Judgment:
F.M. Reis, J.
1. The above appeals challenge the Judgment and Award dated 18th June, 2004, passed by the learned Addl. District Judge-III, at Margao in Land Acquisition Case No. 233/1995.
2. The Appellant in First Appeal No. 240/2004 is the original Applicant and the Appellants in First Appeal No. 252/2004 are the original Respondents in the said Land Acquisition Case No. 233/1995 before the reference Court.
3. The parties shall be referred to herein in the manner as they so appear in the said impugned Judgment and Award.
4. By a notification dated 1 0th June, 1991, issued under Section 4 of the Land Acquisition Act, 1894, (for short, the Act), an area admeasuring 37,000 square metres was sought to be acquired belonging to the Applicant situated in the property surveyed under No. 200/1 of Poinguinim Village for the construction of New B. G. line for Konkan Railway. By an Award dated 31st March, 1994, the Land Acquisition Officer, fixed the compensation for the land acquired at the rate of Rs. 4/- per square metre and a sum of Rs. 31,826.16 for the trees existing therein and a further sum of Rs. 5,128.15 for the structures existing in the acquired land.
5. Being dissatisfied with the determination of compensation by the said award, the Applicant sought a reference under Section 18 of the Act for enhancement of compensation and prayed for a compensation for the land acquired at the rate of Rs. 200/- per square metre, besides compensation for trees at the rate of Rs. 5,000/- per coconut tree, Rs. 5,000/- per mango tree, Rs. 2,000/- for per cashew tree and Rs. 1 ,00,000/- for the remaining trees.
6. After framing the issues and recording of evidence, the Reference Court by the impugned Judgment and Award dated 18th June 2004, awarded the compensation for the land acquired at the rate of Rs. 15/- per square metre.
7. Being aggrieved by the said Judgment and Award, the Applicant as well as the Respondents have preferred the present Appeals.
8. The learned Counsel appearing for the Applicant assailed the Judgment passed by the Reference Court and submitted that the market value arrived by the Reference Court is not in accordance with the well settled principles of law. The learned Counsel further submitted that the Reference Court erred in coming to the conclusion that the land of the Applicant required cutting up to a height of 70 metres for laying the railway tracks as such aspect cannot be considered for the purpose of determining the compensation as the cost incurred for the purpose for which the land is acquired is immaterial for determining the market value as on the date of Section 4 notification. The learned Counsel further submitted that the evidence of Aw.1 has been misconstrued by the Reference Court whilst coming to such a conclusion. The learned Counsel further submitted that the Reference Court erred in coming to the conclusion that the land of the Applicant was a forest land merely because there were some trees existing therein. He further submitted that the Reference Court erroneously came to the conclusion that the land of the Applicant was almost about 120 metres above the level of the internal road as there was no material to arrive at such finding, on the relevant date. The learned Counsel further submitted that the Reference Court though accepted a Sale Deed dated 27th June, 1991, wherein the price of land was Rs. 65/- per square metre, nevertheless, erroneously, deducted Rs. 50/- on account of development charges, etc., which is exorbitant. The learned Counsel further submitted that there was ample evidence on record to come to the conclusion that the value of land as on the date of Section 4 of the Notification was at the minimum rate of Rs. 80/- per square metre.
9. On the other hand, the learned Counsel appearing for the Respondents has submitted that the market value fixed by the Reference Court as on the date of Section 4 Notification, is exorbitant as the Sale Deed relied upon by the Applicant was of a developed plot and the land acquired was to the tune of 37,000 square metres. He further submitted that the Sale Deed relied upon by the Reference Court was in respect of a plot of land admeasuring 616 square metres in Poinguinim Village, wherein the price was Rs. 50/- per square metre, which was not comparable to the land acquired. The learned Counsel also submitted that the land of the Applicant had no potential value and as such there was no justification for the Reference Court to enhance the compensation as awarded by the Land Acquisition Officer. The learned Counsel further submitted that there were no comparable Sale Deeds produced by the Applicant and, as such, the impugned Judgment and Award passed by the Reference Court deserves to be quashed and set aside.
