1997(3) ALL MR 656
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)

T.K. CHANDRASHEKHARA DAS AND R.M.S. KHANDEPARKAR, JJ.

Shri Froilano C.R. Machado Vs. The Executive Engineer And Anr.

First Appeal No.6 of 1990

8th August, 1996

Petitioner Counsel: Shri C. F. ALVARES
Respondent Counsel: Shri G. U. BHOBE

Land Acquisition Act (1894), Ss.18, 23 - Compensation - Enhancement of - Claimant failing to produce material in support of claim for enhancement - Same cannot be granted.

In instant case the land acquired was an agricultural land of which a major portion was sloppy. There was no material produced on record in support of the claim that it was flat land meant for construction. The land lay in the zone which could not be developed as it is a natural reserve zone. It was for the claimant to prove his claim as regards the enhancement claimed by him. Having failed to prove he was not entitled to enhancement of compensation. Any lapse on the part of the government to produce materials in support of the rate offered under the Award could not be a justification for the claimant to claim enhancement over and above the rate offered by the Land Acquisition Officer. [Para 6,7,8]

Cases Cited:
1988(3) JT (SC) 106 [Para 4]
(1995)2 SCC 305 [Para 4]
1985 Mad LJR 116 [Para 4]


JUDGMENT

R.M.S. KHANDEPARKAR, J. :- This appeal arises from the Award dated 25th September, 1989 passed in Land Acquisition Case No.1887 by the Additional District Judge, South Goa, Margao. The appellant herein preferred an application under Section 18 for enhancement of the compensation awarded for his land acquired in pursuance of Notification under Section 4 of the Land Acquisition Act dated 9th February, 1971 for the purpose of diversion road Chicalim - Harbour - Part III. The Land Acquisition Officer had offered the rate of Rs.35/- per square metre besides a sum of Rs.1140/- for the trees existing in an area of 1580 square metres.

2. The appellant herein being dissatisfied by the said offer preferred an application under Section 18 of the Land Acquisition Act for enhancement of the compensation at the rate of Rs.200/- per square metre. Before the Reference Court, the appellant examined two witnesses including himself and the Valuer A.W.2 Mr. Agnelo Mendonca. The Reference Court after analysing the evidence on record arrived at the finding that the appellant had failed to make out any case for enhancement of compensation and therefore the reference was dismissed by the impugned award.

3. The question for determination in the present appeal is whether the appellant is entitled for enhancement of the compensation at the rate claimed by him over and above the rate offered by the Land Acquisition Officer.

4. Shri C. F. Alvares, the learned Advocate appearing for the appellant, took us through the evidence produced before the Reference Court and submitted that the Reference Court did not analyse the said evidence properly and rejected the claim of the appellant arbitrarily. According to Shri Alvares, the evidence of A.W.2 clearly establishes that the market value of the land in question was at the rate of Rs.200/- in respect of terraced land and Rs.70/- per square metre in respect of sloppy land. He contended that the respondent did not produce any evidence to counter the evidence produced by the appellant. He further submitted that the failure on the part of the respondent to examine the Land Acquisition Officer should be construed in favour of the appellant while fixing the market value for the land acquired. He sought reliance in the judgment of Chimanlal Hargovinddas Vs. The Special Land Acquisition Officer, Poona and another, reported in JT 1988 (3) S.C. 106, in P. Ram Reddy and others Vs. Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad and others, reported in (1995) 2 S.C.C. 305 and in Director of Survey cum Land Acquisition Officer, Pondicherry and others Vs. Mohammed Ghouse and others, 1985 Madras Law Journal Reports 116.

5. Shri G. U. Bhobe, Learned Government Advocate appearing for the respondents, on the other hand submitted that the Reference Court after analysing the evidence properly and appreciating the material placed before the Reference Court has arrived at the correct finding that the appellant failed to prove his case for enhancement of the compensation. Shri Bhobe drew our attention to the statement of A.W.2 and more particularly to the cross-examination wherein A.W.2 has clearly admitted that he is not an expert in agricultural land/farm valuation and that the land acquired was an agricultural land.

6. On hearing the Learned Counsel for the parties and on perusal of the materials placed before us, it is seen that the land acquired was an agricultural land of which a major portion was sloppy. Apart from a bare statement on the part of the appellant himself that the land in question is a flat land meant for construction, there is no material produced on record in support of such claim. On the contrary, the evidence of A.W.2 disproves the said claim of the appellant. In fact A.W.2 has clearly stated that no construction can be done in the sloppy area and that the said land lies in the zone which cannot be developed as it is a natural reserve zone. The valuer A.W.2 has clearly admitted that he had not seen the land of the sale deed mentioned in his valuation report.

7. Considering the evidence produced by the appellant before the Reference Court, no fault can be found with the finding of the Reference Court to the effect that the appellant had failed to make out any case for enhancement of compensation. We find no substance in the contention of the learned Advocate for the appellant that on account of failure on the part of the respondent to examine the Land Acquisition Officer an adverse inference should be drawn in favour of the appellant. It was for the appellant to prove his claim as regards the enhancement claimed by him. Any lapse on the part of the respondent to produce materials in support of the rate offered under the Award cannot be a justification for the appellant to claim enhancement over and above the rate offered by the Land Acquisition Officer.

8. As regards the three decisions relied upon by the learned Advocate for the appellant, it is seen that none of those decisions are relevant for the decision in the matter in hand. The said decisions were given in totally different set of facts and the ratio of the same have no application to the facts of the case before us. In the matter of Chimanlal Hargovinddas, their Lordships of the Supreme Court had laid down the broad guidelines which are to be adopted in the matter of fixation of compensation and one of the guidelines therein reads as under:-

"The Court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it."

On perusal of the materials on record in the instant case, as already observed, we do not find any justification for interference with the award passed by the Reference Court since the Reference Court has arrived at the finding after appreciating the material placed before it by the appellant. It is not the case where the Reference Court had rejected any material placed before it for the purpose of its consideration to arrive at the said finding. Being so, this decision is of no assistance to the appellant in the present case. In the case of P. Ram Reddy and others, Their Lordships of the Supreme Court had held that the building potentiality of the acquired land must be taken into consideration. Admittedly in the instant case the land in question is an agricultural land. Being so, the decision sought to be relied upon cannot be of any assistance to the appellant since the Supreme Court in the said case was dealing with a case where the land acquired was a dry land which undoubtedly and usually has building potentialities. In the case of Mohammed Ghouse and others, the Madras High Court held that the sales of normal sites in the locality are best evidence for the purpose of determination of the market value. Undisputably the appellant has not produced any such material concerning the sales of the sites in the locality before the Reference Court while recording the evidence. Being so, this decision also is of no assistance to the appellant to justify the claim of the appellant for enhancement of compensation.

9. In the circumstances, we do not find any justification for interference in the Award passed by the Reference Court and, therefore, the point for determination has to be answered in the negative. Hence, we pass the following Order:-

The appeal is dismissed. However, there shall be no order as to costs.

Appeal dismissed.