- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 15 OF 2004. 1 Land Acquisition Officer, PWD(Cell), Altinho, Panaji. 2 The Executive Engineer, Work Division VI, PWD, Fatorda, Margao, Goa. ........ Appellants. Versus Smt. Marlene Costa Martins, major in age, service, resident of H. No. 844, Assolna, Salcete, Goa. ......... Respondent. Mr M. Salkar, Additional Government Advocate for the Appellants. None present for the respondent. Coram:-F. M. REIS, J. Date:-26th August, 2010. ORAL JUDGMENT The above appeal challenges the Judgment and Award dated 29th September, 2003, passed by the learned Additional District Judge, South Goa, Margao in the Land Acquisition case no. 65/2002 whereby Reference under section 18 of the Land Acquisition Act, filed by the Respondent was partly allowed and compensation was fixed at the rate of Rs. 110/- per square metre for land acquired. - 2 - 2. The Appellants acquired portion of the land admeasuring 975 square metres from survey no. 98/2 of village Assolna for the purpose of construction and black topping of the road. The notification bearing no.22/174/91-RD dated 18th October,1991 under section 4 of the Land Acquisition Act ( hereinafter referred to as “the said Act”) was published on 27th July, 1992 in the Official Gazette. The Award was passed by the Land Acquisition Officer on 15th December, 1995 determining the compensation for the land acquired at the rate of Rs.25/-per square metre. Being dissatisfied with the said Award the Respondent preferred reference under section 18 for enhancement of compensation. By the impugned Judgment and Award dated 29th September, 2003, the reference preferred by the Respondent was partly allowed and compensation was fixed at the rate of Rs. 110/- per square metre for land acquired. 3. Being aggrieved by the said Judgment and Award, the Appellants have preferred the present appeal. 4. Mr. M. Salkar, Additional Government Advocate appeared on behalf of the Appellants and none appeared for the - 3 - Respondent though served. Learned Additional Government Advocate has submitted that the land acquired was for black tapping of the area for the purpose of road as such this aspect was not considered by the Referenc Court while determining the compensation to be awarded to the Respondent. He further submitted that the sale deed relied upon by the Reference Court was in respect of the land sold to mundkar which cannot be considered for determining the market value of the land acquired. He further submitted that the recitals of the sale deed were not considered by Reference Court while determining the market value of the land. He further submitted that the Respondent has failed to discharge the burden cast on her to establish that the price offered by the Land Acquisition Officer was inadequate and infact the reference filed by the Respondent ought to have been dismissed. 5. Upon hearing the learned Additional Government Advocate and on perusal of the records, the following point for determination arise in the present appeal:- POINT FOR DETERMINATION Whether the Reference Court was justified to fix the market value at the rate of Rs.110/- per square metre for the land acquired? - 4 - 6. In support of her case, the Respondent has examined Mrs. Marlene Costa Martins as AW1. In her affidavit in evidence she has stated that an area of 975square metres belonging to Respondent was acquired from property surveyed under no. 98/2 of Assolna Village. She has further stated that she alongwith her husband had sold a plot of land admeasuring 541 square metres to Shri Baptista Furtado and two others of the same property bearing survey no. 98/2 at the rate of Rs. 110/- per square metre. The said sale deed was produced on record and marked as exhibit 17. She further states that on one side of the land acquired the road going from Assolna Bazar to Cuncolim Bazar is located and it was hardly 100 metres from Assolna Bazar or market place. She has also stated that St. Anthony High School, Regina Marthrum High School, Assolna Church, State Bank of India, The Goa Urban Co-operative Bank Ltd., Corporation Bank, Post office are located within a radius of 200 metres from the acquired land. She has also stated that the acquired land is a settlement zone and there are houses in the plot bearing survey no. 98/2 and claim that the market value of land as on date of section 4 notification was Rs. 150/- per square metre. In the cross examination she has stated that there is no existing road in the acquired land however people who are residing in the said locality are passing through the said land. She - 5 - further stated that the purchaser to the sale deed was a mundkar. There was no challenge in the cross of AW1 by the Appellants to the fact that land was in vicinity of church, State Bank of India, School, Bank and that it was adjoining the road proceeding from Assolna to Cuncolim Bazar. The fact that there were houses in the remaining portion of the acquired land was also not disputed by the Appellants in the cross. From the evidence on record, I find that the land of the Respondent had potential value of being used for construction purpose, as there were houses in the remaining portion of the land and that the infrastructure for development was available in the vicinity of the acquired land. I find that the Reference Court has rightly arrived at a conclusion that the acquired land had potential value of being used for construction purpose. With regards to the fixing of the market value of the land on the basis of the sale deed at exhibit 17, on perusal of the said sale deed, I find that the price paid by the purchaser to the Respondent and her husband at the rate of Rs. 110/- per square metres was including a mundkarial house constructed therein. The recital of the sale deed reads as under:- And whereas the vendors have agreed to sell and convey to the purchasers and the purchasers have agreed to purchase from the vendors the said portion admeasuring 544.41 square metres - 6 - including the house built by the ancestors of the purchasers for the price of Rs.60,000/-( Rupees Sixty thousand only.) Though in the schedule of the sale deed at exhibit 17 there is a mention about the house of the purchaser, nevertheless there is no substantial evidence adduced by the respondent what was the extent of the said house. Apart from that the existence of a mundkarial house will diminish the value of the remaining portion of the property as such occupants have some statutory protection under the Mundkar Act. The respondent failed to produce any other sale instance without such impediments and as such the market value of the portion of the land acquired will have to be determined on the basis of the sale deed at exhibit 17. 7. As the respondent failed to adduce any evidence on the aforesaid count, I find that a deduction ought to have been made by the Reference Court whilst determining the market value of the land acquired. In such circumstance, I find it would be fair and just that a deduction of 25 % is to be made to the price mentioned at exhibit 17 to arrive at the market value of the land acquired. I accordingly fixed the market value of the land acquired as on the date of section 4 - 7 - notification for the land acquired to be fixed at Rs. 82.50 per square metre. The point for determination is answered accordingly. 8. In the circumstance I pass the following:- O R D E R i. Appeal is partly allowed. ii. Impugned Judgment and Award dated 29th September, 2003 is modified and the market value of the land acquired is fixed at Rs. 82.50 per square metre. iii. Remaining part of the Award, allowing all statutory benefits is confirmed. iv. Appeal stands disposed of accordingly with no order as to costs. F. M. REIS, J. vn*