- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NOS. 142 of 2004 and 34 of 2005. FIRST APPEAL NOS. 142 of 2004. Shri Raghunath Voikunth P. Shastri, ( since deceased) aged 89 years, C/o. P. K. Ghode, Aquem Alto, Margao, Goa. 1a Smt. Prafulla Pundalik Ghode alias Nayan Pundalik Ghode daughter of late Raghunath Vaikunth P. Shastri, major in age, married and her husband, 1b Shri Pundalik Kashinath Ghode, son of late Kashinath Ghode, major in age, married, both above residents of House no. E/7, behind Pandava Chappel, Aquem- Alto Margao Goa. 1c Smt. Milan Vilas Timble daughter of late Raghunath Vaikunth P. Shastri, major in age, married and her husband, 1d Shri Vilas Shridhar Timble, son of late Shridhar Timble, major in age, married, both above residents of S.B.I. Varsha Colony, Alto Porvorim, Bardez-Goa. - 2 - 1e Smt. Teja Gajanan Keny alias Netravati Gajanan Keny daughter of late Raghunath Vaikunth P. Shastri, Major in age, married, and her husband 1f Shri Gajanan Fotu Keny, Son of late Fotu Keny, major in age, married, both above residents of A/1 Paradise Apartments, Opp. St. Joseph High School, Margao, Goa. .......... Appellants. Versus 1 Special Land Acquisition Officer, South Goa, K. R. C. L., Amey Guest House, Davorlim Road, P.O: Navelim, Salcete, Goa; and 2 The Chief Engineer, Konkan Railway Corporation Ltd., formerly at 4th Floor, Souza Towers, Church Square, Panaji, Goa 403 001, and presently having office at Konkan Railway Corporation Ltd., South Goa, Davorlim Road, P.O. : Navelim, Salcete, Goa. .......... Respondents. Mr. S. S. Kakodkar, Advocate for the Appellants. Mr. A. D. Bhobe, Advocate for the Respondents. WITH - 3 - FIRST APPEAL NOS. 34 of 2005. 1 Special Land Acquisition Officer, South Goa, K. R. C. L., Amey Guest House, Davorlim Road, P.O: Navelim, Salcete, Goa; and 2 The Chief Engineer, Konkan Railway Corporation Ltd., Rawanfond, Margao, Goa. .......... Appellants. Versus Shri Raghunath Vaikunth P. Shastri, ( deceased through LR's) C/o. P. K. Ghode, Aquem Alto, Margao, Goa. 1a Smt. Prafulla Pundalik Ghode alias Nayan Pundalik Ghode, daughter of late Raghunath V. P. Shastri, major of age, resident of H. No.E-7, Behind Pandava Chapel, Aquem Alto, Margao, Goa. 1b Shri Pundalik Kashinath Ghode, son of late Kashinath Ghode, major of age, resident of House no. E/7, behind Pandava Chapel, Aquem- Alto Margao Goa. 1c Smt. Milan Vilas Timble, daughter of late Raghunath V. P. Shastri, major of age, resident of SBI, Varsha Colony, Alto Porvorim, - 4 - Bardez Goa. 1d Shri Vilas Shridhar Timble, son of late Shridhar Timble, major of age, resident of S.B.I. Varsha Colony, Alto Porvorim, Bardez-Goa. 1e Smt. Teja Gajanan Keny alias Netrawati Gajanan Keny daughter of late Raghunath V. P. Shastri, major of age, residentof A-1, Paradise Apartment, Opposite St. Joseph High School, Margao Goa. 1f Shri Gajanan Fotu Keny, Son of late Fotu Keny, major of age, married, both above residents of A-1 Paradise Apartments, Opposite St. Joseph High School, Margao, Goa. .......... Respondents. Mr. A. D. Bhobe, Advocate for the Appellants Mr. S. S. Kakodkar, Advocate for the Respondents. CORAM:-F. M. REIS, J. DATE:-17 th SEPTEMBER, 2010. ORAL JUDGMENT Both the above Appeals are taken together as both challenge the Judgment and Award passed by the learned Additional - 5 - District Judge, South Goa, Margao in Land Acquisition case no.221/1995. 2. The parties shall be referred to in the same manner as they so appeared in the cause title of the impugned Judgment. By a notification under section 4 of the Land Acquisition Act( hereinafter referred to as 'the said Act'), dated 10th June, 1991, several lands at Poinguinim and Loliem village of Canacona Taluka were sought to be acquire for construction of new B. G. line for Konkan Railway. Amongst the said land an area of 2880 square metres of the property surveyed under no. 78/5 situated at Loliem village was also intended to acquire belonging to the Applicants. 3. By an Award passed by the Land Acquisition Officer under section 11 of the said Act, the compensation was fixed at the rate of Rs.4/- per square metre for the land acquired. Besides the said amount the Applicants was also awarded a sum of Rs.31,049.81 towards 94 trees existing in the acquired land. Total amount Awarded was Rs. 60,603.08. 