1 IN THE HIGH COURT OF BOMBAY AT GOA First Appeal no.45 of 2003 with Cross Objection and First Appeal no.46 of 2003 with Cross Objection and First Appeal no.47 of 2003 with Cross Objection and First Appeal No.48 of 2003 with Cross Objection and First Appeal no.49 of 2003 with Cross Objection First Appeal no.45 of 2003 with Cross Objection 1. The Land Acquisition Officer PWD (Cell), Altinho, Panaji-Goa. 2. Executive Engineer, W.D. VI, PWD, Fatorda, Margao, Goa. ..... Appellants V e r s u s Shri Shantaram J.S. Kantak, Manguirish Krupa, Behind Aquem Post Office, Margao, Goa. .... Respondent 2 Cross Objection Shri Shantaram J.S. Kantak, Manguirish Krupa, Behind Aquem Post Office, Margao, Goa. .... Appellant Vs. 1. The Land Acquisition Officer PWD (Cell), Altinho, Panaji-Goa. 2. Executive Engineer, W.D. VI, PWD, Fatorda, Margao, Goa. ..... Appellants First Appeal no.46 of 2003 with Cross Objection 1. The Land Acquisition Officer PWD (Cell), Altinho, Panaji-Goa. 2. Executive Engineer, W.D. VI, PWD, Fatorda, Margao, Goa. ..... Appellants V e r s u s Shri Anand J.S. Kantak, Manguirish Krupa, Behind Aquem Post Office, Margao, Goa. ..... Respondent. 3 Cross Objection Shri Anand J.S. Kantak, Manguirish Krupa, Behind Aquem Post Office, Margao, Goa. ..... Appellant. V e r s u s 1. The Land Acquisition Officer PWD (Cell), Altinho, Panaji-Goa. 2. Executive Engineer, W.D. VI, PWD, Fatorda, Margao, Goa. ..... Respondents First Appeal no.47 of 2003 with Cross Objection 1. The Land Acquisition Officer PWD (Cell), Altinho, Panaji-Goa. 2. Executive Engineer, W.D. VI, PWD, Fatorda, Margao, Goa. ..... Appellants V e r s u s Shri Ajit J.S. Kantak, 4 Mangurish Krupa, Behind Aquem Post Office, Margoa – Goa. ..... Respondents. Cross Objection Shri Ajit J.S. Kantak, Mangurish Krupa, Behind Aquem Post Office, Margoa – Goa. ..... Appellants V e r s u s 1. The Land Acquisition Officer PWD (Cell), Altinho, Panaji-Goa. 2. Executive Engineer, W.D. VI, PWD, Fatorda, Margao, Goa. ..... Respondents First Appeal No.48 of 2003 with Cross Objection 1. The Land Acquisition Officer PWD (Cell), Altinho, Panaji-Goa. 2. Executive Engineer, W.D. VI, PWD, Fatorda, Margao, Goa. ..... Appellants 5 V e r s u s Shri Pandurang J.S. Kantak, Manguirsh Krupa, Behind Aquem Post Office, Margoa-Goa. ..... Respondents. Cross Objection Shri Pandurang J.S. Kantak, Manguirsh Krupa, Behind Aquem Post Office, Margoa-Goa. ..... Appellant. V e r s u s 1. The Land Acquisition Officer PWD (Cell), Altinho, Panaji-Goa. 2. Executive Engineer, W.D. VI, PWD, Fatorda, Margao, Goa. ..... Respondents First Appeal no.49 of 2003 with Cross Objection 1. The Land Acquisition Officer PWD (Cell), Altinho, Panaji-Goa. 6 2. Executive Engineer, W.D. VI, PWD, Fatorda, Margao, Goa. ..... Appellants V e r s u s Shri Dinanath J.S. Kantak, Manguirish Krupa, Behind Aquem Post Office, Margao, Goa. ...... Respondents Cross Objection Shri Dinanath J.S. Kantak, Manguirish Krupa, Behind Aquem Post Office, Margao, Goa. ...... Appellants V e r s u s 1. The Land Acquisition Officer PWD (Cell), Altinho, Panaji-Goa. 2. Executive Engineer, W.D. VI, PWD, Fatorda, Margao, Goa. ..... Respondents. Ms. Sushan Linhares, Additional Government Advocate for the Appellants in all the appeals. Mr. A.R. Kantak, Advocate for the Respondents in all the appeals. 7 Coram: A.P. Lanvande, J Date: 14th September, 2010. ORAL JUDGMENT: All these appeals with cross objections are disposed of by common judgment since they arise out of the same acquisition. 2. By notification issued under Section 4 of the Land Acquisition Act 1894 (“the Act” for short), which was published in the Official Gazette dated 30.4.1992, lands of several persons were acquired for public purpose, namely, construction of road from NH-17 near Sesa Goa Workshop to join Pale-Birla Airport road near MES college in village Panchayat, Sancoale. An area admeasuring 2050 sq.metres belonging to the respondents in the appeals was part of the acquired land. Each of the respondents has 1/5 share in the acquired land. Before the Land Acquisition Officer, the respondents claimed 8 compensation at the rate of Rs.250/- per sq.metre. The Land Acquisition Officer made award on 16.12.1994 and awarded compensation at the rate of Rs.35/- per sq.metre. Aggrieved by the compensation awarded and the area for which the compensation was awarded, the respondents sought references under Section 18 of the Act and claimed compensation at the rate of Rs.250/- per sq.metre. 