1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.134 OF 2005 1. Directorate of Sports & Youth Affairs, Panaji, Goa. 2. Land Acquisition Officer, P.W.D. (cell), Altinho, Panaji, Goa. …. Appellants V/s Casa Sociodade da Sanwardenkar, Sanvordem. …. Respondent Mr. G. Shirodkar, Government Advocate for the Appellants. CORAM : N.A. BRITTO, J. DATE : 15th NOVEMBER, 2010 JUDGMENT : Heard Shri Shirodkar, the learned Government Advocate on behalf of the appellants. 2. The respondent has chosen to remain absent. 3. This appeal is directed against judgment/award dated 24/12/2004 in Land Acquisition Case No.34/1999 by which compensation payable to the respondent (applicant, for short) has been enhanced from `25/- to `106/- per square metre. 2 4. Some facts maybe stated to dispose of the present appeal. 5. By virtue of notification issued under Section 4(1) of the Land Acquisition Act, 1894 and published on Gazette dated 27/10/1994, the Government acquired 9975 square metres of land of Survey Nos.90/9 and 90/21 of Village Sanvordem in Sanguem Taluka for the purpose of development of playground. 6. This appeal pertains to the acquisition of 2950 square metres of Survey No.90/9 acquired for the said purpose. The applicant by award of the Land Acquisition Officer dated 7/04/1997 was paid compensation at the rate of `25/- per square metre. The applicant having been dissatisfied with the same, got a reference made, and in the said reference claimed compensation at the rate of `150/- per square metre and in support of his claim for enhancement the applicant relied upon Exhibit 18, a Sale Deed dated 5/02/1996 by which land was sold at the rate of `150/- per square metre. The applicant also relied on Exhibit 19, an award of the Land Acquisition Officer dated 15/06/1987 with reference to the land which was acquired pursuant to notification published on Gazette dated 27/03/1986 by which compensation was paid at the rate of 3 `62/- per square metre. The land of Exhibit 19 was located at a distance 150 metres from the acquired land. 7. The learned Reference Court did not take into consideration the Sale Deed dated 5/02/1996, as it was a post notification sale, to assess the compensation, relying on the judgment of the Apex Court in the case of Karan Singh and Others V/s. Union of India (1997 (8) SCC 186). The learned Reference Court relied on the said award Exhibit 19 to form the basis of fixing the compensation relying upon the same case wherein the Apex Court had also observed that: “Judgments of Courts in land acquisition cases or awards given by the Land Acquisition Officers, can be relied upon as a good piece of evidence for determining the market value of the land acquired under certain circumstances. One of the circumstances being that such an award or judgment of the Court of law must be a previous judgment.” 8. There is no dispute that the award of the Land Acquisition Officer dated 15/06/1987 pertains to Survey No.35/3. This land was acquired at the rate of `62/- per square metre. There was Shantadurga Primary School in the land now acquired from Survey No.90/9. The said school has now been shifted in Survey No.35/3. The acquired land was being used by the students of the said 4 Shantadurga Primary School as a playground prior to the said school was shifted to the present place in Survey No.35/3. There is also no dispute that the acquired land was bharad land and as per the award of the Land Acquisition Officer, was situated in the settlement zone. The Land Acquisition Officer himself had observed that the acquired land was developed land as there was already an existing school therein. That apart, according to the applicant, the acquired land was very close to Sanvordem-Borim road and there was a higher secondary school and government school close to the said land and besides, there are temples, chapels close to the said land. The Sanvordem market, petrol pump, bus stand, banks and garage were also situated at a close distance from the acquired land and there were water as well as electricity supply passing through the acquired land and transport was also available. According to the applicant, Sanvordem-Curchorem railway station and Curchorem Town were situated at a close distance and the applicant had further stated that the acquired land also could be developed into a building site for a housing complex. In cross- examination, he had admitted that there was a ground in front of the school and he had denied the suggestion that the said ground was being used by the children of the said school and had further stated that prior to the construction of the ground there was a 5 paddy field. According to him the said Shantadurga Primary School was at a distance of about 200 metres from the acquired land. 9. Shri Shirodkar has submitted that the acquired land could not have any building potential as it was located in a area which had dust pollution on account of dumping of mines near the river. I am not inclined to accept the said submission. A similar submission was made before the learned Reference Court which has been dealt with by the learned Reference Court in para 10 of the judgment. The learned Reference Court has observed that the appellants did not bring on record what was the distance from the acquired property and the said river. The learned Reference Court has also observed that the fact that the Government acquired the land for the ground shows that there was no pollution. The learned Reference Court further observed that the fact that there was already a primary school and a higher secondary school close to the acquired land, which were running, also showed that the acquired land was free from pollution. Firstly, even if there was pollution near the river on account of the dumping of mines it was the duty of the Government to have controlled the same. Does the Government wish to convey that they are running a government primary school 6 in a area which suffers from dust pollution? That apart, the acquired land of Survey No.35/3 which is very close to the present acquired land of Survey No.90/9 would have also been affected by dust pollution and in case the Government awarded `62/- per square metre for a land which suffered from dust pollution there is no reason why a different standard should be applied to the acquired land of Survey No.90/9. The applicant's land under Survey No.90/9 was close to the school and being an open place might have been used by the school children as a ground, but that could not be taken as a minus factor, in assessing the compensation payable. As observed by the learned Reference Court, the acquired land being used by the children to play, would not mean that it could not be used for construction purposes. The learned Reference Court has taken the award of the Land Acquisition Officer dated 15/06/1987 as a guide to fix the compensation and that approach could not be faulted. However, the deduction of 20% taken cannot be justified. According to the learned Reference Court, the deduction of 20% was taken, based on an admission of the applicant that the acquired property of Survey No.35/3 of award dated 15/06/1987 had roads on three sides while the acquired property under Survey No.90/9 was not bounded by any road. A perusal of the statement of the applicant, in fact, shows 7 that the acquired property of Survey No.35/3 was bounded on two sides by roads. There was no admission obtained from the applicant by the respondents to suggest that the acquired property under Survey No.90/9 was not connected by any road. The fact that the acquired property was adjacent to an existing school where the school children used to play is sufficient to infer that it was accessible, in the absence of any other evidence to suggest that the property of the applicant where there was the said government primary school and the ground were otherwise landlocked. The deduction taken therefore could not have been justified. However, the fact remains that the respondents have not challenged the impugned award either by way of an appeal or by filing cross- objections. The learned Reference Court has taken the award dated 15/06/1987 of Survey No.35/3 to form basis to award compensation and has given appreciation at the rate of 10% on compounding basis based upon the judgment of the Apex Court in V.M. Salgaonkar and brothers Ltd. V/s. Union of India (1995 (2) SCC 302). On the facts of the case, the appellants could not have claimed anything more nor claimed any further deductions to be made. 10. The learned Reference Court has adopted a correct method 8 of assessing the compensation payable (except for the 20% deduction) and, therefore, the impugned award of the Reference Court cannot be faulted. 11. I find there is no merit in this appeal and, consequently, the same is hereby dismissed. N.A. BRITTO, J. NH/-