1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NOS.67 AND 97 OF 2003 FIRST APPEAL NO.67 OF 2003. Shaikh Babar Mohammad r/o House No.39, Kaziwada, Ponda-Goa. (since deceased) 1. Dominga Shaikh Babar alias Raziya Bi, wife of late Shaikh Babar, aged 59 years, r/o Sadar, Ponda-Goa. 2. Shaikh Hasmat Bi daughter of late Shaikh Babar, aged 36 years, housewife, married, 3. Shaikh Hussain husband of Shaikh Hasmat Bi aged 40 years, service, both r/o House No.323, Amral waddo, Taleigao-Goa 4. Shaikh Farooq, son of late Shaikh Babar aged 32 years, businessman,, r/o Sadar, Ponda-Goa. .. Appellants Versus 1) Deputy Collector & S.D.O. Ponda Sub-Division, Ponda-Goa. 2) The Director, Directorate of Art and Culture, Panaji-Goa. .. Respondents. MR. R. G. Ramani, Advocate for the Appellants. Mr. Amey Kakodkar, Additional Government Advocate for the respondents. 2 WITH FIRST APPEAL NO.97 OF 2003. 1) Deputy Collector & S.D.O. Ponda Sub-Division, Ponda-Goa. 2) The Director, Directorate of Art and Culture, Panaji-Goa. .. Appellants Versus Shaikh Babar Mohammad (deceased) Nirankel Road, Ponda, Goa. Legal Representatives of Shri Shaikh Babar Mohammad .. Respondents. Mr. Amey Kakodkar, Additional Government Advocate for the Appellants. MR. R. G. Ramani, Advocate for the respondents. CORAM :- A. P. LAVANDE, J. DATE : 15 th September, 2010. ORAL JUDGMENT : Both these appeals are being disposed of by a common judgment since both these appeals are arising out of the judgment and award dated 31st October, 2002 passed by the Additional District Judge, Panaji in Land Acquisition Case No.69/1998. 3 2. Vide notification issued under Section 4 of the Land Acquisition Act, ('The Act' for short), the government of Goa acquired lands of several persons for public purpose namely - construction of Community Hall and Car parking at Ponda. The land admeasuring 2105 square meters from Survey No.128 belonging to the appellants in F.A. Appeal No.67/2003 (hereinafter referred to as 'the claimant') was part of the acquired land. Notification was published in the official gazette on 3rd October, 1991. The claimant claimed compensation at the rate of Rs.500/- per square meter. The Land Acquisition Officer (The LAO) awarded compensation at the rate of Rs.93/- per square meter. Aggrieved by the inadequacy of the compensation granted, the claimant sought reference under Section 18 of the Act and claimed Rs. 500/- per square meter. 3. In Land Acquisition Case No.69/1998, the claimant examined himself and also examined Shri Ravindra Tamba-AW2, a registered valuer in support of his case. The LAO examined Ashwin Lotlikar as his witness. The Reference Court upon appreciation of the evidence led by the parties partly allowed the reference and fixed the market rate of the acquired land at the rate of Rs.175/- per square 4 meter. Aggrieved by the judgment and order, both the parties have filed two separate appeals, which are being disposed of by this judgment. 4. Mr. Ramani, learned Counsel appearing for the claimant submitted that the deductions made by the Reference Court on the ground of location, development and largeness are on much higher side and the sale deeds dated 20th December, 1991 – exhibit 12 and sale deed dated 16th January, 1991 exhibit 13 were comparable sale deeds and being comparable sale deeds, the Reference Court ought not to have deducted such higher deduction while fixing the market rate of the acquired land. Mr. Ramani further submitted that since the acquired plot was admeasuring 2105 square meters, no deduction could have been made in respect of the open space in terms of Regulations in force since the area was admittedly within planning area. In support of his submissions, Mr. Ramani placed reliance upon the judgment of the Apex Court in the case of Viluben Jhalejar Contractor Vs. State of Gujrat; (2005)4 SCC 789. 5. Mr. Kakodkar, learned Additional Government Advocate submitted that the Reference Court has erred in 5 placing reliance upon exhibits 12 and 13 and they could not have been relied upon since the sale deed plots could not be held to be comparable to the acquired land. Mr. Kakodkar further submitted that the claimant had not led any evidence to justify grant of higher compensation than the one granted by the LAO. In the alternative, he submitted that in the event the Reference Court were to rely upon either exhibits 12 and 13, the Reference Court ought to have made higher deductions while fixing the market rate of the acquired land since the sale deed plots in exhibits 12 and 13 are situated at Shantinagar and Khadpaband; whereas the acquired land is situated about one kilometer from upper bazar. Mr. Kakodkar invited my attention to the planning regulations, more particularly clause 27 (d)(iv) of the Regulations and submitted that in case of partial development of a plot, 15 % open space has to be set apart when remaining part is not less than 4000 square meters. He, therefore, submitted that even in respect of the acquired land, deduction has to be made for the purpose of open space. He further submitted that the report of the expert itself discloses that the acquired land was partly sloppy, barren and rocky and as such, could not be compared to the sale deed plots exhibits 12 and 13. Mr. Kakodkar, therefore, submitted that First Appeal 6 No.97/2003 filed by the appellants be allowed and F.A. No.67/2003 filed by the claimant, deserves to be dismissed. In support of his submission, Mr. Kakodkar relied upon the following judgment (2010)1 SCC 444; Subh Ram and others Vs. State of Haryana and another and (2003)12 SCC 334; Land Acquisition Officer Vs. Nookala Rajamallu. 