1 IN THE HIGH COURT OF BOMBAY AT GOA First Appeal no.162 of 2003 1. Shri Arthur Souza 2. Mr. Jacinto Souza (deceased) now by his wife Norma Souza represented by Power of Attorney Mr. James Fernandes. 3. Mrs. Adelia Souza, All r/o Duncolim, Salcete, Goa 4. Mrs. Carmo Souza, R/o Duncolim, Salcete-Goa. 5. Mr. Joana Souza, R/o Duncolim, Salcete-Goa. 6. Mr. Pascoal Souza, R/o Navelim, Salcete, Goa. .... Appellants V e r s u s 1. The Deputy Collector, South Goa. 2. Asst. Director of Sports and Youth Affairs, Panaji-Goa. 3. State of Goa, Panaji-Goa through Chief Secretary. ..... Respondents. Mr. C.A. Coutinho, Advocate for the Appellants. Mr. Guru Shirodkar, Government Advocate for the Respondents. 2 Coram: A. P. Lavande, J. Reserved on : 17/9/2010. Dictated on 28/09/2010. ORAL JUDGMENT: By this appeal the appellants take exception to the Judgment and award dated 29/11/2002 passed by the District Judge South Goa, Margao in Land Acquisition Case no.38 of 1997. 2. Vide notification dated 31/7/1991 issue under Section 4 of the Land Acquisition Act (“The Act” for short) and published on 16/8/1991, the Government of Goa acquired lands for public purpose i.e. for the purpose of development of village school playground at Duncolim- Seraulim. The appellants were the owners of property bearing survey no.44/5 admeasuring 2400 sq.metres which was acquired by the said notification. The appellants claimed Rs.400/- per sq.metre. The Land Acquisition Officer mad award on 2/9/1994 and fixed the market rate 3 of the acquired land at Rs.4/- per sq.metre. The appellants sought reference under Section 18 of the Act and claimed Rs.400/- per sq.metre. 3. Pursuant to the reference made under Section 18 of the Act, Land Acquisition Case No.38 of 1997 was registered before District Court at Margao. The appellants examined three witnesses in support of their case, namely, Shri Hurbert Coutinho, AW.1, Jose James Rebello, AW.2 and Olavo Antonio D'Souza, AW.3. The respondents did not examine any witness. The appellants relied upon sale deed dated 21/5/1990 (Exhibit 22) by which Shri Luis Coutinho alias Luis Joaquim Rebello and his wife had sold to Smt. Amina Ulhas Lotlikar a plot admeasuring 557 sq.metres at the rate of Rs.300/- per sq.metre out of which an amount of Rs.210/- was paid to the vendors and an amount of Rs.90/- was paid to the developer Shri Antonio Rebello. The sale deed was produced by Herbert 4 Countinho, AW.1 the Attorney of the appellants and son of appellant no.5 and Jose Rebello, son of the vendor Luis Rebello identified signature of his father on the sale deed (Exhibit 22). The Reference Court held that the plot in the sale deed (Exhibit 22) relied upon by the appellants was not a comparable plot and consequently dismissed the reference. 4. Mr. Coutinho,learned counsel appearing for the appellants submitted that the Reference court has clearly erred in rejecting the reference. According to Mr. Coutinho, the sale deed (Exhibit 22) ought to have been taken into consideration by the Reference Court and the Reference Court ought to have made appropriate deductions while fixing the market rate of the acquired land after comparing the merits and demerits of the sale deed plot vis-a-vis the acquired land. According to Mr. Coutinho the evidence on record clearly suggests that the 5 acquired land was situated on the western side of Sernabatim railway station and considering th distance between the acquired land and the sale deed plot, the sale deed could not have been rejected outright by the Reference Court for fixing the market rate of the acquired land. Mr. Coutinho therefore submitted that the impugned judgment and award be set aside and the appellants be granted higher compensation in respect of the acquired land. 5. Per contra, Mr. Shirodkar learned Government Advocate appearing for the respondents supported the impugned judgment and award and submitted that the Reference Court was perfectly justified in rejecting the reference since the plot shown in sale deed (Exhibit 22) could not have been compared with the acquired land since the sale deed plot was a developed plot, whereas the acquired land was not developed. He further submitted 6 that the sale deed plot was a smaller plot, whereas the acquired land was comparatively larger and therefore the Reference court was justified in not placing reliance upon the sale deed plot for the purpose of fixing the market rate of the acquired land. Mr. Shirodkar further submitted that in any case the sale deed plot was situated in a better location where several facilities like market, transport,, church etc. were available. He therefore submitted that the appeal be dismissed. 6. I have carefully considered the rival submissions and perused the record. 7. In view of the rival submissions the following points arise for determination in the appeal: i) Whether the Reference Court was justified in rejecting the reference? ii) If not, what compensation the appellants are entitled 7 to? 8. As stated above, the appellants examined three witnesses in support of their claim for higher compensation. The evidence of Hubert Coutinho, AW.1 who was examined on behalf of the appellant discloses that in the property there were three big coconut trees and one coconut sapling and one Jamun tree. The cold storage was situated at a distance of about 200 metres and the church was at a distance of about 300 metres. The rickshaw stand was at a distance of about 200 metres and primary school was at a distance of about 300metres. He also placed reliance upon sale deed (Exhibit 22) and deposed that although the rate per sq.metre was fixed at Rs.300/-, Rs.210/- was paid to the vendor and the balance was paid to the developer as mentioned in the sale deed. In