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Judgment
U.V. Bakre, J.—Heard learned Counsel appearing on behalf of the respective parties.
This judgment shall dispose of both the aforesaid appeals which arise from the judgment and award dated 25/07/2006 passed by the learned Ad hoc Additional District Judge, FTC-II, South Goa, Margao (Reference Court, for short) in Land Acquisition Case No. 125 of 2000.
The parties shall be hereinafter referred to as per their status in the said Land Acquisition Case.
Vide notification issued u/s 4(1) of the Land Acquisition Act, 1894 (L.A. Act, for short) and published in the Official Gazette dated 06/08/1992, land was acquired from the villages Telaulim, Navelim and Nuvem of Salcete Taluka, for realignment of National Highway 17 from kilometres 29/460 to 36/060 (Margao Western Bye-pass). This included an area of 1520 square metres of land from survey no. 68/8 of Navelim village which belonged to the applicant. The Land Acquisition Officer (L.A.O., for short), by Award dated 31/05/1996, awarded compensation at the rate of Rs. 20/- per square metre towards the acquired land admeasuring 1065 square metres as it was rice land; at the rate of Rs. 30/- per square metres for the acquired land admeasuring 385 square metres, as it was coconut land; and at the rate of Rs. 5/- per square metres for the acquired land admeasuring 70 square metres, which was road. Not being satisfied with the offer made by the L.A.O., the applicant filed an application u/s 18 of the L.A. Act, before the L.A.O., which gave rise to the said Land Acquisition Case No. 125 of 2000.
The applicant, in her application u/s 18 of the L.A. Act stated as under:
The acquired land has been erroneously classified, as rice, coconut and road, when in fact the said land was fully developed for residential and commercial use with all due permissions from the Authorities, by constructing roads, etc. According to the applicant, the market value of the acquired land ought to have been not less than Rs. 500/- per square metre. She stated that no compensation has been awarded for the land covered by developed plots no. 1, 5, 6 and 7 of which portions were acquired thereby rendering remaining area of the said plots, admeasuring 620 square metres, useless and she ought to have been compensated @ Rs. 250/- per square metre, for the same.
Accordingly, the Reference Court framed issues. The applicant examined her husband, Shri Rosarinho Macario Fernandes, having Power of Attorney on her behalf as AW 1. AW 1 produced on record various documents for proving development of the land, Sale Deed dated 08/01/1990 and valuation report of Engineer Shri Vikas Dessai. Said Shri Vikas Dessai has been examined as AW 2. No evidence was led on behalf of the respondents.
Upon consideration of the entire evidence on record, the Reference Court partly allowed the reference and fixed the market value of the acquired land at the rate Rs. 95/- per square metre and held that the applicant is entitled to all statutory benefits and costs of Rs. 1,000/-. According to the Reference Court, the applicant failed to prove that she was entitled for compensation in respect of any land from developed plots no. 1, 5, 6 and 7, on the ground that the same was rendered useless.
Aggrieved by the impugned judgment and award, the applicant has filed First Appeal No. 298 of 2006 whereas the respondents have filed First Appeal No. 240 of 2007.
