1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.42 OF 2005 1. Smt. Shrimati Vishwanath Acharya (expired, represented by her legal representatives) 1(a). Madhav Vishwanath Acharya, age major, occupation business, resident of House No...., Loliem, Canacona, Goa. …. Appellant V/s 1. Special Land Acquisition Officer South Goa, Konkan Railway Corporation Ltd., Amey Guest House, Davorlim Road, P.O. Navelim, Salcete Goa, 403 707. 2. The Chief Engineer, Konkan Railway Corporation Ltd., With office at 4th Floor Souza Towers, Church Square, Panaji, Goa – 403001. …. Respondents Mr. Sudesh Usgaonkar, Advocate for the Appellants. Mr. A.D. Bhobe, Advocate for the Respondents. CORAM : N.A. BRITTO, J. DATE : 6th OCTOBER, 2010 JUDGMENT: Dissatisfied twice, first by award dated 31/03/1994 of the Land Acquisition Officer and then by award dated 7/08/2004 of the learned Reference Court, the applicant (hereinafter referred to as such) has filed the present appeal. 2 2. Some facts may be stated to dispose of the same. 3. By notification issued under Section 4(1) of the Land Acquisition Act, 1894 (Act, for short), and published on Gazette dated 27/06/1991, the Government acquired 23,900 square metres of the applicant's land surveyed under no.180/1 admeasuring 77,400 square metres situated at Peddem ward of Loliem Village in Canacona Taluka, for the purpose of the construction of a new broad gauge line for the Konkan Railway. The applicant was also the owner of adjacent Survey No.172/1 admeasuring about 20,700 square metres, where there was a small house. The Land Acquisition Officer awarded compensation to the applicant as follows: Rs.4/- per square metre as the market value of the land; Rs.41,433.49 as wood value of 1084 trees, Rs.2,26,125/- as fruit value of the trees, total Rs.2,67,558.49; and Rs.40,915/- for the water tank. 4. The applicant was satisfied with compensation paid to her for the trees as she raised no issue about it before the Reference 3 Court. The applicant claimed Rs.100/- as the market value of the land and Rs.50,000/- for the tank. The applicant also claimed damages, without quantifying the same, towards loss caused to the remaining part of the applicant's land, as the same was deprived of irrigation facilities on account of the acquisition. (This claim presumably was made for what is known as injurious affection under clause fourthly of sub-section (1) of Section 23 of the Act.) No issue was framed nor evidence led to support that claim. 5. The learned Reference Court framed only two issues, namely, whether the applicant was entitled to the market value of the land at the rate of Rs.100/- per square metre and second Rs.50,000/- for the tank. The claim under the second issue appears to have been given up. 6. The applicant examined AW1/Madhav Acharya in support of her case, who relied upon two sale deeds namely Exhibit 23 - sale deed dated 4/07/1988 by which two plots of land admeasuring 675+75 square metres were sold at the rate of Rs.64/- per square metre and Exhibit 24 - sale deed dated 7/02/1990 by which a plot of land admeasuring 1500 square metres was sold at the rate of Rs.66/- per square metre. The land of first sale deed was stated to 4 have been located at a distance of 4 kms. from the acquired land while that of the second sale deed was at a distance of about 5 km. from the acquired land. Both were situated in the village of Loliem. The applicant also examined an expert, namely AW2/Vikas Dessai, an engineer, whose evidence the learned Reference Court rejected, for reasons stated in paras 25 to 28 of the judgment regarding which no grievance has been made on behalf of the applicant. The respondents did not lead evidence. 7. The learned Reference Court then took the second sale deed Exhibit 24 as a guide for determining the market value of the acquired land. By taking into consideration that the said sale deed was of 7/02/1990 the learned Reference Court gave appreciation at the rate of 10% on compounding basis and determined the market value of land of Exhibit 24 at Rs.70/- per square metre as on 27/06/1991, that being the date of publication of the notification, and after giving total deduction of 70% determined the market value of the acquired land at Rs.21/- per square metre. Although the evidence of AW2/Vikas Dessai, an engineer was rejected by the Reference Court, the distances mentioned by him appear to have been accepted, on account of concession made by the learned advocate appearing on behalf of the respondents. 