-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 314 OF 2006 1. Land Acquisition Officer, P.W.D. Cell, Altinho, Panaji – Goa. 2. The Executive Engineer, Works Division II, P.W.D. Panaji – Goa. …... Appellants V e r s u s 1. Mrs. Bhaguiritibai Kamat Haldankar 2. Shri Prakash G. Kamat Haldankar 3. Shri Kishor G. Kamat Haldankar 4. Shri Prashant V. Kamat Haldankar All r/o. Britona, P. O. Betim, Penha de France, Bardez Goa. …... Respondents Mr. Guru Shirodkar, Government Advocate for the Appellants. Coram :- F. M. REIS, J Date : 13 th December, 2011. ORAL JUDGMENT The above Appeal challenges the Judgment and Award dated 08.08.2006 passed in Land Acquisition Case no. 88/2002, whereby the reference preferred by the Respondents under Section 18 of the Land Acquisition Act, 1894, (hereinafter referred to as the said 'Act'), came to be partly allowed and the compensation for the land acquired was enhanced by Rs.88/- per square metre. 2. Pursuant to a Notification under Section 4 of the said Act published in FA-314-06 -2- the Official Gazette dated 03.05.2000, land was acquired belonging to the Respondents for the construction of a road at Nauxim, in Bambolim Village of St. Andre constituency. In the said Notification, land having an area of 1770 square metres from the property surveyed under no. 24, located in Nauxim in Bambolim Village, was intended to be acquired belonging to the Respondents. The Land Acquisition Officer whilst passing the Award under Section 11 of the said Act, offered compensation for the land acquired at the rate of Rs.50/- per square metre besides value of the trees. Being dissatisfied with the said Award of the Land Acquisition Officer, the Respondents filed a reference for enhancement under Section 18 of the Act and claimed a sum of Rs. 250/- per square metre for the land acquired. The Reference Court after framing the issues and considering the evidence on record, by impugned Judgment dated 08.08.2006, partly allowed the reference and fixed the compensation for the land acquired at the rate of Rs.138/- per square metre and enhanced the compensation by Rs.88/- per square metre. 3. Being aggrieved by the said Judgment and Award, The Appellants have preferred the present Appeal. 4. Shri Shirodkar, learned Government Advocate appearing for the Appellants has assailed the impugned Judgment and pointed out that the Reference Court has fixed the compensation for the land acquired on the basis of the Sale Deed dated 08.04.1999, wherein the price of the developed plot was sold at the rate of Rs.250/- per square metre. Learned Counsel has further pointed out that the land acquired was an undeveloped land and taking into consideration that FA-314-06 -3- the sale instance was a developed plot, the deduction of 50 percent made by the Reference Court, is on the lower side. The learned Counsel after relying on the Judgment of the Apex Court reported in 2010 (1) S.C.C. 444 in the case of Subh Ram & Ors. vs. State of Haryana and anr., has pointed out that the deduction ought to have been to the extent of two third on account of development charges. Learned Counsel further pointed out that the Sale Deed plot is located at a distance of 1.5 kilometres from the acquired land and, as such, the Reference Court, ought to have made further deductions on account of the dissimilarity with regard to the nature of land. Learned Counsel further pointed out that the land acquired was a mushy land and was not suitable for construction purpose and, as such, the question of fixing compensation on the assumption that the land was acquired could be used for non-agricultural purposes did not arise at all. Learned Counsel further took me through the impugned Judgment and pointed out that the learned Judge has erroneously come to the conclusion that the Respondents are entitled for enhancement of compensation whilst passing the impugned Judgment. 5. Respondents though served, failed to remain present. 6. Having heard the learned Counsel and on going through the evidence on record, the following point for determination arises in the present Appeal : 1. Whether the Reference Court was justified to fix the compensation for the land acquired at the rate of Rs.138/- per square metre. FA-314-06 -4- 7. In support of his claim for enhancement of compensation, the Respondent has examined himself as Aw.1 and stated on affidavit that an area of 1770 square metres has been acquired belonging to the Respondents from the property surveyed under no. 24 of Nauxim of Bambolim Village. He has further stated that the land acquired is a plain and levelled land and that in the remaining portion of the property belonging to the Respondents, there are houses some of them being ground plus one floor. He has further stated that the property bearing survey no. 24 was already abutting the road bifurcating from the Goa Medical College to Goa University road and proceeding towards the Nauxim area in Bambolim Village. He has further stated that the market, school, temple, church, bank, hospital are at Kalapur at a distance of about three kilometres from the acquired land. The Goa Medical College Complex, Goa Dental College are at a distance of 2.5 kilometres from the acquired land. He has further stated that the Government had acquired land and the Reference Court