cross examination he admitted that the sale deed plot was a developed plot but denied the suggestion that it was 8 at a distance of about 1 km. from the acquired land. He also denied the suggestion that the sale deed plot was at a distance of 200 metre from the bazar area. He also denied the suggestion that the distance between his property and bazar was 1.5 kms. He admitted that his property was on the western side of the railway station and bazar was on the eastern side of the railway station and in between the two there was a crossing to go from eastern direction to western direction and that was the only access going on the eastern side. He also admitted that the church and other facilities including school are on the eastern side of the track. He denied the suggestion that the rates on the eastern side were higher than the rates on the western side . He also denied the suggestion that his property was at a distance of 120 metres from the internal road. 9. Jose James Rebello, Aw.2 the son of the vendor in sale deed Exhibit 22 identified the signature of his 9 father on the sale deed and stated that the said property as well as the father's property were of the same nature namely coconut garden. He further stated that the appellants' property was at a distance of about 150 to 200 metres from Seraulim Railway Station by road, whereas his father's property was at a distance of about 250 metres from the Railway Station. He further stated that the appellants property was at a distance of about 8 to 10 metres from Margao-Majorda road. In cross examination he stated that he did not know whether his father's property was developed prior to its sale. He deposed that the property of the appellants was on the eastern side whereas his property was on the western side which is contrary to the case of the appellants themselves. However, he admitted that the appellants had to cross the railway track to go to Seraulim market. 10. Olavo Antonio D'Souza, AW.3 also deposed 10 that the property of the appellants was at a distance of about 50-60 metres from the eastern side of Seraulim railway station. In cross examination he stated that sea was on the western side and the main market was on the western side-sea side. He further stated that the major shopping centre was on the western side. He further stated that there was property of Rebello's property in between the appellants' property and the road leading from Nuvem - Madel-Margao. 11. Upon close scrutiny of the evidence of the above three witnesses what emerges is the acquired land was situated on the western side of the Seraulim railway station and all the facilities like market, transport, church etc. were on the eastern side of the railway station. The plot in sale deed (Exhibit 22) was situated at a distance of about 1km. from the acquired land, as suggested on behalf of the respondents which suggestion was denied on behalf 11 of the appellants. The acquired land was undeveloped whereas the plot in sale deed was developed plot and was better located. 12. As stated above, the Reference Court refused to place reliance upon sale deed Exhibit 22. I find it difficult to accept the approach of the Reference Court in refusing to place reliance upon the sale deed. No doubt, the plot in the said sale deed was a developed plot and situated at a distance of about 1 km. from the acquired land and was in better location but the fact remains that the sale deed plot was in th same village of Seraulim. As such, the said sale deed could not have been totally ignored while fixing the market rate of the acquired land. 13. No doubt, for the purpose of fixing the market rate of the acquired land on the basis of plot in sale deed Exhibit 22 the comparative merits and demerits will have 12 to be taken into consideration. The sale deed was executed on 25/5/1990 and the notification under Section 4 was published on 16/8/91 i.e. after a period of about 1 year and 3 months. Considering the escalation of 10% per annum, the value of the said plot as on the date of publication of Section 4 notification works out to Rs.231/- per sq.metre. Since the acquired land was not developed, deduction has to be made for the purpose of development which in my opinion would be 40%. As such, the amount comes to Rs. 138.60. Admittedly, the acquired land was 2400 sq.metres whereas the sale deed plot was 557 sq.mts. Therefore in my opinion, for largeness appropriate deduction has to be made and in my opinion the appropriate deduction would be 20% i.e Rs.27.72. Admittedly, the sale deed plot was better located and had many facilities which advantages the acquired land did not possess. In my opinion, in this connection the appropriate deduction would be 40%. Therefore, the amount works out to Rs.66.53. In addition 13 the acquired land was not accessible by road and on this count appropriate deduction deserves to be made. In my opinion the appropriate deduction would be 20%. The market rate of the acquired land on the date of publication of Section 4 works out to Rs.53.23 which is rounded up to Rs.53/- per sq.metre. Thus, the appellants are entitled to compensation at the rate of Rs.53/- per sq.metre in respect of the acquired land. 14. In view of the above discussion I hold that the market rate of the acquired land on the date of publication of Section 4 notification was fixed at Rs.53/- per sq.metre. Consequently, the impugned judgment and award is quashed and set aside and the appellants are held entitled to compensation at the rate of Rs.53/- per sq.metre. Needless to mention that the appellants are entitled to all the statutory benefits under the Act. 14 15. The appeal stands partly allowed in the aforesaid terms with no order as to costs. A. P. Lavande, J. Ap/-