-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 87 OF 2006 WITH MISCELLANEOUS CIVIL APPLICATION NO.455 OF 2010 Bartolomeu Antonio Da Costa, major, married, Resident of House No.148, Velsao, Pale, P.O. Cansaulim, Goa. …... Appellant V e r s u s 1. State of Goa, Through its Chief Secretary, Govt. of Goa, Secretariat Complex, Porvorim, Bardez – Goa. 2. Dy. Collector, (L.A.)/M.P.T. Head Lines, Sada, Mormugao. 3. The Executive Engineer, Works Division R-H, PWD., Fatorda, Margao – Goa. …... Respondents Ms. Amira Razaq, Advocate for the Appellant. Mr. S. Bandodkar, Additional Government Advocate for the Respondents. Coram :- A. S. OKA F. M. REIS, JJ. Judgment Reserved on : 22 nd July, 2010. Judgment Pronounced on : 12 th August, 2010. -2- JUDGMENT : (Per F. M. Reis, J.) The above Appeal filed by the Appellant challenges the Judgment and Award dated 30th September, 2005, whereby the reference filed by the Appellant seeking for enhancement of compensation under Section 18 of the Land Acquisition Act, 1894, came to be answered in the negative. 2. By Notification bearing no. 22/31/99-RD dated 20th August, 1999, under Section 4 of the Land Acquisition Act, 1894, (herein after referred to as 'the said Act'), published in Government Gazette dated 2nd September, 1999, the land was acquired for the construction of the four lane road from Verna National Highway 17 junction to Mormugao Harbour. The acquisition was in respect of different sections of land which were located in different Villages including Cortalim, Sancoale, Pale and Dabolim and Vasco City. One of the subject matter of the said acquisition is the property surveyed under survey no.115/2 situated at rural area of Sancoale Village where by an area of 3870 square metres was acquired by the said Notification. By an award passed by the Land Acquisition Officer dated 11th December, 2002, under Section 11 of the said Act, the market value of the said land acquired was fixed at the rate of Rs.30/- per square metre. Being dissatisfied with the said amount of compensation, the Appellant preferred a reference under Section 18 of the said Act for enhancement of compensation -3- and claimed a compensation at the rate of Rs.375/- per square metre for the land acquired besides a sum of Rs.29,600/- on account of the value of the rubble wall and a sum of Rs.4,96,500/- towards severance charges. 3. After recording of evidence and hearing the parties, the Reference Court by the impugned Judgment and Award dated 30th September, 2005, rejected the said reference and held that the Appellant had failed to establish that he was entitled for enhancement of compensation. With regard to the two claims put forth by the Appellant, the Reference Court held that the Appellant was not entitled for any such amounts claimed therein. 4. Being aggrieved by the said Judgment and Award, the Appellants have preferred the present Appeal. 5. The Learned Counsel appearing for the Appellant has assailed the impugned Judgment and submitted that the Appellant had produced cogent evidence on record to come to the conclusion that he was entitled for enhancement of compensation. She further submitted that the Reference Court has totally misdirected himself whilst passing the impugned Judgment and came to an erroneous conclusion that the Appellant were not entitled for enhancement of compensation. The learned Counsel further submitted that due to inadvertence, a wrong Sale Deed was produced on record when the -4- reference was to a Sale Deed dated 3rd February, 1997. She further submitted that the said vendor Smt. Rosa Moraes had executed another Sale Deed which was registered under no. 167 at pages 316 to 328 of Book I Vol. 283 before the Sub-Registrar Mormugao. The said Sale Deed was produced inadvertently though the actual Sale Deed which was relied upon by the Appellant was the one of the same date but registered under no. 84 of pages 108 to 129 of book I Vol.199. The learned Counsel further submitted that the reference to the said Sale Deed was even found in evidence of the expert witness examined by the Appellant. The learned Counsel further submitted that whilst passing the impugned Judgment, the Reference Court has held that the said Sale Deed executed by Aw3 dated 3rd February, 1997 in favour of M/s. Kamat and Co., has not been placed on record either by the Appellant or by the said witness though the said Sale Deed was inadvertently not exhibited. The learned Counsel as such submitted that the Civil Application no. 455 of 2010 filed by the Appellant to lead additional evidence deserves to be allowed. The learned Counsel for the Appellant has further submitted that the said Sale Deed plot is adjoining the land acquired and the price fixed therein can be a basis for determining the market value of land. She further submitted that the Sale Deed is of the year 1997 whilst the notification in the present case was issued in September, 1999 and the Appellant is entitled for escalation on account of the increase in the market value of land. She further submitted that as the lands were comparable, there is no deduction to be effected with regard to the land acquired. With -5- regard to the finding of the Reference Court that the land of the Appellant was coming within the road widening area, the learned