judgment - Oral Judgment:Heard Mr. Almeida learned Counsel appearing on behalf of the appellants and Mr. Salkar learned Government Advocate appearing on behalf of the respondent.2. The present appeal is directed against the Judgment and Award dated 19/07/2002 passed by the learned District Judge South Goa Margao (reference court for short) in Land Acquisition Case No. 24/1997.3. The parties shall hereinafter be referred to in the manner in which their names appear in the cause title of the Land Acquisition Case No. 24/1997. The appellants are the legal representatives of the original applicant and they shall be referred to as the applicants.4. Vide Notification issued under section 4(1) of the Land Acquisition Act 1894 (L.A. Act for short) and published in the Government Gazette No. 2 Series II dated 9/4/1992 land was acquired for construction of Dongri-Majorda Dongrim Kucha Gabriel Church road Our Lady Church to Toleaband Guirim road and Godinho road in the Village Panchayat of Majorda Salcete. This included land admeasuring 150 square metres belonging to the original applicant and bearing survey no. 31/8 of Utorda village. By Award dated 6/2/1995 the Land Acquisition Officer (L.A.O.) awarded compensation at the rate of Rs. 7/- per square metre for the acquired land. Not been satisfied with the offer made by the L.A.O. the original applicant filed application under section 18 of the L.A. Act before the L.A.O. which gave rise to the said Land Acquisition Case No. 24/1997.5. In the reference application the original applicant submitted that the L.A.O. failed to consider that the acquired land was suitable for construction inasmuch as the same was in the vicinity of various houses of different persons. It was alleged that the ingress and egress of the applicant to the remaining portion of his property was being jeopardized by the acquisition due to which the applicant ought to have been awarded compensation for severance of his property for an area of 161 square metres. The applicant claimed compensation at the rate of Rs. 300/- per square metre for the acquired land as well as for the alleged severed land.6. Issues were framed by the reference court as per the claims made by the original applicant. The original applicant examined his Power of Attorney Holder Shri Bricio Fransciso Pereira as AW.1. He produced the Power of Attorney as Exhibit 14 and a sale deed dated 5/10/1989 as Exhibit 15. The claimant then examined one Shri Blasco Pereira Mendonca one of the Vendors of the said sale deed at Exhibit 15 as AW.2. AW.2 produced another sale deed dated 27/10/1989 as Exhibit 19. The claimant lastly examined a Civil Engineer and registered Valuer namely Mahindra Cacule as AW.3 who produced his Valuation Report as Exhibit 24 and a sale dated 7/6/1988 as Exhibit 28.7. The respondent did not lead any defence evidence.8. Upon assessment of the entire evidence on record the reference court rejected the reference. Aggrieved the original applicant filed the present appeal. During the pendency of the appeal the original applicant died and his legal representatives came on record.9. Mr. Almeida the learned counsel appearing on behalf of the applicants submitted that the area of the entire property bearing survey no. 31/8 was 1100 square metres which was divided into three plots namely plot 'A' plot 'B' and plot 'C' and that it is plot 'B' which has been acquired. He further submitted that though the acquired land is a strip of land however since there is balance land in survey no. 31/8 on either sides of the acquired land construction could have been easily undertaken in the land. He submitted that the evidence of AW.3 establishes that the land of the sale deed dated 7/6/1988 which is at Exhibit 28 is similar to the acquired land both being coastal lands and both not having access to the road. He submitted that the said land of the sale deed is just about 500 metres away from the acquired land and therefore the same ought to have been considered by the reference court. He submitted that along with the valuation report AW.3 has produced a plan which reveals that on account of the acquisition of only an area of 150 square metres from the plot 'B' there is balance area of said plot which has been rendered totally useless. According to him therefore the reference court has wrongly rejected the reference. He therefore prayed that the appeal be allowed and appropriate enhancement in compensation be awarded.10. On the other hand Mr. Salkar learned Government Advocate submitted that the original applicant has admitted that his property was a strip of land. He further submitted that there is nothing in the evidence of AW.1 to show that the area of survey no. 31/8 was 1100 square metres and that plots 'A' 'B' and 'C' were made. He read out the evidence of AW.1 and pointed out that he is totally an unreliable witness since he has tried to suppress the truth and has projected falsehood. He submitted that though AW.1 has produced the sale deed dated 5/10/1989 and AW.2 has produced another sale deed dated 27/10/1989 in both the said sale transactions AW.2 is one of the vendors as well as the Director and Promoter of the purchaser-Company. He submitted that the said two sale deeds which are at Exhibits 15 and 19 cannot be relied upon. He pointed out that the sale deed dated 7/6/1988 Exhibit 28 has not been produced by the original applicant through his power of attorney holder (AW.1) and even the same does not form part of the valuation report of AW.3. According to him therefore this sale deed also cannot be relied upon. Learned Government Advocate submitted that there is no evidence to prove that there is any balance land of the applicants which has been rendered useless on account of the acquisition. He contended that the reference has been rightly rejected by the reference court and that no interference is called for with the impugned judgment and award.11. I have gone through the record and proceedings and also considered the arguments advanced by the learned counsel for both the parties.12. The point for determination is whether the reference has been wrongly rejected and whether there is balance land of the applicants which has been rendered useless and whether applicants are entitled to enhancement in compensation for the acquired land as well as compensation for severed land.13. A perusal of the evidence of AW.1 discloses that he is not a truthful witness and no prudent person would rely upon his testimony. Initially he stated that his property is adjoining the road which goes from Utorda to Dongrim. After sometime he stated that his property is closer to the road than the property of sale deed which is at Exhibit 