Mr. Menezes, learned Counsel appearing on behalf of the applicant invited my attention to various documents produced by AW 1 from Exhibit 22 to Exhibit 31 and the evidence of AW 1 and AW 2 and submitted that the said documents undoubtedly proved that the property under survey no. 68/8 was fully developed by filling it and making it levelled land at the level of the road and providing all infrastructure such as retaining wall, tar roads, gutter for drainage etc. He pointed out that the learned Reference Court did not consider this aspect and has wrongly held that the applicant had only taken permission from Competent Authorities without doing any work at site and that the acquired land was not developed land. According to him, the finding of the Reference Court that the acquired land fell within the road widening area was erroneous and consequently the deduction made on this count cannot be sustained. He further submitted that though the acquired land admeasured 1520 square metres, however small plots were already made and developed by making provision of roads and open spaces and, therefore, no deduction ought to have been made from the price of the sale deed dated 08/01/1990 on the ground that the sale deed plot was small in size as compared to the acquired land. He further submitted that the acquired land was near the church of Navelim and therefore very close to the Municipal Council area and, hence, deduction could not have been made on the ground that the acquired land was in village panchayat area. He thus submitted that the Reference Court had wrongly made deduction of 80% from the price of sale deed plot. He, therefore, urged that the compensation as prayed for by the applicant ought to have been awarded for the acquired land. He then invited my attention to the plan prepared by Engineer Shri Vikas Dessai and showed that a total area of 628.70 square metres from survey no. 68/8 was rendered totally useless. He contended that the evidence of AW 1 and AW 2 sufficiently proved that the said land was injuriously affected. He, therefore, submitted that the Reference Court ought to have awarded compensation at the rate of Rs. 250/- per square metre for the said land which has been rendered useless. According to the learned Counsel, therefore, the findings of the Reference Court are perverse and, therefore, the impugned judgment and award is liable to be quashed and set aside. He submitted that the appeal be allowed and enhancement as prayed for be granted and further compensation towards land which has been rendered useless be also awarded.
On the other hand, Mr. Salkar, learned Government Advocate submitted that the evidence on record did not establish that any actual development was made at the site though it is a fact that permissions were obtained from the Competent Authorities. According to him, the said permissions were of the year 1984 and were all lapsed. Learned Government Advocate urged that the L.A.O. had rightly classified the portions of the acquired land as rice, coconut and road, but the Reference Court erroneously made blanket enhancement of the rate for the entire acquired land at Rs. 95/- per square metre. He submitted that the sale deed plot was admeasuring only 375 square metres as compared to the acquired land which had an area of 1520 square metres. He further submitted that the sale deed plot was admittedly a fully developed plot with approach road on the West whereas the access to the acquired land was admittedly through some private properties. Deduction of 30% towards development charges, according to the learned Government Advocate, is less. According to him the acquired land was coming under the road widening area and thus had no building potentiality. Learned Government Advocate urged that the First Appeal No. 298/2006 bears no substance and deserves to be dismissed. He assailed the impugned judgment and award contending that the same is based on conjunctures and submitted that the same be set aside.
I have minutely gone through the original record and proceedings of Land Acquisition Case No. 125 of 2000. I have considered the submissions made by the learned Counsel for both the parties.
Points that arise for determination are as under:
What should be the true market value of the acquired land, as on the date of notification u/s 4(1) of the L.A. Act?
Whether the applicant is entitled to receive compensation, and if yes how much, in respect of land admeasuring 620 square metres on the ground that it has been rendered useless?
The evidence of AW 1, Rosarinho Fernandes, the Power of Attorney holder of the applicant, reveals that the property bearing survey no. 68/8 had the total area of 4575 square metres. The Form No. I & XIV produced by him as Exhibit 22 proves this fact. No doubt, from the survey records it can be seen that major part of the said property admeasuring 4175 square metres was rice land and a small part admeasuring 400 square metres was garden land. In the award dated 31/05/1996, the L.A.O. himself has mentioned that the acquired land from survey no. 68/8 was falling in settlement zone. AW 1 has produced the conversion sanad dated 21/08/1985 granted by the Deputy Collector, South Division, Margao in respect of an area of 3083 square metres of land from survey no. 68/8, as Exhibit 26 and has stated that he paid conversion fees amounting to Rs. 12,500/- in the office of the Deputy Collector. The date of publication of notification u/s 4(1) of the L.A. Act was 06/08/1992. Thus, the acquired land was not rice or coconut land as on the date of Section 4 notification. It was already converted for residential use, in the year 1985. As per the conversion sanad itself, the applicant was bound to level and clear the land sufficiently to render it suitable for construction. In his cross-examination, AW 1 admitted that the survey no. 68/8 was a paddy field. However, he further stated that the same was filled for development. AW 1 has categorically deposed that after it was purchased by the applicant the same was developed by obtaining necessary permissions from all the authorities. Thus, the L.A.O. could not have classified the acquired land into three types i.e. rice, coconut and road. Same rate for land meant for construction of residential houses, had to be awarded. Therefore, there is no force in the contention of the learned Government Advocate that the Reference Court committed error in granting enhancement at the same rate without giving different rate for different type of land.