5 8. Applicant's acquired property appears to have been a mixed garden land, bharad type. Whether it was located in a settlement zone was a debatable issue though it was not contested. The learned Reference Court noted that the acquired land was a very big property admeasuring 23,990 square metres and, that for any plot of land above 4,000 square metres, for the purpose of its development, internal roads have to be provided, open spaces have to be left and development costs have to be incurred. The learned Reference Court deducted 15% towards internal roads, 15% for open space, and 10% towards development costs. The learned Reference Court then took another deduction of 30% due to the disadvantageous location of the acquired land, considering that the acquired land was situated at Peddem in Loliem Village about 2 kms away from the Loliem church where all civic amenities were available and at about 5 kms from Maxem junction where the National Highway passes. 9. In taking the said deductions, the learned Reference Court referred to the case of Shaji Kuriakose V/s. Indian Oil Corporation Ltd. (2001 (7) SCC 650) wherein the Apex Court had stated that: 6 “However, if there is dissimilarity in regard to locality, shape, site or nature of land between the land covered by sales and land acquired, it is open to the court to proportionately reduce the compensation for acquired land than what is reflected in the sales depending upon the disadvantages attached with the acquired land.” 10. The learned Reference Court, accepted the respondents' submission that the market value of the land included the value paid for the trees and relying on State of Haryana V/s. Gurcharan Singh (AIR 1996 SC 106) divided the value of the trees i.e. Rs.2,67,558.49 by the area acquired of 23,900 square metres and arrived at Rs.11/- per square metre and concluded that the applicant was paid Rs.4/- per square metre for the land and Rs.11/- for the trees i.e. Rs.15/- per square metre. The learned Reference Court after determining the market value, as aforesaid, at the rate of Rs.21/- per square metre, then held that the applicant was entitled to only Rs.6/- per square metre i.e. after deducting Rs.15/- from Rs.21/- per square metre and recalculated the balance payable to the applicant at Rs.92,780/- which the learned Reference Court ordered to be paid with further interest at 9% per year from 18/08/1992 and simple interest at the rate of 15% per year on Rs.92,780/- from 18/08/1993. The applicant was awarded costs of Rs.1,000/- to be paid by the respondents. 7 11. Shri Usgaonkar, the learned Counsel appearing on behalf of the applicant submits that the deduction of 15% for internal roads and 10% towards development costs might have been justifiable, but another deduction at 15% towards open space was not justifiable as the acquired area did not fall within the PDA regulations. Learned Counsel then submits that the deduction of 30% was also unjustified as there was no evidence that the acquired property could not be developed. This deduction, according to learned Counsel, could not have been more than 5%. Next submission of Shri Usgaonkar is that the case of State of Haryana V/s. Gurcharan Singh (supra) was not at all applicable in view of clause secondly of Section 23(1) of the Act. In this context, Shri Usgaonkar has placed reliance on the very decision of the Apex Court in Gurucharan Singh as well as another decision of the Apex Court in the case of Administrator Genl. of West Bengal V/s Collector, Varanasi (AIR 1988 SC 943). 12. Shri Bhobe, the learned Counsel appearing on behalf of the respondents, justifying the deductions made by the learned Reference Court, has placed reliance on the case of Subh Ram & Ors. V/s. State of Haryana and Anr. (2010 (1) SCC 444) wherein 8 the Apex Court had observed that: “If the valuation of a large extent of agricultural or undeveloped land is to be based on the sale price of a small developed plot in a private layout, then the standard deductions should be one-third (for roads, etc.) plus one-third (for expenditure of development), in all two-thirds (or 67%), as “development cost” from the value of small plot. The percentage of deduction may however vary between 20% to 75% depending on several circumstances. Therefore, when deduction is made from the value of a small residential plot towards the development cost, to arrive at the value of a large tract of agricultural or undeveloped land with development potential, the deduction has nothing to do with the purpose for which the land is acquired. On the other hand, where the value of acquired agricultural land is determined with reference to the sale price of a neighbouring agricultural land, no deduction need be made towards “development cost”.” 