4. Being dissatisfied with the said amount, the Applicants - 6 - sought a reference under section 18 of the said Act for enhancement of the compensation and claimed a sum of Rs. 100/- per square metre for the land acquired. Besides the said amount the Applicants also claimed compensation for an area of 8370 square metres on account of severance at the rate of Rs.50/- per square metre. Besides that the Applicants also claimed compensation towards the trees existing in the acquired land. 5. The Reference Court by Judgment and Award dated 31st March, 2004, partly allowed the said reference and fix the compensation payable to the Applicants for the land acquired at an excess amount of Rs. 20/- per square metre for an area of 2880 square metres and other statutory benefits. The remaining claim put forthwith by the Applicants came to be rejected. 6. Being aggrieved by the said Judgment and Award, the Applicants and the Respondents have preferred the present appeal. The learned Counsel appearing for the Applicants has submitted that the Reference Court has totally misdirected itself in awarding the compensation for the acquired land at the rate of Rs.34/- per square metre. He further pointed out that the land which was subject matter - 7 - of the said sale instance is surveyed under no. 105/15 and the acquired land is surveyed under no. 78/5 which was earlier part and parcel of the same property. He further pointed out that the land acquired is similar to the land which was subject matter of the sale instance which is at Exh. AW1/H and as such the question of effecting deduction as done by the Reference Court at 50% would not arise at all. Learned Counsel further submitted that in view of the acquisition, the remaining land of the Applicants have been severed which has totally hampered ingress and egress of the Applicants from one portion of the property to the other. He further pointed out that in view of such acquisition there has been substantial cutting to a lower level which hampered the accessibility of the Applicants between the unacquired portion. The learned Counsel has further submitted that with great difficulty the Applicants have to take circumtious route to proceed to the northern portion of the property of the Applicants. He further submitted that on account of such severed, Applicants are entitled for a sum of Rs. 50/- per square metre for the severed portion of the land. Learned Counsel for the Applicants has submitted that there is a calculation error committed by the Reference Court while calculating the amount actually payable for the land acquisition in accordance with impugned judgment. Learned Advocate for the Applicants - 8 - submitted that the Applicants do not press for any enhancement in the compensation for the trees as awarded by the Land Acquisition Officer. 7. On the other hand Mr. A. Bhobe learned Advocate appearing on behalf of the Respondents has submitted that the Reference Court has totally misdirected itself in arriving at the market value of the acquired land at Rs.34/- per square metre. He pointed out that there were earlier acquisition for construction of the road wherein the Land Acquisition Officer had offered a sum of Rs. 6/- per square metre which was accepted by the Applicants. He further submitted that as such Applicants were not entitled to seek any enhancement of compensation in the present case. Learned Counsel has further submitted that the Applicants are not entitled to any compensation on account of severance. Learned Counsel has taken me through the evidence on record as well as through the impugned judgment and pointed out that the Reference Court has come to the conclusion that the Applicants have admitted that the northern portion of their property was accessible though with some difficulty. He further submitted that the Applicants have failed to produce any evidence to substantiate their claim towards severance and as such no relief can be - 9 - granted to the Applicants. 8. Having heard the learned Counsel for the Applicants and the Respondents and on perusal of the records, the following points for determination arises in the present appeal:- POINTS FOR DETERMINATION 1. Whether the Reference Court was justified to fix the compensation at the rate of Rs.34/- per square metre of the land acquired? 2. Whether the Reference Court was justified to refuse the compensation on account of severance as claimed by the Applicants? 