Counsel has submitted that besides the land acquired, there was remaining land available for the Appellant for the purpose of development which was part of the same property and, as such, the said finding of the Reference Court is untenable. In support of her said submission, the learned Counsel relied upon the Judgment of the Apex Court in the case of State of Goa & anr. vs. Gopal Baburao Gaudo & ors. reported in 2009 (5 ) ALL MR 1022. She as such submitted that the Appellant is entitled for enhancement of the compensation as prayed for. With regard to the other two claims on account of severance and construction of rubble wall, the learned Counsel submitted that there was evidence on record that the Appellant was entitled for such compensation. She further submitted that the Appeal be allowed and the impugned Judgment and Award passed by the Reference Court be quashed and set aside. 6. On the other hand, learned Counsel appearing for the respondents supported the impugned Judgment passed by the Reference Court. The Learned Addl. Government Advocate submitted that the land of the Appellant has no value as it was within the road widening area. He further submitted that the land of the Appellant had no potentiality as no construction could be put up on the said land acquired. He further submitted that the land which was subject matter of the said Sale Deed is not -6- comparable to the land acquired. He further submitted that the Appellant has failed to adduce any cogent evidence to substantiate their case for enhancement of compensation as well as for compensation on account of severance and the cost of the rubble wall. He as such submitted that no case is made out for interference of this Court. 7. Having heard the learned Counsel for the parties and on perusal of the records, the following points for determination arise in the present Appeal : POINTS FOR DETERMINATION 1. Whether the Reference Court was justified in deciding the reference filed by the Appellants in the negative ? 2. Whether the Appellant was entitled for compensation on account of rubble stone wall and on account of severance ? 8. Dealing with the first point for determination, we find from the impugned Judgment that the Reference Court has refused to consider the enhancement of compensation in view of the fact that the Sale Deed dated 3rd February, 1997 in respect of the properties surveyed under no.122/2 had not been produced. On perusal of the evidence of the expert as well as the evidence of Aw.3, Rosa Moraes, we find that the Sale Deed dated 3rd February, 1997, which was produced, was not the one referred to in the -7- report and evidence of the valuer. On account of inadvertence, it appears that the said document remained to be produced though it was referred to in the valuer's report. As such, we find that the said application for leave to produce additional evidence, is to be allowed and the said Sale Deed is to be considered for the purpose of determining the compensation. There is no reason to remand the matter as the evidence with regard to the comparability of the land acquired and the said Sale Deed has already been adduced by the Appellant in the present case. The learned Counsel appearing for the Appellant submitted that she does not desire to lend any further evidence for the purpose of establishing such comparability apart from producing the said Sale Deed for consideration of this Court. In view of the said submission, there is no need of remanding the matter on that count. 9. In support of the claim for enhancement, the Appellant has examined himself. He has stated that the property of the Appellants is surveyed under no. 115/2 and is situated at rural area of Sancoale Village and, according to him, the market value of the land is at the rate of Rs.375/- per square metre. He further stated that the land acquired is adjoining the property surveyed under no. 122/2 of rural area of Sancoale Village situated hardly 200 metres away from Cansaulim-Vasco road. He further stated that the Sale Deed in respect of the property surveyed under no.122/2 was executed on 3rd February, 1997, which is two and a half years prior to the notification in the present case wherein land was sold at the rate of Rs.300/- -8- per square metre. He further stated that the said Sale Deed is registered before the Sub-Registrar under no. 84 of pages 108 to 129 of book I Vol.199. In fact, the said Sale Deed is the same which is allowed to be produced by this Court while disposing the application for leave to produce additional evidence. He further stated that the acquired land was accessible by the busy road of Margao-Cansaulim-Vasco via Birla and interstate transport was available prior to the present acquisition. He further stated that there were amenities such as market, Government High School, Petrol Pumps, Sancoale Industrial Estate besides water, electricity within the vicinity of the acquired land. He further stated that the land was severed into two parts in view of the said acquisition. He also claimed compensation for the construction of rubble stone wall to protect his property. He further stated that his land was flat as opposed to the land subject matter of the said Sale Deed. He further stated that the said land of the Sale Deed and the