3. Pursuant to the references, land acquisition case nos.27, 28,29,30 and 31 of 1996 were registered. In all the references, Pandurang Kantak, the respondent in first appeal no.48 of 2003 was examined on behalf of the claimants. The claimants also examined Abdul Aziz Shaikh Mohidin, AW.2, the vendor of the sale deed dated 29.1.1993 and Ravindra Tamba, AW.3 Civil Engineer and Approved Valuer in support of their case. 4. On behalf of the appellants herein, no evidence was led before the Reference Court. 5. Before the Reference Court, the claimants 9 placed reliance upon sale deed dated 16.5.1991 (Exhibit AW.1/B) by which an area of 325 sq.metres was sold at the rate of Rs.307/- per sq.metre. By another sale deed (Exhibit Aw.1/C) dated 14.6.1991, an area of 240 sq.metres at the rate of Rs.300/- per sq.metre was sold. Abdul Aziz Shaikh Mohidin, AW.2 the vendor, produced sale deed dated 29.1.1993, (Exhibit AW.2//A) by which an area of 340 sq.metres was sold at the rate of Rs 250/- per sq.metre. The Reference Court after appreciating the evidence led by the claimants fixed the compensation at the rate of Rs. 125/- per sq.metre. Before the Reference Court, the claimants did not press the reference in so far as the area is concerned. 6. The Reference Court held that Exhibit (AW. 2/A) though a post notification sale deed was comparable to the acquired land and held that the land sold by the said sale deed was similar to the acquired land and considering that the acquired land was situated in the interior at a long 10 distance from National Highway 17, deducted 50% from the price mentioned in the said sale deed and arrived at compensation at the rate of Rs.125/- per sq.metre. The claimants have filed cross objection claiming compensation at the rate of Rs249/- per sq.metre, whereas, the appellants have filed the appeals challenging grant of higher compensation by the Reference Court. 7. Ms. Linhares, learned Additional Government Advocate submitted that there is absolutely no evidence on record to establish that the acquired land was similar to the plot in sale deed (Exhibit AW2/A) and the Reference Court has erred in comparing the acquired land with the sale deed plot (Exhibit AW.2/A) and granting higher compensation. She further submitted that the plot sold by sale deed Exhibit AW2/A is a developed plot and was sold for residential purpose, and, therefore, the acquired land is not comparable to the said plot. In the alternative, she submitted that the Reference Court has erred in deducting 11 only 50% from the price mentioned in the sale deed at (Exhibit AW.2/A) and if the said sale deed was considered by the Reference Court as comparable sale instance, the Reference court ought to have deducted 75% from the price mentioned in the sale deed. Ms. Linhares further submitted that the appeals be allowed and the cross objections filed by the respondents be dismissed. In support of her submissions, she relied upon judgment of the Apex Court in case of Subh Ram and others Vs. State of Haryana and Another (2010) 1 Supreme Court Cases 444. 8. Mr. Kantak, learned counsel appearing for the respondents/claimants submitted that the acquired land was comparable to the sale deed plot (Exhibit AW.2/A), although it was a post notification sale deed, but the Reference Court erred in deducting 50% from the price mentioned in the sale deed to arrive at the market rate of the acquired land. Learned counsel further submitted that 12 the Reference Court ought to have relied upon the evidence of the expert and report submitted by him and ought to have granted compensation at the rate of Rs.249/- per sq.metre in respect of the acquired land. Mr. Kantak further submitted that the finding given by the Reference Court that having regard to the three sale deeds, it appeared that the prices of the land were decreasing is patently unsustainable finding in inasmuch as the price of a plot depends upon its location, nature etc. He further submitted that since the area acquired was less than 4000 sq.metres, the