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 “Navhind Times” dated 24/4/1991 and
“Rashtramat” dated 25/4/1991 and the same was thereafter
published in the Government Gazette dated 10/10/1991. The last
date date
of
publication
being
10/10/1991,
the
determination of market value is 10/10/1991.
between the execution
relevant
Therefore, the
of
gap
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.
IN THE HIGH COURT OF BOMBAY AT GOA
FIRST APPEAL NO. 49 OF 2000
1. Dy. Collector & S.D.O.,
Mormugao, Vasco-da-Gama.
Versus
Olavo Ozario Saldhana,
CORAM : U. V. BAKRE, J.
DATED : 3rd January,2013.
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.
dated 06/09/1993, the
By award
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
Survey
149.
No.
98/1
and
100
square
metres
from
Survey
from
No.
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,
3
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.
witness.
The respondents did not examine any
4
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 sub-
divided 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 “Lal Chand V/s Union of India”
[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 “Navhind Times” dated 24/4/1991 and
“Rashtramat” dated 25/4/1991 and the same was thereafter
published in the Government Gazette dated 10/10/1991. The last
date date
of
publication
being
10/10/1991,
the
determination of market value is 10/10/1991.
between the execution
relevant
Therefore, the
of
gap
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 “Ranjit Singh & Ors Vs. Union Territory
of Chandigarh” [(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 “Delhi Development Authority Vs. Bali
Ram Sharma & ors.” [(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 “V. M. Salgaonkar & brother Vs. Union
Of India” [(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.
U. V. BAKRE, J.
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