9. Dealing with the first point for determination, in support of the claim for enhancement of compensation the Applicants have examined original Applicant Raghunath Shastri who is now deceased. He has stated in his deposition that the acquired land is part of the property surveyed under no.78/5,and there were mango trees, cashew trees existing therein. He has further stated that an area of 6160 square metres still lies on one side of the track and on the other side an area of 2880 square metres are located . He has also stated that there is no access to approach the said portion of the property - 10 - admeasuring an area of 6160 square metres. He has further stated that there is a road on the other side of the property, and the same can be utilised by the Applicants. The nearest house is about 20 metres away from the acquired land which is situated in his property itself surveyed under no.78/5. It is further stated that the house is situated in a smaller area which is remaining after acquisition and not in an area of 6160square metres. He has further sated that there are other houses in survey no. 787/5. He has stated that the college is about 1 km away and market is at about 1.25 kms away and that the acquired land could have been used for construction purpose. He has stated that he had sold the land from survey no. 105/15 at Loliem village admeasuirng an area of 1500 square metres for a sum of Rs. 90,000/-. The said land is at a distance of 100 metres from the acquired land and the same forms part of the same matriz number. In the said portion of the land sold there are coconut trees. Another sale transaction made on 7.3.1991 between Ramchandra Bhiku Varik and his wife with Domingos Fernandes having an area of 85 square metres has also been produced. The said land was sold for a sum of Rs.17,000/- and the sale deed is at Exh. AW1/A. The said plot is stated to be 130 metres from the acquired land and is a barren land without trees. He as such claimed compensation for the land acquired at the rate of - 11 - Rs.100/- per square metre and severance at the rate of Rs.50/- per square metre. He has stated that the land is located in the settlement zone and the acquired land admeasures 2880 square metres and unacquired portion is 8370 square metres on this side of the track. He has further stated that by a sale deed dated 7.2.1990 which is at Exh.AW1/H the said area of 1500 square metres was sold for Rs.90,000/- and which is within 100 metres from the acquired land. In the cross examination he has stated that the entire property is surveyed under two survey numbers bearing nos.78/5 and 105/15. He has further admitted that to lay the railway track cutting was required to the extent of 15 to 20 metres. He has further admitted that on account of steep cutting for the railway track, it is difficult to go from one side of the unacquired land to the other side. He has admitted that as per the sale deed at Exh. AW1/ H, he had sold an area of 1500 square metres for Rs.90,000/- and the said land is bounded by north by Mashem-Loliem road and that the coconut trees and other trees existing therein. He has further stated in the cross examination that he cannot say anything to the suggestion that in the regional plan, the land under the survey no.78/5 was shown as a orchard land and not a settlement zone. He has further admitted that unacquired portion of the land admeasuring 6160 square metres has higher gradient than the - 12 - acquired land. He has denied the suggestion that the acquired land cannot be used for construction purpose. 10. On perusal of the sale instance at AW1/H produced by the Applicants, it is found that the vendor therein is a daughter of the Applicant who had sold a portion of the property which is surveyed as a whole under survey no.78/5 and 105/15 and inscribed in the matriz records under no. 705 and in the Land Registration office at Quepem under no. 1362 in Book B-6, for a consideration of Rs.90,000/- for an area admeasuring 1500 square metres including coconut trees, mango trees etc existing therein. The plot which has been sold is bounded towards the west by remaining portion of the same property belonging to the vendors therein and towards the north by Mashem- Loliem public road. The price works out to Rs.60/- per square metre as on February 19th, 1990. The next witness examined is Mr. Krishna P. Prabhu Desai who is a Civil Engineer, has stated that he had inspected the property on 15.10.1991 and according to him the northern portion of the property which has been severed has been deprived by a minimum sum of Rs.75/- per square metres for an area of 6116 square metres. He further states that the value of the land area which is located on the southern side admeasures 2254 square metres - 13 - is unaffected as it is along the road proceeding from Mashem to Loliem. In the cross examination he has stated that there was no house in the property surveyed under no. 78/5 and that the said property lies on the left hand side of the said internal road from Mashem to Loliem. He has also stated that he had not checked the original plan though he had stated that the land is located in the settlement zone. In view of above he has also admitted that the property surveyed under no. 78/5 is partly in Orchard zone, and that the southern part is residential. He has further stated that on the northern side of the property which is unacquired there are coconut trees and the said plot can be used for agricultural purpose. 