The Managing Director, Goa IDC vs Communidade of Nagoa

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2010 Supreme(Bom) 1012

In the High Court of Bombay at Goa
THE HONOURABLE MR. JUSTICE A.S. OKA & THE HONOURABLE MR. JUSTICE F.M. REIS
The Managing Director, Goa IDC & Another
Versus
Communidade of Nagoa & Others
FIRST APPEAL NO. 300 OF 2003 WITH FIRST APPEAL NO. 317 OF 2003 WITH FIRST APPEAL NO. 300 OF 2003 AND FIRST APPEAL NO. 317 OF 2003
Decided on : 22-07-2010

Advocates appeared:
For the Appellants:M. S. Sonak with J. Supekar & F. E. Noronha, Advocates.
For the Respondents:R1, F. E. Noronha, R2, R1, S. Vahidulla, Government Advocate, R2, M. S. Sonak with J. Supekar, Advocates.

Headnote:Land Acquisition Act, 1894 - Sections 11 and 18 - Cross appeals - Challenging judgment and award dated 8.8.03 of Reference Court partly allowing reference - Held - Reference Court rightly taken sale instance, Exhibit-24 pertaining to land having similarity to present acquisition as basis for compensation - Deduction of 60% of value by Reference Court being excessive required to be reduced - Exact escalated value works to Rs. 61 per sq. mtr. - Deduction 20% be effected from it - Other parts of land properly classified, warrants no interference - Award modified accordingly - appeal partly allowed. - In the present case, the land which has been acquired in the award at Exhibit 24 was admeasuring 25,000 square metres while the area acquired in the present proceedings is about 4,67,375 square metres from different survey numbers. Even with regard to the property surveyed under No. 40/- part, the area is 60,250 square metres. There is no dispute that the best part of the land which was subject-matter of the acquisition is the one surveyed under No. 40/part. The learned counsel appearing for the respondents has submitted that in the previous award at Exhibit 24, the deductions on account of restrictions imposed under the Code of Communidade with regard to transfers has not at all been considered and, as such, a deduction of 50 per cent on that account is to be effected. We do not agree with the said submissions of the leaned counsel. Once the award is in respect of a portion of the same property, the market value fixed therein having been accepted by the State, cannot be thereafter disputed as being not acceptable for the purpose of determining compensation in subsequent acquisition since judgments are also relevant for determining the market value of the land acquired as they are binding on the State and, as such, can form the basis for determining the market value of the land acquired. The restrictions on transfer of lands of Communidade, were very much existing when the said Award at Exhibit 24 was passed. There is no evidence on record adduced by the respondent to establish that such restrictions were not considered by the Court whilst passing the Award at Exhibit 24. In any event, it is not open for the respondent No. 2 to now contend that the market value fixed therein is not in accordance with the legal propositions as the Award is binding on State as being the market value of land prevailing as on the date of Notification in the said Award. The price fixed in the said Award is at the rate of Rs. 40/- per square metre. The Notification in Exhibit 24 was issued on 6th August, 1985, whereas the Notification in the present case was published on 8th January, 1990 i.e. within a gap of about four and half years. After allowing an escalation of 10 per cent per annum on cumulative basis, the amount works out to Rs. 61/- per square metre. Now, we shall proceed to consider the deduction on account of classifications, etc., with the acquired land.
       The area involved in the said Award at Exhibit 24 is 25,000 square metres whereas the area involved in the present acquisition proceedings to survey No. 40/ part is 60,000 square metres. AW 1 states that it is accessible by the IDC road. There is no evidence whether the area in 1st Belt admeasuring 29,600 square metres which is mostly rocky and bharad land, is by itself adjacent to the road. The land acquired in Exhibit 24 was adjoining the road. All these factors will have to be taken into consideration to determine the deduction to be effected. Considering the development charges as well as the other restrictions imposed with regard to the lands of the applicant, we find that a reasonable deduction of 20 per cent is to be effected from the said value of Rs. 61/- per square metre. The market value as such for the said portion of 29,600 square metres of the property surveyed under No. 40/- part is fixed at Rs. 48/- per square metre.
        In respect of the property surveyed under No. 40/part, the area which has been classified is under the first Belt admeasures an area of 29,600 square metre. As such, we find that the market value of the land for the said area of land would be Rs. 48/- per square metre. The remaining portion of the property surveyed under No. 40/part which is subject-matter of the present acquisition, consists of an area of 6,650 square metres which comes within the 50 metres Green Belt for which the Land Acquisition Officer has fixed the compensation at Rs. 5/- per square metre. Considering that the said land cannot be used for any non-agricultural purpose in view of the restrictions imposed therein, we find that the compensation awarded by the Land Acquisition Officer in respect of the said land should be fixed at Rs. 5/- per square metre as there is no evidence on record to substantiate that the said price is inadequate. To that extent, the amount fixed by the Reference Court deserves to be modified. The remaining area of 24,000 square metres which forms part of the survey No. 40/part is sloppy land which is undeveloped land and not suitable for allotment. This land has potentialities of being developed after substantial expenditure. Considering the judgment of the Apex Court in Subh Ram and others, (supra), the deduction on account of development in view of the dissimilarities, would be 60 per cent and, as such, the market value of the land with regard to the said area of 24,000 square metres is fixed at Rs. 24/- per square metre. To that extent, the judgment of the reference Court has to be modified.
       In respect of the land surveyed under No.30/part, we find that the Land Acquisition Officer has classified the said land as IVth Belt. The area involved therein is admeasuring Rs. 85,225 square metres and the amount awarded is Rs. 2.50 per square metre. The land in IVth Belt is considered to be low lying area about 2 to 3 metres deep. Considering the nature of the said land, the development charges would be quite excessive. In view of the said judgment of the Apex Court in Subh Ram and others, (supra), we find that deduction of 67 per cent is to be effected with regard to the said land. Accordingly, we fix the compensation at the rate of Rs. 20/- per square metre for the said portion of the property admeasuring an area of 85,225 square metres. The impugned award to that extent is to be modified.
       The remaining portion of the land acquired in the present acquisition is surveyed under No. 34/part. The said land has been classified as IVth bharad in Belt V for an area of 89,075 square metres and in IVth Belt for an area of 2,29,821 square metres. For the area located in the IVth Belt, Court have fixed the compensation at Rs. 20/- per square metre for an area of about 85,000 square metres. However, the area involved in this survey number is over two lakhs square metres. As such, Court find that the maximum deduction of 75 per cent is to be effected as per the judgment of the Apex Court in Subh Ram and others (supra). Hence of the said area of 2,29,821 square metres, Courtfix the market value at the rate of Rs. 15/- per square metre. The remaining portion of land having an area of 89,079 square metres, from the property surveyed under No. 34/part, is located in IVth bharad land which is under developed and not suitable for allotment. Considering the said nature of the land, Courtfix the compensation at the rate of Rs. 20/- per square metre with regard to the said land. To that extent, the impugned judgment and award is to be modified. The points for determination are answered accordingly.
       Land Acquisition Act, 1894 - Sections 18 and 34 - Acquisition of land - Compensation - Award of compensation by L.A.O. - Reference sought by applicant under Section 18 of Act for enhancement of compensation - Reference Court partly allowed Reference and awarded compensation - Impugned judgment and award dated 8.8.2003 of Reference Court challenge in First Appeal - Appellant contended that he adduced cogent evidence on record to substantiate that value of land as on date of notification under Section 4 of L.A. Act much higher than one awarded by Reference Court - Appellant entitled for higher compensation as one awarded by Reference under Section 18 of Act - Held - Reference Court, whilst passing impugned judgment rightly relied upon document at exhibit 24 for determination of market value of acquired land - Increased by 10% p.a. - Deductions made by Reference Court excessive - Ought to be reduced - Impugned judgment and award modified to that extent - Remaining part of impugned judgment granting statutory benefits upheld - Appeal partly allowed.

