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Judgment
M. S. Sonak, J
Heard Mr. Prashil Arolkar, learned Additional Government Advocate for the appellants and Mr. J. J. Mulgaonkar, learned Counsel for the
respondent (Claimant).
This Appeal is directed against the Judgment and Award dated 02.05.2012 made by the Reference Court in Land\ Acquisition Case No.5 of 2007
enhancing the compensation for the acquired land admeasuring about 175 sq.mts from Rs. 50/- per square metre to Rs. 408/- per square metre.
Mr. Arolkar, learned Additional Government Advocate points out that the Reference Court erred in relying on the Sale Deed which was executed
post the Section 4 Notification issued on 29.12.2001. He submits that the Sale Deed was in respect of two fully developed plots and, therefore, could
not have been regarded as comparable instances. He further relied on the decision of this Court dated 12.09.2014 disposing of First Appeal No.30 of
2011 to point out that in respect of land acquired under the very same Notification, this Court had approved compensation @ Rs. 133/- per square
metre. He pointed out that the land involved in First Appeal No.30 of 2011 was from the Village of Khandepar, which has better amenities than the
land involved in the present Appeal at Usgao. He, therefore, submits that in this case the compensation could not have been enhanced beyond Rs.
133/- per square metre.
Mr. Arolkar also submits that the acquired land was within the setback area and therefore there was no potential for further development. He
submits that even this aspect has not been properly considered by the Reference Court and, therefore, warrants interference.
Mr. Usgaonkar, learned Counsel for the respondent defends the impugned Award based on the reasoning reflected therein. He points out that the
Sale Deed which has been relied upon by the Reference Court was executed hardly four months after the issuance of Section 4 Notification. He
points out that more than 50% deduction has been made towards development charges. He points out that even the acquired land had a Soda factory
and, therefore, the acquired land was also developed land. He points out that even a valuation report had been produced justifying the enhancement.
He relies on State of Goa & Anr. V/s. Gopal Baburao Gaudo & Ors(2009) 10 SCC 686 to contend that lands allegedly within setback areas have to
also be paid suitable compensation. Mr. Mulgaonkar also points out that the decision in First Appeal No. 30 of 2011 itself records that the
compensation of Rs. 133/- per square metre was much lower than the actual market price payable. For all these reasons Mr. Mulgaonkar submits that
this Appeal may be dismissed.
Rival contentions now fall for determination.
In this case, since Mr. Arolkar has placed heavy reliance on the decision of this Court in First Appeal No. 30 of 2011, it is necessary to analyze the
same for appreciating Mr. Arolkar's contention.
The decision dated 12.09.2014 in First Appeal No.30 of 2011 also concerns the acquisition of land and the Notification dated 29.12.2001, which is
incidentally the very same Notification under which the land in the present Appeal came to be acquired. The acquisition is for road widening and
improvement of geometrics of KM 116 to 121 of NH-4A (Additional Area) and, the acquisition in the present case under the Notification dated
29.12.2001 is for road widening. The acquisition involves lands in the adjacent villages of Usgao and Khandepar.
In the present Appeal we are concerned with the acquisition of land admeasuring 175sq.mts from the Village of Usgao. In First Appeal No. 30 of
2011, this Court was concerned with the acquisition of lands in the adjacent Village of Khandepar under the very same Notification. There is no
evidence about any disparity of facilities in the Village of Usgao and Khandepar. This Court, in its decision dated 12.09.2014 whilst disposing of First
Appeal No.30 of 2011, no doubt, upheld the Award of compensation of Rs. 133/- per square metre in respect of the acquired land in Khandepar
Village.
However, if the decision dated 12.09.2014 is perused carefully, it will be clear that time and again this Court has held that the compensation @ Rs.
133/- per square metre is much below the price which ought to have been fixed by the Reference Court, particularly, by taking into account the
circumstances that almost
10 years earlier, i.e. in the year 1991, compensation in respect of the acquisition for the very same road/highway had been determined @ Rs. 99.80
per square metre.
The aforesaid is evident from what is set out in paragraphs 8 and 9 of the decision dated 12.09.2014 disposing of First Appeal No. 30 of 2011
which read as follows:
“8. Taking into consideration the fact that this Court today upheld the market value of the land from within the Village Khandepar and from the
same survey number i.e. 107/6 at the rate of Rs.99.8/- per square metre, the market value fixed for the acquired land herein at the rate of Rs.133/-
per square metre on 29.12.2001 i.e. approximately after a period of 10 years is not only just, right and proper but in my humble opinion is much below
than the price which ought to have been fixed by the Reference Court, after taking into consideration the enhancement in the market value of the land
per year.
