Citation: 2010(4)BomCR645, 2011(1)MhLj69,2010(5) ALLMR329 Bom
IN THE HIGH COURT OF BOMBAY AT GOA
Decided On: 05.07.2010
Appellants: Deputy Collector (L.A.) and L.A.O. and The Town Planner, Town and Country Planning Dept.
Vs.
Respondent: Shri Joaquim Francis Fernandes (dead) represented by Shri Domingo Jose Crisanto Fernandes and Ors.
Vs.
Respondent: Shri Joaquim Francis Fernandes (dead) represented by Shri Domingo Jose Crisanto Fernandes and Ors.
Hon'ble Judges/Coram:
Abhay Shreeniwas Oka and F.M. Reis , JJ.
It is also to be noted that the Respondents failed to adduce any evidence to establish that the market value of land as awarded by the Land Acquisition Officer is the one prevailing as on the date of Section 4 Notification. The Apex Court in its said Judgment of Mahesh Dattatray Thirthkar v. State of Maharashtra (supra) has held that the burden of proving the true market value of the acquired land is on the State Government who has acquired it for a particular purpose. When the land owner has been able to show by testimony and valuation report of the expert valuer the amount of compensation awarded by the Land Acquisition Officer was inadequate, the onus shifts on the State to adduce additional evidence to sustain the Award. In the present case, the Applicant by introducing cogent evidence, has established that the market value as determined by the Land Acquisition Officer, was inadequate considering the Sale Deed plot in the vicinity of the acquired land. No evidence has been adduced by the Respondent to sustain the Award passed by the Land Acquisition Officer and as such we find that the Respondents have completely failed to discharge the burden.
1. The Appeal challenges the Judgment and Award dated 21st August, 2000 passed by the learned District Judge, North Goa, Panaji, in Land Acquisition Case No. 113/1992, whereby the reference filed by the Respondents was partly allowed and the market value of the land acquired was fixed at Rs. 40/- per square metre.
2. The parties shall be referred in the manner as they appear in the cause title of the impugned Award.
3. By Government Notification issued under Section 4 of the Land Acquisition Act published in the Official Gazette dated 27.04.1982, an area of 33,390 square metres was acquired from the property surveyed under No. 21, belonging to the Applicants, situated in Village Corlim, at Tiswadi Taluka, for residential development under integrated urban development programme at Corlim. By an Award passed by the Land Acquisition Officer dated 10.06.1983, the land of the Applicants was valued at Rs. 8/- per square metre. Being dissatisfied by the said Award, the Applicants sought a reference under Section 18 of the said Act for enhancement of compensation and claimed that the market value of the land acquired as on the date of the Section 4 Notification was Rs. 85/- per square metre.
4. The Reference Court after framing the issues and recording of evidence by the impugned Judgment and Award dated 21st August, 2000, fixed the market value of land belonging to the Applicants at the rate of Rs. 40/- per square metre.
5. Being aggrieved by the said Judgment and Award, the Respondents have preferred the present Appeal. The Applicants have also filed Cross Objections and have prayed that the compensation for the land acquired be fixed at the rate of Rs. 85/- per square metre.
