the land acquired, the sale deeds are of very small plots which can, by no stretch of imagination, be the basis for determining the market value of land as on the date of section 4 Notification. He further submitted that the Communidade lands have no potentiality for being used for non agricultural purposes in view of he restrictions imposed under the code of Communidade. He further submitted that such Communidade lands cannot be compared with free hold lands or determining the compensation payable for land acquired as in view of the restrictions imposed under the code, the said lands cannot be developed. In support of his submission, the learned Counsel has relied upon the Judgment of this Court, wherein it has been held that in view of the restrictions imposed under -5- the Code, the market value of such lands is to be deducted by atleast 50% on that count. He further submitted that the reference court had minutely appreciated the evidence adduced by the Appellants and come to the conclusion that the Appellants had failed to establish that they are entitled for any enhancement to the compensation awarded by the Land Acquisition Officer. He, accordingly, submitted that the Appeal deserves to be dismissed 5. Upon hearing the respective parties and on perusal of the records as well as the impugned Judgment, the following points for determination arises in the present appeal : POINT FOR DETERMINATION (1) Whether the Reference Court was justified in rejecting the reference filed by the Appellants ? 6. In support of their claim for enhancement of compensation, the Appellants have examined Shri Peter Cavalho as Aw.1. In his deposition he has stated that the land acquired was a flat land and was situated next to the developing Verna electronic city and that it had an access to the National Highway Margao-Cortalim, He further deposed that electricity and water were available through the suit property. That by a Sale deed dated 21st September, 1989, at exhibit 21, an area of 34.32 square metres was sold for Rs.275/- per square metre, which was situated on the old Cortalim Ferry wharf road. He further deposed that by an Award in Land Acquisition Case no. 116/89, and area of 3455 square metres was acquired from the property surveyed under no. 46/1 of Nagoa Village for Verna bye-pass wherein the compensation was fixed at Rs.50/- per square metre which -6- was thereafter enhanced to Rs. 75/- per square metre. He further stated that the said land was at a distance of 500 metres away towards Margao side. The said award is at exhibit 17. He further stated that the nature of the land of the suit plot and the land acquired was similar except that the suit plot was flat and the land acquired therein was sloppy. The amenities available to both the plots were the same. He also produced another sale deed dated 24th April, 1987, wherein the price was at the rate of Rs.120/- per square metre for an area of 250 square metres The next sale deed was dated 20th September, 1988 at exhibit 19, wherein the price was Rs.176.47 per square metre for an area of 425 square metres which was located at a distance of 300 metres from the acquired land. The next sale deed is dated 6th November, 1989, wherein a price of Rs.225/- per square metre was paid for an area of 175 square metres for the land which is located at a distance of 2 kilometres from the acquired land. In the cross examination, the said witness has deposed that the suit plot was not a non agricultural land but a rocky land, fit for construction purpose. This statement was not challenged by the Respondents in the cross examination. The witness in his deposition has further stated that except for conversion of land and other procedures required for putting up construction, the land under the two acquisitions, were the same. The said statement was disputed by the Respondents. He further admitted in the cross examination that electricity line was passing 50 mtrs away from the suit plot and also the telephone lines. He further deposed that in respect of the land at exhibit 17, there was provisional permission obtained for development from the panchayat and PWD as on the date of Section 4 Notification. He further admitted that the land acquired was not touching the national highway but there was land in between the land acquired and the national highway belonging to the Government. He further -7- admitted that the sale deed at exhibit 19 was a developed plot and there was road leading thereto. He further admitted that the document at exhibit 20 had two roads touching the said plot towards the west and the northern side. He further denied the suggestion that the sale deed plots and the award produced by the Appellants was not comparable with the land acquired. 7. Aw.2, Grenville Pereira, has deposed that his land was acquired for the construction of bye-pass National Highway 17 in the year 1986 and the Land Acquisition Officer had awarded compensation at the rate of Rs.60/- per square metre, which came to be enhanced at the rate of Rs.84/- per square metre by the Reference Court. He further deposed that the document at exhibit 17 was the award passed therein. He further stated that the compensation was received by him as awarded at the rate of Rs.84/- per square metre. He further deposed that his land is at a distance of about 250 metres from the acquired land and that the land of the Communidade was a flat land while his was sloppy. In the cross examination, he further admitted that he had applied to the Panchayat and the PWD to make plots of his property and also for conversion and that a petrol pump was existing since1990. He denied the suggestion that the distance from the land acquired to his property was more than 500 metres. Aw3, Maria Carvalho, was examined to confirm the contents of the sale deed dated 23rd April, 1991, which was marked as exhibit 26, whereby she sold an area of 325 square metres of land at the rate of Rs.200/- per square metre in Cortalim. She further stated that the distance from the acquired land to her plot is 1.5 kms. In her cross examination, she admitted that she has seen the plan of the property of the Communidade but she had not seen the plan of the acquired property and as such she stated that she -8- was not able to identify the acquired land in case the plan was shown to her. She also stated that she was not in a position to state whether the acquired land was higher or below the road level and that she was not aware when the road was constructed. 