1 F.A. No.112/2004 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.112 OF 2004 Dr. Jaiwant B. Sardessai, resident of 11, Lotlikar Building, Comba, Margao-Goa, Through duly constituted power of attorney holder, Shri Vijay Sardessai, resident of Margao-Goa. …. Appellant V/s 1. Special Land Acquisition Officer (SIP), I.D. Complex, Gogal, Margao, Goa. 2. The Executive Engineer, Works Division X, I.D., Pajimol, Sanguem-Goa. …. Respondents Mr. M.S. Sonak, Advocate for the Appellants. Mr. S. Vahidulla, Government Advocate for the Respondents. CORAM : S.A. BOBDE & F.M. REIS, JJ. Reserved on : 23rd JUNE, 2011 Pronounced on :12th August,2011 JUDGMENT :(Per F.M. REIS, J.) The above appeal challenges the judgment and award dated 8/03/2004, passed by the learned Additional District Judge, South Goa, Margao in Land Acquisition Case No.11/2001. 2 F.A. No.112/2004 2. Pursuant to a notification dated 17/04/1997 and 1/04/1998, an area of 2,14,995 square metres was acquired belonging to the appellant for the rehabilitation of the affected families of Vadem SanguemTaluka. The land which was acquired was admeasuring an area of 3075 square metres from the property surveyed under no.28/1, 10,175 square metres from the property surveyed under no.28/2, 8725 square metres from the property surveyed under no.28/3, 61500 square metres from the property surveyed under no.28/4, 4000 square metres from the property surveyed under no.29/1, 3600 square metres from the property surveyed under no.29/2, 1800 square metres from the property surveyed under no.29/5, 29000 square metres from the property surveyed under no.29/10, 1000 square metres from the property surveyed under no.29/22 and 120 square metres from the property surveyed under no.29/24 of village of Nagvem. The Government had also acquired land admeasuring 74000 from the property surveyed under no.15/1 and 18,000 square metres from the property surveyed under no.21/1 of village of Zanodem of Quepem Taluka. The Land Acquisition Officer passed an award under Section 11 of the said Act and offered compensation at the rate of Rs.6/- per square metre 3 F.A. No.112/2004 in respect of tenanted lands and with regard to the land which was classified as bharad land and surveyed under no.28 sub-divisions 1 & 10, the amount offered was Rs.20/-. The land under survey no.29/24 was classified as untenanted paddy fields wherein the amount was offered at the rate of Rs.8/- per square metre and the property surveyed under no.21/1 was classified as cashew garden and the compensation was offered at the rate of Rs.18/- per square metre. 3. Being dissatisfied with the said amount, the appellant sought a reference under Section 18 of the said Act for enhancement of compensation and claimed a sum of Rs.60/- per square metre for the land acquired. Besides the said amount, the appellant also claimed for enhancement of compensation with regard to the value of the coconut trees and the structures existing therein. After recording of evidence and hearing the parties the Reference Court by the impugned judgment dated 8/03/2004 rejected the reference filed by the appellant. Being aggrieved by the said judgment, the appellant has preferred the present appeal. 4. Shri M.S. Sonak, the learned Counsel appearing for the 4 F.A. No.112/2004 appellant has assailed the impugned judgment and pointed out that the land of the appellant was an on going agricultural land drawing substantial income which has been lost on account of the acquisition and, as such, the Reference Court was not justified to reject the reference filed by the appellant. The learned Counsel further pointed out that the appellant has relied upon the Sale Deed which is in the adjoining village of Molcornem wherein the price of the sale deed land was fixed at the rate of Rs.45/- per square metre and, as such, the Reference Court was not justified to effect a deductions of nearly 60% to come to the conclusion that the amount offered by the Land Acquisition Officer was adequate. The learned Counsel has taken us through the evidence on record as well as the impugned judgment and pointed out that the land acquired and the land which was subject matter of the said sale instance was comparable and, as such, the question of effecting such deduction would not arise. The learned Counsel has further submitted that the Reference Court has totally mis-appreciated the evidence on record and has come to an erroneous conclusion that the appellant was not entitled for enhancement of compensation. The learned Counsel, accordingly, submitted that the appeal 5 F.A. No.112/2004 deserves to be allowed. 