13. Shri Bhobe has next submitted that the submission that the value of the trees cannot be included in the market value of land was considered by several Division Benches of this Court and was rejected and, therefore, Shri Usgaonkar cannot have the same submission made all over again before this Court. In this context, Shri Bhobe has placed reliance on the judgments of the Division Benches of this Court dated 25/09/2008 in the case of State of Maharashtra V/s. Sahadu Aba Shete & Ors. (2009 (1) ALL MR 186), dated 17/09/09 (FA No.153/05 in the case of Rama Apa Faldessai V/s. Special Land Acquisition Officer & Anr.), dated 9 16/09/09 (FA No.154/05 in the case of Shri Sawaivir S. Rajendra Bassavaling Raje Wadiyar (since dec. thro' LR's. V/s. Special Land Acquisition Officer & Anr.), dated 5/10/2009 (FA No.159/2005 in the case of Prabhakar Dayanand Keni Robolo V/ s. Special Land Acquisition Officer & Anr.), dated 21/06/2010 (FA No.240,252 of 2004 in the case of Shrimati Shripad Prabhu Dindibagkar V/s. Special Land Acquisiton Officer & Anr. ). 14. The determination of market value in many cases depends upon evaluation of many imponderables and so it is to some extent a matter of conjecture or guess work but that does not mean it can be decided on feats of imagination. It can never be a matter of mathematical precision. The market value envisaged in Section 23(1) of the Act is designed to award just and fair compensation for the lands acquired and postulates price of the land prevailing on the date of publication of the notification under Section 4(1). The market value concept is purely a phenomenon evolved by the Courts to fix the price of land arrived at between the hypothetical willing buyer and willing seller bargaining as prudent person, without a modicum of constraints or without any extraordinary circumstances. The acid test for determining market value of the land is the price which a willing vendor might reasonably expect to 10 obtain from a willing purchaser and which would form the basis to fix the market value. What is just, reasonable and fair compensation is always a question of fact depending on the nature of the evidence, circumstances and probabilities in each case. From a catena of decisions of the Apex Court, it can be seen that there are essentially three methods of valuation in awarding compensation namely, (1) comparable sales instances, (2) capitalization of income and (3) opinion of experts. Comparable sales instance is most preferred method. Capitalization of income method comes next and opinion of experts comes last. The evidence of experts is generally of assistance to the Court though the tendency of Courts is to rely more on evidence of sales rather than the opinion of experts who more often then not in such cases go to any extent in supporting the cause of the party who engages them rather than to assist the Court to arrive at correct decision. It is well settled that an opinion of an expert is as good or as bad as the reasons he gives in support of the same. The Apex Court in Koyappathodi M. Ayisha Umma V/s. State of Kerala (1991 (4) SCC 8) has stated that: “It is settled law that the methods of valuation to be adopted in ascertaining the market value of the land as on the date of the notification are: (i) opinion of experts (ii) the price paid within a reasonable time in bona fide transaction of the purchase or sate of the 11 lands acquired or the lands adjacent to the lands acquired and possessing similar advantages and (iii) a number of years purchase of the actual or immediately prospective profits of the lands acquired. These methods, however, do not preclude the court from taking any other special circumstances obtained in an appropriate case into consideration. As the object being always to arrive as near as possible in an estimate of the market value in arriving at a reasonable correct market value, it may be necessary to take even two or all those matters into account inasmuch as the exact valuation is not always possible as two lands may be the same either in respect of the situation or the extent or the potentiality nor is it possible in all cases to have reliable material from which that valuation can be accurately determined.” 15. As observed by the Apex Court in Special Land Acquisition Officer V/s. P. Veerabhadarappa (1984 (2) SCC 120), the first preferred choice is sale instance i.e. price paid within a reasonable time in a bonafide transaction or purchase or sale of lands acquired or the lands adjacent to the lands acquired and possessing similar advantages. The income method i.e. the method of capitalizing the actual or immediate prospective profits of the lands acquired of a number of years purchase is generally resorted to if there is no evidence of comparable sales or other evidence for computation of market value and it is resorted only when no method is available. 