First Appeal No.183 of 2005

9th December, 2010

Petitioner Counsel: Shri. M. P. ALMEIDA
Respondent Counsel: Shri. G. SHIRODKAR

Cases Cited:
Special Land Acquisition Officer Vs. Karigowda, 2010 ALL SCR 2152=(2010)5 SCC 708 [Para 8]
Chimanlal Hargovinddas Vs. Special Land Acquisition Officer, (1988)3 SCC 751 [Para 9,10,12]
Periyar & Pareekanni Rubbers Ltd. Vs. State of Kerala, (1991)4 SCC 195 [Para 9]
Basant Kumar Vs. Union of India, (1996)11 SCC 542 [Para 9]
Special Deputy Collector Vs. Kurra Sambasiva Rao, AIR 1997 SC 2625 [Para 9]
Union of India Vs. Zilla Singh, (2003)10 SCC 166 [Para 9]
Smt. Anjani Molu Dessai Vs. State of Goa, F.A. No.37/2001, Dt.:-3-8-2004 [Para 9]
Viluben Jhalejar Contractor (dead) by legal representatives Vs. State of Gujarat, 2005(5) ALL MR 449 (S.C.)=(2005)4 SCC 789 [Para 11]
Shaji Kuriakose Vs. Indian Oil Corporation Ltd., (2002)7 SCC 650 [Para 12]
Subh Ram Vs. State of Haryana, (2010)1 SCC 444 [Para 16]
V. M. Salgaocar and Brothers Pvt. Ltd. Vs. Union of India, (1995)2 SCC 302 [Para 16]

JUDGMENT

JUDGMENT :- Heard.

2. This appeal is directed against Judgment dated 10-1-2005 of the learned reference Court by which the reference made by the applicants has been rejected. The parties hereto shall be referred to in the names as they appear in the cause title of the reference.

3. Some facts may be stated to dispose off this appeal.

4. By virtue of notification issued under Section 4(1) of the Land Acquisition Act, 1894 and published on Gazette dated 27-7-2000, the Government acquired land for improvement of left out roads in Village Panchayat of Varca, Salcete, Goa. The applicants' land admeasuring 200 sq. meters from survey No.165/1 of Varca village was included in the said notification. By award dated 12-12-2002, the Land Acquisition Officer awarded compensation to the applicants at the rate of Rs.27/- per sq. meter.

5. Not being satisfied with the said compensation, the applicants claimed enhancement at the rate of Rs.325/- per sq. meter and got a reference made. In support of the reference, the applicants examined the son of applicant No.1 and the attorney of both the applicants and Shri. Shridhar Kamat, a consulting Civil Engineer and Surveyor. The applicants relied upon two sale deeds, namely Exh.18, a sale deed dated 24-10-1994 by which a vast property admeasuring 31,525 sq. meters comprising of survey Nos.199/5 and 220/2, 4, 5 to 8 was sold for Rs.47,36,000/- which works out to about Rs.150.22 per sq. meter. The other was Exh.19, a sale deed dated 14-2-1995 by which again a vast property admeasuring 46,375/- sq. meters and comprising of survey Nos.165/2 and 174/2 from Varca village was sold for Rs.1,57,67,500/- which works out to Rs.340/- per sq. meter to M/s. Veekay Builders Private Limited.

6. The learned reference Court has rejected the claim for enhancement essentially because, in the opinion of the learned reference Court, the applicants had not stated that the said two properties were similar to the acquired land, at the same time, taking note of the fact that when the applicants' expert Shri. Kamat had visited the said property, big hotels were already existing in them. The learned reference Court observed that such vast properties purchased for constructing hotels could not be compared to a narrow strip of land admeasuring 200 sq. meters lying on the other side of the stream, which strip was already being used as a road and acquired for improvement of that left out road. The learned reference Court referring to the evidence of AW-2/Shri. Kamat noted that the acquired portion was an integral part of a bigger property admeasuring 51400 sq. meters bearing survey No.165/1, and inspite of that observed that the applicants had not produced Form Nos.I and XIV of survey No.165/1 of which Government had acquired 200 meters. The learned reference Court rejected the report of AW-2/Shri. Kamat because it lacked professional skill and his opinion was based by taking it for granted that the acquired strip of land was fit for development and construction.

