:1: IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 9 OF 2002 1. Special Land Acquisition Officer (South Goa) Konkan Railway Corporation Limited, Amey Guest House, Davorlim Road, P.O. Navelim, Salcete Goa, 403 707. 2. Chief Engineer, Konkan Railway Corporation Ltd., Rawnfond, near Margao Railway Station, Margao Goa. ... Appellants V e r s u s Manuela Faria Roadrigues, 247/B-A, C. Pacheco Road, Margao Goa. ... Respondent Mr. E. Afonso, Advocate for the Appellants. Mr. G. Teles, Advocate for the Respondent. CORAM : D. G. KARNIK, J. DATED : 15th OCTOBER, 2010. ORAL JUDGMENT : 1. This appeal at the instance of acquiring body ( Konkan Railway Corporation Limited ) is directed against the judgment and award dated 30th August, 2001 passed by the learned Additional District Judge, South Goa, Margao, enhancing the amount of compensation for the acquired land at the rate of Rs.134/- per square metre. :2: 2. The respondent ( hereinafter referred to as 'the claimant' ) is the owner of the lands surveyed under survey Nos. 149/2 and 150/1 of Village Cortalim in Mormugao Taluka. An area of 1800 square metres out of survey No. 150/1 and an area of 675 square metres out of survey No.149/2 belonging to the respondent were acquired for laying of railway tracks for the Konkan Railway. Notification under Section 4 of the Land Acquisition Act, 1894 was published on 24th October, 1991 and an award was made by the Land Acquisition Officer on 24th January, 1995. The Land Acquisition Officer awarded compensation at the rate of Rs.4/- per square metre. Dissatisfied with the award of amount of a compensation, the claimant made an application to the Collector under Section 18 of the Land Acquisition Act, 1894, for making a reference in the District Court. Accordingly, the matter was referred to the District Court ( hereinafter referred to as the Reference Court ). In the reference application, the claimant claimed compensation at the rate of Rs.50/- per square metre in addition to the compensation already awarded i.e. to say the claimant claimed compensation at the rate of Rs.54/- per square metre. The Reference Court awarded the compensation at the rate of Rs.134/- per square metre i.e. at the rate even higher than the rate claimed by the claimant in the reference application. Aggrieved by the judgment and award of the Reference Court, the appellants are in appeal. :3: 3. Before the Reference Court, the claimant examined himself as AW1 and also examined Ernesto Moniz (AW2) as a valuer. The claimant also produced on record the certified copies of two sale deeds. The certified copies were returned to the claimant by retaining on record the photo copies after comparing them with the originals. First sale deed is dated 10th October, 1986 and is marked as Exhibit AW/C by the Reference Court. Second sale deed is dated 23rd April, 1991 and is marked as Exhibit AW1/D by the Reference Court. No oral evidence was adduced by the appellants. After considering the oral and documentary evidence adduced before it, the Reference Court held that the market value of the acquired land on the date of the notification under Section 4 was Rs.134/- per square metre. Accordingly the Reference Court awarded the compensation at that rate. 4. The learned Counsel for the appellants submitted that the sale deed at Exhibit AW1/C and Exhibit AW1/D were not of the comparable lands. He submitted that the Reference Court erred in relying upon the two sale deeds for determining the market value of the acquired land on the date of notification. In view of the submissions, it would be appropriate to consider whether the sale deeds in question are in respect of the comparable lands. In examination in chief, AW1 has stated that in survey No.150/1, which is one of the acquired lands, is a coconut grove. However he has not given the details as to the number of the coconut trees :4: planted in survey No.150/1. He has further stated that survey No.150/1 could be used for construction of a building as the land was in settlement area. The number of coconut trees standing in the land, distance between the coconut trees and whether there was any open space unoccupied by the coconut trees was available for construction of building is not mentioned by the claimant. It therefore cannot be said that survey No. 150/1 had any potential for being used for non-agricultural purpose and construction of a building. So far as survey No.149/2 is concerned, the claimant has stated that the survey No.149/2 was meant for horticulture. He has not stated about the existence of any non-agricultural potential available to survey No.149/2. 5. Mr. Ernesto Moniz, AW2 has stated that he was a graduate in Civil Engineering from the University of Mysore and he was also a registered valuer for the purpose of wealth tax. In the examination in chief, he has stated that survey No.149/2 was suitable for plantation. He has not stated about any potential non-agricultural use of survey No.149/2. Looking to the evidence of AW1 and AW2, both of whom have not stated about the existence of any non-agricultural potential in survey No.149/2 and that the fact that the AW1 has specifically stated that it was meant for horticulture and suitable for plantation, it must be held that survey No. 149/2 had no non-agricultural potential. As regards the survey No.150/1, AW2 has stated that it was suitable for residential development. However :5: he has not given any details as to the number of coconut trees standing in survey No.150/1, the area occupied by the plantation of coconut grove and the open area available and how open area was suitable for the purpose of construction of any building. On the basis of evidence of AW1 and AW2, it cannot be said that the claimant had proved existence of any building potentiality in survey No.150/1 also. 6. The sale deed at Exhibit AW1/C dated 10th October, 1986 relates to a plot of land known as 'pinnagle' ( pirnagle) and bearing sub- division No.10 of survey no. 139 of village Cortalim. The area of the plot is stated to be 200 square metres. The plot was bounded on the east by a national highway 17-A. This property thus was a small plot of land abutting the national highway. Though it was not converted into non- agricultural use and the property had a non-agricultural potential as it was a small piece of land abutting the national highway. The sale deed Exhibit AW1/C, therefore, cannot be said to be of a comparable land. 7. The sale deed at Exhibit AW1/D dated 23rd April, 1991 is in respect of a plot of land forming part of survey number (unreadable) admeasuring 325 square metres. The copy of sale deed contains many blanks. Though it is stated in the deposition that it was compared with the certified copy, obviously, the copy is not compared because it contains several blanks. This property also appears to be a building plot as there is :6: a reference in the sale deed that no objection certificate was issued by Mormugao Planning and Development Authority for the sale. This plot of land forms a part of development scheme sanctioned by the Mormugao Planning and Development Authority and was a building plot. This sale deed cannot, therefore, be said to be of a comparable land. 8. Both the sale deeds which have been relied upon by the claimant and his valuer for the purpose of determination of the market value of the acquired land are building plots. One touching the highway and another is situated in an area forming part of development scheme sanctioned by the Mormugao Planning and Development Authority. As against that one of the acquired lands was a coconut grove and the other land was used for hoticulture. This two sale deeds are of two small developed plots having non-agricultural potentialities cannot be said to be comparable sale instances. In my view therefore the Reference Court erred in relying upon these sale instances as comparable sale instances for determining the market value of the acquired land. It may also be noted that the claimant himself had claimed a compensation at the rate of Rs.54/- per square metre but the Reference Court has awarded compensation at the rate of Rs.134/- per square metre. Again the judgment and order of the Reference Court does not give any reason why it was awarding compensation in excess of the amount claimed by the claimant in the reference application. Admittedly, the claimant had not :7: amended the reference nor asked for amendment nor was such a prayer made before me. The burden of proving that the amount of compensation offered in the award made by the Land Acquisition Officer is inadequate and the market value is higher than the compensation claimed is on the claimant. The claimant had not adduced satisfactory evidence to show that the compensation offered by the Land Acquisition Officer was inadequate and the market value was higher than what was granted in the award. 9. In the circumstances, the appeal succeeds. The impugned judgment and award is set aside and the reference made by the claimant/respondent is dismissed with costs. D. G. KARNIK, J. at*