The applicants had engaged an expert that is a Surveyor for admeasuring the said severed land. AW2 is the said surveyor and he has drawn the plans showing the said land which is severed and lying in survey nos. 104/2 and 149. AW2 has stated that he has prepared two plans which are at Exhibits AW2/A and AW2/B. He has identified his signature on the same. He has drawn these plans on the basis of survey plan which is at Exh. AW1/J. AW2 has clearly explained as to how the applicants have lost the area of 1446 square metres from survey no. 104/2 which includes the acquired land and an area of 766 square metres from survey no. 149. AW2 has stated that the area which is lost is not approachable either from the property bearing survey no. 104 or from the property bearing survey no. 149/1. He has stated that due to the cutting of the nallah, the lost parts have remained in between the earlier bank of the nallah and the new bank of the nallah. The evidence of AW1 and AW2 duly proves that the said area of 671 square metres from survey no. 104/2 and 766 square metres from survey no. 149 has become totally useless and is wasted on account of the acquisition. I am therefore of the considered view that the learned Reference Court has not committed any error in holding that the said areas have been rendered totally useless due to which the applicants are entitled for the same compensation for that area which is awarded for the acquired land.
IN THE HIGH COURT OF BOMBAY AT GOA
First Appeal No. 228 of 2003 with Cross Objection No. 17/2005
U.V. Bakre , J.
Citation: 2013(1)ALLMR310, 2012(6)BomCR254, 2013(1)MhLj817
Print Page
IN THE HIGH COURT OF BOMBAY AT GOA
Decided On: 15.09.2012
Appellants: Shri Shamba Sinai Budkule,
Vs.
Respondent: Addl. Deputy Collector and Land Acquisition Officer,Hon'ble Judges/Coram:
Vs.
Respondent: Addl. Deputy Collector and Land Acquisition Officer,Hon'ble Judges/Coram:
1. The appellants and the respondents (cross objectioners) shall be referred to in the manner in which they appear in the cause title of the Land Acquisition case No. 137/1998. Heard Shri A.R. Kantak, Learned Counsel appearing for the applicants and Shri V. Rodrigues, learned Additional Government Advocate, appearing for the respondents.
2. The above appeal and the cross objection are taken up together for final disposal since both arise from the Judgment and award dated 21/4/2003 passed by the learned Additional District Judge, Panaji (Reference Court, for short) in the said Land Acquisition Case No. 137/1998.
3. Vide notification under Section 4(1) of the Land Acquisition Act 1894 (L.A. Act, for short), published in the official gazette dated 25/4/1994, land was acquired for the purpose of rectification of curve on Honda - Valpoi road in Sattari Taluka. This included a portion of land admeasuring 775 square metres from Survey no. 104/2 of Village Honda, belonging to the applicants. The Land Acquisition Officer (L.A.O., for short) offered compensation @ Rs. 30/- per square metre. Not being satisfied with the said offer, the applicants filed an application under Section 18 of the L.A. Act before the L.A.O. which gave rise to the said L.A.C. No. 137/1998.
4. In the said reference application, the applicants alleged that at the relevant time in the year 1993 comparable lands were sold @ Rs. 100/- per square metre. The applicants therefore claimed compensation @ Rs. 100/- per square metre. The applicants further alleged that the possession of the acquired land was taken by the Government in the month of April/May, 1981 with an oral no objection from the applicants. They further stated that while acquiring the land for rectification of the curve of Honda-Valpoi road, the flowing course of the nallah which was of curving nature, while passing through the property of the applicants, was rectified and made straight. Similarly, the road earlier passing over the said nallah was rectified and made straight in order to facilitate the smooth flow of traffic as a result of which two pieces of land admeasuring 766 square metres from survey no. 149 belonging to the applicants and additional land admeasuring 671 square metres from survey no. 104/2, besides the acquired land admeasuring 775 square metres from the said survey no. 104/2 was injuriously affected. The applicants therefore claimed that compensation for altogether 2212 square metres of land being 1446 square metres from survey no. 104/2 and 766 square metres from survey no. 149 ought to have been awarded. The applicants had also claimed compensation towards the value of marad trees @ Rs. 900/- per tree.
5. The applicants examined the applicant no. 2 namely Shambha Narayan Budcule as AW1, a Surveyor namely Babasaheb Berma Adsaikar as AW2 and a Government Approved Valuer namely Subhashchandra Narayan Bhobe as AW3. The respondents examined Shri. Mohan Vishwanath Gaonkar, Assistant Engineer working for PWD at Valpoi, at the relevant time, as RW1.
