… 1 … IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.153 OF 2005 Rama Apa Faldessai Major, married, H.No.305, Deulwada, Balli, Quepem, Goa. .. Appellant. Versus 1. Special Land Acquisition Officer, South Goa, K.R.C.L., Amey Guest House, Davorlim Road, P.O. Navelim, Salcete-Goa, 403 707. 2. The Chief Engineer Konkan Railway Corporation Ltd., 4th Floor, Souza Towers, Church Square, Panaji- Goa – 401 001. .. Respondents. Mr. Sudesh Usgaonkar, Advocate for the appellant. Mr. A. D. Bhobe,Advocate for the respondents. CORAM :- S. B. DESHMUKH & U. D. SALVI,JJ. DATE OF RESERVING THE JUDGMENT : 30 th July, 2009. DATE OF PRONOUNCING THE JUDGMENT : 17 th September,2009. JUDGMENT : (Per U. D. Salvi, J.) … 2 … Computation of quantum of compensation due in respect of the acquisition of 11,180 square metres of land from Survey No.85/03 of village Balli, Quepem District South Goa belonging to the appellants and consequent dismissal of the L.A.C. No.258/1995 by the learned 3rd Additional District Judge, South Goa at Margao falls in issue in the present appeal. 2. Acquisition of land for construction of new broad gauge land of Konkan Railway encompassing vast area in village Balli including the said land was proposed with the publication of preliminary notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as “the said Act”) in the official gazette dated 12.12.1991 vide notification no.22/255/91-RD dated 25.11.1991. The respondent No.1, the Special Land Acquisition Officer, South Goa duly declared Award under Section 11 of the said Act determining the compensation for the said land at Rs.4/- per square metre and for the value of the trees in the said lands at Rs.3,22,427.25/- on 6.5.1994. Being dissatisfied with the said Award, the appellant moved an application under Section 18 of the said Act seeking compensation for the land @ Rs.250/- per square metre and compensation for trees … 3 … standing on the said land at enhanced rates i.e. Rs.4,000/- per coconut tree, Rs.3,000/- per coconut saplings and Rs.15,000/- per cashew tree and Rs.50,000/- against the remaining trees standing on the said land at the time of taking of possession by the concerned authorities. Consequently, the reference was made to the District Court, South Goa for adjudication of the claim for compensation made by the appellant in respect of the said land. 3. The appellant examined himself, his Valuers A.W.2 Vikas Dessai, A.W.3 C. X. Menezes in support of his claim. To complement these testimonies, copies of the sale deeds dated. 6.1.1989 Exh.12, dated 7.3.1991 Exh.13, dated 3.4.1991 Exh.14, valuation reports Exhs. 18 and 25 were placed on record. Cross-examination of these witnesses brought to light the sale deeds dated 20.8.1987 Exh.20 and dated 11.11.1987 Exh.21. None was examined on behalf of the respondents. 4. The Referral Court rejected the evidence of the Valuers on the point of valuation of the land and trees done by them on the ground that the valuation done by them lacked objectivity and failed to inspire any confidence as to … 4 … its credibility. The Referral Court also did not trust the sample sale deeds Exhs.12, 13 and 14 produced on behalf of the appellants, but took the sale deed dated 11.11.1987 Exh.21 produced in the cross-examination of A.W.2 Vikas Dessai, the Valuer as the yardstick for determining the market value of the acquired land @ Rs.14/- per square metre and computed therefrom the quantum of compensation paid to the appellants upon amalgamation of the market value of the land so arrived at with the compensation given for the trees standing on the said lands at the time of taking its possession in the year 1992. For appreciating the evidence, the learned Referral Court drew inspiration from the judgment of the Apex Court reported in 1984(2) SCC 120, the Special Land Acquisition Officer Versus P Veerbhadra, which chalked out the methods of valuation in the land acquisition cases and required the Courts below to consider only the bonafide sale instances of the lands adjacent to the acquired land and those possessing similar advantages. The appellants placed before the Referral Court the following instances of sale (i) dated 6.1.1989 vide copy of the sale deed Exh.12 concerning the property bearing Survey No.55/1 admeasuring about 2000 square metres sold @ 100/- per square metre, (ii) dated 7.3.1991 vide sale deed Exh.13 in … 5 … respect of plot of land bearing Survey No.53/0 admeasuring 896 square metres sold @ Rs.155.66 per square metre and (iii) dated 3.4.1991 vide sale deed Exh.14 in respect of plot of land bearing Survey No.85/7 admeasuring 300 square metres sold @ Rs.221.66 per square metre. 5. Perusal of the impugned judgment shows that the learned Referral Court did consider the sale deeds and rejected the sale instances mentioned therein either for the reason of want of bonafides and / or for lack of comparable character of the properties sold with that of the acquired land. As regards the property sold by one Suryakant Lotlikar and his wife to Surya Cold Retreats Private Ltd. under sale deed dated 6.1.1989 Exh.12, the Referral Court observed from the evidence that the plot of land being the part of the property previously purchased by Mr. Suryakant Lotlikar and his wife @ Rs.3/- per square metre was sold by them to their own Company, Surya Cold Remedies Retreats Private Ltd. at the enhanced rate of Rs.100/- per square metre that too within a span of about 16 to 17 months; and, therefore, the said sale transaction was not bonafide transaction. As regards the second sale deed dated 7.3.1991 