15. Subsequently in the cross-examination he stated that there was no access at all to his property bearing survey no. 31/8. To a Court question put to AW.1 he answered that there are about 10 to 11 properties in between survey no. 31/8 and the said Margao-Cansaulim road. Therefore AW.1 falsely tried to project that his property is adjacent to the road or that it was easily accessible when in fact there was no access to the same. He has admitted that survey no. 31/8 is a strip of land though he denied the suggestion that the same was not suitable for construction.14. AW.2 deposed that the acquired land is at a distance of about 20 to 30 metres from the Cavelossim-Cansaulim-Vasco road. But according to AW.3 the applicants' property is about 150 to 200 metres away from the said Cansaulim-Vasco road. According to AW.2 there is only one property between the applicants' property and said Cavelossim-Vasco road. AW.3 does not know as to how many properties one had to cross from the main road to reach the acquired land. There is therefore no corroboration amongst AW.1 AW.2 and AW.3. Admittedly the applicants' property was a strip of land. No construction could have been made in such a strip of land.15. In order to prove that severance charges should be awarded it must first be established as to what was the area of the property of the applicant prior to acquisition and what is the balance area remaining after acquisition and that the said balance area has been rendered useless. AW.1 does not know the width of survey no. 31/8 and he also does not know the totalarea of the said survey holding. He stated that the total area may be about 311 square metres. However he has not produced any documentary evidence regarding the same. AW.2 also does not know the area of the applicants' property. Though AW.3 the Valuer deposed that the total area of the applicants' property was 1100 square metres however he added that prior to the acquisition the applicant and his brothers had converted their property into plots 'A' 'B' and 'C' and that plot 'B' was of the applicant. A sketch showing the said plots has been attached to the valuation report Exhibit 24. But the above cannot be believed because AW.1 the power of attorney holder of the original applicant himself has not even whispered about the same. Therefore I am unable to believe that the area of the property of original applicant was 1100 square metres. In such circumstances it is not at all proved that after acquisition of 150 square metres of land from survey no. 31/8 there was some balance area in the said property of the applicant which has not been acquired and which has been rendered useless. The question of paying any severance charges does not arise.16. A perusal of the impugned judgment reveals that the learned counsel who appeared for the original applicant before the reference court had submitted that the sale deeds dated 5/10/1989 and 27/10/1989 which are at Exhibits 15 and 19 have been produced only to show the price of land in the locality and that the applicant claims enhancement only on the basis of the sale deed at Exhibit 28. In other words even the valuation made by the Valuer namely AW.3 was given up by the original applicant. Even otherwise the sale deeds dated 5/10/1989 and 27/10/1989 at Exhibits 15 and 19 cannot be considered since AW.2 is one of the vendors along with his family members as well as one of the Directors and Promoters of the purchaser-Company namely M/s Hospitality Resorts Pvt. Ltd.. In such circumstances Aw.2 would certainly be interested in getting more consideration for his own land. Be that as it may the sale price could not be said to be the actual price which a willing purchaser would have offered in a free market. The said two sale deed have been rightly not considered. The valuation report which is mostly based on the said two sale deeds also cannot be relied upon. The valuation report at Exhibit 24 and the evidence of AW.3 clearly shows that the sale deed dated 7/6/1988 (Exhibit 28) was not taken into consideration while arriving at the value of the acquired land. Aw.1 has not spoken about the said sale deed dated 7/6/1988. The evidence of the Valuer with regard to the said sale deed dated 7/6/1988 when admittedly he had not considered the same for the purpose of valuation of the acquired land and when AW.1 had not relied upon the same cannot be looked into.17. Thus neither any of the sale deeds produced by AW.1 AW.2 and AW.3 are useful nor the valuation report prepared by AW.3.18. Be that as it may admittedly the acquired land was situated in the vicinity of various houses and it was a coconut garden. The Utorda church is at a distance of about 700 metres and bank is about 200 metres away. The market is at Majorda and Cansaulim and both these markets are about 2 kilometres away. School was also close by and there was water as well as electricity facility. Hence the acquired land was an agricultural property having most of the facilities and amenities. What has been offered by the L.A.O as compensation for the land is merely Rs. 7/- per square metre and that does not appear to my mind to be just and reasonable. There were coconut trees in the acquired land for which an amount of Rs. 3550/- has been awarded by the L.A.O. as value of those trees. Thus the original applicant was getting some income from the acquired land on account of coconut trees. He has been deprived of the said income. A fair estimate with regard to the surrounding circumstances and the evidence in the case has to be made in order to ensure that a party who loses the property on account of compulsory acquisition gets just and reasonable compensation. It is well settled that in valuation there is more than ordinary room for guess work. The conclusion cannot be reached with mathematical precision. Considering the nature of the acquired land amenities and facilities which were available to it at the time of acquisition I am of the view that Rs. 7/- per square metre is less and some enhancement is bound to be made. In my considered view Rs. 15/- per square metre should be just and reasonable compensation for the acquired land admeasuring 150 square metres.19. In the result the appeal is partly allowed. The impugned judgment and award is partly quashed and set aside insofar as it relates to the acquired land admeasuring 150 square metres. The market rate of the acquired land admeasuring 150 square metres is fixed at Rs. 15/- per square metre. The applicant shall be entitled to all the statutory benefits under the L. A. Act. Amount already paid shall be adjusted.20. The appeal stands disposed of accordingly.
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