The evidence on record duly proves that the property of the applicant from which land was acquired was only about 1180 metres away from the boundary of the area falling within the jurisdiction of Margao Municipal Council. The acquired land was in settlement zone. The Hospital, Banks, Church, High School and Higher Secondary, Post Office, Panchayat office, Fish Market, etc were at a distance of about 1100 metres and the Margao Railway Station was about 2700 metres away from the acquired land. There was bus stop available near the acquired land and transport facility was available. Thus, all the major amenities and facilities were available to the acquired land at short distance. The acquired land was in settlement zone.
AW 1 has produced the plan of proposed sub division of property under survey no. 68/8 which is a part of Exhibit 24-colly. As per this plan, an area of 3140 square metres was covered by plots; an area of 687 square metres by open space; an area or 688 square metres was covered by road and an areas of 61 square metres was left for widening of the road. AW 1 has produced the development permission dated 02/06/1984 granted by the Southern Planning and Development Authority u/s 44 of the Town and Country Planning Act in respect of survey no. 68/8. This development permission is a part of Exhibit 24-colly. AW 1 has produced the approved plan of proposed sub division of survey no. 68/8 thereby specifically showing all the plots and their areas. This plan, which is a part of Exhibit 25-colly, shows that the area of the plots would be 3139 square metres; area of roads would be 749 square metres and that of the open spaces would be 687 square metres. AW 1 has also produced the approved development plan dated 07/08/1985 in respect of survey no. 68/8 which is a part of exhibit 25-colly as also of Exhibit 27-colly. AW 1 has produced NOC obtained from Southern Planning and Development Authority for sale of plots no. 1, 2, 3 and 4 from the land bearing survey no. 68/8 which is dated 29/01/1987 and the NOC obtained from Southern Planning and Development Authority dated 03/05/1990 for sale of plots no. 5, 6 and 7 of the said property. AW 1 had specifically stated that after obtaining the provisional land sub-division approval dated 02/06/1984, he divided the land with permanent distinct marks, into plots and constructed eight metres wide proposed road at level with the Margao-Canacona road and asphalted the road and also constructed retaining walls on both the sides with laterite stones. He stated that he also constructed water drains to drain the water out into the natural drainage. He specifically stated that after the development of the said property was completed, a part of this property was acquired on 09/03/1992. The testimony of AW 1 insofar as the said actual development of the property under survey no. 68/8, carried out, is concerned, is not at all shaken in the cross-examination. It is pertinent to note that all the facts about such development of the property were informed by the applicant by letter dated 22/04/1996 to the L.A.O.
There is on record the evidence of the Engineering Consultant and Government Registered Valuer namely Shri Vikas Dessai (AW 2) which reveals that the acquired land was in settlement zone having residential house towards East, West and North side and that the said property, under survey no. 68/8 was fully developed, after obtaining conversion sanad and all other required permissions. He had inspected the acquired land on 15/12/1992 and twice thereafter. He found the acquired land slightly above the level of the road and it was almost levelled. He found the area served with electricity, telephone, tap water, transport, etc. He found that the land was subdivided and all the developments such as filling, construction of retaining wall, tar roads and gutter for drainage was completed. All the above facts are duly mentioned in the valuation report of AW 2, which is at Exhibit 38. It cannot be expected that the Planning Authority would give NOC for sale and registration of sale deeds of plots without there being in existence the fully developed plots. The evidence of AW 1 and AW 2, with regard to the development of the land under survey No. 68/8, already carried out prior to acquisition, after obtaining conversion and all required permissions is not at all shaken in the cross-examination and has strong support of documents on record. The unshaken evidence of AW 1 supported by strong documentary evidence sufficiently proves that the sub division of the plots of the development at loco was already done by the applicant by incurring huge amount of about Rs. 4,52,000/-. The finding of the Reference Court that there is no evidence on record as to the sub division of the plots and the development work, if any, done at loco is erroneous and perverse. Admittedly, the acquired land was in settlement zone. In my view, the acquired land was part of fully developed land meant for construction of residential houses. The locality was served with electricity, telephone, tap water, etc.
