2008(1) ALL MR 785
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(PANAJI BENCH)

R.M.S. KHANDEPARKAR AND N.A. BRITTO, JJ.

Goa Housing Board & Anr.Vs.Attorney Of Communidade Of Mapusa

First Appeal No.124 of 2003

21st November, 2007

Petitioner Counsel: Mr. A. N. S. NADKARNI
Respondent Counsel: Mr. V. MENEZES

Land Acquisition Act (1894), S.23 - Compensation for land acquired - Assessment based on comparable sale transactions - Statutory restriction on use of land - Standard deductions - Just and proper, extent of deductions - Land acquired not a freehold, its free use is not permissible as it suffers from statutory restrictions - Its market value could not be compared with other sale instances in respect of the freehold land - Deduction of 40% given due to vastness of land but no deduction given for development and statutory restrictions - About 30% deductions are found to be just and proper but the same could go even up to 60% depending upon facts of each case - High Court gave deduction of 45% and reduced the compensation from Rs.80/- per sq. mtr. to Rs.55/- per sq. mtr. with all consequential statutory benefits. (Paras 10, 12, 13)

Cases Cited:
IDC Vs. S. N. Sardessai, 2005(2) ALL MR 486 [Para 8,10]
Special Land Acquisition Officer, BTDA, Bagalkot Vs. Mohd. Hanif Sahib Bawa Sahib, 2002(4) ALL MR 242 (S.C.)=2002(3) SCC 688 [Para 8]
Land Acquisition Officer Revenue Divisional Officer, Chittor Vs. L. Kamalamma (Smt.) dead by Lrs., 1998(2) SCC 385 [Para 8]
Chimanlal Hargovinddas Vs. Special Land Acquisition Officer, Poona, 1998(3) SCC 751 [Para 9]
State of Goa Vs. President of Our Lady of Peity Church, Mardok, First Appeal No.132 of 2002, Dt.3-11-2004 [Para 10]
Communidade of Kerim Vs. Land Acquisition Officer, First Appeal No.5/2004, Dt.21-12-2004 [Para 11]
Communidade of Candolim Vs. Deputy Collector (North), Panaji, 2005(2) ALL MR 258 [Para 11]


JUDGMENT

N. A. BRITTO, J. :- Challenge in this appeal is to the award dated 7-1-2003 of the learned Additional District Judge, Mapusa, enhancing the compensation from Rs.20/- to Rs.80/- per sq. meter.

2. Some facts are required to be stated to dispose off the present appeal.

3. By notification issued under section 4(1) of the Land Acquisition Act, 1894 and published on Gazette dated 25-10-1984 the government acquired 10,491 sq. mts. of land forming part of Chalta No.3 of P.T. sheet No.67 of Mapusa belonging to the Respondent-Communidade for the purpose of housing activities of the Appellant-Goa Housing Board and by award dated 29-10-1987 the Land Acquisition Officer offered to the said Communidade compensation at the rate of Rs.20/- per sq. mt..

4. Dissatisfied with the said award of the Land Acquisition Officer, the Communicate preferred a reference and in the said reference examined 4 witnesses to support its case for enhancement. The Communidade produced an award in respect of the same land ameasuring 5585 sq. mts. acquired subsequently for water reservoir by notification published on Gazette dated 7-3-1986 by which the Communidade was paid Rs.50/- per sq. mt. The Communidade also produced a sale deed dated 17-3-1979, Exhibit AW1/E by which a developed plot of land admeasuring 396 sq. mts. was sold at the rate of Rs.80/- per sq. mt. and in support thereof the said Communidade examined Verlekar/AW 3, the purchaser of the said plot. The Communidade also produced another sale deed dated 28-7-1988 of a plot of land admeasuring 1139 sq. mts. at the rate of Rs.1,165/- per sq. mt. and in support thereof examined its purchasers Kamat/AW 4. The Communidade had also examined an expert namely Macedo/AW 2, an engineer, who had valued the acquired land at the rate of Rs.150/- per sq. mt. based on the aforesaid two sale deeds.

5. The Goa Housing Board had also examined 3 witnesses namely their Engineers to oppose the Communidade's claim for enhancement.

6. The Communidade's attorney Shri. Braganza/AW 1 in his evidence had stated that a part of the same property was acquired by the State Government for the purpose of construction of ground level water reservoir for PWD of an area of 5585 sq. mts. and had offered the Communidade compensation at the rate of Rs.50/ per sq. mt., which land was at a distance of about 800 mts. from the acquired land and which was otherwise little sloppy while the acquired land was plain. As regards the location of the acquired land there is no dispute that the same was situated at the outskirts of Mapusa and within the jurisdiction of Mapusa Municipal Council and as stated by the said attorney, St. Xavier's College was at a distance of about 800 mts., St. Britto's High School, St. Mary's High School, New Goa High School (Amonkar's), Janata High School were all situated within a distance of about 1.5 kms. and there were hospitals such as Bhagyoday, Dr. Ratan's, Asilo, Holy Cross, within the radius of 1.5 kms. The Municipal market, the shopping center, the Kadamba bus stand too were situated within the same distance while Pedem Sports Complex was at a distance of about 2 kms., while the Dhuler Sports Complex was at a distance of 1.5 kms. away. He had also stated that road facilities were touching the acquired land. In fact, the Land Acquisition Officer's award dated 29-10-1987 shows that the acquired land was separated by a tarred road from an existing Housing Board Colony, land for which was acquired by notification published on 17-12-1983. In other words, the acquired land had building potential and was suitable for construction and in fact was acquired for building purposes. As regards the sale deed dated 17-3-1979 which was otherwise of a developed plot as stated by Verlekar/AW 3, the Appellant's attorney stated that it was formerly a stone quarry, but according to Verlekar/AW 3, it had all facilities like water, electricity, telephone etc. As per Engineer Macedo/AW 2 this plot was situated at a distance of about 700 mts. from the acquired property.

