F.M. Reis, J.@mdashBoth the Appeals can be taken up together as they challenge the same impugned Judgment and Award dated 15th September, 2005, passed by the learned Addl. District Judge, Fast Track Court, Mapusa in Land Acquisition Case No. 29/2000.
2. The parties shall be referred to in the manner as they so appear in the cause title of the impugned Judgment.
3. By notification dated 21st August 1997, issued u/s 4 of the Land Acquisition Act, 1894, (hereinafter referred to as ''the said Act''), the land of the Applicants came to be acquired for the purpose of constructing a Lower Bank Main Canal (L.B.M.C.) of the Tillari Irrigation Project from 31.200 kms to 32.110 kms in Mapusa City of Bardez Taluka from the property surveyed under 82/2 (part). After complying with the formalities as contemplated under the said Act, by an Award passed by the Land Acquisition Officer dated 15th December, 1999, the compensation was awarded at the rate of Rs. 80/- per square metre in respect of the land acquired admeasuring an area of 1785 square metres, belonging to the Applicants. The Applicants being dissatisfied with the said Award, sought a reference for enhancement of compensation u/s 18 of the said Act to the learned District Judge, claiming an enhancement to the tune of Rs. 2000/- per square metre for the Land Acquired. By Judgment and Award dated 15th September, 2005, the Reference Court fixed the compensation for the land acquired at the rate of Rs. 146/- per square metre besides other statutory benefits.
4. Being aggrieved by the said Judgment and Award, the present Appeal has been preferred by the Applicants as well as the Respondents.
5. The learned Counsel appearing for the Applicants has assailed the impugned Judgment and submitted that the Reference Court has totally discarded the sale instances produced by the Applicants whereby the market value of land in respect of the land acquired was much higher than the one awarded by the Reference Court. The learned Counsel further submitted that a portion of the property of the Applicants was acquired in the year 1980 for the purpose of a Bye-pass and the compensation was fixed for the said land at the rate of Rs. 40/- per square metre as per exhibit 27. He further submitted that there was a steep escalation in the prices in the vicinity of the land acquired as it was located in Mapusa City which is well known for commercial business as well as close to tourist destinations. He further submitted that the Applicants had also produced a Sale Deed at exhibit 29, wherein an area of 441 square metres was sold at the rate of Rs. 1,750/- per square metre in the year 1996. Apart from that, the Applicants have also produced Sale Deed at exhibit 30, wherein an area of 314 square metres was sold on 7th February, 1980 at the rate of Rs. 468/- per square metre. The Applicants also produced another sale instance at exhibit 31, wherein an area of 3363 square metres was sold on 14th May, 1993 at the rate of Rs. 1425/- per square metre. He further submitted that the land of the Applicants was in the settlement zone and had high potentiality of being used for non-agricultural purpose. He further submitted that the Reference Court has erroneously appreciated the comparability of the sale instances and came to the conclusion that the market value of the land was Rs. 146/- per square metre. He as such submitted that the market value of the land acquired was at the rate of atleast Rs. 1000/- per square metre.
6. On the other hand, the learned Addl. Government Advocate for the Respondents has impugned the Judgment and Award passed by the Reference Court and submitted that the land of the Applicants had no commercial value as it was located in the outskirts of Mapusa City. The learned Addl. Government Advocate further submitted that the Sale Deed instances produced by the Applicants are not comparable with the land acquired as the said sale instances are located in Mapusa City whereas the land acquired was located in the outskirts. He further submitted that the sale instances produced by the Applicants are in respect of undivided rights which cannot be considered to be a comparable sale instances to arrive at the market value of the land acquired. He further submitted that none of the sale instances produced by the Applicants were in the vicinity of the land acquired and as such the Applicants have failed to establish that they are entitled for any enhancement of compensation for the land acquired. He further submitted that the Land Acquisition Officer had fixed a reasonable compensation of Rs. 80/- per square metre which is fair and justified and there is no reason for any enhancement of such compensation by this Court. The learned Addl. Government Advocate further submitted that the land of the Applicants has to be considered as agricultural land having no potentiality for being used for nonagricultural purpose. He further submitted that sale instances of Mapusa city cannot be comparable to the land acquired which is located in the outskirts as such land in Mapusa City has much more commercial value and depending upon the locality of the land and the proximity of the market and commercial establishments, the price for such land is determined. The learned Addl. Government Advocate further submitted that in Cities even a distance of 100 metres makes a lot of difference as far as the market value of land is concerned on account of its commercial and business opportunities. The learned Addl. Government Advocate further submitted that the Reference Court had totally erred in enhancing the compensation to Rs. 146/- per square metre as the compensation fixed by Land Acquisition Officer at the rate of Rs. 80/- per square metre is a fair and just market value for the land acquired. He further submitted that all the civic amenities claimed to have been existing to the land acquired were always existing in the year 1980 when this Court had fixed a compensation except for a religious institution which cannot enhance the value of the land. He further submitted that the land acquired had no potentiality as there were statutory restrictions to be maintained due to the Highway. He as such submitted that the Appeal preferred by the Respondents is to be allowed and the enhancement granted by the Reference Court be quashed and set aside.
