-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NOS. 329 OF 2005, 49 OF 2006, 330 OF 2005 AND 48 OF 2006. FIRST APPEAL NO.329 OF 2005 Communidade of Nagoa, Through its Attorney, Mr. Joaquim Vicente Cabral, Major of age, Resident of Sonarwada, Nagoa, Salcete Taluka, (Goa). …... Appellant/ (Original Applicant) V e r s u s 1. Special Land Acquisition Officer, Goa I.D.C., Sarawati Mandir Bld., 2nd Floor, 18th June Road, Panaji, (Goa). 2. The Managing Director, Goa Industrial Development Corporation, Panaji (Goa). …... Respondents/ (Original Respondents) Mr. S. D. Lotlikar, Senior Advocate with Mr. H. Kandonkar, Advocate for the Appellant. Mr. M. S. Sonak with Mr. J. Supekar, Advocates for the Respondents. WITH FIRST APPEAL NO.49 OF 2006 Goa Industrial Development Corporation, a Statutory Corporation, established under the Goa Industrial Development Act, 1965, represented herein by its Managing Director, having Office at Plot No.13A-2, EDC Complex, Patto Plaza, Panaji – Goa. …... Appellant V e r s u s -2- 1. Communidade of Verna, Through Attorney Shri Jose S. C. Cabral, Nagoa, Salcete – Goa. 2. Special Land Acquisition Officer, IDC, Panaji – Goa. …... Respondents Mr. M. S. Sonak with Mr. J. Supekar, Advocates for the Appellant. Mr. S. D. Lotlikar, Senior Advocate with Mr. H. Kandonkar, Advocate for the Respondent No.1. A N D FIRST APPEAL NO.330 OF 2005 Communidade of Verna, Through its Special Attorney Mr. Savio Correia, Major of age, Resident of Vasco da Gama (Goa). …... Appellant/ (Original Applicant) V e r s u s 1. Special Land Acquisition Officer, Goa I.D.C., Sarawati Mandir Bld., 2nd Floor, 18th June Road, Panaji, (Goa). 2. The Managing Director, Goa Industrial Development Corporation, Panaji (Goa). …... Respondents (Original Respondents) Mr. S. D. Lotlikar, Senior Advocate with Mr. H. Kandonkar, Advocate for the Appellant. Mr. M. S. Sonak with Mr. J. Supekar, Advocates for the Respondents. WITH -3- FIRST APPEAL NO.48 OF 2006 Goa Industrial Development Corporation, a Statutory Corporation, established under the Goa Industrial Development Act, 1965, represented herein by its Managing Director, having Office at Plot No.13A-2, EDC Complex, Patto Plaza, Panaji – Goa. …... Appellant V e r s u s 1. Communidade of Verna, Through Attorney Shri Alvaro Abranches, near the Church, Verna, Salcete – Goa. 2. Special Land Acquisition Officer, IDC, Panaji – Goa. …... Respondents Mr. M. S. Sonak with Mr. J. Supekar, Advocates for the Appellant. Mr. S. D. Lotlikar, Senior Advocate with Mr. H. Kandonkar, Advocate for the Respondent No.1. Coram :- A. S. OKA F. M. REIS, JJ. Judgment Reserved on : 10 th August, 2010. Judgment Pronounced on : 26 th November, 2010. JUDGMENT : (Per F. M. Reis, J.) All the above Appeals are taken up together for final disposal in view of the Order passed by this Court to hear the Appeals together as they pertain to an acquisition of land in the same Notification. The parties shall be referred to as they so appear in the impugned Judgment. -4- FACTS AND SUBMISSIONS IN FIRST APPEAL NO. 329/2005 AND 49/2006 2. Both the above appeals take exception to the same Judgment and Award dated 24th August, 2005, passed by the learned District and Sessions Judge, South Goa, Margao in Land Acquisition Case no.121 of 2000. 3. By a Notification no. 22/115/95-RD dated 20th December, 1995, issued under Section 4 of the Land Acquisition Act, 1894, (hereinafter referred to as the 'said Act'), published in Official Gazette dated 26th December, 1995, the Government acquired an area of 2,50,275 square metres belonging to the Applicants from the property surveyed under no. 33/0 of Nagoa Village for the expansion of (Phase-III) at Verna Industrial Estate of Goa Industrial Development Corporation. By an Award passed under Section 11 of the said Act, the Land Acquisition Officer fixed the compensation at the rate of Rs.10/- per square metre. Being dissatisfied with the said amount as offered, the Applicants preferred a reference under Section 18 of the said Act and claimed enhancement of compensation to the tune of Rs.500/- per square metre. By Judgment and Award dated 24th August, 2005, the learned District Judge partly allowed the said reference and enhanced the compensation to Rs.20/- per square metre for the land acquired besides other statutory benefits. 4. Being aggrieved by the said Judgment and Award, the Applicants as well as the Respondent no.1, the Acquiring Body, preferred the present Appeal. 