The Reference Court has taken into account the fact that the
sale deed was executed subsequent to the publication of Notification
under Section 4(1) of the L.A. Act. He has held that there is nothing
on record to show that on account of acquisition, the price of the sale
deed plot had increased. He has also taken into account the fact that
the plot of sale deed was at a distance of 500 metres from the main
road but the acquired land was abutting the main road
IN THE HIGH COURT OF BOMBAY AT GOA
FIRST APPEAL NO.98 OF 2007
1. Dy. Collector & S. D.O.,
VERSUS
Shri Kishor V. Kharangate
CORAM: U. V. BAKRE, J.
DATE: 1ST MARCH, 2013.
Heard Ms. Linhares, learned Additional Government Advocate
on behalf of the appellants and Mr. Lotlikar, learned Senior Counsel
appearing on behalf of the respondents.
2.
This appeal has been filed by the respondents of Land
Acquisition Case No. 70 of 2003 against the judgment and award
dated 29/03/2006 passed by the learned Additional District Judge,
south Goa, Margao ('Reference Court', for short) in the said case. The
parties shall hereinafter be referred to in the manner in which they
appear in the cause title of the said case.
3.
Land was acquired for widening of Margao-Quepem road
from Rawanfond to Paroda Skew canal in Salcete Taluka. Notification
under Section 4(1) of the Land Acquisition Act, 1894 (L. A. Act) was
published in the official gazette dated 17/04/1997. This included an
area of 470 square metres of land from survey no. 17/3 and an area of
930 square metres of land from survey no. 16(part) from village
Paroda.
By award dated 19/10/2001, the Land Acquisition Officer
offered the market rate for the said land at Rs. 20/- per square metre.
The original applicant who claimed to be the owner of the said
acquired land was not satisfied with the said offer
and he filed an
application under Section 18 of the L. A. Act before the Land
Acquisition Officer. The Land Acquisition Officer referred the matter to
the Reference Court.
4.
In the Reference application, the original applicant claimed
the market value at the rate of 500/- per square metres
for the
acquired land. He stated that the land was non-agricultural and fit for
construction and is adjacent to Margao-Quepem road. He further
stated that Quepem market is hardly one Kilometre away and Margao
city is 11 Kilometres away. He further stated that the Quepem Police
Station, Paroda Panchayat, Primary/Secondary High School, etc. are all
hardly at a distance of about 500 metres away. He also stated that
there are residential houses near the acquired land and electricity and
water pipe line are passing by the said of the property.
5.
The original applicant examined
himself as AW1 and
produced the survey forms no. I and XIV of survey no. 17/3 and 16/1
as Exhibit 16-Colly.;
valuation report of
Sale Deed dated 10/07/1998 as Exhibit 17;
Engineer Vikas Dessai, as 'X'
for identification;
survey plan of survey nos. 16 and 17/3 as Exhibit 18 and a letter
dated 31/07/2003 addressed by him to the Deputy Collector as Exhibit
19.
The applicant then examined the said Engineer Vikas Dessai as
AW2 to prove the valuation report prepared by him. The same was
taken on record as Exhibit 24.
The applicant
also examined Mr.
Vallabh Poi Fondekar who is the son of the vendor of Sale Deed dated
10/07/1998. The respondents did not examine any witness.
6.
Upon assessment of the entire evidence on record, the
learned Reference Court found that though the acquired land was in
the form of a long strip falling by the side of existing Quepem-Margao
Road, however it was a part and parcel of a bigger property and even
the plan produced at Exhibit 18 which is of the proposed acquisition
shows that the acquired land is by the side of the earlier existing road.
Learned Reference Court found that the sale deed dated 10/07/1998
was suitable for determination of the market value.
He took into
account the fact that the plot of the said sale deed was at a distance
of 500 metres
from the main road whereas the acquired land was
abutting the road due to which the acquired land would fetch more
value. The learned Reference Court also considered the fact that the
sale deed was executed subsequent to the publication of Notification
under Section 4 of L. A. Act. He found that there was no evidence to
show that on account of the proposed acquisition,
the price of the
sale deed plot had increased. According to the Reference Court,
though the acquired land was coming within the setback area of the
present road, however, the FAR of the acquired land could be used for
construction within the unacquired land. He took into account the
facilities available to the acquired land. The Reference Court therefore
fixed the market rate of the acquired land at Rs. 100/- per square
metre and held that the applicant is entitled also to other statutory
benefits under the L. A. Act. The respondents are aggrieved by the
impugned judgment and award.
7.
Learned Counsel for the respondents submitted that the
Sale Deed considered by the Reference Court is post-notification
transaction and therefore could not have been considered. She further
submitted that the acquired land was on two sides of already existing
Quepem- Margao road and therefore the area of the land from both
the survey holdings had to be considered independently which was
respectively 470 square metres and 930 square metres, and thus was
smaller in size as compared to the sale deed plot which was having an
area of 1200 square metres. According to her, even if the said sale
deed is to be considered then, the deduction made by the Reference
Court is too less and that adequate deduction on account of annual
escalation of the price of land, the size of the sale deed plot and the
nature of the sale deed plot which was suitable for construction had to
be considered. She therefore submitted that the enhancement made
by the learned Reference Court is not proper. she therefore prayed
that the appeal be allowed.
