:1: IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 154 OF 2006 1. Shri Sane Antao, H.No.282, Betalbatim, Salcete Goa. …. Appellant V e r s u s 1. Land Acquisition Officer, P.W.D., (Cell) Panaji. 2. Executive Engineer, WD-VI (R-S), PWD, Fatorda, Goa. …. Respondents Mr. V. Menezes, Advocate for the Appellant. Mr. G. Shirodkar, Government Advocate for the respondents. CORAM : F. M. REIS, J DATE : 28 th JULY, 2011 . ORAL JUDGMENT The above appeal challenges the judgment and award dated 27.01.2006 passed by the learned Additional District Judge, South Goa, Margao, in Land Acquisition Case No.54/2000. 2. Pursuant to a notification under Section 4 of the Land Acquisition Act, 1894 ( hereinafter referred to as “the said Act”) dated 12.01.1995, land admeasuring an area of :2: 475 square metres from the property surveyed under no.84/5 was intended to be acquired for the construction of Tondwado, Pockwado, Nagwado Humpto Chawl road in the Village Betalbatim. By an award passed under Section 11 of the said Act, the Land Acquisition Officer offered a compensation at the rate of Rs.72/- per square metre for the land acquired. Being dissatisfied with the said amount, the appellant sought a reference under Section 18 of the said Act for enhancement of compensation and claimed a sum of Rs.500/- per square metre for the land acquired besides the value of the trees. 3. By judgment and award dated 27.01.2006, the learned Reference Court rejected the reference filed by the appellant. Being aggrieved by the said judgment, the appellant has preferred the present appeal. 4. Mr. V. Menezes, the learned Counsel appearing for the appellant has assailed the impugned judgment and pointed out that the learned Judge has refused the reference on unfounded and erroneous grounds. He further submitted that the appellant has produced the sale deed at Exhibit 21 dated 18.05.1994 which is prior to Section 4 notification wherein a portion of the land admeasuring 500 and odd square metres was sold at the rate of Rs.222/- per square :3: metre. The learned Counsel further submitted that the said sale deed plot is located at 750 metres from the acquired land and is comparable to the land acquired. The learned Counsel further submitted that the Reference Court discarded the said sale instance on a spacious ground that a five star hotel was being constructed in the said property. The learned Counsel further pointed out that even assuming the said land had better potentiality of being used for a five star hotel, that by itself cannot be a ground to discard the said sale instance, as any such appreciation in the value can be considered by effecting deduction on account of such factor. The learned Counsel further pointed out that the findings of the Reference Court to the effect that the people from the locality were using the acquired portion of the land and passing through the property does not by itself create a right of way in their favour nor can such factor be considered for the purpose of fixing market value of the acquired land. The learned Counsel has taken me through the evidence on record as well as the impugned judgment and pointed out that the Reference Court has totally misdirected itself in refusing the reference and according to him, on the basis of material on record, there was sufficient material for the Reference Court to enhance the compensation as prayed for by the appellant. The learned :4: Counsel as such submitted that the appeal deserves to be allowed and the impugned judgment be quashed and set aside. 5. On the other hand, Shri Guru Shirodkar, learned Government Advocate has supported the impugned judgment and submitted that the sale deed plot cannot be considered as a genuine sale instance as according to him the said property was purchased for the construction of a five star hotel. The learned Counsel further submitted that considering the fact that the people from the locality were using the said acquired portion of the land as a means of access, the appellant was not entitled for any enhancement of compensation. The learned Counsel further submitted that the said sale instance produced by the appellant is not comparable to the land acquired and as such the question of fixing the market value of the acquired land on the basis of such sale instance would not arise at all. The learned Counsel has taken me through the evidence on record as well as the impugned judgment and submitted that the Reference Court has rightly come to the conclusion that the appellant was not entitled for enhancement of compensation and as such the appeal deserves to be rejected. :5: 6. Having heard the learned Counsel and on perusal of record, the following point for determination arises in the present appeal. POINT FOR DETERMINATION Whether the Reference Court was justified to reject the reference filed by the appellant ? 