1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NOS. 22 AND 53 OF 2005 FIRST APPEAL NO. 22 OF 2005 1. Land Acquisition Officer P.W.D.(Cell) Altinho, Panaji, Goa. 2. The Executive Engineer, W.D. XIII, PWD, Mapusa, Bardez, Goa. ... Appellants versus Shri Indrakant B. Parsekar Son of Balkrishna R. Parsekar, Married, major in age, Resident of House No.621, Madhlamaj, Mandrem, Pernem, Goa. ... Respondent Ms. S. Linhares, Additional Government Advocate for the Appellants. Shri Sudesh Usgaonkar, Advocate for the Respondent. FIRST APPEAL NO. 53 OF 2005 Shri Indirakant B. Parsekar, son of Balakrishna R. Parsekar, married, aged 70 years, resident of H.No.621, Madhlamaz, Mandrem, Pernem-Goa. ... Appellant versus 2 1. The Land Acquisition Officer, PWD(Cell), Altinho, Panaji-Goa. 2. State of Goa, through Executive Engineer, W.D. XIII, P.W.D., Mapusa, Bardez-Goa. ... Respondents Shri Sudesh Usgaonkar, Advocate for the Appellant. Ms. S. Linhares, Additional Government Advocate for the Respondents. CORAM : N. A. BRITTO, J. DATE : 16TH SEPTEMBER, 2010. ORAL JUDGMENT These appeals are directed against the Judgment/Award dated 30-9-2004 of the learned Reference Court, Panaji. 2. The parties hereto shall be referred to in the names as they appear in the cause title of the said reference case. 3. There is no dispute that the applicant's land admeasuring about 105 sq. meters from two survey numbers, namely 331/7 and 331/10 situated at Mandrem in the taluka of Pernem were acquired by the Government for the purpose of widening of the road from Chopdem to Keri via Mandrem, by 3 virtue of notification issued under Section 4(1) of the Land Acquisition Act, 1884 published on Gazette dated 23-11-2000. 4. The applicant was paid compensation at the rate of Rs. 20/- per sq. meter. The applicant in the reference sought enhancement of compensation at the rate of Rs.250/- per sq. meter, and Rs.13,750/- by way of compensation for trees. The applicant in support of his reference examined himself and two more witnesses, namely, Shri Navelcar who had prepared his Report dated 30-7-2004 and who had valued the acquired land at Rs.325/- per sq. meter, and also Shri Tuvenkar who has submitted his Report dated 27-7-2004 giving the value of the trees at Rs.23,850/-. The applicant had also produced three sale deeds, details of which are as follows:- Sr. No. Exh. No. Date of Execution Survey No. Rate of Land Rs./sq.mt Area of plot (sq. mts) Dist.from acquired plot(Km.) Parties (Vendor/ Vendee) 1 PW1/A 06/11/03 306/1 400 562 1 Leonardo /Gabriel 2 PW1/B 21/01/2004 302/10 200 99 1 Deshprab hu/Pedne kar 3 PW1/C 29/11/1991 302/19 100 200 1 Dessai/ Kinlekar 4 5. The Respondents did not examine any witnesses and their case essentially remained on suggestions which were put in the cross-examination of the applicant and his witnesses. 6. The applicant in his appeal claims compensation at the rate of Rs.400/- for the land, and Rs.24,181/- for the trees. The Respondents in their appeal seek setting aside of the award of the learned Reference Court dated 30-9-2004. 7. There is no dispute that the applicant's land was abutting the existing Chopdem-Mandrem-Kerim road and was acquired for road widening. It was situated at a distance of about 50 to 60 meters from the Mandrem market where all amenities were available such as a fish market, shopping complex, doctor, bank, telephone exchange, electricity, etc., and there was a High School, a Primary School, Panchayat Office and a Primary Health Centre within a kilometre therefrom. Mandrem beach was at a distance of about a kilometre. Survey No.331/7 had an area of 1432 sq. meters. The area of survey No.331/10 is not known. 8. The learned trial Court used the sale deed Exh.PW1/C dated 29-11-1991 for the purpose of fixing the market value of the land but without giving any appreciation or taking any deduction. 5 9. Ms. Linhares, learned Additional Government Advocate submits that the applicant's land was abutting the existing Chopdem-Kerim road, and further points out that the applicant had admitted that he was not able to do any construction on the acquired land. In fact, what he had stated is that he would not be able to do any construction on the acquired land if prohibited by law as some part was coming within the set back area. The applicant had admitted that the sale deed Exh.PW1/C was of a developed plot. Ms. Linhares referring to the case of Subh Ram and others v. State of Haryana and another((2010) 1 SCC 444) has submitted that the learned Reference Court ought to have taken a deduction of at least 60% from the price of sale deed Exh.PW1/C before fixing the market value of the acquired land; considering the facts of the case. Ms. Linhares has placed reliance on M/s. Printers House Private Ltd. v. Mst. Saiyadan(dec.) by L.Rs. and others(AIR 1994 SC 1160) and has submitted that the plot of the sale deed Exh.PW1/C was a developed plot, and, therefore could not have been compared with the acquired land of the applicant. 