-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 212 OF 2006 1. The Deputy Collector & S.D.O., Ponda, Sub-division, Ponda-Goa. 2. The Executive Engineer, Works Division XVIII (Roads), P.W.D., Ponda-Goa. …. Appellants V e r s u s Smt. Saraswati S. Thakur, widow of Shrikant Maheshwar Bhat Thakur, r/o. Amona, Bicholim, Goa. …. Respondent Shri S. Vahidulla, Government Advocate for the Appellants. None for the Respondent. Coram :- F. M. REIS, J Date : 22 nd July, 2011. JUDGMENT The above Appeal challenges the Judgment and Award dated 24.04.2006 passed by the learned District Judge, North Goa, at Panaji, in Land Acquisition Case no. 54/2004. 2. Pursuant to a notification under Section 4 of the Land Acquisition Act, 1894, (hereinafter referred to as the 'said Act'), a portion of the land admeasuring an area of 3025 square metres from the property surveyed under no. 26/1 of Village Amona was intended to be acquired by notification dated 20.10.1999 published in the Official Gazette on 04.11.1999 for the construction of the high level bridge across Amona Khandola including approaches. The Land Acquisition Officer, by an -2- Award passed under Section 11 of the said Act, offered compensation of Rs.20/- per square metre for the land acquired. Being dissatisfied with the said amount, the respondent sought a reference under Section 18 of the said Act for enhancement of compensation and claimed a sum of Rs.150/- per square metre for the land acquired. 3. The Reference Court after framing the issues and recording of evidence by the impugned Judgment and Award dated 24.04.2006, partly allowed the said reference and fixed the compensation at the rate of Rs.40/- per square metre. Being aggrieved by the said Judgment, the Appellants preferred the above Appeal. 4. Shri Vahidulla, the learned Government Advocate, appearing for the Appellants has assailed the impugned Judgment and pointed out that the reliance by the Reference Court in the sale instance is totally erroneous as there is no evidence adduced by the Respondent to establish the comparability of the land acquired with the Sale Deed plot. The learned Government Advocate further submitted that the learned Judge had not at all considered that the land acquired was a hilly area and that such land had no potentiality for any development purpose. The learned Counsel has taken me through the evidence on record as well as the impugned Judgment and point out that the deductions affected by the learned Judge are not at all justified in the facts and circumstances of the case as according to him further deductions should have been made by the Reference Court whilst fixing the market value of the acquired land in view of the topography of the land acquired. Learned Counsel further submitted that the Respondent has -3- failed to discharge the burden cast on her to establish that the amount offered by the Land Acquisition Officer is inadequate. The learned Government Counsel further submitted that the impugned Judgment deserves to be quashed and set aside as the amount fixed by the Reference Court is exorbitant and excessive. 5. The Respondent though served failed to remain present at the time of the hearing. 6. After hearing the learned Counsel and on perusal of the record, the following point for determination arises in the present Appeal : POINT FOR DETERMINATION 1. Whether the Reference Court is justified to fix the market value for the land acquired at the rate of Rs.40/- per square metre ? 7. On perusal of the evidence on record, the Respondent in support of her claim has examined Shri Vasudev Thakur, who in his affidavit in evidence stated that an area of 3025 square metres from the property surveyed under no. 26/1 of Amona Village of Bicholim Taluka, was acquired by the Government for the public purpose. He has further stated that the Land Acquisition Officer whilst fixing the compensation for the land acquired, has offered a sum of Rs.20/- per square metre. He has further stated that the land acquired is a mixed garden and is close to the bank of the tributary of Mandovi river and, as such, has an easy access from their residential house. He has further stated that the acquired land could be used for industrial and commercial purposes. He has further stated that the land in the vicinity of a distance of about one kilometre from the acquired land, was sold at the -4- rate of Rs.150/- and Rs.130/- per square metre by Sale Deed dated 28.10.1998 and 09.11.1999. The said Sale Deed dated 09.11.1999 is at exhibit 19 and the Sale Deed dated 28.10.1998 is at exhibit 18. The Respondent has also produced the valuation report, which is at exhibit 17. In the cross examination of the said witness, he has admitted that the land surveyed under no. 26/1 was slightly sloppy and that the road which has been constructed passes through the said property. He has further admitted that the nearest road prior to acquisition was at a distance of about 50 to 60 metres from the acquired land. He has further stated that the property surveyed under no. 26/1 and 23/1 forms one and the same property and that the acquired land was at a distance of 100 metres from the tributary of Mandovi river. He has further stated that his residential house in the property surveyed under no. 1/1 is 50 to 75 metres from the said property surveyed under no. 26/1. He has further admitted that the property which is subject matter of the Sale Deed at exhibit 18 is a developed sub- divided plot and that the property which is subject matter of the Sale Deed at exhibit 19 is also a developed plot. 8. The next witness examined is Mr. Ramesh Verekar, who is a Chartered Civil Engineer and has filed an affidavit in support of the claim of the Respondent. He has stated that the acquired land is at a distance of 250 metres from the thickly habituated area of Amona Village. He has further stated that Amona Village has developed very fast during the past few years and that the plot in the Sale Deed dated 23.10.1998, is at a distance of about one kilometre from the acquired land. He has further admitted that the acquired land is close to the ferry wharf and that the land which is subject matter of the Sale Deed plot dated -5- 09.11.1999, is at a distance of about 800 metres from the acquired land. He has also produced the valuation report at exhibit 17. In his cross examination he stated that the land acquired under survey no. 26 is sloppy and the gradient is approximately one metre by 20 metres. He has further stated that the property surveyed under no.23 is also sloppy and has almost the same gradient. He has further stated that there are houses in the Sale Deed plot which is at exhibit 18 and that there are no houses or any structure in the Sale Deed plot at exhibit 19. He denied the suggestion that the Sale Deed plots are developed plots. 