:1: IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 143 OF 2004 1. The Deputy Collector, S.D.O., Ponda Goa. 2. The Executive Engineer, Division XVIII ( R), P.W.D., Ponda Goa. …. Appellants V e r s u s Shri Mohan Madhav Bhat Dhavalikar, R/o Bandora, Ponda Goa. … Respondent Ms. Sapna Mordekar, Addl. Government Advocate for the Appellants. CORAM :F. M. REIS, J. DATE : 26 th NOVEMBER, 2010. ORAL JUDGMENT The above Appeal challenges the judgment and award dated 10th March, 2004 passed by the learned Additional District Judge, at Panaji, in Land Acquisition Case No. 93/98. 2. By notification under Section 4 of the Land Acquisition Act, 1894 ( hereinafter referred to as the said Act ) published in the Official Gazette dated 6th November, 1991, the Appellants sought to acquire the land for the construction of Ponda by-pass road from Farmagudi to Dhavali via Kashimath :2: Khadpaband and Kapileshwari in Ponda ( Phase-I). The land intended to be acquired was admeasuring 225 square metres from the property surveyed under No. 15/1 of Village Queula and an area of 1225 square metres from the property surveyed under No. 17/1 of the same village Queula. By an award dated 13th November, 1991 passed by the Land Acquisition Officer under Section 11 of the said Act, the compensation awarded for the land acquired was at the rate of Rs.35/- per square metre in respect of both survey numbers besides the amount towards the trees existing therein. Being dissatisfied with the said amount, the Respondent sought a reference under Section 18 of the said Act for enhancement of compensation and claimed an amount of Rs.400/- per square metre for the land acquired. By the judgment and award dated 10th March, 2004, the Reference Court fixed the compensation in respect of the land subject matter of the property surveyed under No.15/1 at the rate of Rs.187/- per square metre and land under survey No.17/1 at the rate of Rs.190/- per square metre. Being aggrieved by the said judgment, the Appellants have preferred the present appeal. 3. Learned Additional Government Advocate appearing for the Appellants has assailed the impugned judgment and submitted that the Reference Court has totally misdirected itself in fixing the market value of the acquired land. She further pointed out that this Court whilst disposing First :3: Appeal No. 164 of 2004 fixed the compensation in respect of the land acquired pursuant to the same notification at the rate of Rs.80/- per square metre. Learned Counsel further submitted that considering the said judgment of this Court, the compensation fixed by the Reference Court at the rate of Rs.187/- and Rs.190/- per square metre is exorbitant. Learned Counsel further submitted that the Reference Court has failed to appreciate the evidence on record which establishes that the Appellants have failed to discharge the burden cast on them to the effect that the amount offered by the Land Acquisition Officer was inadequate. She as such submitted that the Appeal deserves to be allowed and the impugned judgment be quashed and set aside. The Respondent though served has failed to remain present nor being represented by any Counsel. 4. Having heard the learned Counsel for the Appellants and on perusal of records, the following point for determination arise in the present appeal : POINT FOR DETERMINATION Whether the Reference Court was justified in fixing the compensation for the land acquired in respect of the property surveyed under No.15/1 at the rate of Rs.187/- per square metre and in respect of the :4: property surveyed under No.17/1 at the rate of Rs.190/- per square metre ? 5. On perusal of the records of the above case, and the judgment passed by this Court in First Appeal No. 164 of 2004, I find that the land acquired in the present proceedings is pursuant to the same notification which is dated 6th November, 1991 for the same purpose. Considering the said judgment passed by this Court, the features and similarities of the land acquired vis-a-vis the land subject matter of the said First Appeal would have to be considered for the purpose of fixing the market value of the land acquired in the present case. 6. On perusal of the deposition of AW1, I find that he has stated that the land acquired was in a developed residential area having basic infrastructures as well as amenities such as electricity, water supply, telephone etc., in the vicinity thereof. He has further admitted that the land acquired was accessible by asphalted road running from Dhawali junction to Kapileshwari via Shree Satyanarayan temple and Shree Bhagavati temple. This aspect in fact has not been disputed even in the evidence of witness for the Appellant. The evidence further discloses that the land acquired is within the radius of 2 kms from the heart of Ponda town. On perusal of documentary evidence :5: adduced by the Respondent, I find that the property surveyed under No.17/1 was converted for non-agricultural use under the provisions of the Land Revenue Code. A sanad to that effect was issued dated 27th March, 1987 for an area admeasuring 9010 square metres. The total area of the property surveyed under No.17/1 was also sub-divided into 54 plots. It further discloses that the permission from the statutory authorities for the purpose of development of an area of 9010 square metres from the property surveyed under No.17/1 was already granted at the relevant time. The evidence further discloses that it has been admitted that an area of 500 to 600 square metres of developed area was also a part of the land which has been acquired in