Oral Judgment:
Heard Ms. Linhares, learned Additional Government Advocate appearing on behalf of the appellants and Mr. M. B. D'Costa, learned Senior Counsel appearing on behalf of the respondents.
2. The appellants are aggrieved by the judgment and order dated 31/08/1999 passed by the learned Additional District Judge (II) (Reference Court, for short) in Land Acquisition Case No. 116 of 1997.
3. The parties shall be referred to in the manner as they appear in the cause title of the said Land Acquisition Case.
4. Facts giving rise to the appeal, in short, are as follows:
Vide notification published under Section 4(1) of the Land Acquisition Act, 1894 (L.A. Act, for short), in the Official Gazette dated 10/10/1991, the Government acquired land for construction of Utorda to Arossim link road (additional area). This included a portion of land admeasuring 1225 square metres from Survey No. 98/1 and a portion of land admeasuring 515 square metres from Survey No.149, of Village Arossim of Mormugao Taluka. By award dated 06/09/1993, the Land Acquisition Officer (LAO) offered compensation at the rate of Rs. 30/- per square metre in respect of the coconut garden land admeasuring 1225 square metres from Survey No. 98/1 and 100 square metres from Survey No. 149. The LAO offered the rate of Rs. 5/- per square metre in respect of the remaining 415 square metres of land from Survey No. 149, the same being paddy field of single crop. Not being satisfied with the offer made by the LAO, the applicant made the application under Section 18 of the L.A. Act before him and that gave rise to the said Land Acquisition Case No. 116 of 1997.
5. The applicant stated in the reference application that the land is ideally situated about 500 metres from the sea front and is connected to the main road of Margao to Mormugao by means of kachha road and fit for urban development and is serviced with electricity and water supply. The applicant further stated that the acquired land is close to the market, commercial centre and school and there are number of hotels in the locality and there is a also railway line passing through the village. The applicant claimed that the prevailing market price of the acquired land at the time of publication of notification under Section 4 of the L.A. Act was Rs. 500/- per square metre.
6. Accordingly, the issue came to be framed and in order to prove his claim, the applicant examined himself as AW1; an Engineer/valuer namely Sakharam Bhende as AW2 and Furtunate D'Melo, the purchaser of the plot of the sale deed dated 28/10/1987 (Exhibit AW1/A), as AW3. The respondents did not examine any witness.
7. The Reference Court held that the sale deed dated 28/10/1987(Exh. AW1/A) is in close proximity in location and time and that the nature of the same is similar to that of the acquired land. The Reference Court held that the said sale transaction can be considered for determination of market rate of the acquired land which is comprising of coconut garden. Since, the acquired land was not a developed land and since the plot of the sale deed was out of a developed sub-divided property, the Reference Court made a deduction of 40% in the price of sale deed which was Rs. 254/- per square metre and brought down the rate to Rs. 152/- per square metre. The Reference Court further found that the sale deed plot was accessible by motorable road whereas the acquired was not accessible by motorable road and further the sale deed land was closer to the beach and also smaller in size as compared to the acquired land. On account of the above, a further deduction of 35% was made which brought down the rate of Rs. 152/- per square metre to Rs. 98/- per square metre. Since the sale deed is dated 28/10/1987 and the date of publication of notification under Section 4(1) of L.A. Act is 10/10/1991, the Reference Court held that the sale deed was executed four years prior to the date of notification and gave increase of 10% per annum to the said rate of Rs. 98/- per square metre and ultimately fixed the market value of the land comprising coconut garden to be Rs. 137/- per square metre. The said land comprising coconut garden admeasures 1225 square metres from Survey No. 98/1 and 100 square metres from Survey No. 149. As regards the remaining portion admeasuring 415 square metres of the acquired land from Survey No. 149 which was a paddy field, the Reference Court held that the same is not comparable with the plot of the sale deed and that the applicant has not adduced any other evidence to prove the market rate of the paddy field in the vicinity as on the date of acquisition. The Reference Court, therefore, held that there was no material for fixing the market rate of the said paddy field land. The reference came to be partly allowed. The market value of the coconut garden admeasuring 1325 square metres has been fixed at Rs. 137/- per square metre whereas the reference has been rejected insofar as the paddy field land admeasuring 415 square metres, is concerned. All the statutory benefits under the L.A. Act have been awarded to the applicant. The respondents are aggrieved by the above enhancement in compensation awarded by the Reference Court.