6. The learned Counsel appearing for the Respondents has submitted that the Reference Court has totally erred in coming to the conclusion that the market value of the land acquired was Rs. 40/- per square metre. He further submitted that the Reference Court has failed to apply the well settled principles of law in determining the market value of land under Section 23 of the Land Acquisition Act, whilst passing the impugned Judgment. The learned Counsel has taken us through the evidence on record and submitted that there were discrepancies in the deposition of the witness as far as the location of the land acquired with the National Highway inasmuch as Aw.1 states that the distance from the National Highway is 2 to 3 metres while Aw.2 deposed that the land was about 60 to 70 metres from the National Highway. He further submitted that the land of the Applicants was landlocked and, as such, the land had no potentialities for being used for construction purpose. He further pointed out that the discrepancies in the evidence of Aw.2 and Aw.6, who contradict themselves inasmuch as Aw.6 states that the Corlim Industrial Estate is touching the property whereas Aw.4 states that the Industrial Estate is at a distance of about 2 kilometres away and the Ciba Factory is about 500 metres away would infer that their evidence is to be disbelieved. The learned Counsel further submitted that the land could not be used for development purposes and the same was in an undeveloped area. The learned Counsel further submitted that the Reference Court erred in relying upon the Sale Deed dated 29th November, 1982, exhibit A.w.1/A as a comparable Sale Deed as the land which was the subject matter of the said Sale Deed, was not at all comparable with the acquired land. The learned Counsel further submitted that there is no justification for the Reference Court to come to the conclusion that the land of the Applicants had a market value of Rs. 80/- per square metre. The learned Counsel has further submitted that the Applicants have failed to adduce any cogent evidence to enable the Reference Court to come to a conclusion that the Sale Deed plot at Exhibit A.w.1/A is comparable to the land acquired. He further submitted that, in any event, the land which was the subject matter of the said Sale Deed was only 729 square metres while the land acquired was more than 33 thousand and odd square metres and, as such, the question of determining the market value on the basis of such Sale Deed does not arise at all. The learned Counsel also submitted that the Applicant was not entitled for the compensation under Section 23(1-A) of the Act as the Award under Section 11 of the Act was passed before the coming into force the Amendment Act in 1984. As such, the learned Counsel submitted that the impugned Judgment and Award cannot be sustained and deserves to be quashed and set aside as the market value as determined by the Land Acquisition Officer whilst passing the Award under Section 11 of the Land Acquisition Act, was just and proper.
7. On the other hand, the learned Senior Counsel appearing for the Applicants has joint issue with the learned Counsel appearing for the Respondents and submitted that the land of the Applicants had much higher value than one awarded by the impugned Judgment. The learned Senior Counsel took us to the evidence on record which disclose that the land of the Applicants was adjoining the road proceeding to Kumbarjua and the same had an access to the main road. The learned Senior Counsel further took us through the impugned Judgment and pointed out that the Reference Court has given a categorical finding that the land of the Applicants was accessible by road. The learned Senior Counsel has further submitted that there is no justification for the Reference Court to make a deduction of 66 percent on account of development charges as the land, which was the subject matter of the said Sale Deed, was an undeveloped plot and, as such, the question of such high deduction on account of development, does not arise at all. The learned Senior Counsel as such submitted that the land which was the subject matter of the Sale Deed, at exhibit Aw.1/A, was a portion of the property which was an undeveloped land and, consequently, the question of any deduction on account of development charges would not arise at all. In any event, the learned Senior Counsel submitted, that some deductions could have been done on account of the disparity in the sizes of the property and, in no way, the deduction could have been to the extent of 66 percent as sought to be done by the Reference Court. He further submitted that the Apex Court has held that normally the deduction is to the tune of 33.1/3rd percent and, consequently, the market value of the land as on the date of Section 4 Notification, is to be valued at Rs. 85/- per square metre. The learned Senior Counsel further submitted that as the Award has been passed after the amending Act was introduced in the Parliament in the year 1982 and as such, the Applicants were entitled for the compensation under the provisions of Section 23(1-A) of the said Act. In support of his submission, he relied upon the submission of the Apex Court, reported inMANU/SC/0200/1995 : (1994) 5 S.C.C. 593 in the case of K.S. Paripoornan v. State of Kerala and Ors.
8. Having heard the learned Counsel and on perusal of the impugned Judgment and Award, the Cross Objections and the records before the Reference Court, we find that the following points for determination arise in the present Appeal:
1. Whether the Reference Court was justified to fix the market value of the land as on the date of Section 4 Notification, at the rate of Rs. 40/- per square metre ?2. Whether the Applicants are entitled to compensation under the provisions of Section 23(1-A) of the said Act?
