1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.135 OF 2003 1. Special Land Acquisition Officer, (S.I.P) I.D. Complex, Gogal. 2. Executive Engineer, Works Division VI, P.W.D., Fatorda, Margao – Goa. …. Appellants V e r s u s 1. Shri Antonio Correa, Near K.T.C. Bus Stand, Margao-Goa. …. Respondent. Mr. A. Kakodkar, Additional Government Advocate for the Appellants. None for the respondent, though served. Coram: A. P. Lavande, J. Date: 24th November, 2010. JUDGMENT: By this appeal, the appellants takes exception to the judgment and award dated 18/12/2002 passed by the Additional District Judge, South Goa, Margao, passed in Land Acquisition 2 Case No.43 of 1993 partly allowing the reference under Section 18 of the Land Acquisition Act,1894 (“The Act” for short). 2. Vide notification dated 18/1/2990 under Section 4 of the Act which was published in the Official Gazette dated 31/1/1990, the Government of Goa acquired lands of several persons for construction of the road from Mungul-Calata via Seraulim. An area admeasuring 390 sq.metres from survey no.117/1 of village Murda, Pequeno (Seraulim) belonging to the respondent was part of the acquired land. The respondent claimed compensation at the rate of Rs.200/- per sq.metre and also claimed compensation at the same rate in respect of the remaining area of 850 sq.metres which was un-acquired on the ground that the same was rendered useless. In other words, the respondent claimed compensation at the rate of Rs.200/- per sq.metre in respect of 850 sq.metres as severance charges. 3. The Land Acquisition Officer made award on 13/5/1992 and awarded compensation at the rate of Rs.30/- per sq.metre. The Land Acquisition Officer did not grant severance charges. 3 4. The respondent sought reference under Section 18 of the said Act and claimed Rs.200/- per sq.metre in respect of the acquired land and also in respect of area of 850sq.metres of land. 5. In Land Acquisition Case No.43 of 1993, the respondent examined himself as AW.1, Antonio L. Rebello, AW.2, Bosco Cotta,AW.3, and Krishna Prabhudesai,AW.4, an expert witness. The respondent placed reliance upon sale deed dated 21/5/1990 (Exhibit AW1/A), sale deed date 25/9/1989 (Exhibit AW1/B), sale deed dated 11/5/1989 (Exhibit AW1/C) and also valuation report dated 25/11/1989 (Exhibit AW4/A). 6. The Reference Court placed reliance upon sale deed dated 11/5/1989 and fixed the compensation in respect of the acquired land at Rs.85/- per sq.metre. The Reference Court also awarded compensation at the same rate in respect of the unacquired portion of land admeasuring 850 sq.meters. 7. Mr. Kakodkar, learned additional Government Advocate submitted that the reference Court ought not to have enhanced the compensation in favour of the respondent. Mr. 4 Kakodkar further submitted that in any event the respondent is not entitled to compensation higher than Rs.65/- which has been awarded by this Court in respect of acquired land of an area of 485 sq.metres from survey nos.16/6 and 16/3 of Seraulim village belonging to Smt. Agnes Benedita Fernandes which was acquired by the same notification, since this Court had fixed the compensation in respect of the said land at Rs.65/- per sq.metre after placing reliance upon the sale deed dated 11/5/1989 relied upon by the respondent herein. Mr. Kakodkar further submitted that the land of the respondent was similar to the land of Smt. Agnes Benedita Fernandes which was subject matter of First Appeal no.129 of 2003. Mr. Kakodkar further submitted that the Reference Court has completely erred in awarding compensation at the rate of Rs.85/- per sq.metre in respect of 850 sq.metres of land on the ground that the said area was rendered useless by placing reliance upon the evidence of Krishna Prabhudessai, AW.4. According to Mr. Kakodkar having regard to the location and the dimension of the said area of 850 sq.metres it cannot be said that the said area has absolutely no building potential and therefore, the Reference Court could not have granted compensation as severance charges in respect of the said land. 5 8. The respondent has chosen not to put in appearance despite service. 9. In view of the finding given by the Reference Court and the submissions made by Mr. Kakodkar, the following points arise for determination in the appeal: a) Whether the Reference court was legally justified in fixing the market rate of the acquired land at Rs.85/- per sq.metre. If not, what compensation the respondent is entitled to? b) Whether the Reference Court was justified in awarding compensation in respect of the unacquired portion of land admeasuring 850 sq.metres? 10. In so far as compensation in respect of an area of 390 sq.metres is concerned, it is not necessary for me to refer in detail to the evidence led by the appellants. In First Appeal No.129 of 2003 which was preferred by the very same appellants challenging the award made by the Reference Court in favour of Smt. Agnes Benedita Fernadnes in respect of an area of 485 sq.meteres from survey nos.16/6 and 16/3 of Seraulim village after placing reliance upon very same sale deed dated 11/5/1989, this Court had fixed the 6 market rate of the acquired land at Rs.65/- per sq.metre. There is no serious dispute that the land involved in First Appeal No.129 of 2003 and the acquired land in the present appeal was similar, that is, sandy murram. There is also no dispute that both the lands were acquired by the same notification. This being the position, I am of the considered opinion that the respondent is entitled to compensation at the rate of Rs.65/- per sq.metre in respect of the acquired land admeasuring 390 sq.metres. 11. The next question which arises for consideration is whether the Reference Court was justified in awarding compensation at the rate of Rs.85/- per sq.metre in respect of an area admeasuring 850 sq.metres. The Reference Court after placing reliance upon the evidence of Krishna Prabhudessai, AW.4 held that in terms of the report (Exhibit AW.4/A) produced by the Expert, the land which was severed out of survey no.117/1 admeasuring 850 sq.metres was rendered useless and it was rendered undevelopable and had lost its potential value. This finding was recorded on the basis of the fact that the evidence of the expert was not challenged in the cross examination. 7 12. Perusal of the report Exhibit AW.4/A discloses that the unacquired portion of land admeasuring 850 sq.metres has a breadth of about 55 sq.metres and naturally its length would be about 15 sq.metres. This being the position, I find it extremely difficult to sustain the finding of the learned Judge that the respondent was entitled to compensation towards severance charges on the ground that an area of 850 sq.metres was rendered undevelopable and had lost its potential value. In my opinion, it cannot be said that the said area of 850 sq.metres cannot be put to any use or for that matter for any construction purpose. This being the position, I am of the considered opinion that the respondent is not entitled to any compensation in respect of the said area on the ground that it has been rendered useless. The Reference Court could not have accepted the said finding of the expert solely on the ground that there was no cross examination on the part of the appellants. In the case of P. Ram Reddy and others V/s Land Acquisition Officer, Hyderbad and others, (1995) 2 Supreme Court Cases 305) the Apex Court held that even if there is no proper cross examination, the Reference Court is not bound to accept the evidence of the claimant or his witness. In my opinion, the ratio of the said judgment is squarely applicable in the present 8 case. The Reference Court ought to have addressed itself to the question as to whether the unacquired portion could not have been put to any use, including for construction purpose. Therefore, I am of the considered opinion, that the Reference court has erred in granting compensation in respect of the unacquired portion of land admeasuring 850 sq.metres. 13. In view of the above discussion, the appeal is partly allowed. The respondent is held entitled to compensation at the rate of Rs.65/- per sq.metre in respect of the acquired land admeasuring 390 sq.metres. However, the impugned award to the extent it grants compensation in respect of an area of 850 sq.metres is hereby quashed and set aside. The appeal is allowed in the aforesaid terms with no order as to costs. A. P. Lavande, J. Ap/-