8. The learned Additional Government Advocate, on behalf of the respondents, submitted that the acquired land did not have motorable access and that the sale deed considered by the Reference Court for determining the market value was fully developed plot near the Cansaulim sea shore and meant for construction of residential house and had the area of only 393 square metres as compared to the undeveloped acquired land having the area of more than 1000 square metres which was garden land containing paddy field portion and away from the beach. According to the learned Counsel, the said sale deed could not have been considered. She therefore prayed that the appeal be allowed and the impugned judgment and Award be set aside and the reference be rejected. In the alternative, the learned Counsel appearing on behalf of the respondents contended that the deduction of only 35% made by the Reference Court on the ground of smallness in size of the sale deed plot; its accessibility by motorable road and its nearness to the beach is on a lower side and according to her at least a deduction of 50% is liable to be made in the rate of Rs. 98/- per square metre. The learned Counsel further submitted that though the sale deed dated 28/10/87 at Exhibit AW1/A was executed about three years and six months prior to the date of notification which is 1/4/1991, the Reference Court has given increase of 10% per annum for four years. She therefore contended that this mistake has to be rectified. She therefore alternatively urged that the appeal be allowed and the market rate be reduced accordingly.
9. Per contra, the learned Senior Counsel, on behalf of the applicants, pointed out that the evidence of AW1, the applicant as well as of AW2, the Valuer has gone unchallenged and as per the valuation report which is at Exhibit AW1/E, which is not challenged, the value of the acquired land as on the date of publication of notification was Rs. 200/- per square metre. He further submitted that as per the settled principle of law the annual increase in price of the land has to be made on compounding basis whereas in the present case the Reference Court has not done so. He contended that the gap between the execution of the sale deed and publication of notification cannot be literally counted in terms of months and days but the same has to be roughly taken into account. He pointed out from evidence on record that the acquired land is only about a kilometer away from Arossim beach and Utorda-Arossim road. He further pointed out that there were about 9 to 10 houses in the unacquired portion of land from Survey No. 98/1 and there was electricity as well as water connection in the said land even prior to the publication of the notification under Section 4(1) of the L.A. Act. He also submitted that the Cansaulim market, church, school etc. are at a distance within half kilometre from the acquired land. According to him the market rate fixed by the learned reference Court is actually on a lower side. He therefore submitted that no interference is called for in the impugned judgment and the appeal is liable to be dismissed.
10. I have gone through the original record and proceedings of Land Acquisition Case No.116/97 and considered the submissions made by the learned Counsel for both the parties.
11. The point that arises for determination is whether the market value determined by the Reference Court is correct or there is error in enhancing the compensation from Rs. 30/- per square metre to Rs. 137/- per square metre.
12. As has been pointed out by the learned Senior Counsel appearing on behalf of the applicants, the evidence of AW1 (original applicant) and AW2 (engineer and valuer) and the documents produced by them have gone unchallenged. The evidence on record duly proves that the acquired land is close to Arossim Beach, Cansaulim market, church, school, etc. and even prior to the publication of the notification under Section 4(1) of L.A. Act there were houses in the unacquired portion of land from Survey No. 98/1 and there was electricity and water connection in the acquired land. Though there was no motorable road to approach the acquired land, however there was a footpath access. The evidence on record clearly reveals that the plot of the sale deed dated 28/10/1987 is only at a distance of about 700 square metres from the acquired land and the nature of the said land is similar to that of the acquired land. This transaction is less than five years prior to the date of publication of notification under Section 4(1) of the L.A. Act. Prices fetched for similar lands with similar advantages and potentialities under bonafide transactions of sale at or about the time of publication of notification are normally taken as the best evidences of market value. If the similar lands under such sale transactions are smaller in size and have more advantages and potentialities as compared to the acquired land, then the same should be brought at par by making appropriate deductions in the value. In such circumstance, no fault can be found with the finding of the Reference Court that the said sale deed dated 28/10/1987 can be considered for determining the market rate of the acquired land which is comprising of coconut garden. No doubt, the plot of the sale deed is a subdivided plot whereas the acquired land was not a developed land. The extent of deduction depends upon nature and location of the land, nature of development and extent of expenditure involved for such development. In the case of âLal Chand V/s Union of Indiaâ [2009 (15) SCC 769], it is held that deduction towards development cost may vary from 20% to 75% depending upon various factors. The learned Reference Court has made a deduction of 40% in the price of sale deed plot on this ground, which in my considered opinion is just and reasonable. There is also no dispute that the acquired land admeasures more than 1000 square metres whereas the plot of the sale deed admeasures only 393 square metres. The learned reference Court has considered the smallness of the sale deed plot and also other factors namely that the sale deed plot is accessible by motorable road and is closer to the beach as compared to the acquired land. On this ground the reference Court has made a deduction of 35%. It cannot be said that this deduction of 35% is less and that the same should be about 50% as contended by the learned Additional Government Advocate. I am of the view that the said deduction is just and proper.