7. In support of the claim of enhancement of compensation, the appellant has examined himself as AW1. He has stated in his affidavit that the respondents have acquired an area of 475 square metres from the property surveyed under No.84/5 of Betalbatim Village and that the Land Acquisition Officer had offered a compensation of Rs.72/- per square metre for the land acquired. He has further stated that the Land Acquisition Officer has failed to consider the sale of lands in the neighbourhood of the acquired land whereby by sale deed dated 18.05.1994 land was sold in the vicinity of the acquired land at much higher rate. He has further stated that the acquired land was a plain land and was close to the road and/or residential localities and had high potentiality of being used for non agricultural purpose. He has further stated that the acquired land had all civic amenities available in the vicinity thereof and the land :6: was abutting the road towards eastern side. He has also stated that civic amenities available in the vicinity of the acquired land including public transportation facility etc. He has produced the sale deed dated 18.05.1994 as well as the valuation report in support of his claim for enhancement. In the cross examination, he has stated that the acquired land from his property is a strip of land. He has further stated that the original road towards eastern side of his property is proceeding from Vasco to Cavelossim. He has further stated that the present acquisition which is for the road runs from west to east direction. He has further stated that prior to the acquisition, there was a katcha road and not a tar road. He has further stated that the present acquisition is also constructed on the western side. 8. Another witness examined is Shri Shridhar Kamat who is a valuer and has stated that he has prepared the valuation report and for the purpose of preparing valuation report he has considered the location of the acquired land, its proximity to civic amenities, means of transport etc. He has further stated that he has also considered the past sale records. He has further stated that he has considered the comparative analysis of the acquired land in his report. :7: In his cross examination, he has stated that he came to know about the area only when he prepared the affidavit. He has further stated that he has not checked the alignment of the road as per Section 6 notification. He has further stated that the acquired land is at a distance of about 15 metres from Vasco-Colva road. He has further stated that he is not aware whether land is located between the property of the appellant and Vasco-Colva road. He has further stated that when he visited for inspection, the land was not marked by the Department. He denied the suggestion that the acquired land was touching Vasco-Colva road. He has further stated that he has seen the sale deed produced by the appellant. He has further stated that he knows that a hotel has been constructed in the said sale deed plot. He has further stated that the sale deed plot is close to the Arabian Sea which is Betalbatim beach. He has further stated that in the vicinity of the sale deed plot international resorts are constructed. He has further stated that the panchayat allowed no construction in the traditional access and footpath. The learned Judge whilst passing the impugned judgment has refused to rely upon the report on the ground that it was doubtful that the report was prepared in the year 1995 as claimed by the appellant and the engineer. The :8: learned Judge has scrutinized the evidence and found inconsistency therein. The learned Judge on the basis of material on record has come to the conclusion that the acquired land is just a strip of land having a width of six metres and that prior to the acquisition there was a motorable road existing earlier in its place. The learned Judge also found that the sale deed plot was purchased for the construction of hotel and held that the said sale deed plot cannot be comparable to the land acquired. 9. From the overall evidence on record, there can be no dispute that the sale deed land produced by the appellant is located about one kilometer from the acquired land. Merely because the land which has been purchased pursuant to the said sale deed was subsequently used for the purpose of constructing a five star hotel by itself does not mean that the said sale deed cannot be considered as basis for determining the market value of the acquired land after making an appropriate deduction on account of this factor. The properties which are located closer to the Arabian sea also have other drawback in view of restrictions imposed by CRZ regulations. The land of the appellant was located in the proximity of the main road and could also be used for :9: residential purpose. Such land also have its own features as the land can also be used for commercial purpose. Considering the said aspect, the learned Judge was not justified to discard the said sale instance merely because subsequently a five star hotel was constructed therein. As the nature of the land in the sale deed at Exhibit 21 is similar to the land acquired, I find that the Reference Court was not justified to discard the said sale deed for the purpose of determining the market value of the acquired land. There is no dispute that both the lands are of similar nature having potentiality of being used for non agricultural purpose subject to different restrictions