11. The next witness AW3 Mr. Gajanant Putu Keni has stated in his affidavit that he is the husband of Teja Gajanan Keni who is the daughter of the original Applicant and who had sold the said portion of the property which is at Exh. AW1/H. He has admitted that they had sold an area of 1500square metres by the said sale deed. In the cross examination he has stated that he does know the survey number of the house at Loliem. 12. By the impugned Judgment, the Reference Court has - 14 - come to the conclusion that the sale deed at Exh. AW1/H was part of the same property and was located at a distance of 100 metres from the acquired land. From the evidence on record and in view of the recitals mentioned herein above, the sale deed plot at Exh. AW1/H, was originally part and parcel of the same property which is been acquired. The law is well settled that the sale deed in respect of the part of the acquired property are considered to be material piece of evidence for the purpose of determining the market value of the acquired land subject to the comparability. As such, I find that the Reference Court was justified to consider the sale instance at Exh. AW1/H as th basis for determining the market value of the acquired land. The evidence discloses that the sale deed plot was adjoining to Mashem loliem main road. The said portion of the property was suitable for construction purpose. The said land was also levelled land. The acquired land was in the hilly side of the property of the Applicants. In fact AW1 himself has admitted that cutting of about 15 to 20 metres was required for the purpose of erecting the railway track. These demerits will have to be considered for the purpose of effecting the deduction. The Reference Court on the basis of evidence on record has found that the sale deed plot was garden land and the acquired land was a forest land. The learned Judge also found - 15 - that the sale deed plot was abutting the road and the land acquired was at a distance of 85 metres from the said road. The evidence also disclosed that there is water available near the sale deed land while no natural source of water was available near the acquired portion of the land. AW2 has admitted that the southern part of the land was in settlement area whereas the other portion was agricultural land. On account of such demerits the Reference Court has deducted 50% to determine the market value of the acquired land. The sale deed was executed in the year 1990 and notification under section 4 in the present case was issued on 27.6.1991. On accounts of such gap the Reference Court after giving an escalation of 10% has arrived at figure of Rs.68/- per square metre. After deducting 50% on account of development charges the market value has been fixed at the rate of Rs.34/- per square metre. I find no infirmity in the said findings of the Reference Court. The law is well settled that for the purpose of ascertaining the deduction on account of demerits on comparing the sale instance vis-a-vis the acquired land, the Court has to effect reasonable deduction on such count depending upon the nature and topographical features. The Reference Court has rightly noticed the demerits and fixed the compensation at the rate of Rs.34/- per square metre. No interference is called in the said findings given by the - 16 - Reference Court. Respondents are not justified in contesting that the Applicants have not discharged the burden to the effect that the amount offered by Land Acquisition Officer was inadequate. In fact on the basis of the sale instance which was part of the same property which has been acquired, the Reference Court has fixed the compensation at the rate of Rs.34/- per square metre. Respondents are also not justified to contend that merely because in an earlier notification, the applicants have not sought for enhancement of compensation, they are not entitled for enhancement of compensation. An offer under section 11 of the said Act cannot be considered to be a sale instance. In any event no evidence has been adduced to substantiate the said contention as the Respondents have