8.
On the other hand, learned Senior Counsel, appearing on
behalf of the legal representatives of the applicant submitted that the
evidence on record establishes that though the acquired land was on
either side of the Quepem – Margao Road, however both the acquired
lands were parts of bigger properties on either side of the road. He
further submitted that the said properties were falling in the
settlement zone at the time of acquisition and houses were existing in
survey holding no. 17/3. He submitted that the evidence on record
sufficiently proves that the acquired land had the advantage of all the
facilities and amenities and he further submitted that the evidence of
AW3 who is the son of the vendor of the sale deed dated 10/07/1998
has gone unchallenged and the same proves that the sale deed was
executed between his father and Smt. Escolante Natalina Rodrigues
who was their Mundkar. He further submitted that the evidence of
AW3 proves that the market value of the sale deed plot was actually
Rs. 600/- per square metre
but it was sold at a lesser rate, the
purchaser being their Mundkar. It is submitted that the evidence on
record sufficiently proves that there was no escalation in the price of
the land on account of acquisition.
He pointed out that the rate of
the sale deed plot was Rs. 125/- per square metre and the learned
Reference Court has given appropriate deduction and has fixed the
market value at Rs.100/- per square metre. He therefore urged that
no interference is warranted with the impugned judgment and
warrant.
9.
I have gone through the entire record and proceedings in
the light of arguments advanced by both the parties.
10.
The point that arises for determination is as to what is the
true market value of the acquired land as on the date of publication of
notification under Section 4(1) of the L. A. Act.
11.
AW1, who is the original applicant has specifically stated
that the acquired land comes under settlement zone and that there is
residential house and shed in the property bearing survey no. 17/3
and there are houses in the surrounding properties on three sides. In
the cross-examination of AW1 there is nothing except denials.
The
Survey form no. I and XIV and survey plan of survey no. 17/3 show
that there is house and other structure in the said land and there are
other houses surrounding the said survey holdings on three sides.
The evidence of AW2, the expert, read with his valuation report, also
reveals that the acquired land lies in settlement zone and there was
residential house and a shed in the property bearing survey no. 17/3
and there were other houses in the surrounding properties towards
north, east and west. The evidence on record sufficiently proves that
the acquired land was served with electricity, telephone, tap water,
well water, transport etc. and temple, dispensaries, high school,
market, play ground, primary school, chapel, bus stops, police station
were all within a range of 400-1500 metres.
12.
It is true that the acquired land is strip of land from either
side of the earlier existing road. But from the survey plan at Exhibit
8
18, it can be understood that both the acquired strips of land are part
of bigger properties lying on either side of the road. In the case of
“State of Goa and anr. Vs Gopal Baburao Gaudo and others”,
[2009(5) ALL MR 1022 (SC)], the Apex Court has held that a long strip
of land lying alongside and adjoining the Highway cannot be treated
as land without value or without any potential for development. Hence
the acquired lands on both side of the road, lying in the settlement
Zone, had value and potential for development.
13.
The plot of the sale deed dated 10/7/1998, which is at Exhibit
17, lies at a distance of within 500 metres from the acquired land and
as per the valuation report which is at Exhibit 24 prepared by AW2,
the land of the said sale deed is of similar type as compared to the
acquired land.
The sale deed plot admeasuring 1200 square metres
was sold for Rs. 125/- per square metre. The acquired land totally
admeasures 1400 square metres.
Since the acquired land lies in
settlement zone and the sale deed plot is not a developed plot, the
same has been rightly considered by the Reference Court for
determination of the market value. The road of Quepem-Margao was
already existing and this land was acquired for widening of the said
road.
Therefore, the escalation in price of land
in the locality on
account of acquisition would not arise, as the position had not
changed, expect the widening of already existing road. Besides the
above, there is on record unchallenged testimony of AW3, the son of
the vendor of the said sale deed stating that the market rate of the
sale deed land was actually Rs. 600/- per square metre but since the
purchaser was their mundkar, less rate was quoted.
14.
The Reference Court has taken into account the fact that the
sale deed was executed subsequent to the publication of Notification
under Section 4(1) of the L.A. Act. He has held that there is nothing
on record to show that on account of acquisition, the price of the sale
deed plot had increased. He has also taken into account the fact that
the plot of sale deed was at a distance of 500 metres from the main
road but the acquired land was abutting the main road. The Reference
Court has also considered the fact that the FAR of the acquired land
could have been used for the purpose of construction within
unacquired portion.
The rate of Rs. 125/- per square metre, of the
sale deed plot, has been reduced to Rs.100/- per square metre, in
order to bring it at par with the value of the acquired land as on the
date of publication of Notification under section 4(1) of the L. A. Act,
considering the advantages and disadvantages of the acquired land
and the sale deed land.
15.
In my view the market rate of the acquired land fixed by the
Reference Court is just and reasonable, considering the facts and
circumstances brought on record.
10
16. There is therefore no substance in the appeal.
17. Hence, the appeal is dismissed. No order as to costs.
U.V. Bakre, J.
MV
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