7. Having heard the learned Counsel for the parties and on perusal of the records, the following point for determination arises in the present Appeal:
1. Whether the Reference Court was justified in fixing the compensation at the rate of Rs. 146/- per square metre?
8. The Applicants have examined as AW.1, Minguel Arcanjo Francisco Xavier Braganza, who is the Applicant No. 7 as well as the duly constituted attorney of the other Applicants. He has stated in his affidavit in evidence, that a part of the property admeasuring an area of 5631.50 square metres was earlier acquired for the construction of National Highway 17 and the compensation was awarded in respect of said acquisition at the rate of Rs. 40/- per square metre wherein the notification was in the year 1980. He further deposed that the said amount was awarded by this Court in First Appeal No. 5/1990 after considering that the land had access on the north and a mud road access on the east and western side as well as other civic amenities. He further stated that after the said acquisition, the mud road on the east and western side has now been tarred and the land acquired therein was used for constructing the National Highway-17. He further deposed that the Peddem Sports Complex consisting of Indoor and Outdoor stadium was situated at a distance of 150 metres from the acquired land besides Primary school is also at a distance of 125 metres from the acquired land. The Youth Hostel of India as well as the Carmelite Monastery is in the vicinity of the acquired land. He further stated that the demand for the said property had increased tremendously after construction of the highway through the property of the Applicants. He further stated that by a Sanad dated 4th October, 1995, the entire property was converted for residential and commercial purposes. He further stated that two Mundkarial houses were located in the said property of the Applicants and that independent plots had a value of Rs. 2000/- per square metre in the vicinity of the acquired land. He further deposed that by Sale Deed dated 11th November, 1996, undivided right to property at Peddem, Mapusa was sold at the rate of Rs. 1,120/- per square metre. Such undivided land was equivalent to 75 square metres which was sold for a total consideration of Rs. 84,000/- to one Conrad Jude Braganza. He further stated that the said Sale Deed plot was on one steep gradient which involved constructions on stilts whereas the acquired land was levelled land. He further deposed that the said land was at a distance of 1.5 kilometres from Mapusa market and about one kilometre from the Highway. He further deposed that by Sale Deed dated 11th June, 1996, a property admeasuring 441 square metres was sold at Xelpem, Mapusa for Rs. 4,73,000/- which works out to Rs. 1072.50 per square metres. The locality of the said plot is in a remote forested part of Mapusa as compared to the acquired land and that the Karapurkar Committee had identified it as a forest area. He further stated that by Sale Deed executed on 14th May, 1993, an area of 3,366 square metres of the property was sold at the rate of Rs. 1235/- per square metre at Mapusa to M/s Kamat Constructions Pvt. Ltd. The said land was low lying and required extensive filling as it was a paddy field. He further stated that another sale instance dated 7th February, 1980, wherein the property was sold at the rate of Rs. 648/- per square metre for Shalini Hotels. He accordingly prayed that he be awarded compensation at the rate of Rs. 2000/- per square metre. In his cross examination, he has admitted that the Peddem Sports Complex was in existence at the time of acquisition of land for the National highway but that it was subsequently developed by constructing additional buildings and swimming pools therein. He has denied the suggestion that all the amenities other than the Carmelite Monatery existed at the time of acquisition of land for the Highway. He has further admitted that the Sale Deed dated 11th November, 1996, was in respect of a flat wherein the proportionate share in the land was transferred. He also denied the suggestion that the Sale Deed dated 11th November, 1996, was at a distance of 500 metres from the acquired land. He also denied the suggestion that the property of Xelpem was not at distance of 1.5 kms from the acquired land. He further admitted that the property sold to M/s. Kamat Construction by a Sale Deed dated 14th May, 1993, had amalgamated the land with its other property and that the said land is adjacent to the Mapusa-Anjuna road. He has further admitted that the said land was used for putting up a residential and commercial complex. He also admitted that the property purchased by a Sale Deed dated 7th February, 1980 was in the heart of Mapusa market City and bus stand are within a radius of 50 metres from the property purchased by Shalini Hotels.
