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2010(4) ALL MR 860
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)
A.S.OKA & F.M. REIS, JJ.
Benjamin Pereira – Appellant
Vs.
The Special Land Acquisition Officer Goa-IDC & Anr. – Respondents
First Appeal No.12 of 2007
Decided on : 10th June, 2010.
Land Acquisition Act, 1894 - Section 18 - Goa Land Use (Regulation) Act, 1991, Section 2 - Goa, Daman and Diu Agricultural Land Tenancy Act, 1964, Sections 2 and 18-A - Reference under Section 18 of L.A. Act, 1894 - Dismissal of - Appeal against - Contention, market value of acquired land not less than Rs. 300/- per sq. mtr. and Reference Court wrongly maintained award of L.A.O. at rate of Rs. 19/- per sq. mtr. - Held - Appellant is a tenant as deemed purchaser of acquired land/agricultural land - Can vested in appellant in terrors of Section 18-A of Act 1964 - Section 2 of Act 1991 prohibits its use for any purpose other than agriculture - Piece of developed land cannot be compared with this land - Overall industries growth in vicinity has to be taken note of escalation @ Rs. 3/- per sq. mtr. per year can be adopted - Impugned judgment and award modified - Appellant entitled to market value of acquired land at rate of Rs. 21/- per sq. mtr. with statutory benefits - Appeal partly allowed. - When comparison method is adopted to determine the market value of the acquired land, the test is what a willing genuine and bona fide buyer will offer as price for the acquired land on the date of publication of a notification under Section 4 of the said Act. In view of Section 2 of the said Act of 1991, a genuine buyer will offer a price which is payable only in respect of an agricultural land. He will not offer the price on the basis of the potential for non-agricultural use in as much as in view of Section 2 of the said Act of 1991, no use except agricultural use will be ever permitted. Therefore, we reject the submission based on Section 3 of the said Act of 1991. Therefore, for the purposes of the determination of the market value of the acquired land, a sale instance of a developed land or a sale distance of a land having potential for non-agricultural use will not be relevant.
Thus, what Court find is that as on 16th August, 1994 the market value of the land compellable to the acquired land was fixed at the rate of Rs. 15/- per square meter. On the basis of the said market value, as on 6th December, 1996, the market value of the acquired land will have to be determined. The question is what was the escalation in market value within a period of about two years. The evidence on record shows that there was overall industrial growth in the vicinity of the acquired land during the period. Though the agricultural user of the acquired land cannot be changed, a part of it can be used for construction of farmhouse. Therefore, overall industrial growth in the vicinity of the acquired land will certainly have a positive impact on the prices of agricultural lands in the area. Escalation at the rate of Rs. 3/- per square meter per year can be reasonably adopted in this case. The Apex Court in many decisions including the decision in the case of (Prtvi Raj Taneja v. The State of Madhya Pradesh, 1977 DGLS (soft) 31 : 1977 (1) SCC 684 has held that there is an element of guesswork inherent in determination of market value of the land in accordance with Section 23 of the said Act. Therefore, Court deem it fit to fix the total market value in the present case at the rate Rs. 21/- per square meter. The enhancement will be at the rate of Rs. 2/- per square meter. The appellant shall be entitled to statutory benefits under Sections 23(1-A), 23(2) and 28 of the said Act. Therefore, we proceed to partly allow the appeal and hence pass the following order.
A. S. OKA, J.:- We have heard the learned Counsel appearing for the Appellants. We have heard the learned Counsel appearing for the second Respondent and also the Government Advocate appearing for the first Respondent in support of the impugned judgment and award.
2. This appeal takes exception to the Judgment and Award dated 17th November, 2006 passed by the Learned District Judge by which a reference under Section 18 of the Land Acquisition Act of the said Act of 1894 (hereinafter referred to as "the said Act") made at the instance of the Appellant has been dismissed.
3. The acquisition relates to land bearing survey no.220/1 of village Colvale. The area of the acquired land is 2,18,820 square meter. Notification under Section 4 of the said Act of 1894 was published on 6th December, 1996. An award was made on 12th July, 2001 under Section 11 of the said Act of 1894. By the award under Section 11, the market value at the rate of Rs.19/ - per sq. meter was offered.
4. In the reference application it was contended that the area of the acquired land was 2,13,877 square meter and not 2,12,820 square meter. It was contended that the market value of the acquired land was not less than 300 per square meter.
5. Evidence was adduced by the appellant. The appellant examined his son who was his Constituted Attorney. The appellant has also examined other witnesses including one Mr.
Menezes, an expert valuer, who is a retired Government servant. Reliance was placed by the appellant on Sale-deed dated 22th August, 1997 (Exhibit 30) in respect of a plot of land having an area of 190 square meter situated at the same village, by which the land was sold at the rate of Rs.184/- per square meter. Reliance was also placed on another sale-deed dated 27th March, 1992 (Exhibit 31) relating to land admeasuring 1950 square meter situated in the same village. The said land was sold at the rate of Rs.77/- per square meter.
6. The Learned District Judge rejected the reference on the ground that the appellant had not discharged the burden of proving that the compensation offered under the award under section 11 of the said Act was inadequate.
7. The Learned Counsel appearing for the appellant has placed reliance on a decision of the Division Bench of this Court dated 26th September, 2008 in First Appeal No.101 of 2003. He submitted that the said case was of land admeasuring 9513 square meter forming part of survey no. 102/1 of the same village which was required for public purpose of construction of Rest House and Staff Quarters of Tillari Irrigation Project. The notification under section 4 of the Act in respect of the said land was published on 26th August, 1991. The Reference Court fixed rate of Rs.140/ - per square meter. He pointed out that the said rate had been confirmed by this Court. He submitted that the land subject matter of the said appeal before this Court was comparable in all respect with the acquired land which is subject matter of the present appeal. He submitted that reliance cannot be placed on Section 2 of the Goa Land Use (Regulations) Act, 1991 (hereinafter referred to as "the said Act of 1991), in view of exemption provided under Section 3 of the said Act of 1991. He submitted that once the land is put to acquisition, the embargo of sub-section 2 of the said 1991 will have no application. Relying upon the decision of Nelson Fernandes and others Vs. Special Land Acquisition Officer, South Goa and others, (2007)9 Supreme Court Cases 447, he submitted that the purpose of acquisition has to be taken into consideration while fixing the market value. He invited our attention to the purpose of acquisition in the present case which was for expansion of Colvale Industrial Estate. He submitted that the very fact that the land was acquired for expansion of the industrial unit shows that the lands in the vicinity of the village were already put to industrial use on the relevant date. Lastly, without prejudice to the aforesaid submissions, he
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