1 IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 48 OF 2004. 1 Deputy Collector (L.A.), Panaji, Goa. 2 The Executive Engineer, W.D.II ( R & B) PWD., Panaji, Goa. …....... Appellants. Versus Shri Rajendra Vassudev Deshprabhu (Since deceased) Represented through legal heirs: (a) Smt. Aparna Rajendra Deshprabhu, (widow) (b) Dr. Vassudeo Rajendra Deshprabhu (Son) (c) Dr. Pavitra Vassudeo Rajendra Deshprabhu ( daughter- in-law) (d) Ms. Nayantara Rajendra Deshprabhu (daughter) all residing at Nanerwada, Pernem- Goa. …....... Respondents. Mr. M. Salkar, Government Advocate for the appellants. Mr. S. G. Desai, Senior Advocate with Mr. V. Parsekar, Advocate 2 for the respondents. CORAM :- A. P. LAVANDE, J. DATE : 17 th December, 2011. ORAL JUDGMENT :- Heard Mr. M. Salkar, learned Government Advocate for the appellants and Mr. S. G. Desai, learned Senior Advocate for the respondents. 2. By this appeal, the appellants take exception to the Judgment and Award dated 14th November, 2003 passed by the learned Additional District Judge at Mapusa in Land Acquisition Case No. 26/1995 partly allowing the reference under Section 18 of the Land Acquisition Act, 1894 ( 'the Act' for short). 3. Vide notification dated 27th February, 1989 issued under section 4 of the Act which was published in the official gazette dated 9th March, 1989, the Government of Goa acquired the lands for public purpose namely for the purpose of construction of road from Tuem hospital to Corgao via Bhaidwada. An area 3 admeasuring 1,225square metres, 250 square metres and 685 square metres bearing survey nos. 343, 343/14 and 343/8 situated at Korgao and an area admeasuring 335 square metres and 325 square metres of survey nos. 321/8 and 321/4 situated at Pernem belonging to the respondents were part of the acquired land. 4. The respondents herein claimed compensation at the rate of Rs.30/- per square metre for the land situated at Korgao and Rs. 100/- per square metre for the land situated at Pernem. The Land Acquisition Officer made an award fixing the market rate of the acquired land at Rs.7/- per square metre. 5. Dissatisfied with the award made by the Land Acquisition Officer respondents sought reference under Section 18 of the Act and claimed compensation at the rate of Rs.30/- per square metre in respect of the land at Korgao and Rs.100/- per square metre in respect of the land at Pernem. 6. In Land Acquisition Case no.26/1995, the respondents led evidence and examined five witnesses namely AW1 Vassudev 4 Deshprabhu, AW2 Manohar Kalsekar, AW3 Uday Dattaram Prabhu Desai, AW4 G. V. Bhatkurse an engineer and AW5 Sudip Korgaonkar. Respondents also produced several documents in support of their claim for higher compensation. The appellants did not lead any evidence. 7. The Reference Court framed following issues:- 1. Whether the applicants prove that the market value of the acquired land is Rs.300/- per square metre for the area of 1225 square metres., 250 square metres., and 685 square metres falling in Corgao Village and Rs.100/- per square metre for the areas of 335 square metres and 325 square metres falling in Pernem Village? 2. What relief? What order? 8. Thereafter additional issues were framed on 26.8.2003 which are as under:- 1. Whether the applicants prove that the possession of land was taken in 1982 and they 5 are entitled to interest from date of such possession? 2. Whether the applicants prove that there is severance of the property as a result of acquisition? 9. The Reference Court upon appreciation of the evidence oral and documentary led by the respondents fixed the market rate of the land at Korgao at Rs.75/- per square metre and in respect of the land at Pernem fixed the market rate at Rs. 110/- per square metre. 10. The Reference Court for the purpose of fixing the market rate for the land at Pernem placed reliance upon the Judgment and award passed by the High Court in Land Acquisition case no. 114/1992 in which High Court had reduced the market rate of the acquired land admeasuring 1200 square metres to Rs.75/- per square metre from Rs.141/- per square metre as fixed by the Reference Court. The said awards were produced on record at Exh. AW1/F and AW1/G. The Reference Court also placed 6 reliance upon the sale deed dated 7th March, 1988 Exh. AW1/L by which a plot of 450 square metres was sold at the rate of Rs.100/- per square mtere. The plot of land sold by the said sale deed was a bharad land situated at a distance of 3.5 kms from Pernem and 8 kms from Korgao. After fixing the market rate of the land acquired from Pernem at Rs.110/- per square metre the Reference Court fixed the market rate of the land at Korgao at Rs.75/- per square metre considering the distance from Pernem Town and other acquired plots from Pernem. 