5. On the other hand, Shri S. Vahidulla, the learned Additional Government Advocate has supported the impugned judgment. The learned Counsel pointed out that the Reference Court has meticulously examined the evidence on record and has come to a correct conclusion that the appellant has failed to establish that he is entitled for any enhancement of compensation. The learned Counsel further submitted that the deductions effected by the Reference Court are justified in the facts and circumstances of the case. The learned Counsel further took us through the impugned judgment as well as the evidence on record and submitted that no interference is called for in the impugned judgment and, as such, the appeal deserves to be rejected. 6. Having heard the learned Counsel and on perusal of the record, the following point for determination arises in the present appeal: POINT FOR DETERMINATION: Whether the Reference Court was justified to dismiss the reference filed by the appellant ? 6 F.A. No.112/2004 7. In support of his claim for enhancement of compensation, the appellant has examined his son Vijay J. Sardessai, who has stated that they are the co-owners of the property surveyed under no.28/1-4, 29/1,2,5,10,22,24, 21/1 and 15/1 of village of Naguem and Zamodem. He has further stated that by Government notification dated 17/04/1997 and 1/04/1998 an area of 2,14,995 square metres was acquired by the Government. He has further stated that the Land Acquisition Officer had paid Rs.6/- per square metre for the land which was surveyed under no.28/1,3,29/2,29/5,29/22 and a sum of Rs.8/- per square metre for the land acquired under Survey No.29/24. He has further stated that he has been paid a sum of Rs.18/- per square metre in respect of the land under survey no.21/1 and Rs.20/- per squre metre for the land surveyed under no.28/2,28/4,29/1,10,15/1 and 20/8. He has further stated that the land was developed for agricultural purposes and it was fertile land. He has disclosed the different types of agricultural activities which have been carried out in the said property. He has further stated that the land had agricultural potentiality as well as non-agricultural potentiality. In support of his claim for enhancement he has produced two Sale Deeds; one 7 F.A. No.112/2004 dated 23/10/1997 and the other is dated 3/02/2003. He has also stated that the lands are of similar nature and with similar facilities and amenities. He has accordingly prayed for enhancement of compensation. In his cross-examination, he has admitted that the property surveyed under no.28/2, 28/4, 29/1, 29/10, 15/1 (part) are bharad lands. He has further stated that he has records to prove the expenditure incurred in putting up the fence and the construction of the structures in the acquired land. He has further stated the distance between the acquired land and the Sanguem bus stand will be around 4 km by road. He has further admitted that the Sale Deed at Exhibit 16 dated 23/10/1997 is also of agricultural land and that the said land is inferior in nature as compared to the land acquired. He has further admitted that the boundaries of the said Sale Deed plot are on three sides by road. He has further admitted that the acquired land is closer to the junction as compared to the Sale Deed land. He has denied the suggestion put by the respondent that the nature of the Sale Deed land is not inferior either agriculturally or other potential views as compared to the acquired land. On perusal of the said Sale Deed, we find that an area of 4,478 square metres surveyed under no.30/1(part) was sold 8 F.A. No.112/2004 for a sum of Rs.2,01,500/- which works out to about Rs.45/- per square metre. The recital of the said Sale Deed further stipulates that the said property is an agricultural property partly with trees and bushes and partly bharad land. The next Sale Deed relied upon by the appellant cannot be considered as the same is admittedly a post notification sale deed of the year 2003. 