5. The learned Senior Counsel appearing for the Applicants has assailed -5- the impugned Judgment and submitted that the Reference Court has totally misdirected itself in determining the market value of the land acquired as on the date of Section 4 Notification. The learned Senior Counsel submitted that the Reference Court has failed to consider that the land acquired was located adjoining to an existing Industrial Estate and, as such, had potentialities of being used for industrial and non agricultural purposes. He further pointed out that the market value of land as on the date of Section 4 Notification on the basis of the three sale instances and two Awards produced by the Applicants was to the minimum of Rs.150/- per square metre. The learned Senior Counsel further pointed out that the Applicants had produced an Award passed in Land Acquisition Case no. 23/1987 which was of a land of similar nature which was not at all considered by the Reference Court whilst determining the market value of land. The learned Counsel submitted that merely because of largeness of the two lands, the Award passed in the said case could not have been discarded. The learned Senior Counsel further submitted that the Reference Court erroneously discarded the evidence of the expert produced by the Applicants. The learned Counsel further pointed out that the minimum amount of compensation payable to the Applicants was at least Rs.100/- per square metre as on the date of Section 4 Notification in the present case. The learned Counsel for the Applicants has also submitted that the Division Bench of this Court has whilst disposing of the First Appeal nos. 300/2003 and First Appeal no. 318/2003, enhanced the compensation as awarded by the Reference Court in respect of lands which were located in the same locality and lands which were acquired earlier for the same project in the year 1990. 6. On the other hand, the learned Counsel, appearing for the -6- Respondent no.1, has submitted that the Reference Court had enhanced the market value of land on the basis of irrelevant considerations. He pointed out that there were restrictions in the Code of Communidade with regard to the transfers of Communidade lands and this aspect was not at all considered by the Reference Court whilst determining the market value of land. The learned Counsel further submitted that the land which was subject matter of the Land Acquisition Case no. 23/1987 was not at all similar to the land acquired. The learned Counsel further submitted that the Reference Court had not at all considered the demerits of the land acquired and erroneously came to the conclusion that the market value of land as on the date of Section 4 Notification was Rs.20/- per square metre. The learned Counsel further submitted that the Applicants have failed to establish that the price as offered by the Land Acquisition Officer in the Award was inadequate and, as such, the question of enhancing any compensation in favour of the Applicants would not arise at all. The learned Counsel further submitted that the land acquired was situated in different Belts and part of the said lands were quarries which were not at all suitable for non-agricultural purpose. He further pointed out that the land was uneven and substantial expenditure would have to be incurred for the purpose of carrying out any development. He, as such submitted that the price as offered by the Land Acquisition Officer in the Award under Section 11 of the said Act was just and proper. FACTS AND SUBMISSIONS IN FIRST APPEAL NO. 330/2005 AND 48/2006 7. Both the above Appeals challenge the same Judgment and Award dated 24th August, 2005, passed by the learned District Judge, South Goa, Margao, -7- in Land Acquisition Case no.122/2000. 8. By a Notification under Section 4 of the Land Acquisition Act, 1894, (hereinafter referred to as the 'said Act'), dated 20th December, 1995, issued under Section 4 of the said Act, published in Official Gazette on 26th December, 1995, the Government intended to acquire land belonging to the Applicants admeasuring an area of 4,20,000 square metres, surveyed under nos. 31 and 33 of Verna Village for the purpose of expansion (Phase-III) at Verna Industrial Estate Goa I.D.C. By an Award under Section 11 of the said Act, the Land Acquisition Officer fixed the compensation at the rate of Rs.10/- per square metre. Being dissatisfied with the said amount, the Applicants sought a reference under Section 18 of the said Act for enhancement of compensation and claimed an amount of Rs.78.85 per square metre. By Judgment and Award dated 28th August, 2005, the Reference Court fixed the compensation for the land acquired at the rate of Rs.20/- per square metre besides other statutory benefits. 9. Being aggrieved by the said Judgment and Award, the Applicants as well as the Respondents filed the present Appeal. 