8. The next witness examined by the Appellants was Shri Edmund Carvalho, who was examined to confirm the Sale Deed dated 6th October, 1989, wherein the area involved was about 150 square metres. In the cross examination he had denied the suggestion that he had given incorrect boundary of the land and that the land was not close to the acquired land. The next witness Fr. E. Miranda was examined to confirm the contents of the sale deed dated 6th November, 1991. In his cross examination he has stated that he does not know as to whose property was on the third side of the acquired land. Another witness examined is Aw6, Jose de Carmo Baretto, who has deposed that from the year 1985 to the year 1989, the locality of the said land acquired was developed tremendously as factories had come up in the neighbouring first phase. He has further deposed that the sale deed dated 21st September, 1989, was a small piece of land which belonged to his family and the same was sold by his mother and that the said land was next to the highway and was going entirely for the road widening. He further stated that the sale deed plot was at a distance of 700 to 750 metres from the acquired land. In his cross examination he admitted that the sale deed was in respect of 34 square metres only. 9. The learned Reference Court whilst appreciating the evidence adduced by the Appellants, has held that the survey plan of the acquired land of -9- survey no. 158 (part) was not produced. The acquisition plan was also not produced by the Appellants nor the acquisition plan during the first notification. The learned Judge further held that evidence of Aw.1 could not be relied upon as he did not know anything about the acquired property as he had not mentioned the boundaries of the acquired land nor the area acquired at the first instance. The learned Judge further held that there were discrepancies in his evidence with regard to the location of the land acquired vis a vis the national highway as he had also stated that the acquired portion was not touching the said highway. The learned Judge has highlighted the discrepancies with regard to the location of the acquired land and the land subject matter of award at exhibit 17 and, as such, it was not possible on the basis of his evidence to come to the conclusion as to the exact location of the land acquired. The learned Judge has discarded the evidence of Aw 3, Maria Carvalho, on the ground that she had failed to give the exact location of the acquired portion and, as such, she could not assist the Court to decide about the comparison of the plot purchased by her. The learned Judge came to the conclusion that evidence of Aw.4 and Aw.5 could not be relied upon as they were unable to give the boundaries of the land acquired and that they did not know anything about the acquired portion of the land as well as the property of the Appellants. The evidence of Aw 2, Grenville Pereira, also came to be discarded as he did not know the boundaries of the land acquired of the Appellants. The learned Reference Court as such held that as the appellant had failed to locate the acquired land with reference to the land which was subject matter of the land under sale deed produced by the Appellants and, as such, the Reference Court came to the conclusion that the Appellants had failed to establish that they were entitled for enhancement of compensation. -10- 10. With regard to the finding of the learned Reference Court that the location of the property of the Appellants was not established, we find that such location can be assumed on the basis of the acquisition plan prepared by the Land Acquisition Officer. In the present case, the actual location of the land acquired was not the subject matter of dispute. The fact remains that it is not disputed that the land of the Appellants was a subject matter of the acquisition and that the distances as mentioned by the Appellants in their evidence from the award relied by the Appellants as well as the sale instances produced by them have not been seriously challenged in the cross examination by the Respondents of the respective witnesses. The Award produced at exhibit 17 has been duly proved by examining Aw.2, Grenville Pereira, whose land was a subject matter of the said acquisition. Merely because of some discrepancies pertaining to the distance from the acquired land to the land subject matter of the said award, it cannot be said that the said witness is to be disbelieved. 