9. Dealing with the first point for determination on perusal of the records, we find that Aw.1/Teresa Fernandes has deposed that the land acquired is located near Ciba Factory and it is about 2 to 3 metres from the Panaji-Ponda Highway and that electricity and water facilities were available along the highway. She has further deposed that Old Goa Church is at a distance of 3 kms and a Primary School is located at about 10 to 15 metres from the land acquired and that there are shops in the vicinity of the land acquired. In support of her claim, Aw.1 has produced the Sale Deed dated 29th November, 1982, whereby a portion of the land admeasuring 729 square metres was sold at the rate of Rs. 120/- per square metre. The said Sale Deed is at exhibit A.w.1/A. She has further deposed that the acquired land was garden land and that the said acquired land is at a distance of one kilometre from the Corlim Industrial Estate. In her cross examination, Aw.1 has stated that there is a plot of two metres width lying between the land acquired and the highway.
10. Aw. 2 has deposed that the land acquired was at a distance of 3 kilometres from Old Goa and it lies on the left side of Panaji-Ponda road and that the Ciba Factory is at a distance of about 500 metres from the acquired land. He has further deposed that the acquired land is at a distance of about 60 to 70 metres from the Panjim-Ponda highway and that the same is levelled land consisting of fruit bearing trees and it had an access from the highway which was a tarred road. He has also stated that civic amenities were also available in the acquired land. He has further deposed that the Sale Deed plot at exhibit Aw.1/A is adjoining the land acquired and is located on its back side adjoining the highway lying on the left side of Panaji-Ponda highway. In the cross examination he has stated that a house has been constructed in the Sale Deed plot and that there is a saw mill in between the acquired plot and the Sale Deed plot and the distance between them is about ten metres. The Respondents have put a suggestion that the Sale Deed plot was at a distance of 100 metres away from the land acquired, to which the witness has answered that it is so if one comes by the highway.
11. Aw.3, who has purchased the Sale Deed plot in the name of his wife, has confirmed the contents of exhibit A.w.1/A. He has further deposed that the land purchased was undeveloped and it was not levelled as it had ups and downs for which he had to incur expenditure. The suggestion put to the said witness that the Sale Deed plot was developed plot, was denied.
12. Aw.4, who is an expert valuer, has deposed that the land acquired was rocky flat land having an access road. He has further deposed that the land was surrounded by factories in the vicinity. He has produced the report which is at exhibit Aw.4/A. He has further deposed that the Sale Deed plot is similar in nature with the acquired land and that the same was a developed land under a family sub division having similar amenities. In his cross examination, he has stated that when he went to the plot in the year 1985, there was nothing therein but in the year 1996, a building had come up therein. He has further deposed that the Sale Deed plot is bounded towards the south by the highway. He has denied the suggestion that the nature of the land acquired and the Sale Deed plot were not similar.
13. Aw.5 has produced a Sale Deed dated 15th June, 1981, exhibit A.w.5/A, where a plot of 500 square metres was sold at the rate of Rs. 30/- per square metre.
14. Aw.6, who has been examined, is the brother of the original claimant Joaquim Francis Fernandes. He has deposed that the land acquired is accessible by internal road which touches their property and which goes to Gaundalim-Kumbarjua road. He has produced a Sale Deed at Exhibit Aw.6/B, which is dated 29th May, 1984 of 700 square metres in respect of the same property.
15. Considering the evidence adduced by the Applicants, we find that the Sale Deed plot at exhibit Aw.1/A, is comparable with the land acquired as the land is located in the vicinity close to the acquired land. The Reference Court was justified to discard the Sale Deed at Exhibit A.w.5/A as no evidence about its comparability has been adduced and the Sale Deed at exhibit Aw.6/B was two years after Section 4 Notification. The contention of the learned Counsel appearing for the Respondents that the land of the Applicants is not accessible, cannot be accepted. The evidence on record shows that an internal road was touching the road proceeding to Kumbarjua and, as such, the Reference Court was justified in coming to the conclusion that the land acquired had an access.