10. The learned Counsel appearing for the Applicants, has submitted that the Reference Court has totally erred in arriving at the market value of the land acquired as on the date of Section 4 Notification. The learned Counsel pointed out that there was cogent evidence on record for the Reference Court to come to the conclusion that the market value of land as on the relevant date was at the minimum rate of Rs.76/- per square metre. He further submitted that the land of -8- the Applicants being adjoining to the Industrial Estate, had high potentialities of being used for non-agricultural purpose. The learned Counsel further submitted that the Reference Court had erroneously discarded the Lease Deed dated 26th June, 1996, on which basis the market value of the land as on the date of Section 4 Notification could have been determined. The learned Counsel further submitted that the Reference Court had erroneously discarded the expert evidence of Shri P. M. Kamat. The learned Counsel further submitted that the Applicants had produced two Awards one passed in Land Acquisition Case no. 265/1990 and the other in Land Acquisition Case no. 127/1997 in respect of lands which were acquired on 11th September, 1986. He further pointed out that merely because of disparity in the largeness of the lands, such sale instances cannot be discarded. The learned Counsel further submitted that though the Reference Court came to the conclusion that the land acquired had potentiality for non-agricultural purposes and that the prices in the vicinity were increasing, nevertheless, came to an erroneous conclusion that the market value of the acquired land was only Rs.20/- per square metre. He further pointed out that the Reference Court has not at all appreciated the evidence on record and as such came to an erroneous conclusion that the market value of land was Rs.20/- per square metre. The learned Counsel for the Applicants has also submitted that the Division Bench of this Court has whilst disposing of the First Appeal nos. 300/2003 and First Appeal no. 318/2003, enhanced the compensation as awarded by the Reference Court in respect of lands which were located in the same locality and lands which were acquired earlier for the same project in the year 1990. 11. On the other hand, Shri Sonak, the learned Counsel appearing for -9- Respondent no.1 has submitted that the Reference Court had no legal evidence on record to enhance the compensation as awarded by the Land Acquisition Officer. He submitted that the land of the Applicants was substantially uneven and the same was not at all comparable with the sale instances produced by the Applicants. He further submitted that the Applicants have failed to adduce any evidence on record to substantiate the comparability of the land acquired vis a vis the land which was subject matter of the said acquisition. The learned Counsel has further submitted that the Reference Court failed to consider that the Applicants have failed to establish that the price as offered by the Land Acquisition Officer was inadequate. He further submitted that the Applicants have not led any evidence on record to substantiate their claim for enhancement of compensation and, as such, the reference deserves to be totally rejected. The learned Counsel further submitted that the evidence discloses that there were quarries and waste land in the acquired land and, as such, the Applicants were not entitled for any enhancement of compensation as such land had no potential value. The learned Counsel as such submitted that the enhancement granted by the Reference Court deserves to be quashed. CONSIDERATIONS OF THE SUBMISSIONS AND CONCLUSIONS IN FIRST APPEAL NO. 329/2005 AND FIRST APPEAL NO. 49/2006. 12. Having heard the learned Counsel and on perusal of the record, we find that following point for determination arises in the present Appeals : POINTS FOR DETERMINATION 1. Whether the Reference Court was justified to fix the compensation for the land acquired at the rate of Rs.20/- -10- per square metre ? 13. In support of their claim for enhancement, the Applicants have examined their attorney who has stated that the property which was subject matter of the said acquisition was forming part of the property surveyed under no. 33/0. He has further stated that the acquired land was flat bharad land ideal for construction and it was at a distance of one kilometre from the highway and 1.2 kilometres from Nagoa market and 1.5 kilometres from Verna Church. He has further stated that the acquired land was accessible to the road and was joining to an electronic city wherein there were factories and hotels like Maharaja Hotel, which had already come up. He has further stated that land which was purchased by Sale Deed 