1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 31 OF 2007 1. Shri Bala Atmaram Sahakari 2. Shri Ashok Atmaram Sahakari 3. Mrs. Vijaya A. Sahakari, 4. Shri Madhav A. Sahakari All r/o. Curti, Ponda, Goa. .... Appellants V/s 1. The Deputy Collector and S.D.O., Ponda Sub Division, Ponda, Goa. 2. The Executive Engineer, Works Division XV, P.W.D., Ponda, Goa. .... Respondents Mr. A.F. Diniz, Advocate for the Appellants. Mr. Guru Shirodkar, Addl. Govt. Advocate for the Respondents. CORAM : SWATANTER KUMAR, C.J. & N.A. BRITTO, J. Date of Reservation of Judgment : 21st NOVEMBER, 2008 Date of Pronouncement of Judgment : 11th DECEMBER, 2008 JUDGMENT:(Per N.A. BRITTO, J.) This appeal is directed against the award dated 21/11/2006 of the learned reference Court by which the claim of the applicants for enhancement of compensation has been partly allowed. Dissatisfied with the same the present appeal has been filed. 2. The parties hereto are being referred to in the names as they appear in the cause title of the reference case. Applicants' land admeasuring about 2805 sq. mts. located on either side of National Highway 4-A was acquired 2 by the Government for the purpose of its widening by virtue of notification published on gazette dated 26/09/1991. In fact, an area of about 700 sq. mts. was acquired from Survey No. 79, 10 sq. mts. from Survey No. 80 and 980 sq. mts. from Survey No. 78/1 lying on the right side of the said National Highway, while 1115 sq. mts. was acquired from Survey No. 83/3 lying on the left side of the National Highway, all from village Curti in Ponda Taluka, and, by award dated 20/05/1993, the Land Acquisition Officer was pleased to offer compensation at the rate of Rs. 20/- per sq. mt. for land from Survey Nos. 78/1, 79 and 80 while Rs. 7/- per sq. mt. were offered for the land of Survey No. 83/3. 3. Dissatisfied with the said award, the applicants got a reference made, claiming enhanced compensation at the rate of Rs. 500/- per sq. mt and in the said reference examined 3 witnesses and also produced 3 sale deeds besides placing reliance on awards passed by this Court in First Appeal No. 31/1998 and 46/1998, both dated 8/04/2008 by which compensation payable was fixed at Rs. 120/- and Rs. 132/-, respectively, after taking a deduction of 40% from the sale deeds produced in the said cases. These cases were in relation to notification under Section 4(1) of the Land Acquisition Act, 1894, gazetted on 13/12/1988, of lands in the same village. 4. The sale deeds produced by the applicants are Exhibit 19 - a sale deed 3 dated 18/06/1990 of a plot of 315 sq. mts. of Survey No. 78/2 which was sold at the rate of Rs. 285.71 per sq. mt. It was of a developed plot where a house was already built. Exhibit 20 – a sale deed dated 8/02/1989 of plot admeasuring 505.68 sq. mts. of Survey No. 69/1 which was sold at the rate of Rs. 225/- per sq. mt., and Exhibit 21 – a sale deed dated 5/04/1989 in respect of a plot of 297.50 sq. mts. of Survey No. 78 which was sold at the rate of Rs. 160/- per sq. mt. 5. The learned reference Court chose the sale deed dated 21/06/1990- Exhibit 19 as an indicium to fix the market value of the acquired land and after taking a deduction of 50%, fixed the market value of the acquired land at Rs. 143/- per sq. mt. 6. Shri Diniz, the learned Counsel appearing on behalf of the applicants nor the learned Counsel appearing on behalf of the respondents have contested the choice of the sale deed Exhibit 19 as the basis of fixing the compensation inasmuch as that choice could not otherwise be faulted as the plot of the sale deed Exhibit 19 was proximate both from time angle and situation angle in relation to the acquired property. However, the learned Counsel appearing on behalf of the applicants has made two fold submissions. Relying on the case of Nelson Fernandes and Others V/s. Special Land Acquisition Officer & Ors. (2007 (9) SCC 447), the learned 4 Counsel has submitted that the learned reference Court did not take into consideration the purpose for which the land was acquired in deciding whether deduction by way of development charges was required at all. Learned Counsel has submitted that deduction, if any, could not have been more than 20%. Further, it is submitted that considering that the sale of Exhibit 19 was prior to the present acquisition, the learned reference Court ought to have given enhancement of compensation and in that regard, reliance is placed on Delhi Development Authority V/s. Bali Ram Sharma & Ors. (AIR 2004 SC 4114) wherein considering the escalation of price, the Apex Court increased the price payable by 5% and 10% as the sale deeds produced were 3 months and one year prior to the date of notification. 7. The submission that the applicants would be entitled to escalation charges in relation to the sale deed Exhibit 19 which was executed prior to the present acquisition, per se, cannot be faulted. This Court has consistently followed the view held by the Apex Court in Special Land Acquisition Officer V/s. Mohd. Hanif Sahib Bawa Sahib (2002 (3) SCC 688) that 10% escalation is neither excessive nor unreasonable. The learned reference Court took note of the decision of the Apex Court in Special Deputy Collector and Anr. V/s. Kurra Sambasiva Rao & Ors. (AIR 1997 SC 2625) and held, and in our view rightly, that the burden of proof that the amount awarded by the Land Acquisition Officer is inadequate is always on the claimants. The 5 learned reference Court then took a deduction of 50% to peg down the price of the acquired land in relation to Exhibit 19 after considering that the applicants would have required, in case they wanted to sell their land for construction activity, to set apart their land for the purpose of preparing roads, drainages, reserving open spaces, laying out of building plots and waiting for the purchasers to buy the same. The learned reference Court also noted that the major part of the area acquired was situated touching the National Highway and, as such, that had to be left out as per the rules in force. The learned reference Court felt that, and in our view rightly, that the said factors were incapable of being mathematically calculated and therefore considering the same proceeded to take a deduction of 50% in relation to the price of sale deed Exhibit 19 and fixed the market value at Rs. 143/- per sq. mt. Indeed, it is well settled that no compensation for any acquired land can be fixed with mathematical precision and although it is held that at times some guesswork is permissible while determining the same, what is impermissible are feats of imagination and misplaced sympathies. There should not be either unjust enrichment on the part of the Government nor undue deprivation on the part of the owner. 