10. During the course of the submission, it was brought to our notice that the Division Bench of this Court by Judgment dated 16th September, 2009, passed in First Appeal No. 154/2005 in the case of Shri Sawaivir Sadassiva Rajendra Bassavaling Raje Wadiyar and Ors. v. Special Land Acquisition Officer, Konkan Railway and Anr., fixed the market value of the land as on the date of Section 4 of the Notification at Rs. 43/- per square metre, in respect of the land which was the subject matter of the same notification as in the present appeal.
11. Having heard the learned Counsel and on perusal of the records, we find that the following point for determination arises in the present Appeals:
1. Whether the Reference Court was justified in fixing the market value of the land acquired, as on the date of Section 4 of Notification, at the rate of Rs. 15/- per square metre ?
12. In support of her claim for enhancement of compensation, the applicant examined her son, who is her Power of Attorney Holder. He has deposed that a portion of the property admeasuring 37,000 square metres was acquired by the Respondents from the property known as 'Devabag', and that the said land is at a distance of about 600 metres from Galjibag beach and that amenities such as bus stand, shops, etc., were available at Poinguinim Village which is located at a distance of 500 metres from the acquired land. He has further deposed that there were trees located in the acquired land. In support of his claim, he has relied upon a Sale Deed, dated 16th August, 1988, wherein an area of 616 square metres from Survey No. 189/1 was sold for a total consideration of Rs. 30,800/-, which works up to Rs. 50/- per square metre. He has further stated that the said Sale Deed plot was adjoining to the land acquired and that the plot sold was not a developed plot but is a part of a big property. In his cross examination, he has stated that the access from the Margao-Karwar road to his property is from a place known as 'Ordofond', which is at a distance of about 300 metres from the acquired land. He has further deposed that across the Talpona River, the Konkan Railway has constructed an over bridge, which is located at a height of 50 metres above the internal road into the acquired land. He has further admitted that there were cashew trees and other trees in the acquired land. The Applicant has also examined Vikas Dessai, Aw.2, who is the valuer and who has valued the land of the Applicant. He has relied upon the said Sale Deed dated 16th August, 1988 and valued the land of the Applicant at the rate of Rs. 75/- per square metre. No evidence has been adduced by the Respondents.
13. From aforesaid evidence on record, the only sale instance relied upon by the Applicant is the Sale Deed at exhibit 19 whereas the land was sold at the rate of Rs. 50/- per square metre for an area of 616 square metres. The Reference Court has relied upon the Sale Deed at exhibit 19 and, on the basis of appreciation of 10% per annum, has worked out the market value of the land acquired, as on the date of Section 4 Notification i.e. 27.06.1991, at the rate of Rs. 65/- per square metre, but, however, the Reference Court has deducted a sum of Rs. 50/- on five counts i.e. Rs. 10/- each on account of the land acquired being a big land; the land acquired was sloppy and hilly land; the acquired land was a forest land; that there were no houses in the acquired land and towards development costs and, consequently, determined the market value of land as on the date of Section 4 Notification at the rate of Rs. 15/- per square metre.