As stated hereinabove, the lands adjoining to the present land of the respondent were earlier acquired in the year 1991 by Notification
No.22/101/90-RD dated 08.01.1991 and this Court while confirming the market value fixed by the Reference Court at the rate of Rs.99.8/- has held
that it was just, right and proper market value of the said lands therein. The land involved the present appeal is acquired after a gap of 10 years and
the Trial Court has fixed the market value for the present land at the rate of Rs.133/- per square metre. I find that the market value fixed by the Trial
Court at the rate of Rs.133/- per square metre is just and right market value of the acquired land. Mr. Ramani, learned counsel appearing for the
respondent submitted that the Supreme Court in catena of judgments has reiterated that the value/price of the land increases at the rate of 10% per
annum and, therefore, the Reference Court after taking into consideration the said principle ought to have fixed the fair market value for the acquired
land in the present case at much higher rate. There is substance in the said argument of Mr. Ramani. I am of the considered opinion that the market
price fixed by the Reference Court at the rate of Rs.133/- per square metre after applying the aforesaid principle laid down by the Supreme Court is
apparently much less than the then prevailing market value in the year 2001 of the acquired land. However, in the absence of any cross objection at
the instance of the respondent to the market value fixed by the Reference Court, the said point is left, as it is, at this stage.
Record also bears out that the State had filed a review in First Appeal No. 30 of 2011 which was dismissed by this Court. Thus, insofar as the
State is concerned, the decision dated 12.09.2014 in First Appeal No. 30 of 2011 has attained finality.
The decision in First Appeal No. 30 of 2011 establishes that in the year 1991 compensation was determined at Rs. 99.80 per square metre, i.e. Rs.
100/- per square metre as market value for the land from the same Village and the same survey number. This Court has taken note of the principle
that enhancement of @10% per annum should be normally awarded. Based upon this, in the year 2001, the compensation would come to Rs. 261/-
per square metre. This Court was possibly inclined to award such enhancement in its decision dated 12.09.2014 disposing of First Appeal No. 30 of
2011, but, found itself handicapped in the absence of any cross-objections at the instance of the claimant. This is evident from what was observed in
the concluding portion of paragraph 9 of the decision dated 12.09.2014 disposing of First Appeal No. 30 of 2011.
In this case, therefore, the compensation can never be less than Rs. 261/- per square metre. Besides, certain factors benefit the claimant. The first
factor is that the acquired portion was opposite the road and there was already a factory standing thereon. This establishes the potential of the
acquired land. Besides, this is a case of a relatively small plot that was already being used for commercial purposes. The contention based on setback
area was considered and correctly answered by the Reference Court by relying upon the decision of the Hon'ble Supreme Court in the case of Gopal
Baburao Gaudo(supra). Having regard to the additional factors that concern the acquired land in the present Appeal, in my judgment, this is a fit case
where the market value can be determined @ Rs. 300/- per square metre.
Mr. Arolkar, learned Additional Government Advocate is quite right in his submission that there was no basis for determining the market value at
Rs. 408/- per square metre. The Sale Deed relied upon by the learned Reference Court was post the issuance of Section 4 Notification. Besides, the
Sale Deed was in respect of two well-developed plots and in that sense were not comparable instances.
This Appeal is, therefore, partly allowed and the market value/compensation is now determined @ Rs. 300/- per square metre instead of Rs. 408/-
per square metre as determined by the Reference Court in the impugned Judgment and Award. There is no case made out to interfere with any of the
other benefits, i.e. mainly statutory benefits granted by the Reference Court in this matter.
Appeal is partly allowed in the aforesaid terms. The impugned Award is also modified in the aforesaid terms.
Mr. Arolkar points out that the compensation mentioned has already been deposited by the appellants in this Court. If so, the respondent will be
entitled to withdraw the compensation amount by taking the market value at Rs. 300/- per square metre. The respondent will naturally be entitled to all
statutory benefits as have been awarded commensurate to this rate. The appellants will be at liberty to withdraw the balance amount. Both, the
appellant as well as the respondent will be entitled to appropriate interest that will have accrued on the amount already deposited.
Registry to ensure that the amounts are released to both the parties at the earliest and in any case within a period of maximum of 2 months from
the date both the parties furnish their respective calculations.
The Appeal is disposed of in the aforesaid terms.
There shall be no order for costs.