1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 107 OF 1999 AND CROSS OBJECTION NO. 6 OF 2000. First Appeal No. 107/ 19 9 9. 1. State of Goa, through the Dy. Collector & Land Acquisition Officer, Collectorate, Panaji, Goa. 2. The Executive Engineer, Works Division I, P.W.D., Panaji, Goa. .... Appellants. Versus 1. Agnelo Jose Augusto Pinto, resident of St. Cruz, Ilhas, Goa. 2. Dr. Carlos Alvito G. Pinto, resident of Varca, Salcete, Goa. .... Respondents. Shri G. Shirodkar, Addl. Government Advocate for the Appellants. Shri R. G. Ramani, Advocate for the Respondents. Cross Objection No. 6/2000. 1. Agnelo Jose Augusto Pinto. 2. Dr. Carlos Alvito G. Pinto both residents of St. Cruz, Ilhas, Goa. .... Cross Objectors. Versus 1. State of Goa through the Dy. Collector 2 and Land Acquisition Officer, Collectorate, Panaji, Goa. 2. The Executive Engineer, Works Division I, P.W.D., Panaji, Goa. .... Respondents. Shri R.G. Ramani, Advocate for the Cross Objectors. Shri G. Shirodkar, Addl. Government Advocate for the Respondents. CORAM: S.S. PARKAR & V. M. KANADE, JJ. DATE: 18 th JULY, 2005. J U D G M E N T: ( PER KANADE, J.) The appellants State of Goa through the Deputy Collector and Land Acquisition Officer and the Executive Engineer, Works Division I, P.W.D. are challenging the Judgment and Order passed by the District Judge, North Goa, Panaji in Land Acquisition Case No.5/93. By the said judgment and order dated 9.7.1999 and which was reviewed in Review Petition No. 5/99 the District Judge was pleased to enhance the compensation awarded by the Special Land Acquisition Officer from Rs.4.50 and Rs.6./- per square metre to Rs.38/- per sq.m. which was further increased in Review Petition to Rs.89.25 per sq.m. 2. Brief facts which are necessary for deciding the present appeal are as under :- The Government decided to acquire land for the purpose of 3 developing an institutional Complex at Curca, Bambolim, Calapur, Taleigao and Dona Paula. For that purpose a Notification was issued under S.4(1) of the Land Acquisition Act, 1894 on 28.1.1982. The total area which was sought to be acquired was 16277 sq.mts. Coomprising of New Survey No. 194(part) and 195 (part) of Calapur village (part of old survey No.601). The Land Acquisition Officer declared the Award on 15.10.1985 and granted the rate of Rs.6/- per sq.m. for cashew area and Rs.4.50 per sq.m. for sloppy area. The owners of the said land had claimed compensation at the rate of Rs.150/- per sq.m. The Special Land Acquisition Officer after declaring the Award, took possession of the land on 22.1.1996. The admitted position about the location of this land is that it was 400 mts. From Panaji- Agacaim road and 400 mts. From market place of Calapur from Agacaim side. The bus stop, public transport, churches, schools are within the radius of 500 mts. Goa Medical complex was within the radius of 2 kms. and Tamba Colony was within a radius of 2 kms. The land had all civic amenities like water, electricity, access, etc. and there were about 100 houses near the land which was sought to be acquired. Before the Land Acquisition Officer, the claimants relied on the Award granted in respect of part of old survey No.601 which was acquired under Notification under Section 4(1) which was published on 26.6.69 and which the Addl. District Court in LAC No.79/86 in Reference under S.18 had granted the price of Rs.30/- per sq.m. Reliance was also placed on a Sale deed dated 27.11.67 which was a land of 400 m. from the acquired land and the 4 land was sold at the rate of Rs.22/- per sq.m. Reliance was also placed on Sale deed dated 18.12.68 which was at a distance of 500 m. from the acquired land in the present case and land was sold at Rs.25/- per sq.m. which consisted of coconut garden. Reliance was thereafter placed on Sale Deed dated 1.3.69 which was about 1-1/2 km. from the acquired land in the present case. The land was sold at the rate of Rs.30/- per sq.m. Reliance was also placed on the Sale Deed dated 10.12.85 which 1 km. From the acquired land and which was sold at Rs.140/- per sq.m. as per the agreement of sale dated 20.8.1982 and lastly the claimants relied on Sale Deed dated 23.7.86 which was a land 1 km. from the acquired land and the rate was Rs.150/- per sq.m. as on 28.12.81 as per the agreement of sale on the said date. The claimants examined an expert Sakharam Bhende, AW.6 who gave his opinion that the value of the acquired land was at the rate of Rs.90/- per sq.mt. 3. Against the order passed by the Land Acquisition Officer, Reference