10. On the other hand, Shri Sudesh Usgaonkar, learned Counsel appearing on behalf of the Respondents has placed reliance on an unreported Judgment of this Court dated 25-9-2003 in First Appeal No.101 of 1999 in the case of State of Goa and another v. Smt. Marianinha Vaz and others, and has submitted that only because a strip of applicant's land was acquired 6 abutting the road, it did not mean that the applicant was not entitled to any compensation. In fact, the learned Single Judge of this Court in the aforesaid Judgment has observed that the argument that only a strip of land is taken away, and, therefore it has no value is to be stated only to be rejected. Shri Usgaonkar has also placed reliance on another unreported Judgment dated 6-10-2005 in First Appeal No.32 of 1999 in the case of State of Goa and another v. Joaquim B. Crasto wherein this Court had observed that there was no justification for deduction of more than 50%. The land in that case was within the set back area of National Highway. This Court had referred to Chimanlal Hargovinddas v. Special Land Acquisition Officer(AIR 1988 SC 1652) wherein it was observed that the market value reflected on the sale deed had to be unloaded on account of the minus factors. The Court had then granted 10% of appreciation considering the date of the sale deed and the date of the acquisition, and it was further noted that the prices of immovable properties in this State increased year after year from the eighties, and there was no evidence to the contrary. Shri Usgaonkar submits that considering that the sale deed Exh.PW1/C was of the year 1991, 10% increase could be given and after taking a suitable deduction market value could be fixed. 11. If the Reference Court is required to make a balance sheet of plus and minus factors, it is necessary that the applicant places all the materials before the Court to enable it to carry on the said exercise. As stated in 7 Chimanlal Hargovinddas v. Special Land Acquisition Officer(supra) the claimant is in the position of the plaintiff and it is he who has to show that the price offered was inadequate. Although it is possible to know the exact area of survey No.331/7 as 1432 sq. meters the applicant did not indicate what was the area of survey No.331/10 or the dimensions of the acquired strip. In my view, the right course would be to first, take a deduction and that is 50%, considering that the applicant's land was of a very narrow strip, abutting the existing road from the price of sale deed Exh.PW1/C which would work out to Rs.50/- per sq. meter. If appreciation is given at the rate of 10% that again works out to Rs.50/- which would mean that the price of the acquired land would be Rs.100/-. In the given facts of the case, therefore I am not inclined to interfere with the compensation fixed at the rate of Rs.100/- per sq. meter. 12. As regards the trees, the learned trial Court has rejected the report of the Deputy Conservator of Forest on the ground that the learned trial Court found it difficult to believe that in an area of 25 sq. meters there could be two mango trees/grafts, three coconut trees and one tamarind tree, all fully grown. The applicant had produced the said report prepared by the Respondents' Officer, namely the Deputy Conservator of Forest. The Respondents had not even cross-examined the applicant on the basis of the same. The said report enumerates the trees found in survey Nos.331/7 and 331/10, and gives value of each of the trees found therein and in the aggregate 8 a value of Rs.7031.45. Since the Respondents had not challenged the said report nor cross-examined the applicant on the same, in my view, the learned Reference Court ought to have awarded compensation for the trees on the basis of the same which I hereby do. 13. Consequently, the appeal filed by the applicants is partly allowed and that filed by the Respondents is dismissed. The award of the learned Reference Court is hereby modified and the applicant is held entitled to compensation for the acquired land at the rate of Rs.100/- per sq. meter with all consequential statutory benefits and Rs.7032.00(rounded from Rs.7031.45) for the trees which the Respondents are hereby directed to pay to the applicant with interest at the rate of 6% from the date of taking possession of the land. Respondents also to pay costs of this appeal quantified at Rs.5000/- to the applicant. N. A. BRITTO, J. RD