had fixed the compensation at the rate of 130/- per square metre by an Award dated 01.08.1994. He has produced the said Award at exhibit 14. He has also produced the Sale Deed dated 08.04.1999, whereby a plot of land admeasuring 215 square metres was sold at the rate of Rs.250/- per square metre. He has further stated that the said Sale Deed plot is at a distance of 1.5 kilometres from the acquired land. He has also stated that the amenities to the acquired land were much superior to those to the Sale Deed plot. He has also produced a report of the valuer Shri S. N. Bhobe, who has valued the acquired land at the rate of Rs.300/- per square metre. The said witness has been duly cross examined. In the cross examination, the allegations made by the Respondent no.1 have not been substantially disputed by FA-314-06 -5- the Respondents. The fact that there were houses existing in the remaining portion of the property surveyed under no. 24, are not specifically disputed by the Respondents. He denied the suggestion that the land acquired is a mushy land. 8. The next witness is Mr. Bhobe, who is a registered valuer and who has also produced his report. The said witness was also cross examined. In his cross examination, he has stated that there are houses in the acquired land. He has further stated that these houses are on both sides of the acquired land. He has further stated that he has measured the distance between the acquired land and the Sale Deed plot and found that it was 1.5 kilometres. He has further stated that the land in case no. 38/1988 is comparable to the acquired land. 9. The Appellants examined Shri Padmakar Seldarkar, as Rw. 1. He has stated in his affidavit that the Award passed by the Land Acquisition Officer is a reasoned Award and that he had rightly fixed the compensation at the rate of Rs.50/- per square metre. He has further stated that the acquired land is having coconut trees situated near the sea shore of Zuari river. In the cross examination, he has stated that the land was at a distance of about two and half metres above level of the Zuari river. He has denied the suggestion that the compensation of Rs.50/- per square metre is not just and proper. The learned Judge after appreciating the evidence on record, has come to the conclusion that the said Sale Deed plot can form the basis for fixing the compensation of the acquired land. The learned Judge after giving the appreciation of 10% considering that the Section 4 Notification was one year after the date of FA-314-06 -6- Sale Deed plot, affected deduction of 50 percent to fix the compensation for the land acquired at the rate of Rs.138/- per square metre. 10. Taking into consideration the evidence on record and the material adduced by the Appellants, there can be no dispute that the land acquired was suitable for construction purpose. The material on record suggests that the remaining portion of the property surveyed under no. 24, had residential houses. Apart from that, the Reference Court has also come to the conclusion that the land acquired was a plain and leveled land. These findings have been arrived on the basis of the material on record. 11. The contention of Shri Shirodkar, learned Counsel appearing for the Appellants to the effect that the land acquired was a mushy land, cannot be sustained. There is no evidence to that effect adduced by the Appellants. Dealing with the contention of Shri Shirodkar, the learned Counsel to the effect that the deductions on account of development charges should be to the extent of 66 percent, I find that considering the location which is a Village Panchayat area, the deductions affected by the Reference Court is just and proper. Apart from that the evidence suggests that the land acquired is at a higher level and has a panoramic view of the Zuari River and as such it will fetch higher market value for such lands. Considering that the Sale Deed plot does not have a view as that available to the acquired land, any appreciation on such count to the land acquired would be set off from any further deductions to be effected on account of development charges as sought by the learned Government Advocate appearing for the Appellants as the FA-314-06 -7- Respondents have not filed any cross-appeal. The learned Judge has rightly appreciated the evidence on record and affected the necessary deductions on account of development. The Sale Deed Plot was at a distance of 600 metres from the road whereas there were houses located in the remaining property on either side of the road as is borne out from the evidence adduced by the Respondents. Considering the facts and circumstances of the case and taking note of the fact that the Sale Deed plot is a comparable land and located in the vicinity of the acquired land at a distance of 1.5 kilometres and that the infrastructure facilities are available in the vicinity of the land acquired, the compensation awarded by the Reference Court cannot be said to be exorbitant. The Reference Court has rightly fixed the compensation for the land acquired at the rate of Rs.138/- per square metre. The point for determination is answered accordingly. 12. In view of the above, I find that there is no merit in the above Appeal which stands dismissed accordingly. F .M. REIS, J. arp/* FA-314-06