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2012 DIGILAW 2111 (BOM)

State of Goa v. Gil Francisco Roque Correia

2012-11-02

F.M.REIS

body2012
Judgment : Heard Shri M. Salkar, learned Government Advocate appearing for the appellants and Shri C.A. Ferreira, learned Counsel appearing for the respondent. 2. The above appeal challenges the judgment and award dated 2/07/2001 passed by the learned District Judge, South Goa at Margao in Land Acquisition Case No.227/1993 whereby a reference preferred by the respondent under Section 18 of the Land Acquisition Act, 1894, (herein after referred to as 'the said Act') was partly allowed and the appellants were directed to pay compensation to the respondent for the land acquired at the rate of Rs.20/-per square metre besides a sum of Rs.10/-per square metre towards the severance charges in respect of an area of 35 square metres of land. 3. Briefly, the facts of the case are that pursuant to the notification under Section 4 of the said Act, the appellants acquired land belonging to the respondents admeasuring an area of 210 square metres from survey no.109/3; 65 square metres from survey no.97/5; 125 square metres from survey no.99/5 and 35 square metres from the property under survey no.98/4 of Verna village for the purpose of improvement of Ambular road in the village of Verna. A notification under Section 4 came to be published on 16/02/1989. The Land Acquisition Officer whilst passing an award under Section 11 of the said Act offered compensation for the land acquired at the rate of Rs.10/-per square metre. Being dissatisfied with the said amount, the respondent preferred a reference under Section 18 of the said Act and claimed compensation for the land acquired at the rate of Rs.100/-per square metre. After hearing the parties and recording of evidence the Reference Court by the impugned judgment and award dated 2/07/2001 partly allowed the said reference and fixed the compensation for the land acquired at the rate of Rs.20 per square metre, besides severance charges at the rate of Rs.10/-per square metre for an area of 35 square metres. Being aggrieved by the said judgment and award the appellants have preferred the present appeal. 4. After being served with the notice of the First Appeal, the respondent filed Cross-Objection seeking enhancement of compensation for the land acquired. 5. Being aggrieved by the said judgment and award the appellants have preferred the present appeal. 4. After being served with the notice of the First Appeal, the respondent filed Cross-Objection seeking enhancement of compensation for the land acquired. 5. Shri M. Salkar, learned Government Advocate appearing for the appellant has assailed the impugned judgment essentially on the ground that the learned Judge has failed to consider that the land acquired was for the improvement of the existing road which has width of 6 to 8 metres. The learned Government Advocate further pointed out that the respondent himself has admitted the existence of the said kacha road and consequently such area otherwise could not be used for any purpose. The learned Counsel further pointed out that the learned Judge was not justified to enhance the compensation as offered by the Land Acquisition Officer. The learned Counsel further pointed out that the learned Judge has relied upon the sale deed produced by the respondent at Exhibit AW1/D which according to the learned Counsel is not comparable to the land acquired. The learned Counsel further pointed out that the sale deed plot relied upon by the Reference Court was a sub-divided developed plot and considering the disadvantages of the land acquired vis-a-vis the said sale deed plot the same was not reliable to fix the compensation. The learned Counsel has taken me through the impugned judgment as well as the evidence on record and pointed out that besides the said sale deed there was no other evidence produced by the respondent which could justify any enhancement of compensation. The learned Counsel, as such, submits that the impugned judgment passed by the learned District Judge deserves to be quashed and set aside. 6. On the other hand, Shri C.A. Ferreira, learned Counsel appearing for the respondent has pointed out that the Reference Court has in fact awarded a very low compensation when according to him on the basis of the sale deed produced on record the respondent is entitled for a minimum sum of Rs.50/-per square metre. The learned Counsel pointed out that besides the production of sale deed at Exhibit AW1/D the respondent has also produced a sale deed at Exhibit AW1/E wherein the price mentioned therein was Rs.94/-per square metre. The learned Counsel pointed out that besides the production of sale deed at Exhibit AW1/D the respondent has also produced a sale deed at Exhibit AW1/E wherein the price mentioned therein was Rs.94/-per square metre. The learned Counsel has further pointed out that the sale deed is of the year 1987 and considering that it was more proximate to the Section 4 notification the learned Reference Court was not justified to reject the reliance of the said sale deed. The learned Counsel has taken me through the evidence of the vendor and pointed out that the evidence adduced by the respondent has remained unchallenged and as such the Reference Court was not justified to fix the compensation only at the rate of Rs.20/-per square metre. The learned Counsel further pointed out that considering that the comparable sale deed discloses that the price in the vicinity of the land acquired was Rs.94/-per square metre the Reference Court ought to have fixed the compensation at a minimum rate of Rs.50/-per square metre. The learned Counsel, as such submits that the cross-objection filed by the respondent deserves to be allowed and the appeal be rejected. 