7. At the time of hearing of arguments, Shri. M. P. Almeida, learned Counsel appearing on behalf of the applicants produced a copy of plan of the survey numbers without its sub-divisions and submitted that this plan was produced before the learned reference Court. However, the records and proceedings of the learned reference Court do not have such a plan but nevertheless it can be seen from the evidence of AW-2/Shri. Kamat that he had identified his signature on the plan at point P and the valuation report along with the annexures and copies of sale deeds were taken on record and marked Exh.22 colly. The said plan therefore is taken on record and marked 'X' for identification. The said plan is styled as "part of the environmental management plan for coastal area of Goa". It does help to know the location of the acquired property vis-à-vis the properties of the said two sale-deeds.

8. Shri. Almeida, learned Counsel appearing on behalf of the applicants submits that the applicants land was situated in the coastal belt of the State and it is common knowledge that the land on the coastal belt are of sandy soil where constructions of big hotels have been put up and such lands are always in demand, and, therefore, it was not necessary that the applicants should have proved similarity between the applicants land and the lands of the sale deeds-Exhs.18 and 19. Learned Counsel has submitted that this is a case where the applicants had led evidence not only to show similarity of the acquired land with the lands of the sale-deeds but the respondents had led no evidence to counter the applicants evidence and in this context, Shri. Almeida has placed reliance on the case of Special Land Acquisition Officer Vs. Karigowda and others ((2010)5 SCC 708 : [2010 ALL SCR 2152]) wherein the Apex Court has observed that the onus to lead evidence primarily lies upon the claimants, and they are expected to lead evidence to revert (sic.) the same, if they so desire. It is also observed that, in other words, it cannot be said that there is no onus whatsoever upon the State in such reference proceedings. The Court cannot loose site of the facts and clear position of documents, that obligation to pay fair compensation is on the State in its absolute terms. Every case has to be examined on its own facts and the Courts are expected to scrutinize the evidence led by the witnesses in such proceedings.

9. In my view, no much support can be derived by the applicants from the said observations of the Apex Court. No doubt, the State is bound to pay market value of the land when acquired. To deny the market value to the applicants would amount to paying less than the market value. However, when the applicant seeks enhancement of the market value paid, the burden is on the claimant to show that the compensation paid is inadequate. The law on this point is well settled. To repeat, the burden to prove that the amount of compensation awarded by the L.A.O. is inadequate is always on the claimants seeking higher compensation and this position of law has been settled by long line of decisions of the Apex Court. In the case of Chimanlal Hargovinddas Vs. Special Land Acquisition Officer and another ((1988)3 SCC 751) the Supreme Court has stated that the claimant is in the position of the plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. The same principle is reiterated in the case of Periyar & Pareekanni Rubbers Ltd. Vs. State of Kerala ((1991)4 SCC 195) wherein the Supreme Court stated that the burden of proving that the land is capable of fetching higher market value is on the claimant. Another three learned Judges of the Apex Court in Basant Kumar and others Vs. Union of India and others ((1996)11 SCC 542) have held that burden is always on the claimant to prove the market value and the Court should adopt a realistic standard and pragmatic approach in evaluation of evidence. The same principle is again found reiterated in the case of Special Deputy Collector and another Vs. Kurra Sambasiva Rao and others (AIR 1997 SC 2625) (another three Judge decision of the Apex Court) by stating that the burden is on the claimant to show that the amount awarded by the Land Acquisition Officer is not adequate. The same principle has been followed by another three Judge Judgment of the Apex Court in the case of Union of India Vs. Zilla Singh ((2003)10 SCC 166) by stating that the onus is on the claimant to lead evidence on determination of the market value. These principles were followed by a Division Bench of this Court in an unreported Judgment dated 3-8-2004 in First Appeal No.37 of 2001 in the case of Smt. Anjani Molu Dessai Vs. State of Goa and another.