16. The learned Judge of the Reference Court is expected to sit at the District head quarters, on an armchair of willing purchaser 12 and assess the compensation payable for acquired lands situated miles away from the head quarters. Applicant's acquired property could not have been at a distance of less than 6/7 kilometres from Maxem junction which is on National Highway 17 where all civic amenities such as electricity, tap water, etc. were available whereas the acquired land had none of such facilities. Some market facilities were available 2 kilometres from Loliem Church. The plot of sale deed Exhibit 24 was closer to Maxem junction where all such facilities were available. The plot of Exhibit 23 was closer to the acquired property than the plot of Exhibit 24. No distances were mentioned in the affidavit of both the witnesses, of the plots of the sale deeds from the acquired land. AW2/Shri Dessai only gave the distance of plot Exhibit 24 as 5 kilometres from the acquired land, but according to AW1/Acharya this plot was at a distance of 1.5 kilometres from Maxem junction. If that is the case, the acquired land was at least 6.5 kilometres from Maxem junction; and that is, on the basis of self serving evidence of AW1/ Acharya and AW2/Dessai, who was found, by the learned Reference Court, to have made false statements. It appears that the acquired property was serviced by road which started from the said Maxem junction, then went to village Agas, then again to village Loliem and then through the ward known as Peddem, where 13 the acquired property is situated, and then to Gal and then touched the said National Highway at a place known as Shelim. Applicant's expert was asked whether he had prepared any sketch showing the acquired land and its location with reference to the sale deed plots and civic amenities and he replied in the negative. 17. We are living in the 21st century. A great many people in this State go about today with one or two electronic gadgets in their hand but when it comes to Courts, not a plan or a sketch is produced, to assist the Court to determine the compensation payable and this inspite of a party claiming enhancement of compensation engaging the services of an expert! Most of the so- called experts also do not bother to place such material before the Court. Reference Courts will do well in case they insist from the applicant/s a sketch/or a plan of the acquired land with approximate distances from the plots of sale deeds they wish to rely on in support of their reference, and so also the direction of their location. Such a step will save much of the judicial time of the Court as well as of the parties to the reference. It will also assist the Court in assessing market value in a more meaningful manner sitting on the armchair of a willing purchaser, from a distance. Land Acquisition Officers inspect the acquired sites. 14 Reference Courts do not. It will also help the appellate Court, as well. I have seen Counsels before this Court are at times unable to assist the Court in the absence of a fair idea about location of the acquired property, vis-a-vis the plots of sale deed/s, relied upon. In case of non-compliance, Reference Courts will not be helpless so as to dismiss the reference. Any sketch produced must be to assist, not to confuse the Court. 18. The learned Reference Court found that AW2/Dessai had made false statements and that finding has not been disputed nor can it be disputed. The learned Reference Court having found that AW2/Vikas Dessai had made false statements ought to have taken appropriate action against him in accordance with law. The learned Reference Court was not powerless in doing that. The Code of Criminal Procedure is resourceful enough. Sanctity of judicial process must be maintained at all costs. More and more people now tend to think that they can tell lies on oath in Court and get away with it. This impression is gaining ground and must be stopped, and sooner the better, and that can be stopped only if the Courts take appropriate action at the appropriate time in accordance with law, whenever such instances occur. This is not a solitary instance. In Rama Faldessai's case (unreported judgment 15 dated 17/09/1009) the learned Division Bench had observed as follows: “The learned Referral Court further suspected the valuer's report dated 11/12/1997 Exhibit 18 for the reason of its making after the period of more than 5 years from the date of the alleged inspection of the land by the Valuer A.W.2 Vikas Dessai. The Referral Court further observed that the rate of the market value of the acquired land as ascertained by the Valuer after the alleged inspection in the year 1992 was not reflected in the application under Section 18 moved by the appellant on 28/09/1994 despite the alleged communication of the market value by A.W.2 Vikas Dessai to the applicant as deposed to by A.W.2 Vikas Dessai. This discrepancy, the learned Referral Court opined, betrayed the myth of the valuation report Exhibit 18.” and in Raje Wadiyar's case (unreported judgment dated 16/09/2009), the Division Bench had observed that: “The Referral Court rejected the evidence of the valuer AW2/Vikas Dessai as his word was not found trustworthy particularly, for lack of objectivity, professional skill, and diligence in preparing the valuation report.” 