AW 1 produced the sale deed dated 08/01/1990. By this sale deed, a subdivided plot bearing no. 16, admeasuring 375 square metres, situated at Navelim, within Margao Municipal area, was sold for Rs. 1,45,000/- i.e. at the rate of Rs. 386.66/- per square metre. AW 1 has deposed that this sale deed plot is situated at a distance of about 1500 metres from the acquired land. Thus, it is not far away from the acquired land. The acquired land also falls in village Navelim, though in village panchayat area. The evidence on record reveals that the sale deed plot was about 20 metres away from the Margao-Cuncolim National High way. The acquired land was about 16 metres away from the Margao-Karwar National Highway. The Trial Court rightly held that the said sale deed plot was suitable for determination of market value of the acquired land. The date of publication of Notification u/s 4(1) of the L.A. Act was 06/08/1992 which means that there was gap of about two and half years i.e. to say that the sale transaction was about two and half years prior to the said date of the Notification. The prices of land everywhere, and more particularly in Goa, go on increasing every year. The Reference Court gave increase of 10% per year to the price of the sale deed plot, on this count and in my view rightly so. By giving 10% increase per year on compounding basis for two and half years, the price of the said sale deed plot as on 06/08/1992 would become Rs. 491/- per square metre.
The Reference Court deducted 30% from the price of the sale deed towards development charges. The question of making deduction towards development charges does not arise since the property bearing survey no. 68/8 which included the acquired land was also a fully developed land and had sub-divided plots ready for sale Thus, such deduction of 30% ought not to have been made.
The sale deed plot, admeasures 375 square metres whereas the acquired land admeasures 1520 square metres. On the ground that the acquired land is large in size, the Reference court made deduction of 10%. In the case of Nelson Fernandes and Others Vs. Special Land Acquisition Officer and Others, which was relied upon by the Reference Court, the acquired land was 11,692 square metres and the sale deed plot was 385 square metres. Thus, the acquired land, in the case supra, was about 30 times larger than the sale deed plot. But in the present case, the acquired land is only about 4 times larger than the sale deed plot. The aforesaid case was not applicable. Be that as it may, the sale deed plot, in the present case, was one of the plots out of many sub-divided plots formed by developing a big property. Similarly, the acquired land was from a big property admeasuring 4575 square metres, which was fully developed by forming several plots which were ready for sale. The applicant could have sold the said small plots. In the circumstances above, the finding of the Reference Court that deduction of 10% ought to be made since the acquired land admeasures 1520 square metres and the sale deed plots admeasure 375 square metres, is not acceptable and is uncalled for. Therefore, no deduction ought to have been made on account of the size of the acquired land vis-�-vis the sale deed plot.
The evidence on record reveals that between the property under survey no. 68/8 and the old National High Way, there were two properties bearing survey nos. 68/7 and 68/10. The acquired land did not form the border of survey no. 68/8, but was inside the said survey no. 68/8, and it occupied the portions of subdivided plots no. 1, 5, 6 and 7 of the subdivision plan of the applicant. Since, the subdivision of survey no. 68/8 was approved with the said plots no. 1, 5, 6 and 7, it cannot be believed that the acquired land was falling in the road widening area. AW 1 had specifically denied that the acquired land was coming within the setback area of National Highway 17 and that no development or other activity was permissible in the said land. According to AW 2, the acquired land was at a distance of about 16 metres from old Margao-Karwar National highway. The respondent did not lead any evidence to prove that the acquired land was falling within the road widening area. Therefore, on this count also, no deduction ought to have been made. However, the learned Reference Court has made deduction of 20% from the price of the sale deed plot, on this count. In my considered view, no deduction is required to be made on this count.
