JUDGMENT :

1. Heard Ms. Sulekha Kamat, learned Additional Government Advocate for the appellant-State.

2. The State by instituting this appeal challenges the Judgment and Award dated 21.12.2013 made by the Reference Court in Land Acquisition Case No.3/2007 enhancing the compensation from Rs.53/-per sq. mtr. for the acquired land falling within the settlement zone to Rs.120/-per sq.mtr. and from Rs.20/-for the land falling within the orchard zone to Rs.90/-per sq. mtr.

3. By notification dated 28.01.2002, the Government proposed to acquire land admeasuring 4366 sq. mtrs. at Betqui Candola of Ponda Taluka. The acquisition was for improvement and black-topping of the road from Palsari diversion to Tamsuli. The acquired property bears Survey No.99(Part) of Village Candola of Ponda Taluka. Out of this, property admeasuring 987 sq. mtrs. belongs to the respondent.

4. The Land Acquisition Officer (LAO) by his Award dated 15.12.2004 awarded compensation of Rs.53/-per sq.mtr. for an area of 450 sq.mtrs. falling within the settlement zone and Rs.20/-per sq.mtr. for the balance area of 537 sq.mtrs. falling within the orchard zone.

5. The respondent, dissatisfied with the rate awarded, applied for reference under Section 18 of the Land Acquisition Act (said Act) claiming compensation at Rs.200/-per sq.mtr. for the land in the settlement zone and Rs.100/-per sq.mtr. for the land in the orchard zone.

6. The Reference Court by the impugned Judgment and Award has enhanced the compensation by determining the market rate for the land in the settlement zone at Rs.120/-per sq.mtr. and Rs.90/-per sq.mtr. for the land in the orchard zone. Hence the present appeal.

7. Ms. Sulekha Kamat learned Additional Government Advocate firstly pointed out that the sale deed dated 26.08.2004 (Exh.13) relied upon by the Reference Court was a post Section 4 notification sale deed. She submits that such a sale deed could not have been taken into consideration by the Reference Court. She relies on Kolkata Metropolitan Development Authority vs. Gobinda Chandra Makal and Anr., (2011) 9 SCC 207 in support of this contention.

8. Ms. Kamat secondly submits that the sale instance at Exh.13 was not at all a comparable sale instance. She points out that the respondent in his evidence had not deposed on the aspect of comparability but had merely produced this sale deed. She points out that no expert witness had been examined in support of comparability. She submitted that since this sale instance was not comparable, the same could not have been relied upon even after making deductions as made by the Reference Court. She relies on Land Acquisition Officer, Hyderabad & Ors. vs. Male Pullamma & Ors., (1996) 8 SCC 247 in support of this contention.

9. Ms. Kamat submits that in this case there is no evidence about any income, either agricultural or otherwise, from the acquired property. Therefore, the compensation, in this case, could not have been determined by the capitalization method. She submits that even the sale instances cannot mechanically relied upon because there can be a marked difference between the amenities and facilities available to the sale deed plot and the acquired land. In support of this contention, she relies on Special Deputy Collector and Anr. vs. Kurra Sambasiva Rao & Ors., AIR 1997 SC 2625 and Deputy Collector (Dev) & LAO, Panaji & Anr. vs. Vithal Biku Patekar, 1998 (2) Goa L.T. 474.

10. For all the aforesaid reasons Ms. Kamat submits that the impugned award warrants interference.

11. As regards the first contention raised by Ms. Kamat, it is true that normally post Section 4 notification sale instances are not to be taken into account. However, from this, it does not follow as an inflexible rule that the post Section 4 notification sale instances are completely irrelevant and can never be relied upon.

12. In Chimanlal Hargovinddas vs. Special LAO, Poona & Ors., 1988 (3) SCC 751 the Hon’ble Supreme Court held that even post Section 4 notification sale instances can