First appeal no.190 of 2006 1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 190 OF 2006 AND FIRST APPEAL NO. 202 OF 2006 FIRST APPEAL NO. 190 OF 2006 Vishwas Damodar Audi, Legal heirs of late Damodar, r/o Benaulim, Salcete, Goa. ... Appellant versus 1. Dy.Collector(L.A.) South Goa, Margao. 2. The Executive Engineer, Works Div.VI(R-S), PWD, Fatorda, Margao-Goa. ... Respondents Shri Judas Chagas Silva, Advocate for the Appellant. Mrs. S. Linhares, Additional Government Advocate for the Respondents. FIRST APPEAL NO. 202 OF 2006 1. Mr. Martinho Wilson das Chagas e Silva, r/o H.No.1334, Mazilwaddo, Benaulim, Salcete, Goa. 2. Mr. Marcos Dos Sangos das Chagas e Silva, deceased r/o H.No.1334, Mazilwaddo, First appeal no.190 of 2006 2 Benaulim, Salcete, Goa. 2a. Fatima C. Silva, wife of late Marcos (mentioned above) 2c. Sufola Chagas Silva, daughter of deceased 2f. Joseph Chagas Silva, Son of deceased all r/o H.No.1334, Mazilwaddo, Benaulim, Salcete, Goa. ... Appellants versus 1. Dy. Collector(L.A.) South-Goa, margao. 2. The Executive Engineer, Works Div.VI(R-S), PWD, Fatorda, Margao-Goa. ... Respondents 3)2b. Mr. Amol Chagas Silva, son of deceased Marcos r/o H.No.1334, Mazilwaddo, Benaulim, Salcete-Goa. 4)2d)i) Dr. S. Melvin das Chagas e Silva son of deceased Marcos r/o H.No.1334, Mazilwaddo, Benaulim, Salcete, Goa. 5)2d(ii)Mrs. Renia Avissa Dourado, wife of Dr. Melvin(above) r/o H.No.1334, Mazilwaddo, Benaulim, Salcete, Goa. ... Respondents First appeal no.190 of 2006 3 Shri Judas Chagas Silva, Advocate for the Appellants. Shri G. Shirodkar, Government Advocate for Respondent Nos.1 and 2. CORAM : F. M. REIS, J. DATE : 15TH JULY, 2011. ORAL JUDGMENT Both the above appeals are taken up together for final hearing as both challenge the Judgments and Awards passed in references under Section 18 of the Land Acquisition Act, 1894(hereinafter referred to as the said Act) in respect of land acquired pursuant to the same notification. FACTS IN FIRST APPEAL NO. 190 OF 2006 2. The above appeal challenges the Judgment and Award dated 6-3-2006 passed by the learned Additional District Judge, Margao in Land Acquisition Case No.68 of 2004. Pursuant to a notification dated 16-3-1990 issued under Section 4 of the said Act, land was intended to be acquired in the village of Benaulim for the construction of a road First appeal no.190 of 2006 4 No.3 in the said village. An area of 310 sq. meter out of the property surveyed under No.318/6 of village Benaulim was acquired pursuant to the said notification. By an award passed under Section 11 of the said Act dated 10-11-1992, a sum of Rs.23/- per sq. metre was offered by the Land Acquisition Officer. Being dissatisfied with the said amount, the Appellant sought a reference under Section 18 of the said Act and claimed a sum of Rs.300/- per sq. meter for the land acquired. The Reference Court after hearing the parties by the impugned Judgment and Award dated 6-3-2006 rejected the reference filed by the Appellant. Being aggrieved by the said Judgment, the Appellant has preferred the present appeal. FACTS IN FIRST APPEAL NO.202 OF 2006 3. Pursuant to the same notification referred to hereinabove, land belonging to the Appellants was acquired admeasuring an area of 1250 sq. meter from the property surveyed under No.328/1 and an area of 95 sq. meter from the property surveyed under No.329/2 of the same Benaulim village for the same purpose. The Land Acquisition Officer First appeal no.190 of 2006 5 whilst passing an award under Section 11 of the said Act offered a compensation of Rs.23/-per sq. metre. Being dissatisfied, with the said amount the Appellants sought a reference under Section 18 of the said Act for enhancement of the compensation and claimed a sum of Rs.250/- per sq. metre for the land acquired. By the impugned Judgment and Award dated 6-3-2006, the learned Reference Court rejected the reference filed by the Appellants. Being aggrieved by the said Judgment, the Appellants have preferred the present appeal. SUBMISSIONS : IN BOTH APPEALS 4. The learned Counsel for the Appellants in both the appeals has assailed the impugned Judgment and pointed out that the Reference Court has erroneously refused to enhance the compensation as claimed by the Appellants. Learned Counsel has further submitted that the Appellants have produced sale instances at Exhs.19 and 20 in First Appeal No.190 of 2006 which are in the vicinity of the acquired land and comparable to the land acquired. Learned Counsel has further submitted that the Appellants in the said appeal have also produced an award First appeal no.190 of 2006 6 passed in Land Acquisition Case No.133 of 1993 in respect of the land acquired in the same notification wherein the compensation was fixed at the rate of Rs.60/- per sq. meter and the said land is comparable to the land acquired. Learned Counsel has further submitted that the appeals preferred before this Court in respect of the said awards have been rejected. Learned Counsel further submitted that the Reference Court has totally misdirected itself in refusing to enhance the compensation on extraneous grounds and as such, the impugned Judgment and Award in both the appeals deserves to be quashed and set aside and the amount of compensation offered to the Appellants be enhanced. Learned Counsel has further submitted that the same sale instances as well as the award have also been produced in First Appeal No.202 of 2006 to claim for enhancement of compensation and that the lands acquired in both the proceedings are in proximity to one another and have similar features. 