19th November, 1990, was resold in the year 1997 at the rate of Rs.1,000/- per square metre. The Company which has purchased the said land had put up an electric line. He has further stated that by Deed dated 22nd January, 1992, land purchased for Rs.175/- was resold on 3rd June, 1996 at the rate of Rs.1,000/- per square metre. He has further stated that the said land was at a distance of 2.5 kilometres from the acquired land and it had development restrictions. He has also produced another Sale Deed dated 1st March, 1998, in respect of sloppy land on the hill which was sold at the rate of Rs.500/- per square metre. This land was stated to be 200 metres from the nearest motorable access and had no developed infrastructure. He has also stated that the land of Communidade of Nagoa situated at a distance of one kilometre from the acquired land was acquired in the year 1985 for a 20 Point Programme. He has further stated that the land acquired was belonging to the Communidade reserved for cattle grazing. He has further stated that the nature of property surveyed under no. 33/0 is rocky land and that the portion of the land was acquired for the construction -11- of Rassaim road. He has further stated that there was already an existing road for Phase-II which was adjoining to the land which was the subject matter of the acquisition in the present Notification. The Sale Deed dated 19th November, 1990, is marked as exhibit 15, the other Sale Deed dated 22nd January, 1992, is at exhibit 17, the Sale Deed dated 3rd June, 1996, is at exhibit 18 and the Judgment in Land Acquisition Case no. 23/1987 is at exhibit 20 while the Award in Land Acquisition Case no. 116/1989 is at exhibit 21. In the cross examination he has stated that on the northern boundary of the property surveyed under no. 33/0, there are two Industries. He has further stated that the said land was the one acquired for the second Phase of the Industrial Estate. He has further stated that on the southern boundary of the property surveyed under no. 33/0 is the property surveyed under no.40 and that part of survey no. 40 was acquired for the 20 Point Programme. Whilst answering Court question, Aw.1 has stated that the property surveyed under no. 33 is adjoining to survey no. 40 and that in order to go from the National Highway to property surveyed under no. 33/0, there are four survey numbers which have to be crossed namely survey nos. 29, 31 and 32. 14. The next witness examined by the Applicant, is Peter Carvalho, who has stated that the nature of the acquired land was flat, bharad, not hilly land and ideal for construction. He has further stated that Nagoa Church is at a distance of 1.5 kilometres and the electronic City is at a distance of 1.2 kilometres from Nagoa market. He has further stated that there were factories and hotels coming up around the acquired land. He has further stated that the land which was subject matter of the Sale Deed dated 19th November, 1990, was at a distance of 350 -12- metres from the highway and at a distance of 1.5 kilometres from the acquired land. He has further stated that the land of Communidade of Nagoa which was acquired in the year 1985 was 100 to 250 metres away from the Highway. In the cross examination, he has stated that the land in the Sale Deed dated 19th November, 1990, is at a distance of little more than one and half kilometres and the Sale Deed in respect of property surveyed under no. 115/1 is 18 by 20 metres. He has further stated that in order to go to the highway, one has to cross property surveyed under no. 115/1 which is partly owned by Communidade of Cortalim and by Kesarval Real Estates. He has also admitted that the Sale Deed dated 1st March, 1998, is at a distance of 2.5 kilometres from the acquired land. 15. Another witness examined as Aw.3 is Vishnu Amonkar. He has stated that in January, 1986, he was approached by one Antonio Pereira to inspect the land acquired. He stated that the land was flat, bharad land at a distance of 1.2 kilometres from the highway and it was 1.7 kilometres from the Birla road junction. He has further stated that the land of Communidade of Nagoa is at a distance of one kilometre from the land acquired for the 20 Point Programme in the year 1985. In the cross examination, he has stated that at the time of the acquisition, the property surveyed under no. 33/0 did not have water supply, electricity and telephone facilities. 