acquired land had same topography and amenities and were similar undeveloped lands. Accordingly, he claimed compensation at the rate of Rs.375/- per square metres besides compensation for the said two heads on account of severance and construction of rubble stone wall. In the cross examination, he admitted that the Sale Deed at exhibit 17 dated 15th March, 2000 was regarded a sub divided plot located at a distance of 200 metres from the acquired land. He further admitted in his cross examination that at the time of present notification, there were no houses or structures near his property upto Verna junction. He further stated that there were no structures towards -9- the Vasco side upto the plot purchased by said M/s. Kamat & Co. He further admitted that the amenities mentioned in his affidavit were in the vicinity of the plot sold to M/s. Kamat & Co. 10. The next witness is the expert Shri Vikas Dessai, who has stated that to arrive at the valuation of the acquired land as on 28th September, 1998, he had considered all the factors and arrived at a compensation at the rate of Rs. 375/- per square metres. In his cross examination, he has stated that he has not measured the breadth of the four lane road and that the land of the Appellant was slightly sloppy from South to North and that the present road was constructed after cutting the land at a higher level. He has also produced a valuation report which is at exhibit 21. 11. The next witness examined is Aw.3, Rosa Esmenia Moraes, who has deposed that she had sold the property surveyed under no. 122/2 on 3rd February, 1997 to Ms. Kamat and Co. She has further deposed that the land of the Appellant and her property was at a visible distance and in between there is only one property in the middle of which there exists a high school known as Zuari Government High School. She has further stated that the land at survey no. 122/2 and the land acquired were similar and fit for construction. When the document at exhibit 16 was shown to her, she said that the said Sale Deed was not bearing her signature nor is she shown as a party to the said Sale Deed. -10- 12. Considering the evidence on record, we find that the Sale Deed produced by the Appellant in this Court dated 3rd February, 1997, can be considered as a comparable sale instance to the land acquired. From the evidence on record it is found that the said Sale Deed plot is at a distance of about 200 metres from the acquired land. The similarities of the land subject matter of the said Sale Deed and the land acquired have not been seriously disputed. Considering the said distance and the proximity of the land acquired, the Sale Deed produced by the Appellant can be the basis for determining the compensation in the present case after suitable deductions. 13. The Apex Court in the case reported in 2008(14) S.C.C. 745, in the case of General Manager, ONGC Ltd. vs. Rameshbhai Jivanbhail Patel & anr. has held at paras 13 and 14 thus : “13. Primarily, the increase in land prices depends on four factors: situation of the land, nature of development in surrounding area, availability of land for development in the area, and the demand for land in the area. In rural areas, unless there is any prospect of development in the vicinity, increase in prices would be slow, steady and gradual, without any sudden spurts or jumps. On the other hand, in urban or semi-urban areas, where the development ius faster, where the demand for land is high and where there is construction activity all around, the escalation in market price is at a much higher rate, as compared -11- to rural areas. In some pockets in big cities, due to rapid development and high demand for land, the escalations in prices have touched even 30% to 50% or more per year, during the nineties. 14. On the other extreme, in remote rural area where there was no chance of any development and hardly any buyers, the prices stagnated for years or rose marginally at a nominal rate of 1% or 2% per annum. There is thus a significant difference in increases in market value of lands in urban/semi urban areas and increases in market value of lands in the rural areas. Therefore, if the increase in market value in urban/semi urban areas is about 10% to 15% per annum, the corresponding increases in rural areas would at best be only around half of it, that is, about 5% to 7.5% per annum. This rule of thumb refers to the general trend in the nineties, to be adopted in the absence of clear and specific evidence relating to increase in prices. Where there are special reasons for applying a higher rate of increase, or any specific evidence relating to the actual increase in prices, then the increase to be applied would depend upon the same.” 14. In the present case, there is a gap of two and half years as the Sale Deed is executed in 1997 and the acquisition took place is the year 1999. The price mentioned in the said Sale Deed is at the rate of Rs.300/- per square metre for an area of 1300 square metres. The acquired land is situated in a village having potential for development. The escalation in such instance is 8 % per annum on cumulative basis. The amount as such works -12- out to Rs.363/- per square metre. There is no dispute that substantial portion of the land which has been acquired is falling in the road widening area in view of the fact that the land acquired was abutting to the old Vasco- Cansaulim road. The land acquired also is for a four lane road which would be subject to further restriction on account of the development. The finding of the Reference Court to the effect that as the land acquired comes within the road widening area, the same cannot be considered for construction purpose cannot be accepted. There is no dispute that besides the land acquired, there was substantial land available to the Respondents which was not acquired and forms part of the same property. 