F.M. Reis, J.@mdashThe above appeal challenges the judgment and award dated 25/02/2005, passed by the learned Additional District Judge, North Goa, Panaji in Land Acquisition Case No. 27/2001.
2. The land belonging to the Appellants was sought to be acquired pursuant to a notification dated 20/10/1999 issued u/s 4 of the Land Acquisition Act, 1894 (herein after referred to as "the said Act") published in Official Gazette dated 4/11/1999, for the construction of the high level bridge across Amona, Khandola including approaches. The portion of the property belonging to the Appellant which was subject matter of the said acquisition was surveyed under No. 38/4 (part), 41(part), 44/17 (part), admeasuring an area of 260 square meters ;290 square metres and 750 square metres, respectively. By an award passed u/s 11 of the said Act dated 24/11/2000, the Land Acquisition Officer offered the rate for the land surveyed under No. 38/4 at the rate of Rs. 40/-per square meter ;for the land surveyed under No. 41 at the rate of Rs. 2/-per square metre and for the land surveyed under No. 44/17 at the rate of Rs. 40/-per square metre. Dissatisfied with the said amount, the Appellant sought a reference u/s 18 of the said Act for enhancement of compensation and claimed a sum of Rs. 160/-per square metre in respect of the property surveyed under No. 38/4 and 41 and for the land surveyed under No. 44/17 at the rate of Rs. 200/-per square metre. By judgment and award dated 25/02/2005, the Reference Court rejected the said reference filed by the Appellant. Being aggrieved by the said judgment, the Appellant has preferred the present appeal.
3. Mr. J. Godinho, the learned Counsel appearing for the Appellant has assailed the impugned judgment and submitted that the Reference Court has totally misdirected itself in passing the impugned judgment, as the Appellant has produced sale instances at Exhibit 14,15 & 16 which are comparable to the land acquired. The learned Counsel further submitted that the Reference Court has on erroneous consideration of the evidence on record rejected the said reference. The learned Counsel further pointed out that the Appellant has also examined the expert who has relied upon other two sale instances being Sale Deed dated 22/12/1988 and Sale Deed dated 20/08/2004 which are comparable to the land acquired. Learned Counsel further submitted that besides the said sale instances, the awards dated 23/09/2004 and award dated 12/10/1989 have also been relied upon by the expert while submitting his report in support of the claim for enhancement of compensation. Learned Counsel further submitted that on account of oversight, the said documents were not produced and in any event as the Respondents have failed to dispute the correctness of the said sale instances, the Reference Court ought to have relied upon the said documents for the purpose of fixing the market value of the acquired land. The learned Counsel took me through the notes of evidence and pointed out that there is sufficient material on record for the Reference Court to come to the conclusion that the Appellant was entitled for the enhancement of compensation.
4. On the other hand, Shri Guru Shirodkar, the learned Government Advocate appearing for the Respondents has supported the impugned judgment. Learned Counsel has pointed out that there is no material on record to substantiate the claim of the Appellant that the price offered by the Land Acquisition Officer was inadequate. The learned Counsel took me through the evidence on record and pointed out that there was justification on the part of the Reference Court to reject the sale instances produced by the Appellant at Exhibit 14,15 & 16. The contention of the learned Counsel appearing for the Appellant to the effect that the said sale instances and the said awards referred to by the expert ought to have been considered is totally misplaced as according to him, unless and until the said documents are produced and comparability is established, the question of relying upon any such sale instance would not arise. Learned Counsel further submitted that in case the said documents are produced the Respondents should be given an opportunity to lead evidence in rebuttal to establish that the said sale instances are not at all comparable with the land acquired. The learned Counsel further pointed out that there is no justification for any interference in the impugned judgment. Having heard the learned Counsel and on perusal of record, following point for determination arises in the appeal:
<p class=''centeralign">POINT FOR DETERMINATION
(1) Whether the Reference Court was justified in rejecting the reference filed by the Appellant.