16. The next witness Shri Shashank P. Shirwaikar, who has been examined has stated that he inspected the land in the year 1986 along with Attorney of the Communidade. He further stated that the land is located adjoining to Loutolim and Verna Villages towards the east. He has further stated that the -13- land is located in Verna Industrial Estate and that for the purpose of arriving at the valuation, he has considered two Sale Deeds which show the appreciation of the land in the locality. In the cross examination, he has stated that he did not pay importance to observe the availability of water, electricity, telephone, etc., for the purpose of arriving at the valuation of the land. He has also produced the evaluation report whereby he has valued the land at the rate of Rs.400/- per square metre. 17. The Respondent no.2 has examined Rw.1, Narayan Mangueshkar, who has stated in his deposition that he had not visited the land when acquisition proceedings were going on. In the cross examination, he has stated that building of Phase II acquisition had already come up when it took possession of the acquired land. He has further stated that the land was considered up to Phase II. The Respondent no.2 has also examined Shri Parmanand Gaonkar, who has stated that at the time of acquisition, the land was unevenly levelled and was covered under small hillocks having maximum height of more than 30 metres at the top of hill. He has further submitted that part of the portions of the land were paddy fields. There were high tension electrical line passing through the acquired land. He has also stated that the amenities were not available to the acquired land as on the date of Section 4 Notification. In the cross examination, the said witness has stated that the contour survey was not done before the acquisition of the present case. He has further stated that in all the acquired property, there were big hillocks and that 30 percent of acquired property was hillock area which were cut subsequent to the Notification. He further stated that there was no cultivation of paddy in the acquired land. He -14- has also stated that Phase I and Phase II area is adjoining to Phase III. He has further admitted that the land which was acquired under 20 Point Programme is adjacent to the acquired land. He has further stated that residential houses are not permitted in the export promotional zone. He has further stated that acquired land is marked as export promotional zone and only Industrial Buildings can come therein. 18. The Reference Court whilst determining the compensation of the land acquired has come to the conclusion that the land which was subject matter of the Award at exhibit 20, was comparable to the land acquired. The Reference Court has further held that 50 percent deduction is to be effected from the said amount and worked out to a compensation at the rate of Rs.20/- per square metre. The Reference Court failed to consider that the Notification in the case subject matter of exhibit 20 was of the year 1985 and the Notification in the present case was in the year 1995 and no escalation in price has been awarded by the Reference Court to determine the market value of land. 19. This Court whilst disposing of First Appeal No. 300/2003, wherein the Applicants were also parties thereto, has relied upon the same Award at exhibit 20 whilst determining the market value of land in respect of the part of the property which was surveyed under no. 40/part. Relying upon the Judgment of the Apex Court reported in 2010(1) S.C.C. 444 in the case of Subh Ram & Ors. vs. State of Haryana and anr., with regard to the deductions to be effected in cases in which large chunks of lands are acquired and the comparable sale instances are of small pieces of land, this Court whilst determining the compensation has fixed -15- different rates for different types of land located in different nature of the land which was existing in the property surveyed under no. 40/0. This Court has given an escalation of 10 percent per annum on cumulative basis and arrived at a figure of Rs.61/- per square metre as on the date of Section 4 Notification in the said acquisition which had taken place on 8th January, 1990. After making a deduction on account of development charges of 20 percent for the land which was located in Belt -I, this Court has fixed the compensation at the rate of Rs.48/- per square metre. The Notification in the said case was in the year 1990 and the Notification in the present proceedings was published on 20th December, 1995. The property surveyed under no. 33/0 was also the subject matter of acquisition in First Appeal No.345/2003 which also been disposed of by a separate judgment today. The market value determined therein is at the rate of Rs.45/- per square metre considering that the land acquired was further to the national highway and the same portion had no motorable access to the acquired portion. We find that the said market