JUDGMENT

F. M. Reis, J.

The above Appeals have been taken up for final disposal together as both challenge the same Judgment and Award dated 8th August, 2003, passed by learned District Judge at Margao, in Land Acquisition Case no. 136/1997.

2. The parties shall be referred to as they so appear in the cause title of the impugned Award.

3. Both the above Appeals have been preferred challenging the Judgment and Award passed by the learned District Judge, Margao, in Land Acquisition Case no. 136/1997 dated 8th August, 2003, whereby the reference preferred by the Applicant was partly allowed and the market value of the land acquired was fixed at Rs.24/- per square metre in respect of 30,650 square metres of survey no. 40/part and for the balance land at a uniform rate of Rs.14/- per square metre.

4. By a Notification under Section 4 of the land Acquisition Act, 1894, (hereinafter referred to as 'the said Act'), published in the Official Gazette dated 22nd March, 1990, the land belonging to the Applicant admeasuring 4,60,375 square metres was acquired from survey nos. 40/part, 30/part and 34/part, situated at Nagoa Village for the expansion of the Verna Industrial Estate (Verna Plateau) Phase -II. After complying with the formalities under the Land Acquisition Act, by an award dated 19th April, 1993, the Land Acquisition Officer awarded different rates from Rs.2.20 to Rs.10/-per square metre for different types of land belonging to the Applicant. Being dissatisfied with the amount of compensation awarded, the Applicant sought a reference under Section 18 of the said Act for enhancement of compensation and claimed the compensation at the rate of Rs.200/- per square metre for the land acquired. After recording the evidence and examining the witnesses, the Reference Court by the impugned Judgment and Award dated 8th August 2003, partly allowed the reference and awarded a compensation for the land acquired at the rate of Rs.24/- per square metre in respect of an area of 30,650 square metres from survey no.40/part and for the balance land at a uniform rate at Rs.14/- per square metre.

5. Being aggrieved by the said Judgment and Award, the Respondent no.2, who is the Acquiring Body and Appellants in First Appeal no. 300/2003, have preferred the said Appeal. On the other hand, the Applicant, who is the Appellant in First Appeal no. 317/2003, has also challenged the said Judgment and Award passed by the learned Reference Court.

6. The learned Counsel appearing for the Respondent no.2 has assailed the Judgment passed by the Reference Court and submitted that there is no material on record for the Reference Court to enhance the compensation for the land acquired at the rate of Rs.24/-per square metre. He submitted that the sale instances sought to be relied upon by the Applicants are not at all comparable with the land acquired. He further submitted that the Reference Court has erroneously relied upon the Award at exhibit 24 to enhance the compensation as there is no evidence on record that the land in the said Award was similar to the land acquired though it forms part of the same survey no. 40/part. He further submitted that the acquired land is a Communidade land and in view of the restrictions imposed under the Code of Communidade, such land cannot be used for any construction purpose without complying with the provisions of the Code of Communidade. He further submitted that the lands of Communidade have got restrictions from being transferred and, as such, the question of awarding the compensation at the rate of Rs.24/-per square metre for the land acquired, does not arise at all. He further submitted on account of such restrictions, deduction of 50 percent is to be effected to arrive at the market value of land. He also pointed out that such restrictions were not considered in the Award at exhibit 24. The learned Counsel further submitted that apart from the land surveyed under no. 40/part, the remaining portion of the land acquired

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2010 Supreme(Bom) 1012

Cases Referred (5)