9. The next witness examined is Jaiwant Apte, who has purchased the plot admeasuring 417 square metres from the property surveyed under no. 58/4 pursuant to the Sale Deed dated 09.11.1999. He has confirmed the said Sale Deed which is at exhibit 19. He has further stated that the Sale Deed plot is at a distance of one kilometre away from the property of the Respondent and that both the lands are similar in nature. In his cross examination, he has admitted that he has purchased the said plot for the purpose of construction. He has denied the suggestion that the distance from the Sale Deed plot and the acquired land is more than one kilometre. 10. The next witness examined on behalf of the Appellants is Mr. Umesh Kulkarni, who has stated in his affidavit that the nature of the acquired land was a mixed fruit garden and that he has seen the land prior to the acquisition and that the said land was not accessible by road. He has further stated that there was one factory of Sesa Goa and there was no other industrial factory nor any houses close -6- to the acquired land. He has further stated that the nature of the acquired land is agricultural. He has further stated in his cross examination that the acquire land is at a distance of about two kilometres from the ferry wharf. He has denied the suggestion that the market value of the acquired land was not Rs.20/- per square metre. 11. The learned Judge after appreciating the evidence on record adduced by the Respondent, has come to the conclusion that though it was contended by the Appellants that the Sale Deed plots at exhibit 18 and 19 are not developed plots, but however,on perusal of the said sale instances, the learned Judge found that the Sale Deed plot at Exhibit 18 was bounded towards the north by a public road whereas the property which was subject matter of exhibit 19 was bounded towards the south by public road and towards the north by six metres wide road. The learned Judge further held that the said Sale Deed lands were ideal for construction without any further development. The learned Judge further came to the conclusion that the acquired land of the Respondent was a vast agricultural land and was undeveloped and could not have been utilised for construction purpose without obtaining the requisite permissions from the authorities and complying with the statutory provisions. The learned Judge, as such, found that the said sale instances could form the basis for determining the market value of the acquired land after accounting for the dissimilar factors between the sale instances and the land acquired. 12. On perusal of the evidence on record, I find no infirmity in in the findings of the learned Judge to the effect that the Sale Deed plots which were -7- purchased for the purpose of putting up a construction can be considered for fixing the market value of the land after accounting for the dissimilarities and/or effecting deductions on account of development charges. The evidence on record suggests that the acquired land was not easily accessible to the public road. There are admissions on the part of the evidence of the Respondent that the public road is at a distance of 50 metres from the acquired land. Apart from that, there were no statutory sanctions obtained for any development in respect of the acquired land. All these factors will have to be taken into account for the purpose of determining the market value of the land acquired. In the present case, the dissimilarity found on the basis of the evidence of rival parties and noted by the Reference Court, are that the sale instances are developed plots and the said land was suitable for construction purpose and the acquired land was sloppy. Apart from that, Aw.1 and Aw.2 have admitted the said dissimilarities. This aspect would also have to be considered whilst fixing the market value of the plot. Apart from that, the Sale Deed plots are small plots whereas the land acquired is a large chunk of land. Deductions on account of the largeness of the land would also have to be effected whilst determining the market value of the land. 13. Considering the said factors and the dissimilarities of the land acquired, the Reference Court whilst passing the impugned Judgment has made deductions of 40% on such count. The learned Judge has considered the fact that the Sale Deed plots were developed plots and suitable for construction and that considering the locations thereof, such plots could be easily used for construction purpose. The learned Judge has also effected deductions taking into account that the land acquired was a sloppy land and the other factor considered was about the -8- largeness of the acquired land. 14. Considering the evidence on record and the findings of the learned Judge in the impugned Judgment, I find that the learned Judge was justified to effect deductions of 40 percent on the ground that the acquired land was undeveloped plot on the basis that the average price of a developed plot was about Rs.140/- per square metre and after effecting such deductions of 40 percent, the amount was worked out to Rs.84/- per square metre. Another dissimilar factor considered by the learned Judge which warrants deduction is the fact that the land acquired was sloppy and the gradient is from one metre to 20 metres as admitted by the Respondent. On such count, a further deduction of 40% has been effected by the Reference Court and arrived a figure of Rs.50/- per square metre. A further deduction of 20% has been effected on account of the largeness of the acquired land and the compensation has been fixed at the rate of Rs.40/- per square metre. The Respondent though served has failed to remain present nor filed any cross objection disputing the deductions effected by the Reference Court whilst fixing the market value of the acquired land. 15. Considering the overall evidence on record and the potentiality of the land acquired, I find that the Government Advocate is not at all justified to contend that the Reference Court has not made the deductions on account of the fact that the land acquired was a sloppy land. The learned Judge has minutely scrutinised the evidence on record and has taken into account all the dissimilar factors of the land acquired to fix the compensation. Considering that no Cross Objections have been filed nor any objections raised to the extent of the deductions made by the -9- Reference Court, I find that the compensation fixed at the rate of Rs.40/- per square metre is just and appropriate and cannot be said to be exorbitant. In such circumstances, no interference is called for in the impugned Judgment. The point for determination is answered accordingly. 16. In view of the above, I find no merit in the above Appeal and, as such, the Appeal stands dismissed with no Order as to costs. F. M. REIS, J. arp/*