11. The Apex Court in the Judgment reported in Mahesh Dattatray Thirthkar vs. State of Maharashtra reported in 2009 AIR SCW 2962 has held at para 32 thus : “Coming to the findings of the High Court regarding the inconsistency and infirmity in the testimony of the witnesses produced by the appellant for examination, it is emphasized that the burden of proof in civil cases is that of “balance of probability” and not that of “beyond reasonable doubt”. Thus minor inconsistencies in evidence are not relevant in civil cases in considering the question of discharge of this burden. This principle has been reiterated by this Court in a -11- number of decisions namely Sarjudas & anr. vs. State of Gujarat (AIR 2000 SC 403) and State of Rajasthan v. Netrapal & Ors. ((2007) 4 SCC 45). Further, all inconsistencies in evidence cannot impeach the credit of the witness and hence reliability of its testimony. It has been held by this Court in Rammi alias Rameshwar vs. State of Madhya Pradesh ((1999) 8 SCC 469 that only contradictory statements would so affect the witnesses' credit. We are of the opinion that the inconsistencies pointed out by the High Court in the evidence adduced by the appellant are only minor inconsistencies and do not warrant non-reliance on the same.” 12. Considering the said Judgment of the Apex Court, we find that such inconsistencies with regard to the distance from the land acquired are not at all material to discard the evidence of the said witnesses in the facts of the present case. The fact remains that the distance from the land acquired had not been disputed by the Respondents. 13. From the Sale Deeds produced by the Appellants, we find that the sale instances at exhibit 18, 19, 20, 21 and 26 are small pieces of land admeasuring an area of 150 square metres to 325 square metres. Such small pieces of land which have been sold in special circumstances, cannot be considered as a basis to determine the compensation of the land acquired which admittedly admeasures an area of 3140 square metres when sale instances of such bigger area are available in the vicinity. From the documents produced by the Appellants, we find that the only comparable document which can be considered -12- for the purpose of determining the market value of the land acquired is the one at exhibit 17. Aw. 1 has stated that the distance from the land acquired to the land subject matter of the said acquisition was about 500 metres. Aw.2 who is one of the claimant in the said acquisition proceedings said that the distance is about 250 metres from the acquired land. There is no dispute that the said land subject matter of the said award at exhibit 17 is adjoining the said national highway which is in the proximity of the land acquired in the present case. The notification in the case of the subject matter of the said award was issued on 28.12.85. Aw. 2 has further admitted that provisional NOC from the local Panchayat as well as from the development authorities was obtained with regard to the land which was subject matter of the said acquisition. Aw. 1 has also stated that the area involved was 3455 from the property surveyed no. 46/1. Considering that the area is comparable and the distance is about 500 metres from the acquired land, we find that the price fixed in the said Award can form a basis for determining the compensation after suitable deductions on account of the merits and advantages appertaining to the said land acquired pursuant to the award at exhibit 17. Considering that the notification in respect of the land in the said Award was in December 1985 and the present case is in March 1990, the market value can be determined by giving a suitable escalation for a period of 4 years at a rate of 10 percent per annum on cumulative basis. The amount as such works out to Rs.123/- per square metres approximately. The Apex Court in the Judgment reported in 2010 (1) S.C.C. 444 in the case of Subh Ram & Ors. vs. State of Haryana and anr. has held at paras 12, 13, 14 and 15 as under : “12. In a standard layout with plots measuring say 2500 sq ft (50' x 50') each, to provide road access to each plot, it -13- will be necessary to provide a road after every two rows of plots. If the depth of each plot is 50', and if the road width is 25 ft, then for every two strips of plots, there will have to be a strip of road of 25 ft. This means a minimum of 25% of the total land area will be utilized for roads. A typical layout will also have cross-roads, and areas earmarked for park, and/or community areas. Consequently non-saleable area (area which cannot be sold as plots) would be around 30% to 40% of the total area. 13. Therefore, in the hypothetical layout method of determination of market value, as a first step, the areas that will be used up for roads, drains, parks/playgrounds and community areas, will have to be excluded from the total extent of the acquired land. The standard deduction in this behalf is one-third (33%). 14. But merely deducting the areas required for roads, drains, parks and community areas, will not convert a large tract of agricultural or undeveloped land into a developed residential layout. For that, considerable financial outlay has to be made. The land will have to be levelled. The land will have to be converted from agricultural use to non- agricultural residential use by paying necessary fees/fine to the Revenue/development authorities. Then the roads will have to be asphalted or concreted. Drains will have to be dug and lined with reinforced cement concrete or stone, for drainage of rainwater. Electricity, water, and sewage lines will have to be laid. Deposits will have to be made to the authorities dealing with electricity, water and sewage removal. The development will also involve the service of surveyors, engineers and developers. All these involve considerable expenditure. Further, as there will be a time -14- gap between the expenditure for development and the actual sale of plots, the cost of development will also have an element of interest on investment. The developer who undertakes the