Exh.13, the learned Referral Court suspected the bonafides of the sale … 6 … transaction revealed through the sale deed dated 7.3.1991 mainly for the reason that the said plot of land had no construction potential due to the reservations made for national highway No.17. The learned Referral Court also found that the said land was far away from the acquired land and was not comparable to the acquired land. These observations find the basis in the evidence of A.W.1 Rama Phaldessai, the appellant as well as his Valuer A.W.2 Vikas Dessai. While considering the worth of the third sale transaction revealed through the sale deed dated 3.4.1991 Exh.14, the learned Referral Court noticed from the cross- examination of the A.W.1 Rama Phaldessai that the Vendor in the said sale deed Narendra Phaldessai had purchased 1000 square metres of land bearing Survey No.85/7, out of which 300 square metres of land was sold under the sale deed dated 3.4.1991 Exh.14, for Rs.20,000/- vide sale deed dated 11.11.1987 Exh.21. Considering 10 % p.a. average increase in the price of land on compounding basis, the learned Referral Court observed, what was purchased for Rs.10 per square metre by the Vendor under sale deed dated 11.11.1987 Exh.21 would have fetched price @ Rs.14 per square metre in the year 1991 and, therefore, the sale transaction @ Rs.221/- per square metre under the sale deed … 7 … dated 3.4.1991 Exh.14 was not a bonafide transaction. 6. In this regard the learned Advocate Mr. Sudesh Usgaonkar for the appellant submitted that the respondent State ought to have produced sale deeds showing the trend in market dynamics to establish the fact that there could not have been the price rise as revealed through the said sale instances and in absence of any such evidence, the learned Referral Court had erred in rejecting the said sale instances for want of bonafides. To complement this submission, he placed reliance on the judgment of the Apex Court reported in 2001(3) SCC 530 the Land Acquisition Officer and Mandal Officer Versus V. Narsayya. The Hon'ble Apex Court while delivering the said judgment had interpreted the provisions of Section 23 and 51(A) of the Land Acquisition Act, 1894 and held that it is open to the Court to treat certified copies of the sale deeds regarding the deals in respect of similarly situated or neighbouring land as evidence, but the Court is under no compulsion to accept them as such and it is for the Court to weigh all the pros and cons to decide whether such transaction can be relied on for understanding real price of land concerned. In the instant case, the learned Referral Court did exactly as required by the Hon'ble Apex Court and … 8 … considered intrinsic value of the said sale instances, on the basis of the evidence tendered before it. This can be seen from the evidence of A.W.2 Vikas Dessai, the Valuer of the appellant, who has testified that the land prices were rising @ Rs.10 to 15 % every year. Evidence of A.W.2 Vikas Dessai i.e. the Valuer of the appellants can be very well looked into for understanding the market dynamics and the need for any other evidence particularly from the rival camp is no more. 7. Objectivity of the Valuer A.W.2 Vikas Dessai in evaluation of the market value of the acquired land is also put to question by the learned Referral Court with the fact that the valuer had shut his eyes to the sale deeds dated 20.08.1987 Exh.20 and the sale deed dated 11.11.1987 Exh.21 while considering the said sale instances for the purposes of determining the market value of the acquired land despite the fact that the sale deeds dated 6.1.1989 Exh.12 and sale deed dated 3.4.1991 Exh.14 mentioned that the lands sold were earlier purchased under the sale deeds dated 20.08.1987 Exh.20 and 11.11.1987 Exh.21. The learned Advocate Sudesh Usgaonkar for the appellant had made no comment in respect of these material observations made by the learned Referral Court. He merely submitted that … 9 … pertinent statistics regarding the market prices of comparable lands is made available in the evidence through the sale deeds even if the valuation done by the Valuer is discarded. 8. The learned Referral Court further suspected the valuer's report dated 11.12.1997 Exh.18 for the reason of its making after the period of more than 5 years from the date of the alleged inspection of the land by the Valuer A.W.2 Vikas Dessai. The Referral Court further observed that the rate of the market value of the acquired land as ascertained by the Valuer after the alleged inspection in the year 1992 was not reflected in the application under Section 18 moved by the appellant on 28.09.1994 despite the alleged communication of the market value by A.W.2 Vikas Dessai to the applicant as deposed to by A.W.2 Vikas Dessai. This discrepancy, the learned Referral Court opined, betrayed the myth of the valuation report Exh.18. 9. Thus, taking the sale instance dated 11.11.1987 as the basis for working out the market value of the acquired land, the learned Referral Court rightly reached the conclusion that the market value of the acquired land could … 10 … have been Rs.14/- per square metres. Pertinently the sale deed plot in the sale instance dated 11.11.1987, the evidence shows, was a levelled land with electricity, tap water and telephone facilities, which were the factors constituting the vital statistics comparable with those of the acquired land. The evidence of A.W.1, the appellant herein, further revealed that there were trees – one big mango tree, one small mango trees, eight small cashew trees, one jack fruit tree, one small nirpal tree, five non-yielding coconut trees on the said sale deed plot. It is against such background that it is necessary to examine the merit of the submission made on behalf of the appellant that the learned Referral Court had erred in adjusting the value of the trees in the acquired land with the market value of the acquired land and later on coming to the conclusion that nothing was due to the appellant as compensation for the reason of excess compensation being paid to the appellant. 