11. Mr. Salkar, learned Government Advocate submitted that the Reference Court ought not to have relied upon the award passed by this Court in respect of Land Acquisition Case no. 114/1992 by which compensation was reduced to Rs.75/- per square meter nor on the sale deed dated 7th March, 1988 which was not comparable. Mr. Salkar further submitted that insofar as the land in Korgao is concerned the Reference Court ought to have relied upon the sale deed dated 6th February, 1989 Exh. AW1/K by which plot of 609 square metres was sold at the rate of Rs.25/- per square metre since admittedly the said plot was situated at a 7 distance of 200 metres from the land at Korgao. Learned Counsel further submitted that in any case having regard to the evidence led by the respondents themselves they are not entitled to compensation at the rate higher than Rs.100/- per square metre in respect of the land at Pernem and Rs.25/- per square metre in respect of the land at Korgao. 12. Mr. Desai, learned Senior Counsel appearing for the respondents submitted that insofar as the land from Pernem is concerned the respondents are restricting their claim to Rs.100/- per square metre since this is a fair market rate to which respondents are entitled, having regard to the award passed by this Court in Land Acquisition Case no. 114/1992 Exh. AW1/G and sale deed dated 7th March, 1988 ( Exh. AW1/L). Mr. Desai, further submitted that having regard to the location of the land at Korgao the market rate fixed by the Reference Court at Rs.75/- per square metre cannot be said to be excessive.. 13. I have carefully considered the rival submissions and perused the record. 8 14. In view of the rival submissions, following points arise for determination in the appeal:- 1. Whether the respondents are entitled to compensation at the rate of Rs.100/- per square metre in respect of their land at Pernem? 2. Whether the respondents are entitled to compensation at the rate of Rs.75/- per square metre in respect of their land at Korgao? 15. As stated above, respondents have examined five witnesses in support of their claim for enhancement of compensation and has produced several sale deeds and awards. 16. On the basis of the evidence led by the respondents the learned Government Advocate has prepared a chart showing properties forming subject matter of the award/sale deed and their corresponding distances from the acquired lands at Pernem and Korgao, the areas, types of properties etc. Mr. Desai, learned 9 Senior Counsel has not seriously disputed the contents of the said chart. 17. For the sake of appreciation of the evidence led by the respondents, I deem it appropriate to re-produce the chart which is as follows:- S . No . Exhibit No. Case No. Date of Acquisition Compen sation awarded Area Type of property Distances. 1 AW1/B LAC/1/85 20/8/1983 Rs.60/- 220 sq. mts. Garden Land 4 kms from Korgao, 6 kms from Pernem 2 AW1/C LAC/4/85 01/02/1980 Rs.16/- Paddy Field 8 Kms from Pernem, 10 kms from acquired plot in Pernem, 12 kms from acquired plot in Korgao. 3 AW1/D AND AW1/E LAC116/90 03/02/1984 Rs.60/- 3230 sq. mts Garden Land Property in Village Vironda, 4 kms- 3.5 kms from Pernem, 7 kms from Korgaon Plot, 9 kms from Korgao Plot 4 AW1/F AND AW1/G LAC/114/19 92 27/11/1986 LA awarded Rs.15/- but was enhanced by Addl District Judge to Rs.141/-. However HC reduced to Rs.75/- 1200 sq. mts Bharad Land 500 mts. from Pernem town, 6.5 kms from Korgao Plot, 4.5 Kms from Pernem Plot. 10 5 AW1/H LAC/74/92 and LAC/75/92 22/6/1989 Rs.123/- 30,300 sq. mts Bharad Land 2 kms from Pernem Town, 2 kms from plots in Pernem, 4 kms from Plots in Korgao. 6 AW1/I LAC/77/1986 16/4/1985 Rs.100/- 5500 sq. mts 500 mts from Pernem Town, 4 kms from Plots in Pernem, 6 kms from Plots in Korgao. 7 AW1/J Sale Deed 04/05/1988 Rs.100/- 250 sq. mts. Garden Land 4 kms from Pernem Plots, 6 kms from plots in Korgao. 8 AW1/K Sale Deed 06/02/1989 Rs.25/- 609 sq. mts. Partly Bharad/ Partly Field 200 mts from Korgao plots, 2 kms from Pernem Plot. 9 AW1/L Sale Deed 07/03/1988 Rs.100/- 450 sq. mts. Bharad Land 3.5 kms from Pernem, adjoining National High Way, 8 kms from Korgao and 6 kms from Pernem. 