14. The Division Bench of this Court in First Appeal No. 154 of 2005, by Judgment dated 16th September, 2009, had occasion to deal with an acquisition of a portion of the land surveyed under No. 189/1 admeasuring 48,895 square metres and under survey No. 169/9 admeasuring 16,951 square metres of Village Poinguinim, Taluka Canacona District, for the same purpose. The Section 4 Notification in respect of the said acquisition under the said Act which was published in the Official Gazette was dated 1 0th June, 1991, for the construction of a new broad gauge line of Konkan Railway. On perusal of the said Judgment in the said Appeal, we find that the subject matter of the acquisition in the present Appeals as well as in the said First Appeal No. 154 of 2005, is the same. The purpose of the acquisition is also the same. Both the lands were acquired by the same notification. The Land Acquisition Officer had awarded compensation for both the lands at the rate of Rs. 4/- per square metre besides compensation for the trees existing therein. Both the lands are situated in the same Village. The Reference Court relying on the same Sale Deed at exhibit 19, dated 16th August, 1988, determined the compensation for the land acquired which was subject matter of the said First Appeal at the rate of Rs. 15/- per square metre. The Division Bench of this Court after overall examination of evidence on record, determined the market value of the land acquired at the rate of Rs. 43/- per square metre. This Court has relied upon the same Sale Deed at exhibit 19, where the price was Rs. 50/- per square metre and, after appreciation of 10% per annum, worked out the value at the rate of Rs. 65/- per square metre and made a deduction of Rs. 22/- from the Sale Deed price to arrive at the figure of Rs. 43/- per square metre. This Court has held at para 12 thus:
12. ... Considering these facts and circumstances normally accepted deductions to the extent of one third of the total market value from the market value of the sale deed plots needs to be made. Deduction of Rs. 50/- from the sale deed price of Rs. 65/- made by the learned Referral Court therefore, appears to be irrational. One third of the sale deed price of Rs. 65/- works out to roughly Rs. 22/-. Deduction of Rs. 22/- from the sale deed price of Rs. 65/- would therefore be appropriate deduction in the given facts and circumstances. The market value of the acquired land thus can be worked out to Rs. 43/- per sq. mtr.
15. In view of the said Judgment of the Division Bench, the market value determined by the Reference Court at the rate of Rs. 15/- per square metre, cannot be sustained. The contention of the learned Counsel for the Respondents that the Applicant has failed to establish her claim for enhancement of compensation, deserves to be discarded. There is no dispute that the land acquired in the present case and the one which was subject matter of the said First Appeal are located in the same Village and the same were acquired for the same purpose by the same notification. In fact, whilst making the award under Section 11, the Land Acquisition Officer had valued both the lands at the same price which itself suggests that the nature of the land is similar. In Attar Singh and Anr. v. Union of India and Anr. : (2009) 9 S.C.C. 289, the Apex Court at Para 17 has held thus:
17. There is another aspect of the matter which cannot also be lost sight of. The High Court based its decision on its earlier common judgment arising out of the same notification. The lead judgment was delivered in Jia Ran v. Union of India. We have not been informed whether any appeal has been preferred against that judgment and if so, what was the result thereof. In the absence of that information, we are of the opinion that the appellants should not be treated differently from Jia Ram who might not have preferred any appeal and have accepted the judgment of the High Court.
16. Consequently, there is no reason not to adopt the same value as for the land involved in the present Appeals also as the one fixed by the Division Bench in the said First Appeal No. 154 of 2005.
17. As such, for the reasons recorded by the Division Bench of this Court in the said First Appeal No. 154 of 2005, the market value of the land of the Applicant in the present case, is fixed at Rs. 43/- per square metre. The Reference Court whilst arriving at the amount payable to the Applicant, has amalgamated the market value of the land acquired and the value of trees in the land acquired. The Division Bench at Para 15 of the said Judgment has held that the Reference Court has committed no error in amalgamating the market value of the land with the value of the trees standing thereon for arriving at the rational figure of consolidated compensation.
18. The Reference Court in the present case has determined the amount awarded by the Land Acquisition Officer at the rate of Rs. 4.85 per square metre after amalgamating the value of the land and the trees existing there. Considering the market value determined for land acquired being at the rate of Rs. 43/- per square metre, the excess amount payable to the Applicant works up to Rs. 38.15, which is rounded up to Rs. 38/- per square metre for the land acquired. The point for determination is answered accordingly.
19. In view of the above, the Applicant is entitled for the excess compensation of Rs. 38/- per square metre for the land acquired. Needless to say, that the Applicant would also be entitled for statutory benefits in accordance with law after deducting any amount of compensation paid by the Respondents to the Applicant.
20. In the circumstances, the impugned Judgment and Award dated 18.06.2004 is modified and the excess compensation payable to the Applicant for the land acquired is determined at Rs. 38/- per square metre along with all the statutory benefits in accordance with law after deducting the amounts paid by the Respondents.
21. Both the Appeals are disposed of with no orders as to costs. Decree be drawn accordingly.