10. According to the learned Advocate Sudesh Usgaonkar for the appellant, the adjustment of the tree value with the value of the acquired land as worked out by the S.L.A.O. resulted in deduction of the amount of compensation which was due to the appellant in violation of the mandate of … 11 … Section 25 of the Land Acquisition Act, 1894. It is correct that the amount of compensation awarded by the Court shall not be less than the amount awarded by the Collector under Section 11 of the Act and this premise of law has been enunciated in the judgment of the Apex Court reported in AIR 1996 SC 106 State of Haryana Versus Gurucharansing and another cited by the learned Advocate Sudesh Usgaonkar on behalf of the appellant in the following words : “....... though the Collector had committed error of law in separately awarding the compensation to the land as well as fruit bearing trees, it is a flaw which cannot be disturbed because of Section 25 of the Act. Rate of compensation should have been less than what the Collector has awarded. We cannot reduce the amount less than the amount offered by the Collector......” This poses a question as to whether in the instant case, the learned Referral Court had reduced the compensation than what the Collector has awarded. 11. It can very well be seen that the Collector / S. L. A. O. had awarded compensation towards the value of the land acquired @ Rs.4/- per square metre and in his … 12 … contemplation, it was the bare land without trees for which the value of the amount was computed ; and therefore, the Collector / S.L.A.O. proceeded to award separate compensation towards the value of the trees. The learned Referral Court had worked out the value of the land with trees taking into consideration the sale instance dated 11.11.1987 vide sale deed Exh.21. Section 23 of the Act spells out the factors which are required to be taken into consideration by the Court in determining the amount of the compensation to be awarded for the land acquired under the said Act, firstly, the market value of the land and secondly the damage sustained by the person interested by reason of taking of trees which may be on the land. It is true that Section 3(a) of the Act, as pointed out by the learned Advocate Bhobe for the respondents, defines 'land' as the expression which includes benefits to arise out of land, and things attached to earth i.e. the trees. However, this definition has to be read and interpreted in context to the provision under the interpretation and, therefore, it does not abridge the factors required to be taken into consideration by the Court for determining the compensation to be awarded for the land acquired under the said Act. … 13 … 12. In Gurucharansing's case (supra) the Apex Court deprecated the practice of determination of market value of the land twice over – one on the basis of the value of the land and again on the basis of the yield got from the fruit bearing trees. Keeping this in mind, if one looks at the market value of the land acquired as computed by the learned Referral Court on the basis of the sale instance dated 11.11.1987 one would easily find that the said market value included the value of the trees and to say that the said market value was only of a land without trees, would have been folly on the part of the learned Referral Court. In this situation, the learned Referral Court did not adjust the value of the trees with the market value of the acquired land determined by it but actually amalgamated the value of the trees with market value of the barren land computed by the S.L.A.O. in terms of Section 23 of the said Act in order to determine the amount of compensation actually received by or due to the owners of the acquired land. 13. As regards the valuation of the trees, the appellant had examined one Mr. Menezes, Ex-Director of Agricultural, Government of Goa. A.W.3 Menezes deposed that the report Exh.25 was prepared by him on the report of … 14 … inspection done by one Mr. Ghanashyam Nagarsenkar on 15.01.1992 some five years prior to his report dated 20.12.1997. He admitted in his cross-examination the flaws in the report of Mr. Nagarsenkar, particularly as regards the lack of vital information in respect of the age, girth, length, health and yield of the trees and its wood / timber value in the report and he was at loss to explain as to on what basis Mr. Nagarsenkar had valued the different trees. The learned Advocate Sudesh Usgaonkar for the appellant had no words to support the valuation of the trees reported by A.W.3 Menezes. The learned Referral Court had, therefore, rightly rejected the evidence of A.W.3 Menezes on the point of valuation of the trees. 14. In view of the aforesaid discussion, the finding of the learned Referral Court that the appellant/ applicant had received more compensation than what was due to him, therefore, cannot be faulted. The appeal must, therefore, fail. Accordingly, the appeal stands dismissed with no order as to costs. S. B. Deshmukh, J U. D. Salvi, J. SMA … 15 …