13. The contention of the learned Additional Government Advocate that there is a gap of only three years and six months between the execution of the sale deed and the publication of notification under Section 4(1) of the L.A. Act does not appear to be wholly correct. The date of the said sale deed is 28/10/1987. The learned Additional Government Advocate has taken the relevant date for determination of the market value as on 01/04/1991 which is not correct. That is the date of the notification and not the date of its publication. Section 23(1) of the L.A. Act, inter alia, provides that the in determining the amount of compensation to be awarded for land acquired under this Act, the court shall take into consideration the market value of the land at the date of publication of the notification under Section 4(1). Section 4(1) of the L.A. Act, inter alia provides that the last of such publication and the giving of such public notice is the date of the publication of the notification. Publication of notification under Section 4(1) of the L.A. Act, therefore plays significant role in determination of the market value and what is relevant is the last of such publication. The notification no. 22/53/91-RD bears the date as 01/04/1991 but the same was published in the local news papers namely âNavhind Timesâ dated 24/4/1991 and âRashtramatâ dated 25/4/1991 and the same was thereafter published in the Government Gazette dated 10/10/1991. The last date of publication being 10/10/1991, the relevant date of determination of market value is 10/10/1991. Therefore, the gap between the execution of the sale deed and the publication of notification under Section 4(1) of the L.A. Act in respect of the acquired land is about four years. As has been rightly argued by the learned Senior Counsel appearing on behalf of the applicant the said calculation of the gap cannot be done by mathematical precision by counting exact days and months. It has to be roughly counted.
14. In the case of âRanjit Singh and Ors Vs. Union Territory of Chandigarhâ [(1992) 4 SCC 659], the Apex Court has held that the market value of lands acquired pursuant to the preliminary notification could not have been freezed at the same market value fixed for similar lands acquired under a previous notification after one year and towards the general increase of land prices during that period, higher market value say about 10% per year should be awarded. In the case of âDelhi Development Authority Vs. Bali Ram Sharma and ors.â [(2004) 6 SCC 533], the Apex Court has held that in cases where the purpose of acquisition was the same but notification under Section 4(1) was issued on a subsequent date, obviously there would be escalation of prices in regard to those lands and hence it would be appropriate to give an annual increase of 10% in the market value in respect of the lands acquired by subsequent notification. Therefore, the annual increase of 10% awarded by the Reference court cannot be faulted. In fact, it has to be kept in mind that the Reference Court has not considered the annual increase in the price of land, on compounding basis, though the same could have been done in view of the judgments passed in this regard. For instance, in the case of âV. M. Salgaonkar and brother Vs. Union Of Indiaâ [(1995) 2 SCC 302], the Hon'ble Supreme Court has upheld the application of principle of interest at compound rate. Therefore, the grant of 10% rise in the price of land per year cannot be said to be unreasonable and awarding the same cumulatively for four years as done by the Reference Court cannot be said to be on a higher side.
15. The impugned judgment and order, in my view, is in accordance with the settled principles of law and there is no error in giving the enhancement in the market value of the acquired land comprising of coconut garden. There is no scope for interference.
16. In the result, the appeal is dismissed, however with no order as to costs.