10. Although, there are different methods of arriving at the market value of the acquired land, it is now well settled that comparable sales method of valuation is the most preferred method because it furnishes the evidence for determination of the market value of the acquired land which a willing purchaser would pay for the acquired land, if it had been sold in the open market at the time of issue of notification under Section 4 of the Act, but before that is done there are certain factors which are required to be fulfilled and only on fulfillment of those factors the compensation can be awarded, according to the value of the land reflected in the sales. One of the factors which has been spelt out in the case of Chimanlal Hargovinddas Vs. Special Land Acquisition Officer (supra) which decision is considered as locus classicus, is that amongst comparable sale instances, out of genuine instances, one has to be identified from :

(i) the proximity from time angle, and

(ii) proximity from situation angle.

11. Again, the Apex Court in Viluben Jhalejar Contractor (dead) by legal representatives Vs. State of Gujarat ((2005)4 SCC 789 : [2005(5) ALL MR 449 (S.C.)]) has stated that "the amount of compensation cannot be ascertained with mathematical accuracy. A comparable instance has to be identified having regard to the proximity from time angle as well as proximity from situation angle. For determining the market value of the land under acquisition, suitable adjustment has to be made having regard to various positive and negative factors vis-à-vis the land under acquisition by placing the two in juxtaposition".

12. The factors which have been spelt out in the case of Shaji Kuriakose and another Vs. Indian Oil Corporation Ltd. and others ((2002)7 SCC 650) are that :-

1. the sale method must be a genuine transaction,

2. that the sale deed must have been executed at the time proximate to the date of issue of notification under Section 4 of the Act,

3. that the land covered by the sale must be in the vicinity of the acquired land,

4. that the land covered by the sales must be similar to the acquired land,

5. that the size of plot of the land covered by the sales be comparable to the acquired land.

If all these factors are satisfied, then there is no reason why the sale value of the land covered by the sales be not given for the acquired land, and in case there are dissimilarities in regard to the locality, shape, size or nature of land between lands covered by sales and land acquired, it is open to the Court to proportionately reduce the compensation for the acquired land than what is reflected in the sales depending upon the disadvantages attached to the acquired land. In doing so, some guess work is permissible but what is impermissible are the undue emphasis and mis-placed sympathies. The case of Chimanlal Hargovinddas Vs. Special Land Acquisition Officer and another (supra) even gives illustrations as to how a balance sheet of plus and minus factors is required to be drawn in terms of a price variation as a prudent purchaser would do and amongst others smallest of size is considered as a plus factor while largeness of area is considered a minus factor. Likewise, nearness to developed area is considered as a plus factor while land which would require filling up is considered as a minus factor, etc..

13. The applicants' attorney had stated that the acquired property was situated at a distance of about half a kilometer from the beach and the western side of the said property 165/1 was adjoining the beach and this property was located at a distance of about two and a half kms. from the place where there was Village Panchayat Office, Post Office, Bank, etc. and at a distance of 8 kms. from Margao town. He had also stated that Reddison White Sands Hotel was located at a distance of 700 meters and Club Mahendra Resorts was at a distance of 400 meters and Resort de Goa was situated at a distance of about 600 meters. Dona Maria Apartments was situated at a distance of about 600 meters and Gold Coast Villas were situated at a distance of about 3 kms. He had further stated that there was a public transport at a distance of about 700 meters and although he had stated that the acquired area is a portion of a bundh and the remaining area had the same level, a fact which was not contested successfully by the respondents and in fact even the evidence of AW-2/Shri. Kamat disclosed that the acquired portion was in level with the remaining area of the property. In cross-examination, he had stated that the acquired land was a bundh after which there was a paddy field and the western side was in level with the acquired land and the eastern side was a paddy field, but even then, nothing was brought on record to suggest that the said paddy field on the eastern side was on the lower level than the western part. Therefore, what emerged from the evidence of both the witnesses was that the acquired land though of a type of a "bundh" was of the same level and was suitable for construction, like other lands in the locality where constructions of hotels had already come up. In fact, applicants' attorney had categorically stated that the acquired land had similar potentiality like the surrounding areas where hotels were erected and there was no dent made in the said statement.