imposed by the statutory authorities. The evidence on record further discloses that the land acquired was in the proximity of civic amenities such as electricity, power, transportation etc., than the land which was the subject matter of the sale deed at Exhibit 21. No doubt AW1 in his deposition has admitted that the people from the locality were using a portion of the acquired land as a means of access to proceed beyond the said property to their residential houses. Merely because some people are using the land as a means of access by itself cannot be considered that such user has created a right in their favour. Apart from that, there is nothing on record to establish that any right was :10: established or determined in favour of such person under the provisions of law. No doubt this factor can be considered as a demerit whilst fixing the market value of the land by making suitable deduction on such count. But however merely because some people are using the said land to pass through the property does not disentitle the appellant from claiming the compensation from the acquired land. This Court in the judgment passed in First Appeal No. 275/2003 in the case of Mrs. Leopoldina P. E. Mendonca ( Since deceased ) through L. Rs. V/s the Dy. Collector and S. D. O. and anr., dated 22.12.2010 at para 11 held thus : “11. Mr. Menezes is right in placing reliance upon judgment of this Court in the case of Fabrica of the Church of Benaulim ( supra ) in First Appeal No. 170 of 2003. This Court has held that merely because the traditional access is passing through the acquired land, the same would not be a ground to hold that the acquired had no building potential. This Court has held that appropriate deduction has to be made for the fact that the traditional access was passing through the acquired land. In the said case, this Court deducted 20%. Therefore, the approach of the Reference Court in rejecting the :11: reference on the ground that the traditional access was passing through the acquired land is unsustainable in law”. Considering the said judgment of this Court, I find that merely because the people were passing through the acquired land does not justify the Reference Court to refuse the claim for enhancement of compensation. The Reference Court has committed an error in refusing the enhancement of compensation merely because some people were passing through the property to go to the adjacent land. It is also admitted fact that such passage was not even disclosed in the survey report. 10. The dissimilarities of the land acquired with the sale deed plot are that the sale deed plot had a better prospect of being used for five star hotel as it is located near the Arabian sea which is not a case with the acquired land. Apart from that, it is also admitted that the portion of the acquired land was being used as a means of access which is a factor which has to be considered for fixing the market value of the acquired land. Besides that there were statutory sanction to be obtained for using the land for non agricultural purpose. Besides that substantial expenditure would have to :12: be incurred for converting the land into non agriculture use by taking into consideration that the land acquired was a narrow strip of land. Considering all these dissimilar factors, I find that a deduction of 50% of amount on account of said dissimilar factor would be just and proper in the facts and circumstances of the case. The land in the sale deed plot was sold at the rate of Rs.215/- per square metre and the sale deed plot is prior to Section 4 notification and as such after effecting the deduction of 50%, it works out to Rs.108/- per square metre. The learned Judge was not justified to reject the reference filed by the appellant. On the face of the evidence both documentary and oral adduced by the appellant, no evidence whatsoever has been adduced by the respondents to establish that the market value of the land acquired was the one which was offered by the Land Acquisition Officer. As such I find that the Reference Court erred in refusing the reference filed by the appellant. By cogent evidence on record, the appellant has established that the price offered by the Land Acquisition Officer is inadequate. It is not disputed that the land is located at Betalbatim village which is in the coastal belt and close to the Arabian sea. Considering all these factors, I find that a just and fair compensation of the land acquired is Rs.108/- per square :13: metre on the relevant date. The point for determination is answered accordingly. 11. In view of the above, I pass the following order : O R D E R (i) The appeal is partly allowed. (ii) The impugned judgment and award dated 27.01.2006 is quashed and set aside. (iii) The appellant is entitled for compensation for the land acquired admeasuring an area of 475 square meters at the rate of Rs.108/- per square metre. (iv) Needless to say, the appellant is entitled for statutory benefits under the provisions of Section 23(1-A), 23(2) & Section 28 of the said Act, in accordance with law. (v) The appeal stands disposed of accordingly with no order as to costs. F. M. REIS, J at*