9. The next witness examined by the Applicants is Shri Cedric Pinto, who has stated in his affidavit that he had developed a property in the vicinity of the acquired land which was a steep gradient and required terracing, filling and excavating portion of land. As the said land could not be developed independently, he was forced to acquire the adjacent land. He further deposed that he had paid the owner at he Rs. 1,120/- per square metres and is at a distance of 700 metres from Mapusa-Bicholim road at the Court junction and at a distance of 700 metres from the National Highway 17. He further deposed that the land of the Applicants was touching the Highway and had potentiality for being used as housing site. He has further deposed that he had purchased a plot of land at Xelpem Mapusa which he had obtained at a very cheap rate as the said plot was declared as a foreset. He further deposed that the plots purchased by him were at a distance of 3 kilometres from Mapusa to Bicholim road. He has further deposed that the Xelpem plots are at a distance fo 5 kms from the complex and that they are at a distance of 4 kilometres from Asilo hospital. He has further deposed that demand for the property had increased tremendously and that independent plots could be fetches at the rate of Rs. 2,000/- per square metre. In his cross examination ,he has denied the suggestion that he has falsely stated that he had paid a low price for the land purchased by him. He has denied the suggestion that the Peddem Sports Complex always consisted of an indoor and outdoor sports field, athletic tracks, pitches, swimming pool, camping sides, etc. He has also admitted that all the amenities were existing before the development of the highway except the Monastery, hospital and the structure of the Peddem Sports Club.
10. The next witness examined by the Applicants is Mr. Mahadev Tuenkar, who is a graduate in Engineering. According to him, considering the locality of the land acquired, the price of the said land was at the rate of Rs. 2000/- per square metre as it was suitable for a housing site and was adjoining the road. He further stated that by Sanad dated 4th October, 1995, part of the acquired land was converted for non agricultural purposes by the Deputy Collector, wherein a sum of Rs. 5,47,035/- was paid as conversion fees for the whole area of the property. In his cross examination on 30th July, 2004, he admitted that he had visited the acquired land only 4 months back though he knew the said land under acquisition even prior to three to four years. He has also admitted that he has not independently done or prepared a report to find out the value of the acquired land. He also deposed that the acquired land fell within the distance where no construction was possible. He has further denied the suggestion that he had falsely stated that the telecom facilities had been installed after the acquisition He has also admitted the suggestion that he had not seen the plots at Xelpem at the time when the present land was acquired. He has also admitted the suggestion that the property at Xelpem and the acquired land had no similarities. He has denied the suggestion that the land at Xelpem is not comparable to the land acquired.
11. The Respondents have examined Shri Dinesh Mahale, who has deposed that he was associated with the present acquisition in the year 1997. He has further deposed that the Peddem Sports Complex is at a distance of 400 metres from the acquired land. The witness has further deposed that the public transport is available at a distance of 1 kilometres from the acquired land. In the cross examination he has denied the suggestion that commercial centre of Mapusa city is at a distance of 1.5 kilometres from the acquired land. He further stated that he was not in a position to furnish any undertaking that the Applicants would have a right of way over the canal.
12. The next witness examined by the Respondents is Arun Aroskar, who had deposed that he had visited the property on 3rd February, 2000 to get himself acquainted with the acquired land. He has further deposed that by Sale Deed dated 23rd February, 1994, a plot of land admeasuring 203 square metres was sold at the rate of Rs. 24.63 per square metre. He further stated that the said plot is located at a distance of one kilometre from the acquired land. He further stated that another Sale Deed dated 27th January, 1995 in respect of a total area of 2199 square metres was sold at the rate of Rs. 28.29 per square metre and the same were located at a distance of 3.5 kilometres from the acquired land. He has also produced a Deed of Conveyance of the year 1995 of a plot for Goa Housing Board, which was a developed plot wherein the price was fixed at the rate of Rs. 68/- per square metre and which is located at a distance go 3.5 kilometres from the acquired land. He has also stated that he had visited the property subject matter of the Sale Deed dated 26th February, 1996, wherein the price was fixed at Rs. 230.76 square metres and 1 km from the acquired land. He has also relied on a sale instance dated 11th April, 1996 wherein an area of 976 square metres of land was sold for a market price of Rs. 61.47 per square metre. He further stated that the said plot is located at a distance of 3.5 kilometres from the acquired land. He further deposed that he was not in a position to produce any sale instance which were at a distance of 2 kilometres from the acquired land.
