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2011 Supreme(Bom) 1515
BOMBAY HIGH COURT AT PANAJI, GOA
A.P. LAVANDE & R.P. SONDURBALDOTA, JJ.
Special Land Acquisition Officer, Goa and another – Appellants
Versus
Antonio Carvalho and another – Respondents
First Appeal Nos. 1 & 103 2002 and 156 & 297 2005
Decided On: 22nd December, 2011
Mr. E. Afonso & M.P. Almeida Advocate, for the appellants.
Mr. I. Agha & A.D. Bhobe, Advocate, for the respondents.
Headnote:LAND ACQUISITION ACT, 1894 - Sections 18 and 23 - First Appeals - Against judgment dated 31.8.2001 of Reference Court in Land Acquisition case enhancing market rate of acquired land - Appellant seeking further enhancement - Contention that since acquired land at a distance of about 500 metres from Electronic City hence Reference Court ought to have granted higher compensation - Appellant relied upon 4 sale deeds - Reference Court deducted 33%.
Held - Approach of Reference Court in deducting 33% towards development costs not sustainable - Appellant entitled to compensation at rate of Rs. 200/- per sq. mtr. - No deduction can be made - Appellant also entitled to compensation of Rs. 14,049.60 towards trees existing thereon - Market rate of land in respect of survey No. 128 Part having area of 1400 sq. mtrs. fixed at Rs. 200/- per sq. mtr. - Market rate of acquired land bearing survey Nos. 5/1, 5/2 fixed at Rs. 82/- per sq. mtrs. - Market rate of acquired land bearing survey Nos. 143/1, 145 fixed at Rs. 130/- per sq. mtr. - Claimants also entitled to all statutory benefit under Act - Appeal disposed of.
The evidence led by the applicants to which reference has been already made, establishes that the acquired land was abutting Airport road, whereas plot in sale deed-AW 1/A had no such an advantage. However, the sale deed plot was admeasuring 325 square metres, whereas the acquired land is 1400 square metres. Moreover, in the acquired land, there were admittedly some cashew and mango trees and some other types of trees, whereas the sale deed plot did not have any trees thereon. Therefore, positive and negative factors of the sale deed plot and the acquired land balance each other and, therefore, the market rate of the acquired land as on the date of Section 4 Notification can be safely taken to be Rs. 200/- per square metre.
Insofar as the land of Communidade is concerned, the Communidade has restricted its claim to only four survey numbers namely 5/1, 5/2, 143/1 and 145. Insofar as the lands bearing survey Nos. 5/1 and 5/2 are concerned, the Reference Court has referred to the evidence of AW 5 Krishna Prabhudessai which establishes that the lands under Survey No. 143/1 and 145 were opposite the land under Survey No. 128 which was subject-matter in Land Acquisition Case No. 394/1995. The evidence of AW 5 establishes that Survey No. 128 is on the northern side of the road whereas lands bearing Survey Nos. 143 and 145 lie on the southern side of the road. His evidence establishes that the land under Survey No. 128 is separated from Survey Nos. 143 and 145 by the highway proceeding Verna Plateau to Birla. He deposed that land bearing Survey No. 128 which was subject matter of exhibit AW 1/H was Bharad land with moorum soil. He further deposed that the said land was similar in nature as Survey Nos. 143 and 145.
The lands under Survey Nos. 143/1 and 145 were rocky lands, whereas there is no evidence on record to show that the land involved in Land Acquisition Case No. 394/1995 ad measuring 1400 square metres was rocky land. In Court’s considered opinion, the deduction of 10% will have to be made on this count. Court has held that the market rate of the land which was subject-matter of Land Acquisition Case No. 394/1995 as on the date of publication of Section 4 Notification was Rs. 200/- per square metre. Therefore, deducting 35% from the market rate of the acquired land in Land Acquisition Case No. 394/1995, the market rate of the land under Survey Nos. 145 and 143/1 works out to Rs. 130/- per square metre.
