- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 3 OF 1998. State of Goa, through Land Acquisition Officer, P.W.D. (Cell), Altinho, Panaji Goa, 403 001. ........ Appellant. Versus Dr. Jagdish Janardhan Naique Counto, residing at 8/G3, Siddharth Apts., Near Dr. Raikar Hospital, Tonca, Miramar, Panaji-Goa. ......... Respondent. Mr M. Salkar, Government Advocate for the Appellant. Mr.V. A. Lawande, Advocate for the Respondent. Coram:- S. C. DHARMADHIKARI, J. Date:-8th April, 2011. ORAL JUDGMENT The First Appeal challenges the Award of Reference Court namely District Judge, Panaji dated 17.3.1997 in Land Acquisition Case No.56/1991. 2. By a common Award rendered in three Land Acquisition Cases, the learned District Judge as far as this subject land acquisition reference is concerned held that the Respondent/claimant is entitled to - 2 - compensation at the rate of Rs.66/- per square metre as against the claim made of Rs.250/- per square metre. 3. As stated above, this reference was decided with Land Acquisition Case Nos. 54/1991 and 55/1991. 4. In the reference under Section 18 of the Land Acquisition Act, the case of the Respondent/Claimant is that acquired land falls in the property known as “Balueachem Tolem” and locally known as “Talem” situated at Velinge, within Priol Velinga Cuncoliem Panchayat area Ponda taluka and is of agricultural nature. It is bounded on the north by public road and boundary wall, on the south by watershed of Communidade hill. The property is surveyed under no. 22(part) bearing description No. 1175 of Book B-14 old, Matriz Predial Nos. 271 and 272. The acquired land admeasures 15,139 square metres. The claimant being co-owner of 25% of the property was paid total compensation of Rs.3,48,155,80/-. 5. It was the case of Respondent/Claimant that land was developed and cultivated with cashew trees, mango trees, coconut and other trees. It also has a compound wall which was constructed earlier. It is submitted that it was erroneously held that land is not plain, it is hilly and consists of ups and downs. He has wrongly held that the land is not fit for construction. It was therefore submitted that - 3 - road was to be constructed across the property new compound wall is to be provided on the other side of the road for protecting the plantation against stray cattles and this would result in tremendous loss to him. 6. It was pointed out that the acquired land is most fertile and there was sale deed dated 19.6.1986 wherein the land was sold at Rs.145.69 per square metre. This sale deed was made much prior to issuance of Section 4 notification. Considering the sale deed, it is reasonable to hold that market rate of the land under acquisition as on the date of issuance of section 4 notification is Rs.250/- per square metre. Land is situated closed to Goa College of Engineering and in view of this it should be classified as suitable for residential area. In these circumstances compensation at Rs.250/- per square metre was claimed. It is pertinent to note that this land was notified for acquisition and the notification under section 4 is dated 7.5.1987. 7. Learned District Judge has adverted to the evidence of the claimant and the expert examined by him and upon scrutiny and assessment thereof, the learned Judge concluded that the land under acquisition was having roads on two sides and its northern boundary is national highway from Ponda to Panaji and on southern boundary there was internal road. The learned Judge has by applying - 4 - percentage of deduction arrived at a figure. He held that the sale deed pertains to a smaller piece of land admeasuring about 300 square metres and the acquired plot is a larger property. Therefore making such deductions as are permissible, he concluded that the market value of the plot would be Rs.66/- per square metre. 8. On the other aspect, namely, on construction of compound wall and acquisition for trees, compensation for cashew trees, the learned Judge has held that the Respondent/Claimant is entitled to Rs. 17,677/- towards value of the same. Learned Judge also awarded compensation for construction of a compound wall so as to separate two properties and for that purpose awarded Rs.70,000/-, i.e. construction of rubble stone fencing. It is this award which is challenged in this appeal. 