16. With regard to the determination of the market value of the land acquired as on the date of Section 4 Notification, the Apex Court in the Judgment in the case of Mahesh Dattatray Thirthkar v. State of Maharashtra reported in AIR 2009 SCW 2962 , has held at para 37 that the compensation provision of the Act is in the nature of a welfare stipulation and thus the State Government must be just and fair to those whose land is acquired. It is not just and fair to deprive the owner of any property without payment of its true market value, especially when the law provides that the same shall be paid.
17. For the purpose of determining the market value of the land as on the date of Section 4 Notification in the present case, we found that the Sale Deed at Exhibit Aw.1/A is comparable Sale Deed though there are some dissimilarities on account of which deduction will have to be effected. On perusal of the said Sale Deed at exhibit A.w.1/A, we find that the subject matter of the said Sale Deed was a portion of the property admeasuring an area of 729 square metres which was part and parcel of a larger property which was allotted to the vendors therein in the Inventory Proceedings initiated in the Court of learned Civil Judge, Senior Division, Panaji, being Inventory Proceedings No. 91/1972, by Decree dated 12th October, 1981. In the present acquisition proceedings, the land acquired is admeasuring 33390 square metres. No doubt, the Sale Deed in respect of the land which was allotted to the Vendors therein in an Inventory Proceeding and, as such, it cannot be said that it was a developed sub-divided plot. The Reference Court whilst determining the market value of the land acquired, has erroneously considered the said Sale Deed plot as a sub-divided plot and fixed the deductions on account of such development expenses. The Sale Deed shows that the road is located on the southern side. The land acquired in the present case, no doubt, is an undeveloped land which is comparable to the Sale Deed plot which is also an undeveloped plot though there is a dissimilarity in the size of land as well as topographical differences which we have considered herein below. There can be no dispute that the value fetched for small piece of land cannot be the market value for a large chunk of land though such value can be considered for the purpose of determination of the market value of larger property, in the absence of other material adduced by the parties.
18. In the case of Basavva (Smt.) and Ors. v. Spl. Land Acquisition Officer and Ors. reported in MANU/SC/0841/1996 : (1996) 9 S.C.C. 640, the Apex Court has held that the Court in the first instance has to consider whether the sale relied upon by the Applicant can be considered as genuine and reliable and whether they are in respect of comparable lands. In the event the Court finds that such sales are genuine and reliable and the lands have comparable features, sufficient deductions should be made to arrive at the just and fair market value of a larger tract of land. The time lag for real development and the waiting period for development are also relevant considerations for determination of just and adequate compensation. For deduction of development charges, the nature of the development, conditions and nature of the land, the land required to be set apart under the building ruls for roads, sewerage, electricity, parks, water, etc., and all other relevant circumstances which are to be considered for arriving at for the market value of land. In the case of Atma Singh (Dead) through Lrs. and Ors. v. State of Haryana and Anr. reported in MANU/SC/8181/2007 : (2008) 2 S.C.C. 568, the Apex Court has said that for ascertaining the market value of land, the potentiality of the acquired land should also be taken into consideration. Potentiality means capacity or possibility for changing or developing into state of actuality. It is well settled that the market value of the property has to be determined having due regard to its existing condition with all its existing advantages and its potential possibility when led out in its most advantageous manner. It has further been held that exemplars of small pieces of land should not be a ground to be discarded especially when exemplars of large pieces of land were not available. They could, therefore, be used as a safe guide for determining the market value of land.
