... 1 ... IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO.158 OF 2003 Communidade of Sancoale, at Sancoale, through its attorney, Shri Alvaro R. Colaco, major in age, r/o Sancoale, Mormugao Taluka, Goa. ... Appellant v e r s u s 1. The Government of Goa, through Dy. Collector and Land Acquisition Officer, Margao, Goa. 2. The Chairman, Goa, Daman and Diu Housing Board, 2nd floor, Junta House, Panaji, now at Alto Porvorim, Bardez-Goa. ... Respondents Mr. M. C. Fernandes, Advocate for the appellant. Mr. S. R. Rivonkar, Government Advocate for the Respondents. ... 2 ... CORAM: S. C. DHARMADHIKARI R. C. CHAVAN, JJ. DATED: 8th August, 2008. JUDGMENT: PER R. C. CHAVAN, J. The Communidade of Sancoale takes exception to the award by the Third Additional District Judge, South Goa, Margao in Land Acquisition Case No.129/1990 whereby the learned Judge enhanced compensation for Communidade lands acquired by the State from Rs.3/- to Rs.5.40 per sq.mtr. against the claim of Rs.75/- per sq.mtr. 2. By Notification dated 17.04.1984 under section 4 of the Land Acquisition Act an area of 1,89,800 sq.mtrs. of land belonging to the appellant in Sancoale village was sought to be acquired for rehabilitation of slum dwellers. This land was situated in survey no.89. The Land Acquisition Officer awarded compensation at the rate of Rs.3/- per sq.mtr. relying on an ... 3 ... instance of sale of 29,847 sq.mtrs. of land bearing survey no.39/1 in village Dabolim which was sold on 24.2.1982. The Land Acquisition Officer refused to rely on the instances of sale of other lands, particularly one dated 6.8.1982, survey no.1/1 admeasuring 3555.50 sq.mtrs., sold at the rate of Rs.4.50 per sq.mtr. 3. Being aggrieved by the award, the Communidade sought a reference to be made to the District Court under section 18 of the Land Acquisition Act. The claimant claims for compensation at the rate of Rs.75/- per sq.mtr. on the basis of various sale instances, as also an award in Land Acquisition Case No.58/1987 wherein the District Court had granted compensation at the rate of Rs.20/- per sq.mtr. for 13,500 sq.mtrs. of land out of survey no.109 of village Sancoale. 4. The learned District Judge considered various sale instances and rejected them as they pertained to small pieces of ... 4 ... developed land which could not compare well with vast track of rocky land which was subject matter of the acquisition. The learned District Judge also refused to rely on the award in Land Acquisition Case No.58/1987 on the ground that the land which was subject matter of the said award was first, only 13,500 sq.mtrs. i.e. less than one tenth of the land which is the subject matter of this appeal, and also since the said land was proposed to be reserved for light industrial purpose. He relied on a instance of sale dated 4.5.1982 (6.8.1982 ?) whereby 3555.50 sq.mtrs. of land had been sold at the rate of Rs.4.50 per sq.mtr. The observations of the learned Judge in paragraph 41 of the judgment are not clear. However, it is not necessary to go into that aspect. The learned Judge then added 10% per annum on the value at Rs.4.50 per sq.mtr. since the instance was two years prior to the date of Notification under section 4 of the Act and arrived at rate of Rs.5.40 per sq.mtr. and proceeded to make an award accordingly. ... 5 ... 5. We have heard Shri Fernandes, learned counsel for the appellant as well as Shri Rivonkar, learned Government Advocate for the respondents/State. As regards rejection of various sale instances in respect of smaller pieces of land by the learned District Judge, no grievance could be made, since these instances do not afford any scale for comparison of price of the acquired land. Even as regards the land under the award in Land Acquisition Case No.58/1987, the learned Government Advocate submitted that this did not afford an instance of sale which could be called comparable, as explained by the District Judge in paragraphs 17 and 18 of his judgment. The learned Government pleader submitted that since the land of the appellant is a Communidade land, it could not be compared to a freehold land and therefore, could not fetch a price which freehold land could get. Relying on judgment of this Court of Communidade of Candolim, represented by its Attorney v. Deputy Collector (North), Panaji, Goa reported in [2005 (1) Goa L.R. 25], the learned Government Advocate submitted ... 6 ... that in view of the restrictions on sale of Communidade land referred to paragraph 9 of the said Judgment, such land could not be compared with sale instances in respect of freehold land. 6. There can be no doubt about the proposition that Commundidade land could not be equated with a freehold land. The observations in the said case of Communidade of Candolim have to be understood only as laying down that the Communidade lands cannot be equated with other freehold lands for the purpose of arriving at a market price from such sale instances. The proposition cannot be extended to conclude that there can be no comparison. A comparison would bring out positive and negative factors which would then warrant adjustment of price with reference to such sale instances. Otherwise, if the Court were to insist on evidence of sale of an exactly similar piece of land to be tendered, it would be impossible to get an instance and fix appropriate compensation. ... 7 ... 7. The Hon'ble Supreme Court in Viluben Jhalejar Contractor (dead) by LRS v. State of Gujarat reported in (2005) 4 Supreme Court Cases 789 has held in paragraphs 20 and 21 of the judgment, as under: “20. The amount of compensation cannot be ascertained with mathematical accuracy. A comparable instance has to be identified having regard to the proximity from time angle as well as proximity from situation angle. For determining the market value of the land under acquisition, suitable adjustment has to be made having regard to various positive and negative factors vis-a-vis the land under acquisition by placing the two in juxtaposition. The positive and negative factors are as under: Positive factors Negative factors (i) smallness of size. (i) largeness of area. (ii) proximity to a road. (ii) situation in the interior at a distance from the road. (iii) frontage on a road. (iii) narrow strip of land with very small frontage compared to depth. ... 