the present acquisition proceedings. Considering all these aspects, I find that the land which was surveyed under survey No.17/1 was developed area wherein permissions from the statutory authorities were already obtained for the purpose of development as on the date of Section 4 notification. The market value of the said land would have to be assessed on the basis that the same is a developed area. The Reference Court has considered two sale instances relied upon by the Respondent which are at Exhibits 17 and 18. Both the said sale deeds are stated to be in the vicinity of the acquired land and having similar features. While disposing of the said First Appeal No. 164 of 2004, this Court had relied upon the same sale instances for the purpose of determining the market value of the acquired land. While determining the market value of the :6: acquired land in the said First Appeal No. 164 of 2004, as the land acquired therein was an undeveloped land, a deduction of 2/3rd was effected for the purpose of fixing the market value of the acquired land therein. Further deductions effected was considering that the land acquired was not adjoining the road. On perusal of award passed in the present case, under Section 11 of the said Act, the Land Acquisition Officer himself had offered the compensation for the land acquired at the rate of Rs.35/- per square metre, while for the land acquired which was the subject matter of the said First Appeal, the amount offered was only a sum of Rs.15/- per square metre. This itself shows that the land acquired in the present case was much superior than the land subject matter of the acquisition in the said First Appeal. As such, I find that as far as land surveyed under survey No.17/1 is concerned, though the permissions from the statutory authorities were obtained by the Respondent, nevertheless there was nothing on record to show that the actual development had already taken place. The expenditure for such development would have to be taken into consideration for fixing the market value of the acquired land. Apart from that, the acquired land was situated adjoining the internal road which was going to Kapileshwari. The Reference Court while fixing the market value of the acquired land in respect of the said portion of the property surveyed under No.17/1 has fixed the compensation at the rate of Rs.190/- per square metre. There is no appeal preferred by the Respondent :7: challenging the said compensation. The Reference Court while fixing the said compensation has considered essentially the superior nature of the land acquired on the basis that higher compensation was offered by the Land Acquisition Officer while passing award under Section 11 of the said Act. Considering the facts and circumstances of the case, I find that the amount fixed by the Reference Court in respect of the portion of the property surveyed under No. 17/1, a part of which was already developed, the compensation fixed at the rate of Rs.190/- per square metre cannot be stated to be excessive. 7. As far as the land which was surveyed under No.15/1 is concerned, the evidence discloses that the said land was undeveloped. In the said judgment passed in First Appeal for the purpose of fixing the market value of the land acquired, a deduction of 2/3rd was effected towards the development charges and further deduction was made on account of the fact that the land acquired therein was not accessible by any motorable road. In the present case, there is no dispute that the land acquired was adjoining the internal road going to Kapileshwari. The Land Acquisition Officer while passing the award under Section 11 of the said Act has also offered a sum of Rs.35/- per square metre which also discloses that the nature of the land acquired was superior. Considering all these factors, I find that an overall deduction of 65% on account of development charges would be just and :8: proper. The amount as such works out to Rs.160/- per square metre approximately. No further deductions on any other count are to be effected in the present case, as the land acquired was adjoining the road. I accordingly fix the market value of the acquired land in respect of the property surveyed under No.15/1 at the rate of Rs.160/- per square metre for the land acquired. To that extent, the impugned judgment deserves to be modified. Learned Additional Government Advocate appearing for the Appellants is not justified to submit that the Respondent has failed to discharge his burden that the amount offered by the Land Acquisition Officer was inadequate. The sale instances produced by the Respondent itself discharges the said burden. As such, the market value of the acquired land in respect of the property surveyed under survey No.17/1 is fixed at the rate of Rs.190/- per square metre while the land which was the subject matter of the land surveyed under No.15/1 is fixed at the rate of Rs.160/- per square metre. The point for determination is answered accordingly. 8. In view of the above, I pass the following :- O R D E R (i) The Appeal is partly allowed. (ii) The impugned judgment and award dated 10th March, 2004 is modified and the market value of the land :9: acquired in respect of the property surveyed under No.17/1 is fixed at the rate of Rs.190/- per square metre and the market value of the land acquired under survey No.15/1 is fixed at the rate of Rs.160/- per square metre. Remaining part of the award granting statutory benefits is confirmed. (iii) The Appeal stands disposed of accordingly with no order as to costs. F. M. REIS, J. at*