10 AW1/M Sale Deed 19/8/1985 Rs.150/- 150 sq. mts. Garden Land. Malpem Village, 3 kms from Pernem Plot, 9 kms from Korgao Plot. 18. From the perusal of the above chart which has not been disputed, it is evident that the bharad land admeasuring 1200 square metres belonging to the respondents themselves was acquired in Land Acquisition Case no. 114/1992 and the market rate in respect of the said land was fixed at Rs.75/- per square metre. Section 4 notification in the said case was issued on 11 27.11.1986. Similarly Government also acquired an area of 30,300 square metres by notification dated 22.6.1989 which was subject matter of Land Acquisition Case nos. 74/1992 and 75/1992( Exh. AW1/H). In terms of the said award the Reference Court has fixed the market rate at Rs.123/- per square metre. Indisputably, the said award has not been challenged by Government and, as such, become final. Sale deed dated 7th March, 1988 Exh. AW1/L relied upon by the respondents discloses that an area of 450 square metres of bharad land situated at a distance of 3.5 kms from Pernem adjoining National Highway was sold at Rs. 100/- per square metre. Thus on the basis of above two referred awards and the sale deed, it is evident that the market rate of bharad land at Pernem was between Rs.75/- to Rs.120/- per square metre during the period from 1986 to 1989. In the present case, notification under Section 4 was published on 9.3.1989, therefore, in my considered opinion, the submission of learned Counsel for the respondents that the respondents are entitled to compensation at the rate of Rs.100/- per square metre in respect of their land at Pernem deserves to be accepted. Therefore, the market rate of the acquired land from Pernem admeasuring 660 square metres 12 belonging to the respondents is fixed at Rs.100/- per square metre. 19. Insofar as the land admeasuring 2160 square metres situated at Korgao is concerned, the respondents themselves relied upon the sale deed dated 6.2.1989 by which a plot of 609 square metres was sold at Rs.25/- per square metre (Exh. AW1/K). The evidence of Vassudev Deshprabhu AW1 discloses that the said plot was about 200 metres away from the acquired land and the plot which was sold by said deed was partly hilly and partly paddy field. It is well settled that in order to fix the market rate of the acquired land for any village the price mentioned in the sale deed or the award in respect of adjoining land, which is proximate in point of time has, to be accepted in preference to the sale deeds/awards from other villages and if there are dissimilarities, appropriate deductions or additions have to be made depending upon plus and minus factors [See Chimanlal Hargovinddas Vs. Special Land Acquisition Officer, Poona, AIR 1988 SC 1652]. Therefore, in my considered opinion, sale deed dated 6.2.1989 (AW1/K) can be safely taken into consideration for fixing the market rate of the acquired land from Korgao village. There is no 13 dispute that the acquired land from Korgao is bharad land whereas the plot which was sold by sale deed dated 6.2.1989, was partly hilly and partly paddy field. Therefore, it is obvious that the land of the respondents had better potential as compared to the plot in sale deed dated 6.2.1989. Therefore, appropriate addition has to be made to the rate fixed in the sale deed dated 6.2.1989. In my considered opinion, the appropriate addition would be 20%. Therefore, the market rate of the acquired land admeasuring 2160 square metres from Korgao works out to Rs.30/- per square metre. I am therefore unable to sustain the market rate of the acquired land from Korgao fixed by the Reference Court at Rs.75/- per square metre, more particularly having regard to the fact that the Reference Court has not taken into consideration the sale deed dated 6.2.1989 for the purpose of fixing the market rate of the acquired land. 20. In the result therefore, the appeal is partly allowed. The market rate of the acquired land from Pernem admeasuring an area of 660 square metes is fixed at Rs.100/- per square metre and the market rate of the acquired land admeasuring 2160 square 14 metres from Korgao is fixed at Rs.30/- per square metre. Needless to mention that the respondents are entitled for all the statutory benefits under the Act. 21. Appeal stands disposed of in aforesaid terms with no order as to costs. A. P. LAVANDE, J. vn*