8. The appellant has also produced the valuation report of Shri Kakule who has carried out the valuation of the structures in the acquired land. The said Shri Kakule was examined and in his cross-examination he has stated that he has not taken into consideration the valuation of any land while preparing the report. He has further stated that he has also not considered what was the expenditure incurred in constructing the said pump house. He has also stated that he was unable to specify the survey number in which office cum pump house is situated. The next witness examined is Shri C.X. Menezes, who has carried out the valuation of the acquired land on the basis of the yield, but however, he has admitted that such valuation has been done not on the actual yield of the acquired portion of the land. 9 F.A. No.112/2004 9. The Reference Court while passing the impugned judgment has refused to enhance any compensation as the Reference Court deducted 55% from the price mentioned in the sale deed at Exhibit 16. The Reference Court while considering the Sale Deed at Exhibit 16 has effected deduction of 25% on account of the advantages considering that the Sale Deed plot was abutting the road on three sides and was bounded on two sides by the PWD road and made further deduction on account of dissimilarity in the areas of the Sale Deed plot and the acquired land. As far as the value of the structure of the pump house is concerned, the Reference Court has rejected the said claim and there was no material to establish the said claim. 10. On perusal of the record, there is no dispute that the property surveyed under no.28, sub-division 1,3 and survey no.29, sub- division 2,5 and 22 are tenanted paddy fields. Considering the provisions of Goa Land Use Act the said portion of the land cannot be used for non-agricultural purposes and has restrict on transfer. As such the Reference Court was justified to come to the conclusion that no enhancement is to be awarded with regard to 10 F.A. No.112/2004 such lands. So also, with regard to the lands which are paddy field, it is well settled that such lands cannot easily be used for non- agricultural purposes. Apart from that the appellants have failed to adduce any evidence to show any comparable sale instance with the paddy field land. Hence, the Reference Court is justified to refuse any enhancement of compensation towards the paddy field portion of the acquired land. 11. The only determination of the compensation which remains to be considered is the land which was classified by the Land Acquisition Officer as cashew land wherein compensation was fixed at the rate of Rs.18/- per square metre and the land which was classified by the Land Acquisition Officer as bharad land wherein the compensation was fixed at the rate of Rs.20/- per square metre. The Reference Court while relying upon the said Sale Deed at Exhibit 16 has effected the said deductions and found that the amount offered by the Land Acquisition Officer cannot be said to be inadequate. The evidence on record suggests that the land which was sold pursuant to a sale deed at Exhibit 16 is an agricultural land and that the land acquired was also an agricultural 11 F.A. No.112/2004 property. The Sale Deed does not suggest that any trees were existing in the portion of the property sold for which any amount was included in the consideration paid by the purchaser. Apart from that, the suggestion put by the respondents as stated above itself establishes that the Sale Deed lands and the lands acquired are similar in nature and have similar potentialities. Consequently, the Sale Deed at Exhibit 16 can form the basis for the purpose of determining the market value of the acquired land. The Reference Court has found two dissimilarities between the sale deed plot and the land acquired. There is no doubt that the Sale Deed plot was abutting on two sides of the PWD road. This factor itself suggests that such land had better potentiality of being used for non- agricultural purposes. The Reference Court has effected a deduction of 25% on that count. We find no infirmity in such deduction being effected by the Reference Court. The other dissimilar factor noted by the Reference Court is that the land acquired is admittedly admeasuring nearly 2 lacs square metres whereas the Sale Deed plot admeasures an area of about 4500 square metres. No doubt a deduction is to be effected on account of the largeness of the acquired land. In the present case, evidence 12 F.A. No.112/2004 on record suggests that the land of the appellant was being used for agricultural purpose and the same was a developed agricultural land. This factor would also have to be taken note for the purpose of effecting deduction on such count. On the contrary, there is no evidence to suggest that the sale Deed plot was in fact a developed agricultural land. There is also evidence on record to suggest that the land acquired was fertile land and had irrigation facilities. 