8. The Apex Court in the case of Nelson Fernandes and Others (supra) reiterated the principle, relying on its two earlier decisions, that the purpose for which acquisition is made is also a relevant factor for determining the 6 market value but on facts took a deduction of 20% and fixed the market value. What deduction is to be taken in the particular case is not based on any principle of law but depends from case to case, place to place and on variety of other factors particularly the disadvantages the acquired land suffers from, when compared to the land of the sale deed chosen to form the basis of determination of the price of the acquired land. It can be seen from Ghode's case (unreported decision of this Court dated 8/04/2004 in First Appeal No. 31/1998) that this Court had taken note of 2 decisions of the Apex Court. The first, was the case of Basavva (Smt.) & Ors. V/s. Special Land Acquisition Officer & Ors. (1996 (9) SCC 640) wherein it was held that deduction need not always be 1/3rd, and, in fact it was observed by the Apex Court that towards development charges a deduction between 33 1/3rd to 53% was held to be valid by that Court in several of its judgments. The second was the case of Ratan Lal Gupta & Ors. V/s. Union Of India (1996 (7) SCC 3) where the deduction taken was 78.45%, 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 potentials as they would require further development. 9. The acquired land in this case had quite a number of disadvantages as compared to the land of sale deed Exhibit 19. Although the acquired land was not a very vast area, nevertheless it was more than 8 times larger than the 7 plot of Exhibit 19 and the Apex Court in a catena of decisions has held that when the market value is to be determined on the basis of small plots of land the same price cannot be expected to be realised when a large track of land is offered to a willing purchaser by a willing vendor. If some plots were required to be made by the applicants, the applicants would have certainly to wait for sometime to sell the same to willing purchasers. Moreover, value fetched by small plots cannot be applied to lands covering a larger extent. In other words, a large area of land cannot possibly fetch a price at the same rate at which small plots can be sold. The acquired land, as stated by the respondents' engineer who was associated with the said acquisition was located at a distance of about 2.5 kms from Ponda market and 1.5 km from the limit of Ponda Municipal Council. He had also stated that in the acquired portion of Survey No. 78/1 there were coconut trees and part of a pump house cum quarter belonging to PWD-Water Supply, Government of Goa and besides that there was no development around the said acquired land. He had also stated that the acquired land of Survey Nos. 79 and 80 was barren land while there were some jungle wood trees in the acquired land of Survey No. 83/3. His evidence could not have been simply brushed aside. The only development at that place appears to have been a primary school in Survey No. 83, and a pump house in Survey No. 78/1 and this shows that the locality was not yet developed. Moreover, he had also stated that the acquired land was falling on both sides of the existing National Highway and was acquired 8 for its widening and had further stated that the acquired land was falling within the building set backs from the centre line of the existing National Highway and therefore no construction activity was possible in the said acquired land at the time of the acquisition. In fact, the applicants were unable to make any dent in his evidence, in their cross-examination, except for a bare suggestion that construction could be done in the acquired land, a suggestion which he denied. Shri Diniz, the learned Counsel on behalf of the applicants, submits that in case there was restriction of construction, the acquired land being within the set back area of the National Highway the same could have been used as open space for the construction to be carried out in the remaining land of the applicants. In case it was permissible for the applicants to make use of the set back area of the National Highway as open space for the construction to be carried out in the remaining area than such an opinion ought to have been elicited from the respondents' expert, the said engineer/technical assistant Shri Dessai who had categorically stated that no construction activity was possible in the acquired land because what was acquired were the set backs required to be left from the centre line of the existing National Highway. Not even a suggestion was put to him. There is not even a whisper in the evidence of the applicants as to how much balance land had remained with them and how much of it they could have otherwise utilized for construction purposes by keeping the acquired land as open space. The applicants have not even given the dimensions of either the 9 acquired land or of the remaining property of the applicants, if any. Compensation cannot be determined in the abstract. In the absence of any material placed on record in that connection or made available to the Court, we are unable to accept the submission of the learned Counsel. 10. Considering the disadvantages the acquired land had in comparison to the land of sale deed Exhibit 19 including that the acquired land was within set back area of the National Highway on which no construction could be carried out, and taking overall view of the matter, in our view the deduction made and on the basis of that, the compensation fixed, to the acquired land at the rate of Rs. 143/- per sq. mt. cannot be faulted. We are therefore not inclined to interfere with the award of the learned reference Court and, therefore, proceed to dismiss the appeal but with no order as to costs. CHIEF JUSTICE JUDGE NH/-