19. Considering the facts of the case, in my view, there is no question of reducing the deduction taken by the learned Reference Court, any further. What deduction is to be taken in a particular case is not based on any principle of law, but depends from case to case, place to place and variety of other factors, particularly, the disadvantages the acquired land suffered from, when compared to the lands of the sale deeds. In case of Smt. Basavva & Ors. Etc. 16 V/s. The Spl. Land Acquisition Officer & Ors. (1996 (9) SCC 640), the Apex Court had observed that for developmental charges deduction between 33 1/3 % to 53% was held to be valid by that Court in several of its judgments. In the case of Ratan Lal Gupta & Ors. V/s. Union of India (1996 (7) SCC 3), a deduction of 78.45% was taken and that was taken because the acquired lands were located in an undeveloped area, though adjacent to a developed area, and as it would take a long time for realisation of potentialities as they would require further development. Now, the Apex Court in Subh Ram & Ors. (supra) has observed that the percentage of deduction would vary from 20% to 75% depending upon several circumstances. No evidence was led before the learned Reference Court to find out whether the acquired land was situated in a panchayat area or P.D.A. area or what were the regulations governing the same. Submissions cannot be made in the air without material to support the same. Compensation could have been assessed on the basis of award of self same land by which the applicant had obtained compensation at the rate of Rs.6/- per square metre in the year 1984. Plot of Exhibit 23 which was closer and of lesser price could have been used as the basis, but the respondents do not seem to have urged these points before the learned Reference Court. The learned Reference Court had taken 17 note of Panna Lal Ghosh V/s. Land Acquisition Collector (2004 AIR SCW 66) where these principles were laid down, but did not follow the same. The learned Reference Court has granted appreciation at 10% on compounding basis. Not that such appreciation cannot be granted but whether it could be granted for undeveloped areas is a debatable proposition. This Court has consistently followed the principle stated by the Apex Court in the Special Land Acquisition Officer V/s. Mohd. Hanif Sahib (2002 (3) SCC 688) that 10% escalation is neither excessive nor unreasonable (see judgment dated 11/12/2008 in First Appeal No.31/2007 in the case of Bala Atmaram Sahakari). There is no appeal or cross objections filed by the respondents and therefore there is no other option than to maintain the market value at Rs.17/- per square metre. 20. Coming to the core controversy, it appears that the judgment of Gurucharan Singh (supra) is the source of controversy although it ought not to have been. The learned Reference Court has relied upon it and has come to the conclusion that separate compensation for land and fruit bearing trees cannot be awarded. So also the learned Division Benches of this Court. Unreported judgment dated 21/06/2009 in Robolo's case merely grants compensation on 18 the basis of judgment dated 16/09/2009 in Raje Wadiyar's case in First Appeal No.154/2005. Unreported judgments dated 16/09/2009, 17/09/2009 and 5/10/2009 are of the same Division Bench of this Court while judgment dated 25/09/2008 in Sahadu Aba Shete's case is of another Division Bench of this Court. Since three of the judgments are of the same Division Bench, it would suffice, in case only one is referred to, namely judgment dated 16/09/2009, but before that, reference could be made to judgment dated 25/09/2008 wherein the learned Division Bench relying on State of Haryana V/s. Gurucharan Singh (1995 Supp (2) SCC 637) has held that the claimants cannot raise a statutory claim for trees as it is a part of consolidated compensation value arrived at by the Court concerned. 21. In Raje Wadiyar's case (unreported judgment dated 16/09/2009), the learned Division Bench of this Court referred to Sahadu