:1: IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 97 OF 2004 1. State of Goa, through the Sp. Land Acquisition Officer, Gogol, Margao. 2. The Executive Engineer, Works Division VI, P.W.D. Fatorda, Margao Goa. ... Appellants V e r s u s Shri Rosario Minguel Mascarenhas, r/o H.No. 1254,B Anvote, Curtorim, Salcete Goa. ... Respondent Mrs. S. Mordekar, Additional Government Advocate for the Appellants. Respondent though served remained absent. CORAM : F. M. REIS, J. DATED : 24 th SEPTEMBER, 2010. ORAL JUDGMENT : The above Appeal challenges the judgment and award dated 28th August, 2002 passed by the learned Additional District Judge, South Goa, Margao, in Land Acquisition Case No. 316/1994. 2. By a Notification under Section 4 of the Land Acquisition Act, 1894 ( hereinafter referred to as 'the said Act') published in the Official Gazette dated 21st June, 1990, the land belonging to the Respondent came to be acquired for the purpose of widening and black :2: topping of the road from Curtorim to Macazana Church. In an award under Section 11 of the said Act, the Land Acquisition Officer has fixed the compensation for the land acquired at the rate of Rs.8/- per square metre. 3. Being dissatisfied with the said award, the Respondent sought a reference under Section 18 of the said Act and claimed a compensation for the land acquired at the rate of Rs.450/- per square metre. By judgment and award dated 28th August, 2002, the learned Additional District Judge, South Goa, Margao, fixed the compensation at the rate of Rs.57/- per square metre for the land acquired along with statutory benefits. Being aggrieved by the said judgment and award, the Appellants had preferred the present Appeal. 4. The learned Additional Government Advocate appearing for the Appellants has assailed the impugned judgment and submitted that the Reference Court has failed to consider that the Respondent has failed to adduce evidence in support of his claim for enhancement of the compensation. The learned Counsel has taken me through the evidence on record and pointed out that there are admissions made by AW1 to the effect that the land was lower than the road level and apart from that it was located within the set back area. She further submitted that the Reference Court has blindly relied upon a sale deed produced by the :3: Respondent which is at Exhibit AW1/B wherein the price was mentioned at Rs.57/- without effecting any deduction on account of the aforesaid dissimilarity. The learned Counsel has further pointed out that as per the report of the expert, he has stated that the land acquired did not require any development expenses and as such she further submitted that the expert examined by the Respondent has not produced any material on record to establish the comparability of the land acquired with the said sale deed plot. The learned Counsel has taken me through the evidence on record and submitted that the Respondent has failed to discharge the burden cast on him to establish that the price offered by the Land Acquisition Officer was not adequate. The learned Counsel further submitted that there are no appreciable reasons given by the Reference Court to enhance the compensation from Rs.8/- per square metre to Rs.57/- per square metre for the land acquired. The learned Counsel appearing for the Appellants pointed out that the sale instance relied upon by the Reference Court is a developed plot and as such the deductions should have been effected on account of development charges. The learned Counsel as such submitted that the impugned judgment and award passed by the learned Additional District Judge, cannot be sustained and deserves to be quashed and set aside. 5. The Respondent though served has failed to remain present nor represented by any Counsel. On the basis of the submissions :4: advanced by the learned Counsel for the Appellants and on perusal of the records, the following point arises for determination in the present appeal : POINT FOR DETERMINATION “Whether the Reference Court was justified to fix the market value at the rate of Rs.57/- per square metre ? 6. The Respondent in support of his claim for enhancement of a compensation has examined AW1 Rosario Mascarenhas who has deposed that the entire property admeasures 1025 square metres and that the land acquired was an agricultural land/paddy field. He has further stated that the said land was adjoining Curtorim- Macasana road and it is on the left hand side of the road if one faces Macasana. He has further stated that the acquired land was about half metre lower than the road level and that his house is at a distance of about 50 metre from the acquired land. In support of his claim for enhancement of a compensation, he has produced a sale deed dated 21st April, 1988 which is at Exhibit AW1/B wherein the price mentioned is at the rate of Rs.57/- per square metre. He has further stated that the nature of the land acquired and the sale deed plot is similar. He has produced another sale deed which is at Exhibit AW1/A. The said sale deed plot is at a distance of 500 metres from the acquired land and is at a distance of 150 metres away from the road. The price fixed therein is at the rate of Rs.28/- per :5: square metre and the sale deed is dated 29th January, 1982. He has further stated that the property which was the subject matter of the Exhibit AW1/A was resold by a sale deed dated 10th December, 1991 which is at Exhibit AW1/C. In his cross examination, he has admitted that the acquired land is in the form of narrow strip of land and that it was adjoining the main road and was within the set back area and hence could not be used for construction purpose. He has further stated that the land beyond the acquired land can be used for construction purpose. He has denied the suggestion that the property which was the subject matter of Exhibit AW1/B is more than one kilometre away from the acquired land and that it has better facilities. On perusal of the valuation report produced by AW1 in support of his claim for enhancement of a compensation, he has stated that the land sold pursuant to the sale deed dated 29th January, 1982 is identical to the acquired land and located about 300 metres away from the main Curtorim - Macasana road. 7. Next witness examined is