not entered the witness box to establish about any earlier acquisition and about its location and when such acquisition has taken place. There was nothing adduced by the Respondents to establish that the market value was adjudicated in the earlier proceedings and as such the said submission of the Respondents has no substance. There is no infirmity in the findings of the Reference Court that the market value of the acquired land is Rs.34/- per square metre as on the date of section 4 notification. Point for determination is answered according. - 17 - 13. With regards to second point for determination, it is contended by the learned Counsel for the Applicants that the land has been severed from the northern side and the southern side of the property surveyed under no. 78/5. The evidence adduced has in fact established that in view of the acquisition the land of the Applicants has been severed. There is no dispute that the railway track has been installed in the middle of the property of the Applicants whereby the land has been bifurcated into two parts. It is brought on record in the evidence of AW1 and AW2 that an area of 6160 has been severed from the southern portion of the property on which side main road is located. The evidence discloses that the said northern portion is not easily accessible. In fact there is no ingress and egress for the Applicants from the southern side, towards the northern portion of the acquired land which has caused prejudice to the Applicants in the enjoyment and possession of the said northern portion. AW1 in his evidence has admitted that to proceed to the northern portion the Applicants can go to the said portion with a lot of difficulty. Such inconvenience shall have to be compensated by the Respondents as the cause thereof has been the acquisition of the land of the Applicants by the Respondents. - 18 - 14. For the purpose of assessing the compensation on account of severance, the Applicants have claim a sum of Rs. 50/- per square metre. The expert AW2 who has been examined has assessed such amount of compensation at the rate of Rs.75/- per square metre. The evidence of AW2 himself suggests that the above portion which has been severed is agricultural land. In fact he has further admitted that it is an Orchard land. Considering that the northern portion is at a gradient, I find that the portion located on the northern side cannot be valued at the same rate as the one which is located on the southern side. The northern side admittedly did not have any independent access as was the case on the southern side of the property. The Reference Court valued the land acquired at the rate of Rs.34/- per square metre as such land was adjoining the southern side of the land. Considering that the northern portion is at a gradient and is on the hilly side of the property which can only be used for agricultural purposes, an amount will have to be reduced on account of such demerits. I find that on account of these factors a further deduction of 40% would be just and proper and as such the northern side portion of the land will have to be valued at Rs.20/- per square metre. Considering the typographical conditions as the Applicants have failed to established the actual compensation payable on account of such - 19 - severance. I find that 10% of such market value would be just and proper towards the severance charges. I accordingly fix a sum of Rs.2/- per square metre on account of severance compensation in respect of an area of 6160 square metres which has been severed on the northern side. As such I find that the Reference Court was not justified in refusing the compensation on account of severance charges. The evidence clearly demonstrate that the non acquired portion has been severed from southern portion which has clearly caused damage to the Applicants in the movement to the said northern portion. On account of such severance, I find that the Applicants are entitled for a sum of Rs.2/- per square metre for an area of 6160 square metres. The Point for determination is answered accordingly. 15. The Applicants have also made a grievance with regards to the calculation made by the Reference Court in respect of the amount payable by the respondents for the land acquired. The Applicants will be at liberty to file a appropriate application before the Reference Court for such clarification which shall be considered by the Reference Court after hearing both the parties. - 20 - 16. In view of the above, I pass the following:- O R D E R i. The First Appeal no.142/2004 is partly allowed. ii. The impugned