appellants were not required to keep open spaces in terms of regulations framed under the Town and Country Planning Act, as were applicable then. Mr. Kantak further submitted that it was not necessary for the respondents to sub-divide the acquired plot in the event they wanted to sell the said land. He, therefore, submitted that the compensation granted in favour of the respondent be enhanced to Rs.249/- per sq.metre in respect of the 13 acquired land. In support of his submissions, Mr. Kantak placed reliance on the order of the Apex Court in the case of State of Goa and Anr. Vs. Gopal Baburao Gaudo and ors., passed in Special Leave Petition (C) No.10598/2009. 9. I have considered the rival submissions and perused the record and the judgments relied upon. 10. In view of the findings given by the Reference Court and the submissions made by learned counsel for the parties, the following point arises for determination: To what compensation the respondents are entitled in respect of the acquired land? 11. As stated above, in support of the claim for higher compensation, on behalf of the respondents Pandurang Kantak, the respondent in First Appeal no.48 of 2003 deposed on his own behalf and as attorney of the other respondents and produced two sale deeds dated 16.5.1991 (Exhibit AW1/B) and 14.6.1991 (Exhibit AW. 1/C). 14 12. According to him, the plots were at a distance of about ½ km. from the acquired land. He further deposed that the acquired land was a developed land and in the vicinity there were several bungalows. M.E.S College was at the distance of about 50 metres, Vasco town at a distance of about 4 kms. and Dabolim airport was at a distance of about 1 km. from the acquired land. In the cross examination, a suggestion was put to this witness that the sale deeds at Exhibits AW.1/B and AW1/C were in respect of developed plots, which the witness admitted. He denied the suggestion that the nature of the sale deed plot was not similar to that of the acquired land or that the sale deed plots were superior than the acquired land. 13. Abdul Aziz Shaikh Mohidin produced sale dated 29.1.1993 (Exhibit AW.2/A), by which he had sold plot admeasuring 340 sq.metres from survey no.40/1 at the 15 rate of Rs.250/- per sq.metre. The said sale deed was executed on 29.1.1993. He further deposed that the property of the appellant was better placed than the sale deed plot (Exhibit AW.2/A). In cross examination, he deposed that the distance between the acquired land and National Highway was 50 to 100 metres. He denied the suggestion that it was about 700 metres. He also denied the suggestion that the property of the respondents/claimants was situated in the interior or that it was not better placed than the sale deed plot (Exhibit AW.2/A) which was a developed and sub-divided plot. 14. The question which arises for consideration is what was the market rate of the acquired land as on the date of publication of Section 4 notification. In order to determine the market rate of the acquired land as on the date of publication of Section 4 notification, the claimants have relied upon three sale deeds. I find merit in the submission of Mr. Kantak that the Reference Court was 16 justified in placing reliance upon sale deed dated 29/1/1993 (Exhibit AW2/A), although it was a post notification sale deed, having regard to the location and the date on which the sale deed was executed, I am of the considered opinion that the Reference Court was perfectly justified in placing reliance upon the said sale deed in order to determine the market rate of the acquired land. Although the sale deed (Exhibits AW.1/B and AW1/C) were pre-notification sale deeds, yet the fact remains that they were in respect of plots at a distance of about 500 metres from the acquired land whereas, the sale deed plot (Exhibit AW.2/A) was closer to the acquired land. 15. It is pertinent to note that no evidence was led that on account of publication of notification in the present case, a higher price was mentioned in the sale deed executed by AW.2 and, therefore, although the said sale deed is a post notification sale deed, reliance can be safely 17 placed upon the same to determine the market rate of the acquired land. 16. As stated