7. I have carefully considered the submissions of the learned Counsel appearing for the respective parties and have also gone through the records. On the basis thereof the following point for determination arises in the present appeal: POINT FOR DETERMINATION: Whether the Reference Court was justified to fix the compensation for the land acquired at the rate of Rs.20/-per square metre. 8. On perusal of the evidence on record as well as the material produced by the respondent, I find that even the expert examined by the respondent in support of his claim for enhancement has fixed the compensation for the land acquired at different rates. The expert AW3 has evaluated the land under survey number 109/3 at the rate of Rs.66/-per square metre and the land under survey no.98/4 and 99/5 at the rate of Rs.60/-per square metre whereas the land surveyed under no.95/5 at the rate of Rs.51/-per square metre. On perusal of the valuation report as well as the evidence of AW3, I find that expert has not considered dissimilarities of the land acquired with the sale deed plot which has formed the basis for arriving at such compensation. On perusal of the valuation report as well as the evidence of AW3, I find that expert has not considered dissimilarities of the land acquired with the sale deed plot which has formed the basis for arriving at such compensation. The expert has not considered the fact that the land which was acquired was for the improvement of the existing road and AW1 himself has admitted the existence of such road for last more than 15 years. Apart from that, the expert has not considered survey holdings of the respondent range from 100 square metres to 500 square metres. Considering the said aspect, I find that the valuation done by the expert was without considering the said aspect and as such the determination of the compensation cannot be accepted. Apart from that the sale deed at Exhibit AW1/E of the year 1987 relied by the expert is not comparable to the land acquired for the reasons stated herein below. 9. The Reference Court whilst passing the impugned judgment has considered the fact that the Sale Deed plot at Exhibit AW1/E is not comparable to the land acquired essentially on the ground that AW4 in the cross-examination has admitted that there was a shed existing in the plot which was subject matter of the said sale deed. There is no evidence adduced by the respondent to establish what was the value of such shed. In the absence of such material the question of relying upon the said sale deed at Exhibit AW1/E for determining the compensation for the land acquired in the present case does not arise at all. Hence, the Reference Court was justified to reject the said sale deed at Exhibit AW1/E. 10. The Reference Court whilst fixing the compensation has relied upon the sale deed at Exhibit AW1/D where the price as on the date of the sale deed was roughly a sum of Rs.51/-per square metre. The said sale deed was executed about four years prior to the date of notification. The Reference Court has deducted 40% on account of the fact that the sale deed plot was a developed plot. AW4 who was a party to the said sale deed has categorically admitted the fact that she had sold the subdivided plot pursuant to the said sale deed. Hence, deduction of 40% by the Reference Court cannot be faulted. The Reference Court has deducted 40% on account of the fact that the sale deed plot was a developed plot. AW4 who was a party to the said sale deed has categorically admitted the fact that she had sold the subdivided plot pursuant to the said sale deed. Hence, deduction of 40% by the Reference Court cannot be faulted. An appreciation for the difference in the period between Section 4 notification and the sale deed has also been given by the Reference Court. Apart from that the Reference Court has also considered that the sale deed plot was adjoining the main highway whereas the land acquired was in the interior. Besides that the Reference Court has also taken note that the road which was constructed pursuant to the said acquisition was an existing pathway which was having a width of 6 to 8 metres. Considering the area of the remaining portion of the land of the respondent, the Reference Court has fixed the compensation for the land acquired after making a deduction on account of such dissimilarities at the rate of Rs.20/-per square metre. Considering that the said dissimilarities are borne out from the evidence on records, I find that there is no error committed by the Reference Court whilst effecting such deduction for the purpose of determining the compensation of the land acquired. The Reference Court has considered the well settled principles of law in fixing compensation within the provisions of Section 23 of the said Act and, as such, I find no reason to interfere in the impugned judgment fixing the compensation at the rate of Rs.20/-per square metre. Besides the said amount, the Reference Court has rightly fixed severance charges of Rs.10/-for an area of 35 square metres and has considered that such area cannot be used for any use to the respondent. The contentions of Shri C.A. Ferreira, learned Counsel appearing for the respondent to the effect that the Reference Court ought to have fixed the compensation on the basis of the sale deed at Exhibit AW1/E cannot be accepted, for the reasons stated herein above. Hence, I find no reason to enhance the compensation fixed by the Reference Court at the rate of Rs.20/-per square metre. 11. For the reasons stated herein above, the compensation fixed at the rate of Rs.20/-per square metre does not require any interference. The point for determination is answered accordingly. Hence, I find no reason to enhance the compensation fixed by the Reference Court at the rate of Rs.20/-per square metre. 11. For the reasons stated herein above, the compensation fixed at the rate of Rs.20/-per square metre does not require any interference. The point for determination is answered accordingly. 12. The appeal as well as the cross-examination stands accordingly dismissed with no order as to costs.