1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 63 OF 2000 1. Special Land Acquisition Officer (South Goa) Konkan Railway Corporation Limited, Amey Guest House, Davorlim Road, P.O. Navelim, Salcete Goa, 403 707. 2. Chief Engineer, Konkan Railway Corporation Ltd., Rawnfond, near Margao Railway Station, Margao-Goa. .... Appellants V/s 1. Dr. Franciso Xavier de Piedade do C. Pereira, C/o. Musinho D'Silva, House No. E-131 Rua Abade Faria, Margao-Goa. .... Respondent Mr. E. Afonso, Advocate for the Appellants. None for the Respondent. CORAM : A.P. LAVANDE, J. Date : 19 th NOVEMBER, 2008 ORAL JUDGMENT : Heard Mr. Afonso for the appellant. Respondent though served is absent. Advocate Mr. P.A. Kamat who is shown as appearing on behalf of the respondent stated that he had never filed wakalatnama on behalf of the respondent and since his name appears on the file, by way of abundant caution, he has already issued notice of his withdrawal to the respondent. Mr. Kamat stated that he has never been instructed by respondent to appear in the matter. Respondent also is not present when the matter is called out. 2 2. By notification dated 3/09/1991 issued under Section 4 of the Land Acquisition Act ('the Act' for short), Government of Goa acquired lands of several persons for Konkan Railway Corporation. The lands belonging to respondent admeasuring 825 sq. meters of Survey No. 11/5 (part) and an area of 200 sq. meters of Survey No. 11/3 situated at Nagoa Village of Salcete Taluka were parts of the acquired land. The Special Land Acquisition Officer declared the award on 11/01/1994. He awarded Rs. 15/- per sq. meter in respect of the acquired land and awarded Rs. 18,550/- towards fruit value and Rs. 30/- towards wood value. Being dissatisfied, the respondent sought reference under Section 18 of the Act. In Land Acquisition Case No. 255/1995, the respondent examined himself and produced survey forms I and XIV (Exhibit PW1/A Colly) and survey plan (Exhibit AW1/B). He also produced sale deed dated 11/08/1981 executed by his late mother Smt. Maria Miguelina Cordeira de Melo Castro e Pereira by which an area of 313 sq. meters of land from Survey No. 11/3 was sold to Mr. Francis Xavier Faria for a consideration of Rs. 8,000/-. He identified the signature of his mother on the said sale deed. The appellants did not lead any evidence. 3. The reference Court placed reliance upon the said sale deed and held that the acquired lands were similar in nature to the plot sold by the sale deed and thereafter considering increase of 10% every year in the prices of land, awarded compensation of Rs. 51/- per sq. meter. In order to fix the said rate, 3 the reference Court relied upon the judgment of the Apex Court in Special Deputy Collector and Anr. etc. v/s. Kurra Sambasiva Rao & Ors. (AIR 1997 SC 2625) wherein it has been held that sale transaction in respect of the acquired land to which the claimant himself is a party is the best evidence for fixing the market rate of the acquired land. 4. Mr. Afonso, the learned Counsel appearing for the appellants submitted that the impugned award is liable to be set aside on the following grounds; (1) The reference Court has erred in enhancing the compensation on the ground that acquired land had building potential, (2) There were ten mundkarial houses around the acquired land and therefore there was an encumbrance on the property part of which was acquired by the appellants, (3) The reference Court could not have granted rise in price at 10% every year since the property was not fit for construction but was principally an agricultural property, (4) In any way the reference Court ought to have adjusted the compensation granted in respect of the fruit value towards the total compensation awarded in favour of the respondent. 5. As stated above, the respondent has chosen not to put in appearance. 4 6. I have considered the submission made by learned Counsel for the appellants and perused the record. 7. In view of the submissions made by learned Counsel for the appellants, the following point arises for consideration in the appeal: Whether the compensation of Rs. 51/- per sq. meter granted by the reference Court is excessive ? 8. As stated above, the reference Court relied upon sale deed dated 11/08/1981 executed by his late mother in respect of an area of 313 sq. meters from Survey No. 11/3. In my opinion, in view of the ratio laid down by the Apex Court in Special Deputy Collector and Anr. etc. (supra) the reference Court was justified in placing reliance upon sale deed dated 11/08/1981 executed in respect of part of the land forming Survey No. 11/3. The price mentioned in the said sale deed could form basis for fixing the market rate of the acquired land since the lands acquired was from Survey No. 11/3 and 11/5 which are also adjoining. However, I find merit in the submission of Mr. Afonso that in view of the admitted fact that there are ten mundkarial houses in the close vicinity of the acquired land, the price mentioned in the sale deed dated 11/08/1981 cannot be accepted in toto for fixing the market rate of the acquired land. Perusal of the plan AW1/B produced by the respondent himself and evidence of the respondent discloses 5 that in the proximity of the acquired land ten mundkarial houses were situated. The reference Court by increasing the price on the basis of sale deed dated 11/08/1981 has fixed the compensation at the rate of Rs. 51/- per sq. meter. In my opinion, it would be just and proper to deduct 20% from the price arrived at by the reference Court in view of the existence of ten mundkarial houses around the acquired land. Thus, the market rate of the acquired land works out to Rs. 40.80 paise which is rounded up to Rs. 41/- per sq. meter. Therefore, in my opinion, the respondent is entitled to compensation at the rate of Rs. 41/- per sq. meter. In so far as submission made by Mr. Afonso that the amount of Rs. 18,550/- awarded by the Land Acquisition Officer towards fruit value has to be adjusted against the total compensation is concerned, I find merit in the submission of Mr. Afonso. It is well settled by catena of decisions of the Apex Court that if the land is valued on the basis of its building potential, the claimant is only entitled to wood value and not any compensation for the yield from the trees bearing fruits. Therefore, from the total compensation, an amount of Rs. 18,550/- has to be adjusted and the respondent would not be entitled to the said amount in addition to the compensation of the acquired land, although the Land Acquisition Officer has granted compensation under separate heads. 9. In view of the above, the appeal is partly allowed. The compensation in respect of the acquired land is fixed at the rate of Rs. 41/- per sq. meter. 6 The amount of Rs. 18,550/- awarded by the Land Acquisition Officer towards fruit value shall be adjusted towards total compensation in respect of the acquired land. 10. The appeal is disposed of in the aforesaid terms with no order as to costs. A.P. LAVANDE, J. NH/-