13. The Reference Court whilst disposing of the reference for enhancement of compensation has relied upon the Sale Deed at exhibit 46, dated 26th February, 1996 and the Sale Deed at exhibit 47, dated 11th April, 1996, and had taken an average to determine the compensation of Rs. 146/- per square metre. The Reference Court also determined the compensation on the basis of the market value fixed by this Court in the earlier acquisition of 1980 at the rate of Rs. 40/- per square metre and after escalation for 17 years, arrived at an amount of Rs. 146/- per square metre and awarded an additional 40 percent on account of the highway existing at the time of subsequent acquisition as well as conversion Sanad obtained by the Applicants and on the basis of such calculation, the Reference Court has fixed the compensation at Rs. 146/- per square metre.
14. Dealing with the sale instances produced by the Applicants, we find that the Sale Deed of an undivided right cannot be a basis for the purpose of determining the market value of land as on the date of Section 4 Notification, as such undivided right has been sold in view of the existence of a constructed premises in a residential building. The price fixed therein, cannot be a price offered by a willing purchaser in the open market. Such undivided rights, which are appertaining to the flat premises cannot be a basis for determining the market value of open land. Apart from that, the land which was subject matter of the said Sale Deed which is dated 11th November, 1996, is at a distance of about 1.5 kilometres from the Mapusa market and about 1 kilometre from the Highway. The said Sale Deed as such cannot be a comparable sale instance. The Sale Deeds produced with regard to the plots located at Xelpem are at a distance of 5 kilometers from the acquired land and, as such, the same cannot be compared to the land acquired. It is also admitted that the said land is a forest area and there is no dispute that the land acquired in the present proceedings was not a forest area. A forest area cannot be compared to the land which was converted for non agricultural purpose as such area has its own peculiar advantages.
15. The Sale Deed produced by the Applicants in respect of the properties located in Mapusa City and which are at a distance of nearly 3 kilometres from the acquired land are also not comparable Sale instances. In the heart of a city the prices can differ considering its respective location. In cities, when the properties are located close to the market, they fetch a higher commercial value considering that such land can be used for business activity. As land located in the outskirts of the city cannot be compared to lands located in the heart of the city unless material is produced to value the demerits and merits of such land. The commercial value of such lands will be much less than the value of Sale Deeds located in the heart of City. No evidence has been adduced by the Applicants to establish such differentiation in the land value between such two locations. On that count, the Sale Deed produced by the Applicants of land sold to Kamat Construction, cannot be considered to be a comparable Sale Deed for considering the basis for determining the market value of land. As such, the said sale instance at exhibit 31, cannot be considered for the purpose of determining the market value of land. The sale instances produced by the Respondents are stated to be more than 2 kilometres from the acquired land besides that the same are not adjoining the Highway nor has evidence been recorded to establish that such land could be used for non agricultural purpose or are in the vicinity of the acquired land. In view of the above, the only sale instance which remains for consideration is the award of the Land acquisition Officer which took place in the year 1980 in respect of the portion of the same property belonging to the Applicants for the purpose of National Highway 17. The said land admittedly is part of the same survey number, which is the subject matter in the present proceedings. When no comparable sale instance is available for determining the market value of land, there is no bar to rely on such award to determine the market value of land as on the date of Section 4 notification after giving appropriate escalation on account of appreciation considering the surrounding circumstances. The previous acquisition took place in the year 1980 and the price was fixed at Rs. 40/- per square metre. The notification in the present case was issued in 21st August, 1997.
16. The Apex Court in the Judgment reported in 2008 (17) S.C.C. 133 in the case of Sardar Jogendra Singh v. State of U.P. has held at paras 10, 11, 12 and 13 thus:
10. The question is whether the said market value is excessive as contended by the Parishad or low as contended by the claimants.
11. This Court in a series of judgments has taken judicial notice of the fact that there is a steady increase in the market value of land and has adopted the procedure of increasing the market value in the relied-upon transaction, at a given rate per year.
12. In ONGC Ltd. v. Rameshbhai Jivanbhai Patel this Court held that in regard to urban and semi-urban areas, in the absence of other acceptable evidence, a cumulative increase of 10% to 15% was permissible with reference to acquisitions in the 1990s. In the decades preceding 1990s, the quantum of increase was considered to be less than 10% per annum. This Court however observed that transactions beyond five years before the acquisition, should be considered with caution and may not always be a reliable guide.
13. These cases relate to an acquisition in the year 1979. The relied-upon award related to an acquisition of the year 1969. The general increase between 1969-1979 can be taken to be around 8-10% per annum. If the said increase is calculated cumulatively, we find that the total increase for ten years would be around 100%. Therefore the assessment by the Tribunal affirmed by the High Court, does not suffer from any infirmity.