A.P. LAVANDE, J.
1. Heard the learned Counsel for the parties.
2. All these four appeals are being disposed of by common judgment since they arise out of the judgments delivered by Additional District Judge, South Goa, Margao in Land Acquisition Cases arising out of the same Notification issued under Section 4 of the Land Acquisition Act (the Act for short).
3. By Notification dated 30.9.1991 issued under Section 4 of the Act, the lands belonging to several persons were acquired by the Government of Goa for Konkan Railway Corporation (the KRC for short) for construction of new BG line. The land belonging to the appellants in First Appeal No. 103 2002 (hereinafter referred to as Carvalhos) and the land belonging to the appellant in First Appeal No. 156 of 2005 (hereinafter referred to as the Communidade) were also acquired. An area admeasuring 1400 square metres of Survey No. 128 Part of Cortalim village belonging to Carvalhos whereas an area of 1,06,042 square metres belonging to the Communidade bearing several survey numbers of village Cortalim were part of the acquired land. In respect of Carvalhos' land, the Land Acquisition Officer awarded Rs. 4/- per square metre and further awarded Rs. 14,04,960 towards trees. Insofar as the land of Communidade is concerned, the Land Acquisition Officer awarded Rs. 4/- per square metre for Survey Nos. 143/1, 145, 5/1 and Rs. 2/- for Survey No. 5/2 and an amount of Rs. 825/- towards the value of the trees in Survey No. 5/1 and Rs. 2200/- for trees in Survey No. 5/2.
4. Dissatisfied with the compensation awarded, Carvalhos sought reference under Section 18 of The Act and claimed an amount of Rs. 450/- per square metre. The Communidade also sought reference under Section 18 of The Act and claimed compensation at the rate of Rs. 300/- per square metre.
5. The reference sought by Carvalhos was registered as Land Acquisition Case No. 394 of 1995. The Reference Court framed the following issues:-
(i) Whether the applicants prove that the total area actually taken possession by Collector is 1800 sq. mts. and not 1400 sq. mts. as notified?
(ii) Whether the applicant proves that the market value was Rs. 450/- per sq. mts?
(iii) Whether the applicants prove that they are entitled to Rs. 50,000/- towards the expenditure incurred in creating the infrastructure for submitting the development plans for approval viz. the Architects fees for drawing Courteous and subdivision and other miscellaneous expenditure?
(iv) Whether the applicant proves that Rs. 5,00,000/- towards injurious affection and damages due to the passing of the Railway line?
(v) What relief? What order?
6. In support of the claim of enhancement of compensation, Carvalhos examined four witnesses, namely Antonio Carvalho-AW 1, Maria Carvalho-AW 2, who was seller in sale deed dated 23.4.1991 by which an area of 325 square metres of agricultural land was sold at the rate of Rs. 200/- per square metre, Vikas Dessai-AW 3 and Domnic Diniz-AW 4, who was purchaser of the plot admeasuring 350 square metres which was purchased at the rate of Rs. 95/- per square metre by sale deed dated 1.10.1986, Antonio Carvalho- AW 1 relied upon four sale deeds, the details of which are as follows.
7. The Reference Court after considering the evidence led by Carvalhos and more particularly the sale deeds relied upon by Carvalhos held that the small plot of land in the neighbourhood of the acquired land could be sold at the rate of Rs. 200/- per square metre and considering that the area acquired was 1400 square metres, by judgment and order dated 31.8.2001, the Reference Court enhanced the market rate of the acquired land to Rs. 134/- per square metre.
8. The KRC has filed First Appeal No. 1 of 2002 challenging the enhancement granted by the Reference Court whereas aggrieved by the inadequacy of the compensation. Carvalhos have filed First Appeal No. 103 of 2002 claiming compensation at the rate of Rs. 450/- per square metre.
9. The reference sought by the Communidad