14. Shri. G. Shirodkar, learned Government Advocate has tried to contend that the acquired portion was a way used by the people to go to the shore. The evidence of the applicants' attorney and that of their expert does not at all show that there was any existing passage over the acquired land used by the people to go to the beach. Respondents had led no evidence to show that there was such a way. Lands which are left open are bound to be criss-crossed by the people, and in the absence of any evidence in that regard, in my view, the learned reference Court was not justified in coming to the conclusion that it could not be sold because there was a road. In fact, the acquired land was part and parcel of a bigger property admeasuring 51400 sq. meters, and as stated by the applicants' attorney the property which was subject matter of acquisition was surrounded by hotels and the area had similar potentialities. In other words, the applicants attorney had clearly stated that the applicants property of survey No.165/1 admeasuring 51,400 sq. meters could have been sold for setting up a hotel project as there were already hotel projects which had come up in the area, and, therefore in my view, the learned reference Court was not right in concluding that the applicants property could not be compared with the other properties wherein hotel projects had come up because it admeasured only 200 sq. meters. The learned reference Court lost sight of the fact that the said narrow strip was required to be valued as part of the bigger property of the applicants having all the advantages and potentialities.

15. The applicants had produced two sale deeds, namely Exh.19 which pertained to survey Nos.165/2 and 174/2 and which on the face of it shows that it is closest from the time angle as well as situation angle, as it is a part of survey No.165/2 and the acquired property being from survey No.165/1. However, this sale deed Exh.19 shows that the land of this sale deed was sold within a span of one year at a price which is three times more than the sale deed Exh.18 which is of survey Nos.199/5 and 220/2, 4 to 8. However, the applicants' own expert has not taken the same into consideration although all the factors relating to the acquired property and to the property of Exh.19 are ditto such as location, zone, accessibility, means of communication, level, proximity to civic amenities, services available, etc. including the fact that it was executed about 5 years prior to the date of notification. Based on his professional experience, he has opined, that sale deed-Exh.19 does not reflect the true market index of the prevailing prices of the land in that locality and he is of the opinion that the price was unduly hiked, the reasons for which are not known to him. According to him, the land of the said sale deed was at present subjudice. According to him, the sale instance of Exh.19 cannot be treated as genuine comparative sale instances to arrive at a fair market price of the acquired land. I do appreciate the honest opinion given by AW-2/Shri. Kamat. I wish there were more experts like him since we come across in many cases architects and engineers who are examined as experts indulge in lot of falsehood and no action is taken against them and although the advocates and Judges laugh at them privately they must be laughing at the Judges all the way to the Bank for not taking action against them.

16. That leaves us with sale deed Exh.18 dated 24-10-1994 by which a plot of land admeasuring 31525 sq. meters was sold at the rate of Rs.150.22 per sq. meter. This property was sold as undeveloped property as a whole and wherein a Five Star Resort has been developed as stated by AW-2/Shri. Kamat, and, therefore there is no question of any deduction being taken towards cost of development. According to him, the property of sale deed-Exh.18 is at a distance of about 0.6 kms. by road. It is stated in Subh Ram and others Vs. State of Haryana and another ((2010)1 SCC 444) that where the value of acquired agricultural land is determined with reference to the sale price of a neighbouring agricultural land, no deduction need be made towards development cost. Once it is shown that situation and potential is the same, they can be awarded similar compensation. He has opined that this sale deed is a genuine deed of sale. There is no evidence produced to the contrary. He has taken a deduction of 15% and has worked out the price of the acquired property at Rs.127.50 per sq. meters and considering that the sale deed is of the year 1994 has given escalation in price at 10% and has worked out the market value at Rs.220.06 per sq. meter and rounded it up to Rs.220/- per sq. meter. In the case of V. M. Salgaocar and Brothers Private Limited Vs. Union of India ((1995)2 SCC 302) the Apex Court gave appreciation of price at 10% on compounding basis. I do not see any reason why his opinion cannot be accepted by this Court, on the facts of this case.

17. In the circumstances, therefore I allow the appeal, set aside the impugned award, and fix the compensation payable to the applicants at the rate of Rs.220/- per sq. meter which the applicants would be entitled to receive from the State with all statutory benefits.

Appeal allowed.