was filed before the District Court who which was pleased to increase the compensation by Judgment and Order dated 9.7.1999 to Rs.38/- per sq.mt. Against the said Order, the Government filed an appeal being First Appeal No.107/1999. After the District Court enhanced the compensation to Rs.38 /- by Order dated 9.7.99, a Review Petition was filed in this Court being Review Application No.5/1999 in which it was contended that there was an arithmetical error committed by 5 the District Judge in calculating the compensation awarded to the applicants. This Review Application was allowed by Order dated 24.1.2000 and accordingly the compensation awarded was corrected to Rs.89.25 from Rs.38/- . By that time, the First Appeal had already been filed by the State Government on 18.7.2000. Accordingly the grounds of objection were also amended and the Order passed in Review Petition was also challenged in this First Appeal. Submissions: 4. Shri Shirodkar, the Addl. Government pleader has taken us through the judgment and order of the Reference Court as also the evidence adduced by the parties before the Special Land Acquisition Officer. He submitted that the Reference Court had erred in relying on the agreement of sale dated 28.12.81 which was referred to in the Sale Deed dated 23.7.1986 at Exh.AW.1/N. He submitted that the Trial Court had erred in relying on the said agreement of sale for the purpose of coming to the conclusion that the price of adjoining land on the said date was Rs.150 /- per sq.mt. On the basis of the alleged agreement of sale dated 28.12.1981. He submitted that the actual copy of the said agreement of sale dated 28.12.81 had not been produced by the respondents. He further submitted that from the sale deed dated 23.7.86 no reference has been made to the agreement of sale dated 28.12.81. He submitted that the only reference in the sale deed was 6 found in the recital in which a bald statement was made that an amount of Rs.40,000 /- was paid on 28.12.1981 towards the agreement of sale. He submitted that the rate which was fixed at the time of agreement of sale was not mentioned. He has invited our attention to the Sale deed dated 23.7.86 and has taken us through the entire sale deed and has submitted that reference of payment of Rs.40,000 /- on 28.12.81 was made as an afterthought in 1986 in order to show and to create evidence that the rate of the adjoining land was Rs.150/- per sq.mt. He therefore submitted that the alleged agreement of sale dated 28.12.81 was sham and bogus as a copy of which was neither produced nor any particulars as to whether it was oral or written were mentioned in the sale deed which was executed on 23.7.86. 5. He submitted that the trial Court therefore erred in coming to the conclusion that the agreement of sale was executed on 28.12.81 when in fact there was no evidence to suggest that such an agreement of sale had been executed between the parties. He submitted that therefore the finding of the trial Court was not based on any documentary evidence. 6. He further submitted that the trial Court erred in coming to the conclusion that deduction of 30% was required to be taken into consideration towards its development and therefore after deducting 30% from Rs.150 /- per sq.m. and a further deduction of Rs.7/- per 7 sq.m. considering the distance from the Highway is also erroneous. Shri Shirodkar, the learned Addl. Government pleader further submitted that this Court had disposed of First Appeal No.69/92 and 34 other appeals and had reduced the compensation awarded by the Land Acquisition Officer by 50% by Judgment and Order dated 3 rd August, 1996 in respect of several plots acquired under the very same Notification dated 25 th January, 1982 and the Division Bench of this Court had awarded compensation ranging from Rs.12.50 to Rs.20/- per sq. mt. He submitted that the land in respect of which compensation was awarded by this Hon'ble Court was in respect of plot No.194- C and 195- C, whereas in the present case the land was adjacent to the said plot in 194- B and 195- B. He submitted that the Reference Court therefore could not have awarded higher amount to plots bearing Nos.194- B and 195- B which were of a similar nature as plots involved in F.A. No.6/1995 particularly when in the Reference Court had enhanced the compensation subsequent to the Order passed by this Hon'ble Court. He however candidly admitted that the order passed by this Court in F.A. No.69/92 dated 3 rd August, 1996 was not brought to the notice of the Reference Court. He submitted that the High Court having fixed the rate of compensation in the common appeals which was not permissible in law for the Reference Court to award higher compensation in respect of plots which were similar in respect of which compensation was fixed by this Court. 