19. In the present case, from the evidence on record, we find that the Sale Deed plot at Exhibit Aw.1/A is very close to the acquired land. The notification in the present case was published on 27th April, 1982, which the Sale Deed plot at Exhibit A.w.1/A, is dated 29th November, 1982. It is well settled that even Sale Deeds subsequent to the Section 4 Notification, can be considered for arriving at the market value of land as on the date of Section 4 Notification provided they are in proximity to the date of Section 4 Notification. There is no evidence on record to show that the market value of land has increased or the sale price was inflated on account of the intended acquisition in the present case. As such, the Reference Court was justified to rely upon the Sale Deed, exhibit Aw.1/A for the purpose of determining the market value of the land acquired.
20. From the evidence on record, we find that the land acquired is in the vicinity of industrial area apart from the fact that the same is not very far from the National Highway. Besides that, the evidence discloses that Old Goa is at a distance of about 3 kms, besides the Ciba factory is very close to the acquired land. The evidence further discloses that constructions have come up in the said plot. All these features demonstrated that the land acquired had potentiality of being used for non-agricultural use after developing the acquired land.
21. The contention of learned Counsel for the Respondent that the deposition of the witnesses are to be discarded in view of the discrepancies stated by them about the distance of the acquired land from the National Highway cannot be accepted. We find that such inconsistencies are insignificant for determining the market value considering that both the statements taken together disclose that the acquired land is in the close proximity of the National Highway. The Apex Court in the Judgment of Mahesh Dattatray Thirthkar (supra) has held at Para 32 as follows:
Coming to the findings of the High Court regarding the inconsistency and infirmity in the testimony of the witnesses produced by the appellant for examination, it is emphasized that the burden of proof in civil cases is that of "balance of probability" and not that of "beyond reasonable doubt". Thus minor inconsistencies in evidence are not relevant in civil cases in considering the question of discharge of this burden. This principle has been reiterated by this Court in a number of decisions namely Sarjudas and Anr. v. State of Gujarat MANU/SC/0649/1999 : AIR 2000 SC 403 and State of Rajasthan v. Netrapal and Ors. MANU/SC/7171/2007 : (2007) 4 SCC 45. Further, all inconsistencies in evidence cannot impeach the credit of the witness and hence reliability of its testimony. It has been held by this Court in Rammi alias Rameshwar v. State of Madhya Pradesh(1999) 8 SCC 469 that only contradictory statements would so affect the witnesses' credit. We are of the opinion that the inconsistencies pointed out by the High Court in the evidence adduced by the appellant are only minor inconsistencies and do not warrant non-reliance on the same.
Hence, the contention of the learned Counsel for the Respondents is to be rejected.
22. The contention of learned Senior Counsel appearing for the Applicant that one third is to be deducted on account of development charges, cannot be accepted considering what has been stated herein above. The dissimilarities have already been enumerated and, on account of which, appropriate deduction on that count will have to be effected to arrive at a fair and just market value of the acquired land.
23. It is also to be noted that the Respondents failed to adduce any evidence to establish that the market value of land as awarded by the Land Acquisition Officer is the one prevailing as on the date of Section 4 Notification. The Apex Court in its said Judgment of Mahesh Dattatray Thirthkar v. State of Maharashtra (supra) has held that the burden of proving the true market value of the acquired land is on the State Government who has acquired it for a particular purpose. When the land owner has been able to show by testimony and valuation report of the expert valuer the amount of compensation awarded by the Land Acquisition Officer was inadequate, the onus shifts on the State to adduce additional evidence to sustain the Award. In the present case, the Applicant by introducing cogent evidence, has established that the market value as determined by the Land Acquisition Officer, was inadequate considering the Sale Deed plot in the vicinity of the acquired land. No evidence has been adduced by the Respondent to sustain the Award passed by the Land Acquisition Officer and as such we find that the Respondents have completely failed to discharge the burden.
