:1: IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 328 OF 2003 Executive Engineer, W.D. XXI (PHE), PWD, Fatorda, Margao Goa. … Appellant V/s Communidade of Margao, having its office at Margao Goa, through its Procurador, Shri Antonio Andrade, Major, Married, landlord, resident of Opp. St. Joaquim Chapel, Borda, Margao Goa. … Respondent Mr. A. Kakodkar, Additional Government Advocate for the appellant. Mr. C. A. Ferreira, Advocate for the respondent. CORAM : F. M. REIS, J DATE : 20 th SEPTEMBER, 2011 . ORAL JUDGMENT Heard Shri A. Kakodkar, learned Addl. Government Advocate for the appellant and Shri C. A. Ferreira, learned Counsel appearing for the respondent. 2. The above appeal challenges the judgment and award dated 27.08.2003 passed by the learned Additional :2: District Judge, South Goa, Margao, in Land Acquisition Case No.294/1993, whereby the reference filed by the respondent under Section 18 of the Land Acquisition Act, 1894 ( hereinafter referred to as 'the said Act" ) was partly allowed and the compensation for the land acquired was fixed at the rate of Rs.200/- per square metre. Being aggrieved by the said judgment and award, the appellant has preferred the present appeal. 3. Shri A. Kakodkar, learned Additional Government Advocate appearing for the appellant has assailed the impugned judgment essentially on two grounds. The learned Counsel has pointed out that though the instance relied upon by the Reference Court as the basis for fixing the market value of the acquired land is a previous award which is at Exhibit 18 nevertheless there was substantial dissimilarities between the land acquired and the land subject matter of the acquisition. The learned Counsel did not dispute that the subject matter of the land acquired by award at Exhibit 18 was pursuant to the same notification as in the present case. The learned Counsel has pointed out that the land acquired therein was bharad land and was free hold land whereas in the present case considering that the land of the respondent :3: was Communidade land and the same was subject to restrictions as contemplated under the Code of Communidade a deduction on that count to the extent of 20% ought to have been made for the purpose of fixing the market value of the acquired land. The learned Counsel took me through the impugned judgment and pointed out that the land acquired and the land which was the subject matter of the proceedings in the award at Exhibit 18 were totally dissimilar as according to him the land acquired was not accessible by a road and was a paddy field and such dissimilarity has not been considered by the Reference Court whilst fixing compensation for the land acquired. The learned Counsel further pointed out that even in the offer made by the Land Acquisition Officer under Section 11 of the said Act, the land of the respondent was classified in a different manner and different amounts were offered to the respondent. The learned Counsel further pointed out that considering the said dissimilarity, a further deduction ought to have been made by the Reference Court from the amount fixed in Exhibit 18 to arrive at the market value of the acquired land. 4 On the other hand, learned Counsel Shri C. A. Ferreira appearing for the respondent has supported the :4: impugned judgment. The learned Counsel has pointed out that the land acquired was at the rear side of the Civil Court building at Margao and it had high potentiality of being used for commercial and residential purpose. The learned Counsel further pointed out that there was ample evidence on record to show that civic amenities such as hospital, market, Court are within a radius of 2.5 km from the acquired land. The learned Counsel further pointed out that the land acquired was situated within the Margao Municipal limit and same have high potentiality of being used for commercial purpose. As far as the contention of Shri A. Kakodkar, learned Additional Government Advocate, the learned Counsel did not dispute that some deductions could be effected but however he pointed out that considering that the land was situated in a commercial zone no further deduction is to be made from the amount fixed by the Reference Court. The learned Counsel took me through the impugned judgment as well as the evidence on record and pointed out that the contentions raised by the learned Counsel appearing for the appellant have no foundation in the evidence or in the cross examination by the appellant to the witness examined by the respondent. The learned Counsel further pointed out that such contentions cannot be accepted as the same are not borne out :5: from the record and as such the appeal deserves to be rejected. 5. Having heard the learned Counsel for the parties and on perusal of record, the following point arises for my determination in the present appeal : POINT FOR DETERMINATION Whether the Reference Court was justified to fix the compensation for the land acquired at the rate of Rs.200/- per square metre ? 6. On perusal of the impugned judgment, the Reference Court has fixed the compensation at the rate of Rs.200/- per square metre on the basis of award which is at Exhibit 18. There is no dispute that the land acquired in the award at Exhibit 18 was the subject matter of the same notification as in the present case. Considering the said aspect and as the award has been accepted by the appellant, it become final. The Reference Court was justified to fix the compensation for the land acquired on the basis of the said award. But however, the learned Counsel appearing for the appellant is justified to contend that the Reference Court was not justified to fix the same amount of compensation on :6: account of dissimilarity of the land acquired vis-a-vis the land which was the subject matter of the said award at Exhibit 18. The Division Bench of this Court has held that in cases where the land acquired are Communidade land, deduction of 25% is to be effected considering that such lands are subject to restrictions under the Code of Communidade. Considering that aspect, I find that in the present case, the land acquired was about 300 square metres, it would not be just to effect a deduction of 25% on that count. Considering the smallness of the area of the land acquired in the present case and taking note of the fact that there was difference in the amount offered by the Land Acquisition Officer at the time of passing award under Section 11 of the said Act, I find it appropriate that deduction of 15% on both counts would be reasonable for the purpose of fixing the market value. In the peculiar fact of the case at hand, considering the small area of the land acquired, I find that the market value of the acquired land is to be fixed at Rs.170/- per square metre for the land acquired. To that extent, the impugned judgment stands modified. The point for determination is answered accordingly. 7. In view of the above, I pass the following : :7: O R D E R (i) The appeal is partly allowed. (ii) The impugned judgment and order is modified and the compensation for the acquired land is fixed at Rs.170/- per square metre. (iii) Needless to say that the remaining part of the award granting statutory benefits stands confirmed. (iv) The appeal is disposed of accordingly with no order as to costs. F. M. REIS, J at*