7. The learned trial Court after assessing the evidence produced on behalf of both the parties observed that the rate of the acquired land could be reasonably fixed at around Rs.72/- per sq. mt. This the learned trial Court did by escalating the price of the plot land by 10%, considering that the sale deed was of 17-3-1989 and further after taking a deduction of 40% as the acquired land was a vast area while the plot of the sale deed was a smaller plot of about 400 sq. mts. At the same time, the learned trial Court further increased the said rate of Rs.75/- per sq. mt. and again to Rs.80/- per sq. mt. and this the learned trial Court did for no apparent reasons.

8. We have heard learned Counsel on behalf of both parties. In our view, assessing the compensation payable to the Communidade based on the said sale deed date 17-3-1979, per se could not be faulted. Similarly, the escalation of price by 10% considering that the sale deed was executed about 5 1/2 years prior to this acquisition. The price therefore could have been worked out to Rs.125/- in the year of acquisition. A Division Bench of this Court in the case of IDC Vs. S. N. Sardessai (unreported judgment dated 15-9-2004 in First Appeal No.150 of 2003 (since reported in 2005(2) ALL MR 486) relying on Special Land Acquisition Officer, BTDA, Bagalkot Vs. Mohd. Hanif Sahib Bawa Sahib (2002(3) SCC 688 : 2002(4) ALL MR 242 (S.C.)) held that appreciation or escalation at 10% per year was neither excessive or unreasonable, in case of urban land. However, the learned trial Court, though gave a deduction of 40% on account of vastness of the acquired area in relation to the plot of the sale deed, the learned trial Court did not consider giving any deduction towards development of such area considering that the plot of the sale deed was a developed plot. It is now well settled that when no sales of comparable land are available and there are large chunks of land having been sold, even land transactions in respect of smaller extent of land could be taken note of a indicating the price that it may fetch in respect of large tracts of land by making appropriate deductions such as for development of land by providing enough space for roads, sewers, drains, expenses involved in formation of a layout, lump sum payment as also the waiting period required for selling the sites that would be formed (see Land Acquisition Officer Revenue Divisional Officer, Chittor Vs. L. Kamalamma (Smt.) dead by L.Rs. & Ors. (1998(2) SCC 385)).

9. In Chimanlal Hargovinddas Vs. Special Land Acquisition Officer, Poona & Anr. (1998(3) SCC 751) which case still remains as locus classicus, the Apex Court has set out general guide lines for determining the market value of land under Section 23 of the Act. The Court has stated that :

"It is common knowledge that when a large book of land is required to be valued, appropriate deductions has to be made or setting aside land or carving out road, leaving open spaces and plotting out smaller plots suitable for construction buildings. The extent of the area required to be set apart in this connection has to be assessed by the Court having regard to the shape, size and situation of concerned block of land etc. There cannot be any hard and fast rule as to how such deduction should be made to account for this factor. It is essentially question of facts depending on the facts and circumstances of each case."

10. As noted by the Division Bench of this Court in unreported decisions dated 15-9-2004 in First Appeal No.150 of 2003 (since reported in 2005(2) ALL MR 486) between The Managing Director, Goa IDC Vs. Shri. Sadashiva S. N. Sardessai and Ors. as far as standard deductions are concerned it is well established that about 30% deductions are found to be just and proper but at the same time deductions could go even up to 60% depending upon the facts of each case. A deduction of 50% was taken in the case of State of Goa Vs. President of Our Lady of Piety Church, Mardol (unreported decision dated 3-11-2004 in First Appeal No.132 of 2002). When large tract of land is developed, time is taken for formation of layout, there is waiting period for which the money would remain locked up in investment and the price is reduced when lump sum payment is made. The land in that case was much large than the case at hand. Considering the facts of this case, where the area acquired was comparatively large and which also required to be developed, the learned trial Court ought to have taken a deduction of 45%. When such a deduction is taken the fair market value of the acquired land can be fixed at Rs.69/- per sq. mt. (rounded off from Rs.68.75). This market value is very close to the very price paid for plots of land sold by the Goa Housing Board, after developing the property, deducting the costs of development and sold at the rate of Rs.61/- per sq. mt. in the year 1983 and Rs.68/- per sq. mt. in the year 1985 as stated by the Board's Engineer Shri. Radhakrishnan/RW 2.

11. Nevertheless, learned Counsel on behalf of the Goa Housing Board submits that the Communidade's land was not freehold land and had restrictions for its sale imposed under the Code of Communidade, 1961 and in this context learned Counsel has placed reliance on an unreported Division Bench decision of this Court dated 21-12-2004 in First Appeal No.5/2004 in the case of Communidade of Kerim Vs. Land Acquisition Officer & Anr. wherein this Court referring to its earlier decision in the case of Communidade of Candolim Vs. Deputy Collector (North), Panaji dated 28-9-2004 in First Appeal No.218 of 2002 (since reported in 2005(2) ALL MR 258) observed that the land held by the Communidade is not a freehold land and its free use is not permissible as it suffers from statutory restriction and the obvious consequence that would follow from the same is on its market value and therefore such land could not be compared with other sale instances in respect of the freehold land.

12. The above disadvantage which the Communidade land had by way of statutory restrictions or impediments could certainly be sounded in terms of a further deduction. We are therefore inclined to make a further deduction and considering the facts of this case, fix the market value of the acquired land at Rs.55/- per sq. mt. with all consequential statutory benefits.

13. Consequently, we allow the appeal partly and modify the impugned award dated 7-1-2003 and fix the market value of the acquired land at Rs.55/- per sq. mt. with all consequential statutory benefits.

Appeal partly allowed.