24. Considering the evidence on record and in view of the Judgments of the Apex Court referred to hereinabove, the determination of the market value of the land acquired indisputably would depend upon a large number of factors including the nature of land thereof as well as the location of the land and in particular closeness thereof from the road or the highway. In the present case, the Sale Deed relied upon at exhibit A.w. 1/A is in respect of a plot admeasuring 729 square metres. The land acquired is 33,390 square metres and, as such for development of such large chunk of land, substantial expenditure will be incurred for the purpose of constructing roads, drainage and leaving open places and meeting all other statutory requirements. The waiting period for such development would be more considering the largeness of the land. The Reference Court whilst deducting towards the development costs, has deducted 40 percent on account of development charges. The Sale Deed plot is not a sub-divided plot though on perusal of the Sale Deed we find that the property is bounded on one side by the Corlim Industrial Estate and on the southern side by the main road proceeding from Panjim to Ponda. The other two boundaries are the plots allotted to other parties in the Inventory Proceedings. Considering such location and the big difference in the area, naturally, deductions are to be affected for the purpose of such development. The Reference Court has also deducted 6 percent on account of the fact that the Sale Deed is about six months after Section 4 Notification was published in the present case. We find that considering the land acquired was accessible by an internal road which was leading to a Village road proceeding to Kumbarjua while, on the contrary, the Sale Deed plot was abutting the main Panjim-Ponda highway and the dissimilarity as far as the area is concerned which would involve substantial expenditure on account of development and on account of the fact that the Sale Deed is six months after the Section 4 Notification, a just and fair deduction on these two counts would be 40 percent, adequately. Apart from that the Reference Court has deducted 20 percent on account of the fact that the Sale Deed plot is adjoining the main road while the land acquired is accessible by an internal road. From the evidence on record, we find that the land acquired is about 100 metres from the Panjim-Ponda highway as stated by Aw.2. No doubt, as per the statutory requirements, the set back to be left from the main road would be more than those abutting to internal roads, nevertheless, considering that the Sale Deed plot had a frontage towards the main Panjim-Ponda highway and the land acquired was leading by an internal Village road, the reasonable deduction would be 15 percent and not 20 percent as done by the Reference Court. As such, a total deduction to be effected from the Sale Deed plot would be 55 percent. The market value of the land acquired as such would be a sum of Rs. 54/- per square metres.
25. The Reference Court was not justified in the circumstances to deduction of 66 percent from the price in the Sale Deed at exhibit Aw.1/A. The Reference Court failed to consider that the Sale Deed plot was not a sub-divided plot and, as such, erroneously deducted 66 percent. Deduction, in the circumstances of the case, ought to have been 55 percent for the reasons stated above and the market value be fixed at Rs. 54/- per square metre. To that extent, the Judgment of the Reference Court deserves to be set aside. The first point of determination is answered accordingly.
26. With regard to the second point of determination, there is no dispute that the Award in the present case under Section 11 of the Land Acquisition Act was passed on 10th June, 1983. The Apex Court in the Judgment reported in the case of K.S. Paripoornan v. State of Kerala and Ors. reported inMANU/SC/0200/1995: 1994(5) S.C.C. 593, has held that when the reference is pending on 24th September, 1984, and Award has been made after 30th April, 1982, the claimants are entitled for the compensation as provided under Section 23(1-A) of the Land Acquisition Act. In the present case, as Award under Section 11 of the Act has been passed on 10th June, 1983, the Applicants are as such entitled to compensation under Section 23(1-A) of the Act. The second point for determination is answered accordingly.
27. In the facts and circumstances of the case, we find that the Appeal filed by the Applicants/Appellants deserves to be rejected while the cross objections filed by the Applicants/Respondents are to be partly allowed and compensation is to be fixed at the rate of Rs. 54/- per square metre as on the date
28. In view of the above, we pass the following Order:
ORDER1. The Appeal stands dismissed. The Cross Objections are partly allowed and the compensation is fixed at the rate of Rs. 54/- per square metre for the land acquired.2. Needless to say, that the Applicants are entitled for the statutory benefits in accordance with law.3. The above Appeal and the Cross Objections stands disposed of accordingly with no orders as to costs.
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