1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.64 OF 2000 1. Special Land Acquisition Officer (South Goa) Konkan Railway Corporation Limited, Amey Guesh House, Davorlim Road, P.O. Navelim, Salcete, Goa, 403 707. 2. Chief Engineer, Konkan Railway Corporation Ltd; Rawnfond, near Margao Railway Station, Margao-Goa. .... Appellants. Versus 1. Raia Shrinivas Poi Anglo, HouseNo.1001, Zaribhat, Chinchinim, Salcete-Goa. ..... Respondent Mr. E. Afonso, Advocate for the appellants. Mr. R. G. Ramani, Advocate for the respondent. Coram :- A. P. LAVANDE, J. Date of reserving the judgment :-26 th Nov e mber, 2008 Date of pronouncing the judgment :-16 th December,2008. JUDGMENT : 1. Heard Mr.Afonso,learned Counsel for the appellants and Mr.Ramani, learned Counsel for the respondent. 2 2. By this Appeal, the appellants take exception to the judgment and award dated 16.12.1999 partly allowing the reference in favour of the respondent. 3. Vide notification published under Section 4 of the Land Acquisition Act (“The Act” for short) in the official gazette dated 26.12.1991, the appellants sought to acquire the land in Talvorda village of Salcete Taluka for construction of a new BG line for Konkan Railway. This included an area of 8650 square metres of land from Survey No.137 of Talvorda village belonging to the respondent. By award dated 15.01.1993, the Special Land Acquisition Officer awarded compensation @ Rs.18/- per square metre for the entire land. In respect of the trees, an amount of Rs.1,288.71/- was awarded and in respect of the structure of laterite masonry finished with plaster, an amount of Rs.1,448/- was awarded. Being dissatisfied, the respondent sought reference under Section 18 of The Act claiming compensation @ Rs.50/ per square metre and compensation of Rs.5,000/- towards trees. The Reference Court enhanced the compensation to Rs.40/- per square metre, but rejected the claim for compensation towards the trees. 4. In Land Acquisition Case No.242/1994, the respondent examined himself as A.W.1, Shri Sakharam Bhende as an Engineer and Valuer as A.W.2 and Nandini Chari as A.W.3. The appellants did not 3 examine any witness. 5. The respondent relied upon the sale deed Exh. AW1/A dated 27.03.89 by which the land admeasuring 520 square metres, was sold by one Madhav Ganesh Talaulikar to Shri Balaji Chari. According to the applicant, the sale deed plot was similar in nature to the acquired land and was at the distance of about 300 metres away from the said land. The Reference Court took the said sale deed as the basis and after increasing the price by 10 % every year, arrived at the value as on the date of the notification to Rs.65/- per square metre. Thereafter, the Reference Court, deducted 30 % for open spaces and road and gutters and another 10 % towards the costs of undeveloped acquired land and arrived at the figure of Rs.40/- per square metre. Consequently, the Reference Court partly allowed the reference. 6. Mr. Afonso, learned Counsel appearing for the appellant submitted that the Reference Court ought not to have relied upon the single sale deed for the purpose of fixing the market rate of the acquired land. According to Mr. Afonso, the sale deed plot Exh.AW1/A was purchased for commercial activity and as such the buyer must have paid higher consideration than the market rate. According to learned Counsel, the acquired land had no building potential as is clear from the evidence of the expert Sakharam Bhende A.W.2, who deposed that the 4 acquired land was not fit for construction for next 25 years. The learned Counsel further urged that the reason given by the Reference Court for discarding the said statement made by the expert, cannot be accepted. The learned Counsel, after taking me through the evidence of the witnesses examined on behalf of the respondent, submitted that the acquired land could not have been compared with the sale deed plot. In support of his submissions, Mr.Afonso relied upon the following judgments : i) Land Acquisition Officer, Kammarapally Versus Nookala Rajamallu and Others reported in (2003) 12 SCC 334. ii) Gafar and Others Versus Moradabad Development Authority and another reported in (2007) 7 SCC 614. 7. Per contra, Mr. Ramani, learned Counsel appearing for the respondents submitted that the Court will have to take judicial notice of the rise in prices of land and the Apex Court has consistently held that the yearly rise in the price, is ordinarily 10 % on compounding basis and, therefore, the exercise done by the Reference Court, cannot be faulted. According to the learned Counsel, no deduction ought to have been made by the Reference Court for the purpose of development of the acquired land in as much as the purpose for which the land was acquired, is relevant to find out deduction. According to the learned 5 Counsel, at the most, the Reference Court could have made deduction for largeness of the acquired land vis-a-vis the plot in sale deed dated 27.03.1989, but no deduction could have been made for costs of development. The learned Counsel further submitted that actually the respondent is entitled to higher compensation, but in the absence of any cross objection or appeal challenging the impugned award, the respondent is not in a position to claim higher compensation than what is awarded by the Reference Court. The learned Counsel further urged that the Reference Court has rightly rejected the stray admission made by the Sakharam Bhende A.W.2 that the acquired land is not fit for construction for next 25 years, which is otherwise inconsistent with the evidence led by the respondent. 