5. In support of the claim for enhancement, Appellant has examined Dr. Xiuba Shripad Amonkar as AW1, who has stated that the portion of the property acquired was partly garden land and partly uncultivated land, located close to the road leading to Amona. He has further stated that the said land is very close to the road and is within 500 metres from the well developed residential colony and about 250 metres from the ferry point. He has further stated that water and electricity was available along the road and the land acquired was situated very close to the residential complex "Deulay". In support of his claim for enhancement he produced the Sale Deed dated 8/03/1989 as well as Sale Deed dated 30/07/1990 and Sale Deed dated 20/08/1991. It is further his contention that the said plots are located at a distance of about 800 metres from the Marcela bus stand and that both the lands are similar. In his cross-examination, he has stated that all the three properties are partly garden and partly uncultivated lands, but he could not give the exact areas. He admitted that the plot which is subject matter of Sale Deed dated 8/03/1989 falls in Tivrem Village of Ponda Taluka and that the Sale Deed plot dated 30/07/1990 falls in Ponda Taluka. Next witness examined Subhashchandra N. Bhobe, who is a registered valuer who has submitted his report and stated that he is a Government Valuer since the year 1973 and that the land acquired is situated along the Marcela Khandola ferry road within 250 metres from the ferry point and about 1.2 kms from Marcela bus stand and that the acquired land is very close to the road and within 500 metres from the well developed residential colony and, as such, had good potentiality for residential development. He has referred to three sale instances dated 8/03/1989, 30/07/1990 and 20/08/1991 which plots are located at a distance of about 800 metres from Marcela bus stand. He has also referred to a Sale Deed dated 22/12/1988 and a Sale Deed dated 20/08/2004 in his affidavit. He has also considered the award dated 23/09/1994 and Anr. award dated 12/10/1989 and according to him he has valued the land at the rate of Rs. 160/-per square metre. The said witness has been cross-examined wherein he had admitted the distance from the sale deed plot dated 20/08/2004 is about 2 kms from the acquired land and that the sale deed plot dated 30/07/1990 falls in Ponda Taluka. The Respondents examined RW1 Somnath V. Devidas, who has stated that the rate awarded by the Land Acquisition Officer is reasonable, just and fair. The said witness has also been cross-examined.
6. The Reference Court while passing the impugned judgment has come to the conclusion that on the basis of the said Sale Deeds produced by the Appellant, it cannot be disputed that the said sale instances have been produced to establish comparability with the acquired land, but that the Appellant has failed to adduce any such evidence. The learned Reference Court has further held that the potentiality has to be established on the basis of material on record which has not been established by the Appellant. The learned Judge has also considered that the expert has not established the comparability between the land acquired and the sale instances and accordingly rejected the reference.
7. On perusal of the evidence on record and in view of the deposition referred to herein above it is established that the land acquired is in the vicinity of residential complex. The Sale Deeds have been produced to establish the rate which is prevailing in the vicinity of the acquired land. The evidence further discloses that the infrastructure facilities for the purpose of development of the land were already existing in the vicinity of the acquired land. It is further established that the acquired land is close to the road. All these factors would disclose that the land acquired had potentiality of being used for residential purpose. No doubt the evidence adduced by the Appellant is not sufficient to establish the comparability between the land acquired and the said sale instances. The instances as disclosed demonstrate that some of the plots are quite far from the acquired land while some are in the vicinity of the acquired land. No substantial material has been produced by the Appellant for establishing the market value of the acquired land.
8. On perusal of the expert report, I find that the expert has also relied upon two other sale instances, including the Sale Deed dated 22/12/1988 and Sale Deed dated 20/08/1984. There is also a reference to the award dated 23/09/2004 and Anr. award dated 12/10/1989. It is contended by the learned Counsel for the Appellant that the land which was the subject matter of the said acquisition is in the vicinity of the land acquired. Considering the contention of the learned Counsel that he would be in a position to produce the said instance, I find that in the interest of justice it would be appropriate that the Appellant be allowed to produce the said documents and establish the comparability of the acquired land with the said sale instances. As valuable land is stated to have been lost in acquisition it would be appropriate that an opportunity be given to the Appellant to produce the said instances and also to establish comparability of the land acquired vis-�-vis the said instances sought to be produced. Shri Shirodkar, learned Government Advocate though has opposed such request, however, has submitted that in case the matter is remanded the Appellant should be permitted only to produce the said instances referred to by the expert and liberty be given to the Respondents to lead evidence in rebuttal.
9. Considering the facts and circumstances of the case and in the interest of justice, as evidence adduced by the Appellant is not sufficient for fixing the market value of the land acquired, I find that an opportunity should be given to the Appellant to lead the evidence to establish comparability of the land acquired with the sale instance and also to produce the said instances referred to by the expert in his report which have been enumerated herein above. The point for determination is answered accordingly. In view of the above, I pass the following order:
O R D E R
(1)The appeal is partly allowed.
(2)The impugned judgment and award dated 25/02/2005 is quashed and set aside.
(3)Land Acquisition Case No. 27/2001 is restored to the file of the Reference Court.
(4)The Reference Court is directed to decide the reference afresh after permitting the Appellant to produce the said instances and adduce evidence to establish the comparability of the land acquired, in the light of the observations made herein above. Needless to say Respondents would be entitled to lead evidence in rebuttal in answer to any evidence produced by the Appellant. The Reference Court shall thereafter pass the fresh judgment after hearing both the parties in accordance with law, as expeditiously as possible. All contentions of both the parties are left open.
(5)Appeal shall stand disposed of accordingly with no order as to costs.
(6)Parties are directed to appear before the Reference Court on 14/03/2011 at 10.00 a.m. and abide by its further directions.