9. Mr. M. Salkar, learned Government Advocate appearing on behalf of the Appellant has submitted that the learned District Judge was in complete error in enhancing compensation from Rs.15/- per square metre granted by the Land Acquisition Officer to Rs.66/- per square metre. He submits that the sale deed in this case is of a property which is much smaller in size and that is not a guide for arriving at a market value of a larger property namely land under acquisition which admeasures 15139 square metres. There are no - 5 - amenities such as railway station, post office, banks in the vicinity of the acquired land. The land is situated far away from the city. As stated National highway is not abutting the land. The sale deed was not comparable instance to the acquired land. The land under the sale deed is having potential as is evident from the schedule and the description of boundary at the end of sale deed. In such circumstances, the learned Judge has committed gross error in deducting only 60% of the value of the land under the sale deed. This deduction is on a lower side and learned Judge should have deducted 1/3rd of the amount over and above this deduction. Further, compensation awarded for construction of compound wall/rubble stone fencing can hardly be supported. That claim has not been proved by the claimant, although he has made a grievance on that score in the Reference Application. That has not been substantiated by him when he stepped in the witness box. It is based on the statement made by his valuer in his deposition that before the acquisition there was privacy for the property which has now been lost due to the said road and there is likelihood of encroachment in it that the Learned Judge awarded the amount to the extent of Rs.70,000/- towards construction of compound wall. However, on perusal of section 23 of the Land Acquisition Act, 1894 according to - 6 - the learned Government Advocate it is evident that this is not a matter which can be considered in determining the market value. For all these reasons he submitted that award be set aside, alternatively it should be set aside to the extent of amount of compensation awarded for compound wall. 10. Mr. Lawande appearing on behalf of Respondent/ Claimant on the other hand submits that learned Judge has applied correct principles and arrived at proper valuation. He had determined the market value of the land on the basis of sale deed. The test in so far as deduction has been correctly applied. In fact the learned judge has erred by taking conservative estimate and as against the claim made for Rs. 250/- per square metre only Rs.66/- per square metre has been awarded. The land had potential for development. The land is within the vicinity of Goa Engineering College. It is at a distance of about 200 metres from the land covered by sale deed dated 19.6.1986, which is a developed property. In such circumstances there is no interference warranted with the market value determined by the learned District Judge. 11. As far as the claim for compensation for construction of rubble stone fencing is concerned, Mr. Lawande, invited my attention to the Clause 4 falling in Section 23 (1) of the Land Acquisition Act - 7 - and the judgment of Division Bench of Madras High Court in the case of L. A. Collector Vs. S. Vaidyanatha, reported in AIR 1958 Madras, 214. For all these reasons he submitted that Appeal be dismissed. 12. With the assistance of the Counsel appearing for the parties, I have perused memo of appeal, all annexures thereof including judgment and award of the Reference Court. I have also perused the material relied upon by the parties. After perusing the same, I am of the opinion that there is no substance in the submission of learned Government Advocate to the effect that compensation has been awarded on the higher side by determining the market value erroneously. Determination of the market value in this case has been done by applying correct principles. Learned Judge has further elaborated the reasons by referring to the deposition of claimant and valuer and held that the sale deed pertains to land which is fully developed but smaller in size. However, that land is within the vicinity and distance is about 200/300 metres from the land under acquisition. The land under acquisition is such that it can be developed in future. It is levelled to a great extent and therefore, expenditure in that behalf is also not much. However, considering the area of the land under acquisition and that covered by sale deed - 8 - appropriate deduction would have to be made. Learned Judge by applying the normal and ordinary principles of deductions, in such case, deducted 60% of the amount awarded for the land covered by sale deed. Thus, the land covered by sale deed fetched Rs.145/- per square metre for total area admeasuring 300 square metres and approximately whereas the land under acquisition admeasures 15,139 square metres. Learned Judge determined the rate at Rs.66/- per square metre. This cannot be said to be a excessive or exorbitant sum warranting interference by this Court. The market value has been determined by applying principles which are laid down in decisions of the Supreme Court and bearing in mind the facilities. Even, the fact of the land which has been sold under the sale deed dated 19.6.1986 and the notification under Section 4 is dated 7.5.1987, has been borne in mind. The Development in the vicinity is taken into account for determining the potential of the land under acquisition. The increase over a period of nearly one year is also a relevant factor. Prices of immovable properties in Goa have shown an upward trend. Therefore bearing in mind the potential for development the rate determined cannot be said to be such as would require this Court's interference to correct it. Therefore, that part of the award does not require any interference. Even the compensation that has been awarded for trees - 9 - is reasonable bearing in mind the total number of trees that are claimed at site. The compensation is awarded by taking into account all cashew trees and even the figures cannot be said to be excessive. 