8 7. Shri Shirodkar, learned Addl. Government pleader further invited our attention to the Judgment and Order passed by this Court on 3 rd August, 1996 and pointed out that the land owned by the respondents was on the contrary on a sloppy land and therefore the price awarded by the Land Acquisition Officer was correct. He relied on the Judgment of the Supreme Court in the case of The Land Acqusition Officer, City Improvement Trust Board, Bangalore v. H. Narayanaiah, etc. reported in A.I.R. 1976 S.C., 2403 and in the case of Special Land Acquisition Officer & Anr. v. Mariano Caetano Clarimundo Francisco Jose de Piedade Menezes reported in 2005 (2) All M.R. 371 and also in the case of Panna Lal Ghosh and others v. Land Acquisition Collector and others reported in 2004 AIR SCW 66. 8. The learned counsel appearing on behalf of the respondents submitted that the Reference Court had correctly relied on the agreement of sale dated 28.12.81. He submitted that the provisions of the Land Acquisition Act was amended in 1984 and Section 51A was added to the said Act. He submitted that by virtue of Section 51A it was no longer necessary to prove the sale deeds by examining the owners of the said land and only certified copies of the sale deeds could be produced to prove the said documents. He submitted that the Judgment and Order passed by this Court by Order dated 3 rd August, 1996 was distinguishable on various grounds. He submitted that the law as laid down by the Supreme Court at the time when the Judgment 9 was delivered by this Hon'ble Court on 3 rd August, 1996 was that Sale deeds which were not proved could not be taken into consideration. The sale deed on which reliance was placed by the claimants was not proved and therefore though this sale deed may have been produced by the said claimants in the said First Appeal, reliance was not placed by the High Court since the vendor had not been examined and therefore it was not proved. However he submitted in the present case the vendor had been examined and the sale deed was duly proved and the vendor had in his evidence stated that the agreement of sale between the parties was executed on 28.12.81. He submitted that there was no relation between the respondents and the said vendor and there was no reason to disbelieve his testimony particularly when he was not cross- examined by the Government Advocate. He further submitted that the Division Bench of this Court had in the said case determined the value of the land on the basis of the proximity of the road and accordingly had fixed the price depending on the location of the land from the proximity of the road. He submitted that the Supreme Court has now held that while determining the price of the land, proximity of the road need not be the only criteria as it was possible that a land which was away from the road could fetch a higher a higher price. He further submitted that another ground for distinguishing the Judgment dated 3 rd August, 1996 passed by this Court was that the land in question in the said case was Survey No.195- C and 194- C, both of which were tenanted lands, whereas the land owned by the respondents 10 namely Survey No.194- B and 195- B were freehold land. He invited our attention to the evidence of the vendor AW.4 Umakant Kenkre. He further submitted that even otherwise there were other sale deeds which were brought on record and which were not considered by the Reference Court. He submitted that the adjoining land was acquired in 1969 and the Reference Court had awarded Rs.30/- per sq.m. for the adjoining land which was acquired pursuant to Notification issued under S.4(1) on 26.6.69. He submitted that if increase at the rate of 10% at compound rate was added to Rs.30/- , the price would come to Rs.110/- in 1981. He submitted that therefore even on the basis of the said Award of 1969, price at the rate of Rs.89.25 was reasonable. He further submitted that the agreement of sale dated 28.12.81 was proximate in time and therefore sufficient material on record to indicate that the said agreement was in fact executed on 28.12.81 and because the sale deed was executed in 1986. There was no occasion for the vendor AW.4 to retain a copy of the agreement of sale. He relied on a Judgment