valuer AW2 Ernesto Muniz who has confirmed the contents of his report. AW3 Maria Pimenta Costa who is a seller of the property which was the subject matter of the sale deed dated 29th January, 1982 at Exhibit AW1/A. She has stated that the Respondent is resident of same village and the acquired land is about 800 metres away from the said sale deed plot and that the acquired land is abutting Margao-Macasana road at a distance of 300 metres from the said :6: road. She has further stated that the sale deed land is a paddy field which is half metre lower than the road level. In the cross examination, she has denied the suggestion that the sale deed plot is of better quality as compared to the land acquired. The fact that the sale deed plot was a paddy field and that it was lower than the road level has not been disputed by the Appellants in the cross examination of AW3. AW4 Sarojini Sardinha is a purchaser of the property at Curtorim surveyed under survey No. 198/7 pursuant to a sale deed in the year 1992 for Rs.125/- per square metre. In the cross examination, she has admitted that the acquired land is a paddy field and below the road level and difference would be about a quarter metre and that her property is on the level of the road. The Reference Court has discarded the sale deed at Exhibit AW1/C as well as Exhibit AW1/A and relied upon a sale instance at Exhibit AW1/B and came to the conclusion that the market value of land as on the date of notification under Section 4 is Rs.57/- per square metre without making any deductions. 8. From the evidence adduced by the Respondent, I find that the land acquired plot was situated within the set back area from the main road and considering that the Respondent own land beyond the set back area, the land could have potentiality of being used for non-agricultural purpose for maintaining statutory restrictions. The Apex Court in the judgment passed in Special Leave Petition No.10598 of 2009 in case of :7: State of Goa & Anr. V/s Gopal Baburao Gaudo and others has held at paras 3 and 4 thus : “3. A long strip of land measuring more than two- third of an acre lying alongside and adjoining the Highway cannot be treated as a land without value or without any potential for development, merely on the ground that the law relating to Highways prohibited construction on either side of the Highway, upto a depth of 40 metres from the centre of the Highway. All that was required to create or realize potential of such land was to annex or merge the said strip of land with the land to its rear. In that event, the strip of land will become the 'access' to the rear-side land from the main road and will also become the frontage of the aggregate land, thereby enhancing the potential and value of the rear-side land, as also creating a potential for its own use. The contention that a land adjoining the Highway should be treated as having no development potential ( and therefore as land without much value except as ordinary agricultural land), while considering the lands to its rear which are farther away from the road, or other adjoining lands of the same extent, but having more depth ( so as to extend beyond the 40 metres margin ) as having potential for development, is illogical and cannot be accepted. 4. We may demonstrate the absurdity of such a contention with reference to an illustration. Let us :8: take the example of a residential plot of land measuring 60' X 100'. Let us assume that the Municipal Bye-laws require a front (road side ) set-back of 20' for construction of houses in a plot of that size. Therefore, the owner would leave a twenty feet wide front strip in the said plot free of any construction while putting up the construction in the plot. Obviously, he cannot thereafter construct in that front strip. Let us further assume that the front strip is acquired for road widening. Can the acquiring authority deny compensation to that strip on the ground that the said 20' strip acquired for road widening could not in any event be used for any construction purpose and therefore, was not of any value ? Obviously not.” 9. Considering the said judgment of the Apex Court, I find that there is no justification in contending that merely because the land acquired was coming within the road set back area the same has no potential value. No doubt some deductions will have to be considered on account of statutory restrictions imposed while determining the market value of the land acquired. The Reference Court while determining the price at Rs.57/- per square metre has failed to consider the dissimilarity of the land acquired vis-a-vis the said sale instance. AW1 has admitted that the land acquired was at a lower level and that the said land was within the road set back area. Though the said sale instance is about two years prior to the relevant date, I find that the Reference Court ought to have :9: given an escalation of 10% on cumulative basis and thereafter effected the necessary deductions to arrive at the market value of the acquired land. 10. Considering the said sale instance at Exhibit AW1/B wherein the price was mentioned as Rs.57/- per square metre, after escalation of 10% on cumulative basis, the amount works out to Rs.68.97 per square metre which is rounded off to Rs.69/- per square metre. In view of said dissimilarity of the acquired land vis-a-vis the said sale instance after effecting 25% deduction on that count, the amount works out to Rs.52/- per square metre. The Reference Court rightly discarded the sale instance at Exhibit AW1/A as it was more than five years from the Section 4 notification. The other sale instances were post notification sale deeds which cannot be relied upon when sale deeds prior to Section 4 notification are available which are comparable to the land acquired. The point for determination is answered accordingly. 11. In view of the above, I pass the following : O R D E R (i) The Appeal is partly allowed. (ii) The impugned judgment and award dated 28th August, 2002 is modified and the market value of the land acquired is fixed at the rate of Rs.52/- per :10: square metre. (iii) The remaining part of the award granting statutory benefits is confirmed. (iv) The Appeal stands disposed of accordingly with no order as to costs. F. M. REIS, J at*