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2010 DIGILAW 380 (BOM)

ANTONIO CARVALHO v. EXECUTIVE ENGINEER

2010-03-09

R.M.SAVANT

body2010
JUDGMENT ( 1 ) THE above First Appeals challenge the judgment and award of the reference court dated 28. 3. 2000 in Land Acquisition Case no. 123/1992. ( 2 ) BY the said judgment and award, the reference in question was allowed partly. Consequently the market price of 215 sq. meters of land in Survey No. 143 was fixed at Rs. 20/- per sq. meter and in respect of 1650 sq. meters of land from Survey No. 128 and 125 and from Survey No. 131, it was fixed at Rs. 30/- per sq. meter and consequently statutory allowances were directed to be paid on the said market rate. ( 3 ) THE subject matter of the acquisition were the aforesaid lands which were acquired for the construction of the road from Palem to Alto Verna N. H. 17 junction. The Land acquisition Officer had awarded the rate of Rs. 10/- per sq. meter as market price of the suit plots. The applicants i. e the respondents herein being dissatisfied with the said award filed an application for enhancement with the Collector for reference being made to the court. The applicant claimed compensation at the rate of Rs. 150/-per sq. meter. The applicant also claimed compensation of Rs. 8000/- for stone wall compound and claimed compensation for trees, severance charges at the rate of Rs. 150/- per sq. meters for 3500 sq. meters of land becoming useless. ( 4 ) THE reference Court in so far as the determination of the market value is concerned, framed the following issue. "1. Whether the applicants prove that the market price in respect of the land acquired by the government in this case was Rs. 150/- per square meter as on the date of publication of Notification under Section 4 of the Land Acquisition Act on the Official Gazette?" ( 5 ) THE reference court allowed the reference partly and granted the enhancement, as mentioned herein above. ( 6 ) HEARD Shri S. A. Bandodkar, learned Government advocate for the appellant in First Appeal No. 178/2000 and Shri n. Sardessai, learned Counsel for the appellant in First Appeal No. 140/2000 the said learned Counsel appear for the respondents in the cross appeals. ( 6 ) HEARD Shri S. A. Bandodkar, learned Government advocate for the appellant in First Appeal No. 178/2000 and Shri n. Sardessai, learned Counsel for the appellant in First Appeal No. 140/2000 the said learned Counsel appear for the respondents in the cross appeals. ( 7 ) THE learned Government Advocate Shri Bandodkar drew my attention to the judgment of the Division Bench of this court in First Appeal No. 145/2000 and First Appeal No. 210/2000 dated 4. 8. 2004. The land in question in the said First appeals were covered by the same notification as in the instant two appeals. The Division Bench for the reasons mentioned in paragraph 7 and 8 of the said judgment has remanded the matter back to the reference court for a de novo consideration in terms of the observations made in the said judgment. The sum and substance of the reasons for remand is that the reference court has not given any reason for discarding all the sale instances which were relied upon by the State and exclusively relied on the award in Land Acquisition Case No. 23/87. ( 8 ) UPON this, Shri Sardessai appearing for the appellant in First Appeal No. 140/2000 draws my attention to para 9 of the judgment impugned in the instant Appeals. The reference court has made the following observation in the said para. " To my mind, the awards given by Courts have to be preferred to the sale deeds. " ( 9 ) THE reference court has relied upon the award in l. A. C. No. 23/1987 and in the said instant cases also has preferred the said award to the sale deeds produced by the appellants i. e. the claimants in First Appeal No. 140/2000. It is the submission of Shri Sardessai that the reference court by observing so, has proceeded on a erroneous premise. To buttress the said submission he has placed reliance on the judgment of the apex court reported in (2005) 6 SCC 454 in the matter of ONGC ltd. Vs. Sendhabhai Vastram Patel and ors. Para 11 of the said report is relevant for our purpose and is reproduced herein under. " While determining the amount of compensation payable in respect of the lands acquired by the state, indisputably, the market value therefore has to be ascertained. Vs. Sendhabhai Vastram Patel and ors. Para 11 of the said report is relevant for our purpose and is reproduced herein under. " While determining the amount of compensation payable in respect of the lands acquired by the state, indisputably, the market value therefore has to be ascertained. Although, there exist different modes for arriving at the market value for the land acquired; the best method, however, as is well known would be the amount which a willing purchaser of the land would pay to the owner of the land as may be evidenced by the deeds of sale. In the absence of any direct evidence on the said point, the court may take recourse to other methods viz. Judgments and awards passed in respect of acquisition of lands made in the same village and/or neighbouring villages. Such a judgment and award in the absence of any other evidence like deed of sale, report of expert and other relevant evidence, however, would have only evidentiary value. " ( 10 ) READING of the said para therefore, makes it clear that an award could be relied upon in the absence of any other evidence like deed of sale, report of expert and other relevant evidence, but the same would have only evidentiary value. Apart from the erroneous premise based on which the reference court has proceeded, it would be significant to note that the reference court has not given any reason as to why sale deeds produced by both the appellants could not be considered. The test for relying upon the sale deeds has been succinctly elaborated by the Apex Court in a cateena of judgments. Without applying the said test, the reference court has merely glossed over the said sale deeds. ( 11 ) IN my view, on both the aforesaid counts, the impugned award would have to be set aside and the matter would have to be relegated back to the reference court for a de novo consideration. ( 12 ) BOTH the First Appeals are accordingly allowed. The impugned judgment and award of the reference court is set aside and the said Land Acquisition Case No. 123/1992 is remanded back to the reference court for a de novo consideration in terms of the observations made herein above as also the observations of the division Bench in judgment dated 4. 8. 2004. The impugned judgment and award of the reference court is set aside and the said Land Acquisition Case No. 123/1992 is remanded back to the reference court for a de novo consideration in terms of the observations made herein above as also the observations of the division Bench in judgment dated 4. 8. 2004. ( 13 ) ON such remand, the reference court to decide the land acquisition case within a period of 6 months from today.