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Judgment
N.A. Britto, J.—The appellants herein take exception to Judgment dated 15-9-2004 of the learned Reference Court, by which their claim for enhancement of compensation, from Rs. 20/- to Rs. 450/- per sq. meter, has been rejected.
The parties hereto shall hereinafter be referred to in the names as they appear in the cause title of the said reference.
There is no dispute that an area of 950 sq. meters of the applicant''s plot, having survey No. 51/6, was acquired by the Government by virtue of first notification published u/s 4 of the Land Acquisition Act, 1894 on Gazette dated 19-3-1991, and second notification published on Gazette dated 25-5-1995, in view of Writ Petition filed by the applicants. The land was acquired for the construction of road from Sambatty to Gontonaik via Bironaik in Village Panchayat of Orlim. This portion which has been acquired is located at the extreme southern end of the property of the applicants, as shown on the plan produced by the applicants. It appears that the owners of property surveyed under No. 50/6 had also got a reference made, but their reference was rejected, being Land Acquisition Case No. 12/1999 against which the said owners preferred no appeal. There is no dispute that the land was acquired for the purpose of constructing a road where there was already a traditional road of a length of about 1.5 kms. In support of their case for enhancement, the applicants had placed reliance on four sale deeds, namely sale deed dated 19-7-1988 by which applicant No. 3 had sold a plot of land admeasuring 175 sq. meters of survey No. 51/5 at the rate of Rs. 100/- per sq. meter, situated at a distance of about 25 meters from the acquired land which according to the applicants was similar to the acquired land; the applicants had also produced another sale deed dated 19-8-1987 by which their sister and mother had sold a plot of land of survey No. 50/6 at the rate of Rs. 100/- per sq. meter which was situated at a distance of about 200 meters from the acquired land and about 400 meters from Margao-Orlim-Cavelossim road; the applicants had also produced another sale deed dated 8-5-1992 by which a plot of land of 600 sq. meters was sold at the rate of Rs. 103/- per sq. meter situated at a distance of about 500 meters from the said Margao-Cavelossim road which according to the applicants was also similar to the acquired land; the applicants had also produced another sale deed dated 15-11-1993 by which a plot of land was sold at the rate of Rs. 97/- per sq. meter, situated at a distance of about 500 meters from the acquired land.
The only issue canvassed in this appeal is as regards the enhancement of compensation. Shri J.F. Melo, the learned Counsel on behalf of the appellants has fairly conceded that although a report was produced as regards the valuation of the trees, the person who had prepared the report was not examined by them. Even otherwise, it is common knowledge that the trees from the acquired land are valued by the experts from the Zonal Agricultural Office and compensation payable is fixed on the basis of the value given by them. As regards severance charges also there was no evidence led as to what area of the applicants property was rendered useless, once it was conceded that the acquired portion of 650 sq. meters was located on the extreme southern side of the said property. The applicants have produced a copy of the survey plan of survey No. 51/6. The learned Reference Court has dismissed the reference basically on the ground that the acquired land was used as a public road and as such could not be used for any other purpose. In dismissing the reference, the learned Reference Court had observed that the expert examined by the applicants had not dealt with that aspect of the existence of the road. The learned Reference Court noted that AW1/Joaozinho Martin, in cross-examination had admitted, that earlier there was a kutcha road of 3 meters width, starting from the main road and passing through survey No. 51/6 and going further towards the western side, the total length of which was about one and half kilometer; that AW1/Joaozinho Martin had also admitted that the present road was made on the same kutcha road with slight changes but AW1/Joaozinho Martin was unable to disclose what changes were made. Considering that, what was acquired was a kutcha road of 3 meters width passing through the property of the applicants which was used by the public in general, the learned Reference Court came to the conclusion that it was an encumberance, and, therefore the acquired land could not have been put for better use and as such did not have any building potentiality, as the applicants themselves could not have used the same for any other purpose except the road.
Shri Melo, learned Counsel appearing on behalf of the applicants submits that in case any person had a traditional access through the said acquired portion they had to file a suit for declaration of the same. Learned Counsel further submits that the applicants could have utilized the said portion for the purpose of claiming additional FAR, but learned Counsel fairly concedes that there is no evidence led by the applicants on the aspect of this last submission. As observed by the Division Bench in Dr. Caetano Jose Filomeno Jacinto de Loiola Pereira alias Dr. Caetano de Loiola Pereira Vs. Deputy Collector, South, Sub-Division and The Directorate of Tourism, , the applicant has led no evidence to show that he could have put the said area to any other use. Learned Counsel has also placed reliance on an unreported Judgment of this Court dated 16-8-2010 in First Appeal No. 142 of 2007 in the case of Jacinto Barreto Miranda v. Special Land Acquisition Officer and Ors. and has submitted that only because of the existence of the road the Reference Court was not justified in dismissing the reference as a whole but ought to have considered taking some deduction and accordingly fixed the market value. Learned Counsel has also placed reliance on another unreported Judgment of this Court dated 23-6-2004 in First Appeal No. 176 of 2000 wherein a Division Bench of this Court (to which I was a party) had observed that in a case where there is an existing road and what is acquired is the nominal or naked right of ownership the market value to be given ought to be 20% of the value fetched by the owners of the surrounding or adjacent lands.
As already stated, it was admitted by the applicants that the Government had acquired an existing kutcha access used by the public as a traditional road. Therefore, what was acquired was an existing "kutcha" road to construct a "pucca" road. In the case of Jacinto Barreto Miranda v. Special Land Acquisition Officer and Ors. (supra) it was, inter alia, argued before the learned Division Bench that the acquired land having been used by the people as a road for approaching the fair price shop which was existing from the year 1972 no willing buyer would have purchased the acquired land and the learned Division Bench observed that the fact that the acquired land was being used by the members of the public was a fact to be considered, and further observed that assuming a part of the acquired land was shown as reserved for road the remaining land was available for utilizing the said portion of the land. However, the fact remains that the Judgment of this Court dated 23-6-2004 in the case of State of Goa and Anr. v. Antonio Almeida and Ors. was not brought to the notice of the Division Bench by learned Counsel appearing for the parties.
In my view, the Judgment of this Court dated 23-6-2004 was squarely applicable to the facts of this case. Be that as it may, the sale deed dated 19-7-1988 could have been taken into consideration for the purpose of fixing the market value of the acquired land as it pertained to the very land of the applicants situated in close proximity. By that sale deed, the applicants had sold 175 sq. meters at the rate of Rs. 100/- per sq. meter, of property which was similar, regarding which, there was no dispute. The sale deed dated 19-7-1988 was close from time angle and situation angle. The plot of sale deed dated 19-7-1988 was sold at the rate of Rs. 100/- per sq. meter. That value would have appreciated to Rs. 130/- at the time of first notification, considering a yearly increase of only 10% and that value could have been given to the acquired land. However, as already stated what has been acquired in this case is an existing kutcha road. In other words, what has been acquired is the nominal or naked right of ownership and in such a case applicants would be entitled to receive 20% of the value fetched by owners of adjacent lands as held by this Court by Judgment dated 23-6-2004. Considering the ratio of the Judgment dated 23-6-2004 in First Appeal No. 176 of 2000 that value would work out to Rs. 26/- per sq. meter which in my view would be the market value of the acquired land which the applicants would be entitled to, with all statutory benefits.
Consequently, the First Appeal is partly allowed. The Judgment of the learned Reference Court is hereby modified and the applicants are held entitled to Rs. 26/- per sq. meter for 950 sq. meters of the acquired land. Compensation payable is enhanced from Rs. 20/- to Rs. 26/- per sq. meter with consequential statutory benefits. No costs.