12. The Apex Court in the judgment reported in 2010 (5) SCC 708 in the case of Special Land Acquisition Officer V/s. Karigowda & Ors. has held at para 90 and 91 thus: “90. In the present cases, the claimants have not only lost their agricultural land but they have also been deprived of seasonal income that was available to them as a result of sale of mulberry leaves. Deprivation of livelihood is a serious consideration. The Court is entitled to apply some kind of reasonable guesswork to balance the equities and fix just and fair market value in terms of the parameters specified under Section 23 of the Act. The SLAO has ignored both these aspects firstly providing of annual increase, and secondly, giving some weightage to the special agricultural purpose and the purpose for which the mulberry crop had to be utilised. The claimants have not proved and produced on record sale instances. They have also not produced on record any specific evidence to justify the compensation awarded to them by the 13 F.A. No.112/2004 Reference Court and/or the High Court. In fact, there is hardly any evidence, much less a cogent and impeccable evidence to support the increase on the basis of net income capitalisation method. 91. It is a settled rudiment of law that the court, in given facts and circumstances of the case and keeping in mind the potentiality and utility of the land acquired, can award higher compensation to ensure that injustice is not done to the claimants and they are not deprived of their property without grant of fair compensation. Reference, in this regard, can be made to the judgment of this Court in Land Acquisition Officer v. Kamadana Ramakrishna Rao. While adopting the average sale method as the formula for awarding compensation to the claimants, we are also of the considered view that in the peculiar facts and circumstances of the case and the fact that the land is being compulsorily acquired, the claimants should be awarded a higher compensation. The compensation at the rate of Rs 2,30,000 per acre for the wetland and at the rate of Rs 1,53,400 per acre for the dry land would be just and fair compensation and would do complete justice between the parties. This element of increase had not been added by the SLAO which ought to have been done.” 13. Considering the principles enumerated above by the Apex Court, we find that the evidence suggests that the sizable portion of the land which was used for agricultural purpose by the appellant would be lost on account of the said acquisition. As such, on account of the said largeness of the acquired land, we find that the 14 F.A. No.112/2004 deduction of 25% instead of 35% would meet the ends of justice. Consequently, after effecting deduction of 50% the amount works out to Rs.22.50. The compensation offered by the Land Acquisition Officer at Rs.20/- per square metre for the said part of the land acquired is to be enhanced to Rs.22.50 per square metre with regard to the land which was considered to be cashew garden. Such land is essentially a hilly area. The Land Acquisition Officer has assessed the compensation for such cashew land at the rate of Rs.18/- per square metre. Considering the facts of the present case, the compensation for all the said lands classified as cashew garden lands, is enhanced from Rs.18/- to Rs.20/- per square metre. 14. The Reference Court was justified to discard the evidence of agricultural expert on the ground that the same has not been evaluated on the basis of the actual yield, but only on the basis of notional income which is without any basis. There is no evidence to show the actual loss sustained by the appellant and the actual yield of the property which has been acquired. Hence, on the basis of the said sale instance the market value of the acquired land with regard to the bharad land is enhanced from Rs.20 to Rs.22.50 per 15 F.A. No.112/2004 square metre and with regard to the land classified as cashew garden compensation is enhanced from Rs.18/- to Rs.20/- per square metre. The point for determination is answered accordingly. 15. In view of the above we pass the following order: O R D E R (i) The appeal is partly allowed. (ii) The impugned judgment and award is modified and the appellant is entitled for compensation at the rate of Rs.22.50 with regard to the land classified as bharad land and Rs.20/- per square metre with regard to the land classified as cashew land. (iii) Needless to say that the appellant would be entitled for statutory benefits under the provisions of Section 23(1-A), 23(2) & 28 of the said Act in accordance with law. (iii) Remaining part of the judgment refusing the claims of the appellant is confirmed. (iv) The appeal stands disposed of accordingly with no order as to costs. S.A. BOBDE, J. F.M. REIS, J. NH/-