of the Supreme Court in the case of Land Acquisition Officer Revenue Divisional Officer, Chittor v. L. Kamalam m a (Smt) dead by LRS and others reported in (1998) 2 S.C.C. 385. He also relied on other judgments of the Supreme Court in the cases of Manjunath Anandapp a Urf Shivappa Hanasi Tammany's and others reported in (2003) 10 S.C.C., 390, Padma Sundara Rao (dead) and others v. State of T.N. and others reported in (2002) 3 S.C.C., 533, Bharat Petroleum Corpn. Ltd. And another v. N.R. Vairamani 11 and another reported in (2004) 8 S.C.C., 579 and Punjab National Bank v. R.L. Vaid and others reported in (2004) 7 S.C.C. 698 in support of the said submission. The learned counsel for the respondents did not press the grounds raised in Cross- Objection. Findings and conclusion : 9. In the present case the claimants have examined in all six witnesses and have produced six sale deeds and Judgment of the Addl. District Court in LAC No.79/86 in respect of adjoining land acquired pursuant to Notification issued under S.4 on 26.6.69 in which price of Rs.30/- per sq.m. was awarded by the Reference Court. The Claimant has also produced document of description of property parts which were subject matter of sale deeds at Exh.AW1/M and AW1/N vide Exh.AW1/O. The claimants have also examined the vendors in respect of the five sale deeds for the purpose of proving the sale deed and for the purpose of proving the said transaction. Claimants have also examined an expert valuer Sakaram Bhende who has been examined as AW.6 who has fixed the value of the acquired land at Rs.90/- per sq.m. AW.1 Agnelo Jose Pinto has stated that he he is applicant No.1 and holding the Power of Attorney for applicant No.2. After giving the various dates of the Notifications issued by the Government and the amount awarded by the Land Acquisition Officer, he has further stated that since the amount awarded was neither paid nor deposited he had filed a Writ Petition being W.P. 191/86. A certified copy of the said order was 12 produced on record. He has produced old Survey No.601 out of which the said plot is part of the old Survey No.601. A certificate in respect of the old Survey number and its xerox copy along with the transaction is also produced. He has stated that new Survey number came into force from 1972 to 1974 and at that time there were 100 houses existing in the corresponding new survey number which included survey No.194 and 195. He has further stated that the suit plot was a flat land and did not involve any cost for development and therefore was having potential for construction at the time of acquisition. He has stated that the suit plot was having civic amenities like water, electricity, road and shops. He has further given the details of the suit plot and the distance from the Panaji/Agacaim road and from the market place of Calapur. He has further stated that facilities like transport, church, schools, bus- stop were available within the radius of 500 m. from the suit plot. He has further stated that the Goa Medical complex was under consideration at the time of acquisition and it was at a distance of 2 kms. from the suit plot by road and the Vasudev Tamba Colony was at a distance of about 2 kms. from the suit plot. He has further brought on record sale deeds of the adjoining land. This witness has therefore in his evidence tried to establish that right from 1969 to 1982 the price of land had increased gradually from Rs.30/- in 1969 to Rs.150/- in 1982. Though this witness was cross- examined at length, his testimony has not been shaken. In cross- examination attempt was made to suggest that the land in question was basically an agricultural land and was 13 used for agricultural purpose only and that the suit plot was partly a cashew grove and partly a sloppy land. However, in cross examination the witness has reiterated that the land had building potentiality. The claimant has thereafter examined AW.2 Caetano Botelho. He was shown a sale deed at Exh.AW1/L and he has admitted that he had purchased the plot of land admeasuring 310 sq.m. at the rate of Rs.30/- per sq.m. on 1.3.69. The land was situated at Merces in the ward Dom Joao Palmar. Thereafter the claimant has examined AW.3 Jose Estevam Pinto who has stated that his mother had sold a plot of land of 406 sq.m. at the rate of Rs.25/- per sq.m. and it was situated at St. Cruz. He has identified Exh.AW1/K as the sale deed. Thereafter AW.4 Umakant Kenkre has been examined, who has proved the sale deed in respect of a plot of 510 sq.m at