5. On the other hand, Ms. S. Linhares, learned Additional Government Advocate for the Respondents has supported the impugned Judgment. Learned Additional Government Advocate has submitted that there is no comparability with the land acquired established by the First appeal no.190 of 2006 7 Appellants and as such, the Reference Court was justified to refuse the enhancement of compensation. Learned Additional Government Advocate further admitted that this Court whilst disposing of First Appeal No.152 of 2004(Dy.Collector(L.A.) Margao and another v. Shri Fernando Luis de Santos Fernandes and another) by Judgment dated 1-10-2010 has relied upon the said award at Exh.21 and fixed the compensation of the land acquired therein at the rate of Rs.65/- per sq. meter. Learned Additional Government Advocate further pointed out that the land acquired in the present proceeding and the land acquired in Land Acquisition Case No.133 of 1993 are pursuant to the same notification and the award passed at the rate of Rs.60/- per sq. meter has become final. CONSIDERATION OF THE SUBMISSIONS 6. Having heard the learned Counsel and on perusal of the records, the following points for determination arise:- Whether the Reference Court was justified to refuse the reference filed by the Appellants? First appeal no.190 of 2006 8 7. On perusal of the record, I find that the Appellants have produced the said sale deeds at Exh.19 wherein the price of land was shown at the rate of Rs.56/- per sq. meter and the sale instance was prior to the notification under Section 4 in the present case. The said land was also close to the land acquired. Apart from that, the sale deed at Exh.20 was at a distance of 800 meters from the acquired land and the plot therein was admittedly a sub divided plot. The sale deed at Exh.20 was sold after necessary approval were obtained from the statutory authorities whereby a plot admeasuring 594 sq. meters was sold for a total price of Rs.1,11,375/-. Considering the said sale instances which are in the vicinity of the land acquired, I find that the sale deed at Exh.19 which is an undeveloped land can form the basis for determining the market value of the acquired land as it is more in proximity than the land at Exh.20. The Reference Court was not justified to discard the sale instances for determining the market value of the land acquired. Apart from that, the award at Exh.21 is in respect of the land which was acquired pursuant to the same notification. The compensation therein was determined at the rate of Rs.60/- per sq. meter. There is no dispute First appeal no.190 of 2006 9 that both the lands were acquired pursuant to the same notification. Both the lands were classified as being similar in nature even by the Land Acquisition Officer whilst offering the compensation in the award under Section 11 of the said Act. Whilst disposing of First Appeal No.152 of 2004 by Judgment dated 1-10-2010 the said award was considered for the purpose of fixing the market value of the land acquired therein in the same village in respect of the notification which was issued about a year thereafter and the compensation was fixed at Rs.65/- per sq. meter. This Court whilst passing the said Judgment has also considered the awards passed in respect of different portions of lands pursuant to the same notification and found that the compensation fixed in the said award at Exh.21 has also been accepted whilst disposing of the First Appeal No.100 of 2004. Considering that both the lands have been acquired pursuant to the same notification and as the learned Additional Government Advocate for the Respondents was unable to point out any dissimilar factor between both the lands, I find no reason to award any different compensation to the land acquired in the present case. The Reference Court was not justified to consider that in view of the construction of the road, the remaining land of the Appellants would be First appeal no.190 of 2006 10 benefited as this aspect is not at all material to determine the market value of the land acquired. The Reference Court was as such not justified in answering the reference in the negative. 8. For the reasons stated above, I find that the Appellants are entitled for compensation for the land acquired at the rate of Rs.60/- per sq. meter. Considering that there is no dispute that both the lands in the above appeals are similar in nature, the Appellants in both the appeals are entitled to the same compensation. The point for determination is answered accordingly. 9. In view of the above, I pass the following Order:- ORDER 1. Both the appeals are partly allowed. 2. The impugned Judgments and Award dated 6-3-2006 passed in Land Acquisition Case Nos.68 and 69 of 2004 are quashed and set aside. 3. The Appellants in both the appeals are entitled for compensation for the land First appeal no.190 of 2006 11 acquired at the rate of Rs.60/- per sq. meter. Besides the said amount the Appellants are entitled for statutory benefits under Sections 23(1)(A), 23(2) and 28 of the said Act in accordance with law. 4. Both the appeals stand disposed of accordingly with no order as to costs. F. M. REIS, J. RD