13. However, there is some substance in the submission of learned Government Advocate as far as claim awarded for construction of compound wall. From a perusal of discussion on issue no. 4, it is apparent that witness Dharwadkar who is a valuer has stated that he has seen the property prior to construction of road and thereafter he claims that before construction of road there was privacy which is now lost and there is likelihood of encroachment or theft on the remaining property and there were rubble stones fencing on all four sides. Now, there is no fencing at two places, i.e. entrance and exit road which is built, therefore, the land will have to be fenced in such a manner so as to segregate and separate it from other property. Therefore, Appellant is entitled for compensation towards the construction of fencing on both sides. Learned Judge as against the amount of 3,50,000/- claims awarded Rs.70,000/- towards construction of rubble stone fencing. Mr. Lawande would support this finding on the basis that Clause 4 of Section 23(1) of the Land Acquisition Act, 1894 as that would enable the Reference Court to consider this matter. He has relied upon the Judgment of Division - 10 - Bench of Madras High Court. However, perusal of the Judgment of Madras High Court would show that as far as the principle is concerned that would enable the Court to award compensation by considering the damage, if any, sustained by the person interested, at the time of Collector taking possession of the land by reason of the acquisition and injuriously affecting other property movable or immovable, in any other manner, or his earning. However, before the Madras High Court there was specific evidence by reason of acquisition of part of the property for building of house. There is every livelihood of cattle and other animals straying on the adjacent land of the claimant that was covered with crops and damage cause to it, may be such as would require him to be compensated. Such is not the case in the present matter. As rightly pointed out by learned Government Advocate the claimant has not substantiated this part of claim, although he has made a statement in the application seeking reference that he would be required to construct a compound wall for protecting the plantation from stray cattles. There is no evidence led by him to prove any existing compound wall. The version which came out from the valuer is “rubble stone fencing”. That is not what has been stated by the claimant in para 8 of his application. Further, the valuer has not deposed that there will be any theft or that there is - 11 - violation of privacy, in any manner. The claim that has been raised by the valuer is on distinct basis from that of the version given by the claimant in the statement of claim/reference application. In such circumstances by relying upon the version of the valuer and other supporting witnesses, learned Judge should not have compensated the respondents for construction of rubble stone fencing. To my mind, neither Clause fourthly appearing in Section 23 of the Land Acquisition Act, nor the judgment of Division Bench of Hon'ble Madras High Court would be of any assistance to the respondents in claiming compensation for the compound wall. On perusal of the award on this issue, I am satisfied that the learned Judge has not applied his mind to the material produced and ignored the relevant factors that are required to be taken into consideration. Therefore, he based his conclusion on matters extraneous to Section 23 and particularly overlooking the inconsistencies in the deposition and the nature of the claim. For all these reasons, this part of the claim as awarded will have to be set aside. 14. In the result, the First Appeal is partly allowed. The Impugned Award to the extent that it grants compensation at Rs.70,000/- for construction of rubble stone fencing is set aside. However, other part of the award in so far as market value determined - 12 - and the compensation awarded at Rs.66/- per square metre is maintained. It is also maintained to the extent of compensation awarded for cashew trees. 15. As a result of above discussion, the award and decree would be modified to the above mentioned extent. Registry to draw up the decree accordingly and if any amount is deposited the same shall be paid over to the respondent and for balance the respondent can take appropriate steps in accordance with law. There shall be no order as to costs. S. C. DHARMADHIKARI, J. vn*