the rate of Rs.150/- per sq.m. which was situated at St. Cruz. He has stated that this sale was made pursuant to an agreement entered into with Wilfred Lopez on 28.12.01 and that he had received an amount of Rs.40,000/- by cheque as advance payment. He has stated that the plot was situated about 100 m. from Panaji/St. Cruz road and was sold for the purpose of house construction. It may be noted that this is the sale deed on which reliance was placed by the Reference Court and inference was drawn that agreement for sale was executed between the parties on 28.12.81. Thereafter AW.5 Conceicao Dias has been examined and has proved Exh.AW.1/I. He has stated that he had purchased a plot of land of 467 sq.m. at the rate of Rs.22/- per sq.m. Thereafter AW.6 Sakaram 14 Bhende has been examined. This witness has stated that he was an Architect, Engineer and a valuer. He has stated that he had been appointed as a Government valuer in 1972 and he had done his B.E. Civil from Poona University in 1957 and completed his agricultural Diploma from Bombay University in 1986. He stated that he had worked from 1986 to 1995 in a private Company in Bombay and thereafter he had shifted to Goa in 1995 and established his office in Goa and since then he was doing valuation/plans of building and structural valuations. He has also stated that he had done many valuations in land acquisition cases. This witness has stated in detail the reasons why he was of the opinion that the valuation of the land in 1982 was fixed by him at Rs.90/- per sq.m. After having stated that the land is a flat land having cashew trees and fruit bearing trees and that the acquired land was Rs.30/- higher than the land near Margao/Panaji road, he has stated that there is a village market, high school and higher secondary schools, health centre, church, bank, shops and telegraph office within a distance of 1 km. From the acquired land and that there was a bus stop within 200 m. He has further stated that the electricity and water pipeline was available and was passing through the property which is 300 m. from the acquired portion. Further details regarding the residential house, Goa Medical complex and Tamba residential colony within a radius of 1 km. Also has been referred to in his examination- in- chief. Thereafter he has given his opinion that the land is suitable for construction of building for 15 residence since the ground was hard and rocky and the land is flat. He has referred to two sale deeds, one dated 10.12.85 which is at Exh.AW1/M in which the plot was sold for Rs. 140/- per sq.m. pursuant to an agreement of sale made on 28.4.82 and the second sale deed dated 23.7.86 at Exh.AW1/N where the land was sold at Rs.150/- per sq.m. pursuant to agreement dated 28.12.81. He has also considered award of Addl. District Court in LAC No.79/86 by which the amount was awarded at the rate of Rs.30/- per sq.m. with reference to the acquisition of 1969. 10. From the said evidence it can be seen that the land in question in our view obviously was suitable for construction of buildings for residence. The adjoining land was within the periphery of the land already developed. All civic amenities were available. This evidence has not been seriously disputed by the Government. The sale deeds have been duly proved. From the various sale deeds which have been exhibited and proved as also the Judgment and Order passed by the Addl. District Judge in respect of acquisition of 1969 clearly establish that the cost of land in the said area had gradually increased from Rs.30/- in 1969 to Rs.150 /- in 1982. There is no reason to disbelieve the sale deeds which are produced on record. The Government also has not disputed the veracity of the sale deeds. It has not been suggested that the sale deed are sham or bogus documents. Even if we accept the value of the adjoining land was Rs.30/- in 1969 which was fixed by the 16 Addl. District Judge in another acquisition proceedings and which order passed by the Reference Court was not challenged by the Government and had become final, then increase at the rate of 10% per year from 1969 to 1982 if taken by compounding the 10% increase, the rate in the adjoining area in 1982 would come to Rs.150/- per sq.m. If 30% charges are deducted towards development and 10% towards other costs the value would still come to Rs.90/- per sq.m. in respect of the plot in question. Similarly if the last sale deed is taken into consideration which is sale deed dated 23.7.1986 at Exh.AW.1/N, in in this sale deed there is a