8. In support of his submissions, the learned Counsel relied upon the following judgments : i) Krishi Utpadan Mandi Samiti Versus Bipin Kumar and Another reported in 2004(2) SCC 283 ii) Viluben JhalejarContractor Versus State of Gujarat reported in (2005) 4 SCC 789. iii) Land Acquisition Officer Revenue Divisional Officer, Chittor Versus L. Kamalamma (Smt) Dead by LRs and Others reported in (1998) 2 SCC 385 iv) Nelson Fernandes and Others Versus Special Land Acquisition Officer reported in (2007) 9 SCC 447. 6 9. I have carefully considered the submissions made by the learned Counsel for the parties and perused the record and the judgments relied upon by both the parties. 10. In view of the rival submissions, the following point arises for determination in the present appeal : i) Whether the market rate of the acquired land fixed by the Reference Court @ Rs.40/- per square metre, is excessive ? 11. The Reference Court placed reliance upon the sale deed Exh.Aw1/A dated 27.03.1989 and after considering the yearly increase by 10 % every year, arrived at the value of the suit plot as on the date of Section 4 notification @ Rs.65/- per square metre and thereafter deducted 30 % for open spaces and roads and gutters and 10 % towards the costs of development and arrived at a figure of Rs.40/- per square metre. The Reference Court held that the sale deed plot was about 300 metres away from the acquired land as is evident from the evidence of the respondent. Nandini Chari A.W.3 has deposed on similar lines. However, Nandini Chari A.W.3, who was examined to prove AW1/A, stated that the distance of 300 metres, is from the paddy field and by road, the said distance is about 1 Kilometre. The Reference Court, on 7 the basis of the evidence led by the Nandini Chari A.W.3, held that the acquired land and the sale deed plot were similar in nature, both were at the same level and the acquired land was at the distance of 1 Kilometre from the said plot. The Reference Court deducted 40 % towards the costs of development, open space and for roads and gutters and arrived at a figure @ Rs.40/- per square metre. 12. At this stage, I would like to deal with some of the authorities which have been relied upon by the parties. 13. In Krishi Utpadan Mandi Samiti's case supra, the Apex Court has held that ordinarily while fixing the market rate of the acquired land on the basis of comparable sale deed of earlier period, the 10 % increase every year on compounding basis, has to be granted. 14. In Viluben Jhalejar Contractor's case (supra), the Apex Court approved the fixation of the market rate of the acquired land on the basis of single sale deed. 15. In L.Kamalamma's case (supra), the Apex Court held that the Court can take judicial notice of general trend of rise in the prices of land in terms of Section 57 of the Evidence Act. 8 16. In Nelson Fernandes's case (supra), the Apex Court held that the purpose for which the land is acquired, is relevant for deciding whether deduction by way of development charges are required to be made or not. The Apex Court held that when the land is acquired for laying railway line, the question of development of land would not arise. It is pertinent to note that this case was in respect of another notification and the land was acquired by the appellants for the very same purpose. 17. In Nookala Rajamallu's case (supra) relied upon by Mr. Afonso, the Apex Court held that for determining the value of agricultural land, deduction should be made in respect of development expenses, interest on the outlays for the period of deferment of realisation of the price, profits on venture, etc. 18. In Gafar's case (supra), the Apex Court held that when large tracts of land are acquired, normally, the sale instances of larger lands, should be taken into consideration. The Apex Court further held that the sale deeds in respect of lands situated from some distance from the acquired land, have to be considered and they cannot be brushed aside, but an appropriate adjustment must be made. 19. In the light of the principles laid down by the Apex Court 9 in the above referred judgments, the question which arises for consideration, is whether the market rate fixed by the Reference Court, can be faulted. I do not find any error having been committed by the Reference Court in relying upon sale deed dated 27.03.1989 by which similar agricultural land was sold to the husband of Nandini Chari A.W.3. In the absence of any other cogent evidence, the Reference Court was justified in placing reliance upon the said sale deed for purpose of fixing the market rate of the acquired land. The Reference Court, in my opinion, was justified in not placing reliance on stray admission made by Sakharam Bhende A.W.2 in his cross-examination that the acquired land would not have potential for construction for next 25 years in view of the other cogent evidence led by the respondent regarding similarity of acquired land vis-a-vis the said sale deed plot. The Reference Court, in my opinion, was justified in fixing the market rate of the acquired land as on the date of the Section 4 notification by increasing the price every year on compounding basis and thereafter making appropriate deductions. The approach of Reference Court, in my opinion, cannot be faulted. Mr.Ramani is right in contending that in view of the judgment in Nelson Fernandes's case (supra), the deduction could not have been made since the land was acquired for laying railway line and as such the question of development of the land, does not arise. In any case, considering the location, the nature and the similarity of the land vis-a-vis the sale deed plot dated 27.03.1989, the 10 rate of 40/- per square metre fixed by the Reference Court, cannot be said to be excessive warranting interference by this Court. 20. For the reasons aforesaid, I find no merit in the present appeal. Hence, the appeal is dismissed with no order as to costs. A.P. LAVANDE, J. SMA