17. Considering the Judgment of the Apex Court, we find that there is no bar to consider the price fixed in the year 1980 for determining the market value of the land acquired in the year 1997, by considering that there is steady increase in the market value of land in the outskirts of Mapusa City, as the Sale Deeds produced by the parties cannot form the basis to determine the market value of land in the present case. The question of the nature of land in both the acquisitions is not in dispute but we will have to consider that the acquired land was now adjoining a National Highway which would naturally enhance the value as well as the fact that the land was converted a few years prior to the Section 4 Notification. There are also restrictions in development of land adjacent to the Highways which will also have to be taken into consideration.
18. As the earlier acquisition took place in the year 1980 for the construction of National Highway 17 and considering all the aforesaid factors, the escalation can be considered at 10% per annum as awarded by the Reference Court but, however, on cumulative basis upto the time when the conversion of the land was effected by the applicants. From the year 1980 till the year 1995 when the conversion was done, allowing an escalation of 10% on cumulative basis, the amount works out to Rs. 167.08 per square metre. As the land was thereafter converted for non-agricultural purpose, naturally it added an appreciation to the land acquired. The Reference Court has given an appreciation of 40% on such count is fair and reasonable in view of the appreciation in land values in Mapusa city. Allowing the said appreciation of 40% in the year 1995, the amount works out to Rs. 233.88 per square metre in the year 1985. for the remaining two years, awarding an escalation of 15% on cumulative basis, the amount works out to Rs. 309.20 approximately which is rounded up to Rs 310/- per square metre. The contention of the learned Additional Government Advocate for the Respondents cannot be accepted that the Appellants are not entitled for enhancement in compensation for the aforesaid reasons. The submissions of the learned Addl. Government Advocate that the land acquired had no potentiality in view of statutory restriction with regard to lands adjoining the Highway, cannot be accepted in view of the Judgment of the Apex Court reported in 2009 (5) ALL M.R. 1022, in the case of State of Goa and Anr. v. Gopal Baburao Gaudo and Ors. The Apex Court has held at paras 2, 3, 4 and 5 thus:
2. The petitioner alleges that the acquired land measuring 2715 sq. meters, was a narrow strip which fell within the 40 meters margin from the centre of the highway where constructions were prohibited. It is contended that as the acquired land could not be used for construction, the land had to be considered as not having any development potential; and that therefore it could not be compared with the land (which was the subject-matter of LAC No. 48/1995) for which compensation had been determined having regard to its potential for development. It was also contended that being a narrow strip it was also not of much use even for agriculture purposes.
3. A long strip of land measuring more than two-third of an acre lying alongside and adjoining the Highway cannot be treated as a land without value or without any potential for development, merely on the ground that the law relating to Highways prohibited construction on either side of the Highway, upto a depth of 40 meters from the centre of the Highway. All that was required to create or realize potential of such land was to annex or merge the said strip of land with the land to its rear. In that event, the strip of land will become the ''access'' to the rear-side land from the main road and will also become the frontage of the aggregate land, thereby enhancing the potential and value of the rear-side land, as also creating a potential for its own use. The contention that a land adjoining the Highway should be treated as having no development potential (and therefore as land without much value except as ordinary agricultural land), while considering the lands to its rear which are farther away from the road, or other adjoining lands of the same extent, but having more depth (so as to extend beyond the 40 meters margin) as having potential for development, is illogical and cannot be accepted.
4. We may demonstrate the absurdity of such a contention with reference to an illustration. Let us take the example of a residential plot of land measuring 60'' X 100''. Let us assume that the Municipal Bye-laws require a front (road side) set-back of 20'' for construction of houses in a plot of that size. Therefore, the owner would leave a twenty feet wide front strip in the said plot free of any construction while putting up the construction in the plot. Obviously, he cannot thereafter construct in that front strip. Let us further assume that the front strip is acquired for road widening. Can the acquiring authority deny compensation to that strip on the ground that the said 20'' strip acquired for road widening could not in any event be used for any construction purpose and therefore, was not of any value? Obviously not.
5. Therefore, determination of market value of the acquired land with reference to the value of comparable land cannot be faulted.
19. We, accordingly, determine the market value of land as on the date of Section 4 notification, at the rate of Rs. 310/- per square metre. The point for determination is answered accordingly.
20. In view of the above, we pass the following:
ORDER
(i) The Appeal filed by the Applicants is partly allowed.
(ii) The Appeal filed by the Respondents stands dismissed.
(iii)The Impugned Judgment and Award dated 15th September, 2005, passed by the Reference Court is modified and the compensation for the land acquired is fixed at the rate of Rs. 310/- per square metre.
(iv)The remaining part of the impugned Judgment and Award allowing the statutory benefits, is confirmed.
(v) Appeals stand disposed of. There will be no orders as to costs.