above, the Reference Court after placing reliance upon sale deed dated 29.1.1993, deducted 50% on the ground that it was situated in the interior and it was at long distance from the National Highway, and secondly on the ground that the sale deed plot was a smaller plot as compared to the acquired land. Ravindra Tamba, examined by the claimants produced his report and the plan. The plan produced by the witness discloses that the acquired land was in the vicinity of the sale deed plot (Exhibit AW.2/A). This being the position, the finding of the Reference Court that the same could not be compared with the acquired land, in so far as location is concerned, is patently unsustainable. No deduction could have been made vis-a-vis the acquired land on the ground that the plot (Exhibit AW.2/A) was better located. 17. It is well settled that several factors have to be 18 taken into consideration to determine the market rate of the acquired land as has been held by the Apex Court in a catena of decisions. There cannot be a straight jacket formula for determining the market rate of the acquired land. It is also well settled by a catena of decisions of the Apex Court that some kind of guess work can be done in arriving at the market rate of the acquired land and the same cannot be fixed by restoring to a mathematical formula. 18. In the present case, as stated above, the sale deed (Exhibit AW.2/A) can be taken into consideration to determine the market value of the acquired land. Admittedly, the said sale deed plot was a developed plot and was sold for construction purpose; whereas the acquired land was rocky and bharrad land. The acquired land was admittedly 2050 sq.metres; whereas the sale deed plot was 340 sq.metres. 19. In so far as the argument of Mr. Kantak that 19 since the acquired land was less than 4000 sq.metres, it was not necessary for the respondents/claimants to leave any open space is concerned, I find no merit therein. The report produced by the expert Mr. Tamba,AW.3 discloses that the respondents were the owners of the property bearing survey no.36/1 admeasuring 17,850/- sq.metres out of which an area of 2050 sq.metres was acquired. In terms of development regulations, in case of partial development of a big property, the owner has to also leave 15 % open space in case the remaining portion of the land is not less than 4000 sq.metres. This being the position, even in respect of the acquired land the claimant would have to leave 15 % open space if they were to develop the said land. This being the position, I am unable to accept the submission of Mr. Kantak that no deduction could be made on the ground of leaving open space in respect of the acquired land. Moreover, the claimants would not be in a position to sell the entire acquired portion to one person 20 for building purpose. Thus, as compared to (Exhibit AW./2A), the acquired land is larger in size. Secondly, the sale deed plot was a developed plot, whereas the acquired land was rocky and bharrad land. Considering both these factors, I am of the considered opinion that the appropriate deduction would be 35% and not 50% as recorded by the Reference Court. Therefore, the market rate of the acquired land as on the date of publication of notification works out to Rs. 162.50 (rounded to 163.00 per sq.metre) The respondents/claimants are, therefore, entitled to compensation at the rate of Rs.163/- per sq.metre, in respect of acquired land admeasuring 2050 sq.metres. Needless to mention that the respondents/claimants are also entitled to all the statutory benefits under the Act. 20. In view of the above, the appeals filed by the appellants are dismissed. The cross objections filed by the respondents are partly allowed. Having regard to the facts 21 and circumstances of the case, there shall be no order as to costs. 21. At this stage Mr. Kantak, learned counsel appearing for the respondents/claimants prays that the amounts deposited by the appellants in the appeals before this Court be paid to the respondents. 22. The prayer has been opposed by the learned counsel appearing for the respondents. 23. Registry to pay the amount deposited with accrued interest, if any, to the respondents after period of 90 days. A. P. Lavande, J. Ap/-