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2022 Supreme(Bom) 648
IN THE HIGH COURT OF BOMBAY AT GOA
M.S. SONAK, J
Special Land Acquisition Officer, Selaulim Irrigation Project – Appellant
Versus
Communidade of Margao Represented by its attorney Mr. Celestino Noronha – Respondent
First Appeal No.104 of 2018
Decided on : 07-04-2022
Advocate Appeared:
For the Appellant :Mr. Prashil Arolkar, Additional Government Advocate
For the Respondent:Mr. R. Menezes, Advocate
Headnote:
Land Acquisition Act, 1894 – Acquisition of Land – Appeal for Enhancing Compensation - Appeal is directed against judgment and award made by reference Court in Land Acquisition Case enhancing the compensation for acquired land from Rs.130/- per square metre to Rs.1590/- per square metre - State by notification initiated acquisition for public purpose of constructing “missing link widening of traffic congestion location in Margao city” - Respondent's land to the following extent was proposed for acquisition – Held, Rate of Rs.1400/-per square metre could be an appropriate rate considering the evidence on the record as also the law laid down by the various decisions relied upon by the learned counsel for the parties. Moreover, this rate will represent the market rate, particularly because there is no dispute that the acquired properties were in Margao town/city and had the benefit of several urban amenities - from out of the compensation amount deposited by the appellants in this Court, the Respondent – Communicate is permitted to withdraw the compensation together with statutory benefits based on the redetermined rate of Rs.1400/-per square metre and not Rs.1590/-per square metre only to the extent of one-third. The State will be entitled to withdraw the balance compensation. Both the parties will be entitled to the proportionate interest on their respective shares - Appeal is allowed.
JUDGMENT :
1. Heard Mr. Prashil Arolkar, learned Additional Government Advocate for the appellants, and Mr. R. Menezes, learned counsel for the Respondent–claimant.
2. This appeal is directed against the judgment and award dated 29th April 2017 made by the reference Court in Land Acquisition Case No.25/2014 enhancing the compensation for the acquired land from Rs.130/- per square metre to Rs.1590/- per square metre.
3. The State by notification dated 02.12.2010 initiated acquisition for the public purpose of constructing “missing link widening of traffic congestion location in Margao city”. The Respondent's land to the following extent was proposed for acquisition.
| Sr. No. | Chalta No. P.T. Sheet No. of Margao City | Area acquired |
| 1 | Chalta No.81, P.T. Sheet No.274 | 135 sq.mts. |
| 2 | Chalta No.139, P. T. Sheet No.280 | 4 sq. mts. |
| 3 | Chalta No.45/4, P. T. Sheet No.281 | 4005 sq. mts. |
|
| Total | 4144 sq. mts. |
4. The Special Land Acquisition Officer by his award dated 18.01.2013 determined the compensation at Rs.130 per square metre. The Respondent (Comunidade) applied for reference and now the reference Court, by impugned judgment and award dated 29.04.2017 has enhanced to Rs.1590/-together with all statutory benefits provided in the Land Acquisition Act, 1894 ( the said Act). Hence, this appeal by the State.
5. Mr. Arolkar learned Additional Government Advocate submits that the reference Court erred in accepting the agreement for sale cum development dated 07.11.2007 as the sole basis for determining the market rate. He submits that this was only an agreement and could not have been relied upon. He submits that the agreement was regarding a fully developed area having structures in it. He submits that the consideration was also to be paid partly in cash and partly by real estate. He submits that the property that forms such an agreement's subject matter can never be held as comparable to the acquired property. He submitted that such property could never have been compared with the property bearing Chalta No.45/4 admeasuring 4005 square metres that was tenanted paddy field.
6. Mr. Arolkar without prejudice to those mentioned above submitted that no proper deductions were made for the tenancy factor after considering the provisions of the Goa Land Use Act, 1991 and the decision of the Hon'ble Supreme Court in Goa Housing Board Vs Rameshchandra Govind Pawaskar and another, (2011) 10 SCC 371. He also relied on Albert Fernandes Vs Special Land Acquisition Officer, Goa, IDC and another, 2011 SCC OnLine Bom 1675 to support this contention. He submits that no deductions have been made because the acquired land was not freehold land but land owned by the Comunidade subject to several restrictions regarding alienation. He relied on the Goa Housing Board and another Vs Attorney of Communidade of Mapusa, 2008 (2) Mh. L.J. 151 to support this proposition.
7. Based on the aforesaid, Mr. Arolkar submitted that the impugned award warrants interference. In any case, the rate determined in the impugned award is liable to be scaled down substantially.
8. Mr. Menezes, learned counsel for the Comunidade defends the impugned award based on its reasoning. First, he submits that the duly registered agreement fairly represents the amount that the willing purchaser had agreed to pay to the willing seller. He submitted that there is no evidence of structures like a house or building and reference to the structures in the schedule could very well include the small structures here and there. Third, he submits that from the tenor of the agreement, it is quite clear that it is the property that was agreed to be sold for development purposes. Finally, he submitted that the Comunidades are entitled to alienate their properties after seeking permissions and therefore, they are not in that sense, not freehold properties as conten