15. The Apex Court in the said judgment of State of Goa & anr. vs. Gopal Baburao Gaudo & ors. (supra) has held at paras 3, 4 and 5 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 meters 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 -13- 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 meters 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 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. -14- 5. Therefore, determination of market value of the acquired land with reference to the value of comparable land cannot be faulted.” 16. Considering the said Judgment of the Apex Court, there is no bar in determining the compensation on the basis of relying upon comparable sale instance of such land acquired. 17. The Apex Court in the case of Mohammad Raofuddin v. Land Acquisition Officer((2009)14 SCC 367) has held at paras 11 and 14 thus: “11. One of the preferred and well-accepted methods adopted for working out the market value of the land in acquisition cases is the comparable sales method. The comparable sales i.e. the lands sought to be compared must be similar in nature and potentiality. Again, in the absence of sale deeds, the judgments and awards passed in respect of acquistion of lands, made in the same village and/or neighbouring villages can be accepted as valid piece of evidence and provide a sound basis to determine the market value of the land after suitable adjustments with regard to positive and negative factors enumerated in Sections 23 and 24 of the Act. Undoubtedly, an element of some guesswork is involved in the entire exercise. 12. … -15- 13. ... 14. Thus, comparable sale instances of similar lands in the neighbourhood at or about the date of notification under Section 4(1) of the Act are the best guide for determination of the market value of the land to arrive at a fair estimate of the amount of compensation payable to a landowner. Nevertheless, while ascertaining compensation, it is the duly of the Court to see that the compensation so determined is just and fair not merely to the individual whose property has been acquired but also to the public which is to pay for it”. 18. The evidence discloses that the construction activity is in the vicinity of the said Sale Deed plot is not proved by the Appellant. The Appellant himself stated that there are no houses located from the land acquired up to Verna junction. He has also admitted that there were no structures towards the Vasco side upto the plot purchased by said M/s. Kamat & Co. He also admitted that amenities are more in the vicinity of the land which was sold to M/s. Kamat & Co. In the backdrop of these admitted facts we find that a suitable deduction will have to be effected from the said amount to arrive at the market value of land in the present case. Besides that the land acquired is sloppy. In the present case, the Appellant himself has admitted that the amenities are at a distance from the acquired land and that there were restrictions in putting up construction as a substantial portion of land which has been acquired is falling in the road widening area. The Sale -16- Deed plot has an area of 1300 square metres while the land acquired admeasures 3870 square metres; which is nearby three times the Sale Deed plot. Considering that a substantial portion of land would be consumed for road widening as on the date of Section 4 Notification as the Appellant has himself admitted in the cross examination that he cannot do development as the land was coming within the road widening area, and in the aforesaid circumstances we find that the deduction of 40 % would be just and proper. The law is well settled that the deduction can vary from 20 % to 75 percent considering the facts and circumstances of each case. We accordingly fix the compensation for the land acquired at Rs.218/- per square metre. The Reference Court was, as such, not justified in refusing the reference preferred by the Appellant. The point for determination is answered accordingly. 19. With regard to the claims put up on account of construction of rubble stone wall, we find that there is no evidence on record in support of the said contention. The Appellant has failed to adduce any evidence that they have put up rubble stone wall on account of which expenditure has been incurred. The severances have not been established by producing any evidence on record. The said claims are accordingly rejected. The point for determination is answered accordingly. 20. In view of the above, we pass the following : -17- ORDER (i) The Appeal is partly allowed. (ii) The Appellant is entitled to the compensation for the land acquired at the rate of Rs. 218/- per square metre.