1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEALS NO. 13/03, 14/03 & 16/03 1) Special Land Acquisition Officer (N), T.I.P. Complex, P.O. Tivim Industrial Estate, Karaswada, Mapusa, Bardez, Goa. 2) Executive Engineer, Works Division VIII, G.T.I.D.C., T.I.P. Complex, P.O. Tivim Industrial Estate, Karaswada, Mapusa, Bardez, Goa. ………. Appellants. Versus Mr. Madhusudan Sadanand Joshi, H.No.152, Dangui Colony, Mapusa, Bardez, Goa. ……… Respondent. Mr. S. R. Rivonkar, Government Advocate for the appellants. Mr. M. S. Sonak and Mr. P.S. Rao, Advocates for the respondent. CORAM : SWATANTER KUMAR, CJ & N.A. BRITTO, J. DATE : 31ST MARCH, 2008. 2 ORAL JUDGMENT : (Per. SWATANTER KUMAR, CJ.) All the above appeals are directed against different judgments passed by the Reference Court, relating to acquisition of lands from Village Sal, in Bicholim Taluka. The lands were acquired for construction of Left Bank Main Canal of Tillari Irrigation Project from point 0.00 Km. to 4.350 Kms. Rest of the land was acquired for rehabilitation of the project affected persons. The appropriate Government had issued Notifications dated 20.12.91, 2.1.92 and 7.11.91 under Section 4 of the Land Acquisition Act, 1894 for acquisition of chunks of land for the public purpose as aforestated. In furtherance of this, declaration under Section 6 of the Land Acquisition Act, 1894 (“the Act” for short) was issued on 4.12.1992. The Land Acquisition Officer declared his award on 26.3.1993. The Collector awarded compensation at the rate of Rs.5/- per sq. metre. However, the possession of the lands is stated to have been taken and payment made to the respective claimants on 26.4.1993. Being dissatisfied with the amount awarded, the claimants then preferred references under Section 18 of the Act, which, in turn, were referred by the Collector to the Court of 3 competent jurisdiction. The learned Reference Court, vide its Award dated 20.9.02, enhanced the amount awarded as compensation payable to the claimants at the rate of Rs.25/- per sq. metre (Rs.20/- in First Appeal No.70/03). This enhancement was not to the expectations of the claimants, resulting them to file first appeals before this Court in the year 2002. As already noticed, all these 3 appeals gave rise to determination of compensation. As common issue of facts and law are involved in these appeals, it would be appropriate to dispose them of by this common judgment. During the course of hearing, the learned Counsel appearing for the parties brought to our notice that some of these appeals were listed for hearing before the learned Single Judge as they were maintainable before that Court. With the consent of the learned Counsel appearing for the parties, all these appeals were directed to be heard together before Division Bench of this Court. Resultantly, all these appeals came up for hearing together. It is not necessary for us to go into the controversy in detail, for the present, suffice it to note that the learned Reference Court, while enhancing the compensation to the claimants from Rs.5/- per sq. metre to Rs.25/- per sq. metre, recorded its findings as under : 4 “ The acquired land was about 1825 sq. metres in area and apparently undeveloped unlike the sale plots and which were all developed plots all prior to the date of acquisition. The sale transaction of April'90 was of a developed plot of 728 sq. metres which had been sold at the rate of Rs.25/- per sq. metre in April'90 and around the time of acquisition would be around Rs.28/- in the year of acquisition taking the increase in land prices at notional 10 % increase. However being in respect of a developed plot and after allowing due deductions towards development, the rate could be worked out at Rs.16.8 rounded off to Rs.17/- per sq. metre. The applicant was unshaken in his testimony that acquired land was abutting the village road on the eastern side and was near to the national highway as compared to the sale land i.e. 250 metres unlike the sale land at 500 metres and that amenities and facilities being nearer and besides the topography of the acquired land being plain and level unlike the sale land. If all these positive aspects are taken into consideration the rate could reasonably be fixed at Rs.20/- per sq. metre. The sale transaction of '91 was at Rs.30/- per sq. metre in March'91 and by similar 5 workings the rate for the acquired land could be worked out at Rs.22/- per sq. metre. The third sale transaction was also of April'91 which was sold at Rs.30/- per sq. metre and by the same workings the rate would work out to Rs.22/- per sq. metre. Therefore taking into account the contentions for and on behalf of the parties and making the workings as above, the rate for the acquired land which is taken at mean rate of Rs.22/- per sq. metre on the basis of the sale transactions can be fixed at Rs.25/- per sq. metre taking into consideration the material aspects that the acquired land was plain and level unlike the sale instances which were hilly in nature and the fact that all the amenities as earlier referred to were close to the acquired land including the national highway vis-a-vis the sale transaction. As such, I return my finding on the issue by holding that the market value of the acquired land on the date of Section 4 Notification being Rs.25/- per sq. metre.” 