6. I have carefully considered the rival submissions and perused the record and the judgments relied upon. 7. In view of the rival submissions, the following points arise for determination in the present appeal : (i) Whether the compensation granted by the Reference Court at the rate of Rs.175/- per square meter in respect of the acquired land is just and proper? (ii) If not, what compensation the claimant is entitled to ? 8. In support of the claim, the claimant examined himself - AW1 and approved valuer- Ravindra Tamba- AW2. The claimant placed reliance upon two sale deeds i.e. sale 7 deed dated 20th December, 1991 (exhibit 12) by which the area of 558 square meters situated at Shantinagar, Ponda was sold at the rate of Rs.762/- per square meter and sale deed dated 16th January, 1991 (exhibit 13) by which a plot of 410 square meters situated at Khadbapand was sold at the rate of Rs.426/- per square meter. The Reference Court placed reliance upon both the sale deeds and came to the conclusion that the rate of the acquired land would be in the range between 170/- to 180/- per square meter and consequently, fixed the market rate at the rate of Rs.175/- per square meter. 9. Having regard to the location of the two plots in exhibits 12 and 13 and the location of the acquired land, I am of the considered opinion that the sale deed dated 16th January, 1991 (exhibit 13) would be more comparable to the acquired land than sale deed dated 20th December, 1991 exhibit 12. The Reference Court while considering the sale deed exhibit 13 for the purpose of fixing the market rate has deducted 40 % on account of development costs and 33% on account of dissimilarity of the land. According to the claimant and his witness, the acquired land was a levelled land. However, perusal of the report produced by the expert 8 Mr. Tamba, discloses that the entire land bearing Survey No.128/0 was barren land and having partly rocky and having slight slope. In view of the report, I find it extremely difficult to place reliance upon the statement made by the claimant and his witness that the land was levelled. Moreover, the acquired land was not developed plot. Moreover, the plot in exhibit 13 was situated at Khadpaband, which is close to Bus-Stand and the School etc. Therefore, even on the point of location, the sale deed plot exhibit 13 is better located. Considering all these facts, appropriate deductions have to be made while fixing the market rate of the acquired land. The sale deed in exhibit 13 was executed on 16th January, 1991 and the notification under Section 4 was published on 3rd October, 1991. Therefore, considering that the notification under section 4 was issued about 8 months after the sale deed, considering the increase in the price at the rate of 10%, the market rate of the sale deed plot exhibit 13 as on the date of section 4 notification comes to Rs.450/- per square meter. Insofar as the argument of Mr. Ramani that since plot was less than 4000 square meters and as such, the claimant was not required to open space is concerned, I do not find any merit, in view of the submission made by Mr. Kakodkar after placing reliance upon the 9 regulations, which clearly provides that in case a part of a large plot is developed, the person has to keep 15 % open space provided the remaining portion is more than 4000 square meters. In the present case, the report of expert itself discloses that the claimant was the owner of the property bearing survey No.128/0 admeasuirng 8450 square meters. Therefore, while considering the market rate of the acquired land, the aspect of open space has also to be considered. Considering the area of the acquired land, I am of the considered opinion that the appropriate deduction would be 30%. Therefore, the amount works out to Rs.315/- Admittedly, the sale deed plot was admeasuring 410 square meters; whereas the acquired land is 2105 square meters. On the ground of largeness of the acquired land, appropriate deduction in my opinion, would be 20% and as such, the amount works out to Rs.252/-. It cannot be disputed that the plot at Khadpaband is better located as compared to the acquired land, which is situated about 1 kilometer away from Upper Bazar. In respect of the location, in my opinion, the appropriate deduction would be 10%. As such, the market rate of the acquired land as on the date of publication of Section 4 notification works out to Rs.226.80 (rounded off to Rs.227 per square meter). Therefore, in my considered view, 10 the market rate of the acquired land as on the date of publication of Section 4 notification works out to Rs.227/- per square meter. The claimant is held entitled to compensation at the rate of Rs.227/- per square meter in respect of the acquired land. Needless to mention that the claimant is also entitled to all the statutory benefits under the Act. 10. I do not deem it necessary to refer to the authorities cited by both sides since I have taken into consideration the principles mentioned in the said judgments. 11. In view of the above discussion, F.A.97/2003 filed by the appellants is dismissed and the F.A. No.67/2003 filed by the claimant is partly allowed. Having regard to the facts and circumstances of the case, the parties are directed to bear their own costs. A. P. LAVANDE, J. SMA