It is true the sale deed plot was situated in Margao Municipal area whereas the acquired land was situated in the jurisdiction of village panchayat of Navelim. The own valuer of the applicant i.e. Shri Vikas Dessai (AW 2) had made deduction of 5% on this count. The applicant therefore cannot claim that no deduction ought to be made, on this count. Considering the location of the acquired land, in the village panchayat area, but not far away from the municipal council area, in my view, 10% deduction made by Reference Court on this count is reasonable. By making deduction of 10% in the price of Rs. 491/- per square metre, the figure which arrives at is Rs. 442/-.
The sale deed at Exhibit-33 reveals that it is bounded on the west by road. However, the acquired land does not appear to be directly accessible to road as on the date of publication of notification u/s 4(1) of the L.A. Act. The evidence of AW 1 reveals that by some kind of arrangement with the vendor Shri Bandodkar, there was allegedly an access to approach the property of the applicant through the property of some others. The old highway was at some distance from survey no. 68/8. Between the old highway and survey no. 68/8, there is land bearing survey no. 68/7. According to AW 2, there is access through survey no. 68/7 to go to the sub-divided property of the applicant. However, there is no convincing evidence to establish the nature of the alleged arrangement with the private owners. No documentary evidence to prove the same has been produced nor the owner of survey no. 68/7 has been examined. In the circumstances above, the sale deed plot which admittedly had internal road on its western side had advantage which was superior to the acquired land for which only an arrangement for access was made. Due to the above, some deduction is bound to be made. The learned Reference Court has made deduction of 10% on this count which in my view appears to be reasonable. By making deduction of 10% on this count, the price of Rs. 442/- comes down to Rs. 397.80 (rounded up to Rs. 398/- per square metre).
I am therefore of the considered view that the learned Reference Court has erred in fixing the market value of the acquired land @ Rs. 95/- per square metre only. The market value of the acquired land at the relevant time was Rs. 398/- per square metre. Hence, the point for determination at serial no. 1 in paragraph 12 above gets answered accordingly.
According to AW 1, total area from developed plots no. 1, 5, 6 and 7 which has been wasted is 620 square metres and that the same has been rendered unfit for development/residential purpose, as the size of the said plots has been reduced and the remaining area of the plots falls within the road widening area. But according to AW 2, the total area injuriously affected is 628.70 square metres. Hence there was no corroboration. On account of the acquisition, in fact, now the applicant is benefited by existence of newly built National High Way on its western boundary. There is balance area of 3055 square metres in survey no. 68/8, after acquisition. AW 2, the expert witness of the applicant has admitted that all the area remaining after acquisition including the open spaces would be available for development. No doubt, he has added that the new area which would come under setback will have to be left. A perusal of the provisionally approved sub-division plan at Exhibit 24 and the plan, Exhibit 39 drawn by AW 2, the expert, reveals that some area, on the boundary of the property of the applicant, was left for road widening. The applicant can re-schedule the plots by making new sub-division plan. In this regard, the evidence of AW 1 and AW 2 and the plan prepared by AW 2 which at Exhibit 39 is not sufficient to prove that any area of the property of the applicant has been injuriously affected and has been rendered useless for anything. The point no. 2 for determination, mentioned in paragraph 12 above, is therefore answered in the negative i.e. against the applicant.
In view of the above, the First Appeal No. 240 of 2007 is bound to fail whereas the First Appeal No. 298 of 2006 filed by the applicant is bound to be partly allowed.
In the result, I pass the following:
ORDER
(a) First Appeal No. 240 of 2007 is dismissed.
(b) First Appeal No. 298 of 2006 is partly allowed.
(c) The market value of the acquired land admeasuring 1520 square metres is fixed @ Rs. 398/- per square metre.
(d) The applicant shall be entitled to all the statutory benefits and costs of Rs. 1,000/-.
(f) The amount already paid to the applicant, if any, shall be adjusted.
(g) The impugned judgment and award accordingly stands altered.