8 ... (iv) nearness to developed area. (iv) lower level requiring the depressed portion to be filled up. (v) regular shape. (v) remoteness from developed locality. (vi) level vis-a-vis land under acquisition. (vi) some special disadvantageous factors which would deter a purchaser. (vi) level vis-a-vis land under acquisition. (vi) some special disadvantageous factors which would deter a purchaser. (vii) special value for an owner of an adjoining property to whom it may have some very special advantage. 21. Whereas a smaller plot may be within the reach of many, a large block of land will have to be developed preparing a layout plan, carving out road, leaving open spaces, plotting out smaller plots, waiting for purchasers and the hazards of an entrepreneur. Such development charges may range between 20% and 50% of the total price.” ... 9 ... 8. The learned counsel for the appellant also placed reliance on the judgment of the Supreme Court in Kasturi and ors. v. State of Haryana reported in AIR 2003 Supreme Court 202 when the Court had held that deduction of 20% could be made in order to neutralize the negative factors in respect of the land under acquisition. In Atma Singh (died) through L.R.s and ors. v. State of Haryana and anr. reported in AIR 2008 Supreme Court 709, the Apex Court in fact, held that a deduction of only 10% was justified while determining the market value of large track of land on the basis of sale instances of small plots of land. 9. Bearing in mind these principles in arriving at the rate at which the compensation ought to be calculated, we would proceed to examine the situation of the land, which is the subject matter of this appeal. It may be seen that the land which was subject matter of Land Acquisition Case No.58/1987 before the District Judge, Margao, was 13,500 sq.mtrs. of land ... 10 ... bearing survey no.109 at same village, Sancoale, belonging to a private person. It was acquired by Notification dated 22.07.1982 i.e. about 2 years prior to the Notification, whereby the appellant's land was acquired. A copy of the award made by the District Judge in the said case was made available for our perusal and it shows that an Engineer, who has been examined as an expert had stated that the acquired land was fairly leveled land and was situated at about 5 kms. from Dabholim Airport. There was an artificial lake, which enhanced the beauty of the land. As already stated the land had been included in the development plan for light industrial purpose. Several industries have come up at some distance from the said land. Considering these factors, the learned District Judge had awarded compensation at the rate of Rs.20/- per sq.mtr. for the said land. 10. The appellant's land is also situated in village Sancoale. It is however, more than 10 times the land which was ... 11 ... the subject matter in Land Acquisition Case No.58/1987. The respondents' witness no.1 the Executive Engineer Shri Kurade agreed that Zuari Agro Chemical factory is 5 kms. from the acquired land and that the land was about 8 kms. from the airport. The land was rocky and uneven, and according to the Engineer, difference in levels was about 10 mtrs. However, he had agreed in the examination-in-chief itself that the land could have been used for construction purpose only after providing infrastructure facilities. In fact, the land has actually been acquired for rehabilitation of slum dwellers. Therefore, as compared to the land for which compensation was awarded at the rate of Rs.20/- per sq.mtr., the appellant's land has disadvantages as under: i) It is over 10 times than the land under the award, ii) It is not leveled land, Iii) While land under the award was reserved for industrial purpose, there is no such reservation in ... 12 ... respect of the appellant's land, iv) The appellant's land being Communidade land is not freehold land and could not have fetched market price equal to that of the land under the Award in Land Acquisition Case No.58/1987, v) Appellant's land was at longer distance from road, airport and developed properties as compared to land under Land Acquisition Case No.58/1987, vi) A high tension electric line passed through appellant's land. 11. Fifty percent deduction for the difficulty in making Communidade land marketable, plus deduction of 20% for the disparity in size, the land being rocky, and not being included in any reservation for industrial purpose, would therefore, be warranted in order to arrive at proper compensation, for the ... 13 ... appellant's land, if the award in Land Acquisition Case no.58/1987 is to be taken as the basis. The other two negative factors, namely, longer distance from road, airport, etc. and existence of high tension electric line through the land could be said to have been balanced by the fact that Notification under section 4 for acquisition of appellant's land was issued 2 years after that in Land Acquisition Case No.58/1987. After making this deduction of 70% from the sum of Rs.20/- per sq.mtr. awarded in Land Acquisition Case No.58/1987, the rate for the appellant's land would come to Rs.6/- per sq.mtr. (Rs.20 – Rs.14 = Rs.6). In view of this, we would allow the appeal partly, set aside the award passed by the learned Third Additional District Judge and grant compensation to the appellant at the rate of Rs.6/- per sq.mtr. in place of Rs.5.40 per sq.mtr. granted by the learned Third Additional District Judge. The appellant would also be entitled to compensation on other heads which the Third Additional District Judge or Land Acquisition Officer may have awarded, as also all the statutory ... 14 ... additives and interest, minus the amounts if any, received by the appellant. No order as to costs. S. C. DHARMADHIKARI, J. R. C. CHAVAN, J. lh/.