2. The learned Counsel appearing for the appellants-State took exception to the fair market rate arrived at by the learned Reference Court on the ground that the sale instances proved by the 6 claimants were of small sizes of land and, as such, the Court should have applied principle of reduction and 40 to 50 % of the amount should have been deducted if the sale instances were otherwise admissible. Further, he also contended that the location and potential of the land was such that it could not justify the grant of any enhancement and, in fact, the award of the Collector should have been restored. It is also contended that the method of drawing average in relation to the exhibited sale instances is not permissible in law and the Court should not have taken the average of sale instances while determining the compensation and he relied upon the case of Bakhtawar Singh and anr. Vs. Union of Indian and another, reported in (1995) 2 SCC 495. 3. We are unable to find merit in any of the contentions raised on behalf of the State. The average of the sale instances cannot be termed as an improper method of computation of compensation payable to the claimants. In fact the Supreme Court in its subsequent judgment has recognized this principle in H.P. Housing Board vs. Bharat s. Negi and others. (2004) AIR SCW 797) and has clearly 7 stated that average of sale prices can fairly be applied for determination of the compensation under Section 23 of the Act. 4. It was not disputed at the Bar, and in fact the synopsis filed on behalf of the State itself does not dispute that the Mapusa- Dodamarg Highway is about 150 metres away from the acquired land. Market at Dodamarg is about 3.00 Kms. from the acquired land. Though, there is no water and electricity available in the acquired land, however, at some distance there is a College and other facilities are available. The claimants had produced 3 sale instances, being Exhibits AW.1/A, AW.1/B and AW.1/C. In all these sale instances, land admeasuring about 728 to 1000 sq. metres was sold in the Village Kharpal at the rate ranging from Rs.25/- to Rs.30/- per sq. metres, the details of sale instances are as under : 1) Sale Deed dated 23.4.1990, Exh. AW.1/A area purchased was 728 sq. metres for Rs.25/- per sq. metres which was about 4 Kms. away from acquired land in Village Kharpal. 2) Sale Deed dated 4.3.1991, Exh. AW.1/B area purchased was 1000 sq. metres, ans about 4 Kms. away from acquired land in Village Kharpal, purchased at Rs.30/- per sq metre. 8 3) Sale Deed dated 26/4/1991, Exh. AW.1/C area purchased was 815 sq. metres, at Rs.30/- per sq metre at Village Kharpal, about 4 Kms. away. In addition to the above, the claimants had also produced on record Exhibit PW.1/D, which is an award of the Court, relating to the acquisition of 540 sq. metres of land at the rate of Rs.45.50 per sq. metre. This award is in relation to the land which is, admittedly, located at a distance of about 4 kms. away from Village Kharpal. In addition to this evidence, the claimants had also examined themselves as AW.1 to AW.4. All these witnesses besides proving the sale instances, have specifically stated that the highway is about 150 metres away from the acquired land and the Dodamarg road is 250 metres from the acquired land. Certain photographs being Exhibits AW.1/E colly were also filed before the Reference Court, depicting the location of the land. 5. It is evident from the documentary and the oral evidence led by the parties on record that the acquired land is part of a greater chunk of land in Sal Village. The lands which were sold under the different sale instances are nearly 500 metres away from 9 the National Highway, while the acquired land is 150 metres away. The lands shown under the various sale instances have been at much further distance, as Village Kharpal is stated to be 4 Kms. away from the acquired land. Nearness to the highway or main road, even internal, would definitely enhance the value and the potential of the land. The respondents, except examining RW.1 as a sole witness, did not produce any document to show that the location of the land was not different than the one stated by the claimants. The claimants led documentary and oral evidence on record to show that the acquired land had the potential and was quite close to the national highway i.e. 150 metres away The Award Exhibit DW.1/D relates to the acquisition of land from Village Kharpal which, apparently, is further away from the acquired land. While computing the fair market value of the land, the Court is expected to apply reasonable guesswork, particularly when direct evidence of sale instances in relation to the acquired lands are not available. The best evidence would be in the power in possession of the Government, as any sale instance of that area would always be within the knowledge of the State Government. The claimants having produced the evidence, it cannot be said that they have failed 10 to discharge the onus placed upon them and particularly in the absence of any cogent evidence by the State, and more so in the absence of any effective cross examination of the witnesses of the claimants, we are unable to find any reason to interfere in the quantum of compensation awarded by the reference Court. The conclusion arrived at is neither perverse nor contrary to the settled principle of law. 1. 6. For the reasons aforestated, we find no merit in the appeals preferred by the State. All these appeals are dismissed, however, leaving the parties to bear their own costs. CHIEF JUSTICE. N.A. BRITTO ssm.