6. The Reference Court, upon assessment of the entire evidence on record, held that the market rate of the acquired land was Rs. 40/- per square metre. The Reference Court further held that the applicants are entitled to the compensation at the same rate of Rs. 40/- per square metre towards severance charges in respect of the land admeasuring 671 square metres from Survey no. 104/2 and 766 square metres from survey no. 149. The Reference Court held that the applicants could not prove that they were entitled for compensation in respect of trees. The learned reference court also held that the possession of the acquired land was taken by the respondents in May, 1981. Accordingly, the award came to be drawn along with all statutory benefits and costs at Rs. 1000/-.
7. Aggrieved by the award of the Reference Court, the applicants have filed the appeal praying for enhanced rate of Rs. 100/- per square metre whereas the respondents have filed the cross objection praying therein to quash the judgment and award of the Reference Court. The applicants are not interested in compensation towards the trees.
8. Mr. A.R. Kantak, Learned Counsel appearing on behalf of the applicants argued that the acquired land was abutting the main road and admittedly, it was in the settlement zone and was fit for construction. He invited my attention to the sale deeds produced by AW1 and to the valuation report prepared by AW3. He contended that the two sale deeds which are dated 29/04/1993 at Exhibits AW1/B and AW1/F which pertain to plots "B" and "C" respectively are closest to the acquired land being only 250 metres away. He pointed out that in view of evidence on record these plots are quite similar to the acquired land and the price was Rs. 100/- per square metre. Relying upon the judgment of the Hon'ble Supreme Court in the case of "Anjani Molu Dessai Vs. State of Goa and another" reported in MANU/SC/1156/2010 : (2010) 13 SCC 710, the Learned Counsel contended that the Reference Court ought not to have considered the average of price of the plots of sale deeds for the purpose of determination of the market value but ought to have chosen the best suited sale transaction for the said purpose. He further invited my attention to the paragraph 7 of the impugned judgment wherein it has not been considered that the sale transaction in Exhibits AW1/B and AW1/F were of the date which was about an year prior to the date of publication of the notification under Section 4(1) of the L.A. Act. He argued that it is well settled that prices of land go on increasing and that annual increase of 10% is taken to be reasonable increase. The Learned Counsel appearing on behalf of the applicants therefore contended that if 10% increase in the price of the sale deeds at Exhibits AW1/B and AW1/F was made and even if deduction of 40% was done therefrom, the market value of the acquired land would become Rs. 66/- per square metre. He, however, hastened to contend that the applicants do not agree for deduction of 40%. According to the Learned Counsel, the sale deeds did not pertain to fully developed plots since no infrastructure like asphalted roads, drains, tap water, electricity, open space etc. has been provided to the plots. He pointed out that the acquired land which was in the settlement zone was a leveled land fit for construction and therefore, according to him, the Reference Court committed an error in making deduction of 40% from the average price of the sale deeds.
9. The Learned Counsel on behalf of the applicants further contended that the Reference court has totally erred in making further deduction of 35% on the ground that the acquired land was abutting the existing road and was within setback area. Relying upon the judgment of Apex Court in the case of "State of Goa and another V/s. Gopal Baburao Gaudo and others" reported in MANU/SC/1694/2009 : (2009) 10 SCC 686, he argued that the finding of the Reference Court that since the acquired land is adjoining the existing road and within setback area, it could not have been used for construction purpose, is incorrect. He submitted that no deduction on such a ground could have been made. He thus contended that the applicants are entitled to compensation, for the acquired land as well as for the severed land, at least @ Rs. 100/- per square metre as claimed.
10. Per contra, Mr. V. Rodrigues, learned Additional Government Advocate appearing on behalf of the respondents, argued that all the nine sale deeds which are at Exhibits AW1/A to AW1/I read with the evidence of applicant no. 2 (AW1), and of the Expert (AW3) make it clear that these are of developed plots out of converted and sub-divided property. He further submitted that the acquired land is admittedly undeveloped land. The learned Additional Government Advocate pointed out that, as stated by AW3, the property of the applicants is situated on the bank of nallah and that the same is below the level of the bridge by about two and half metres. He further pointed out that as per AW3 there were no houses in acquired land. According to him, therefore, the question of acquired land having facility of electricity, tap water and telephone inside it, is ruled out. He submitted that the deduction of only 40% made by the learned reference court is at lower side. The learned Additional Government Advocate pointed out that some of the said sale deeds are post-notification transactions which could not have been looked into. He submitted that if the said sale deeds of the developed lands are to be considered, then there has to be deduction to the extent of about 66 1/2 %.
11. The learned Additional Government Advocate appearing on behalf of the respondents argued that the judgment of the Apex Court in case of "Gopal Baburao Gaudo and others" (supra) is not applicable because in that case the strip of land which was acquired had land at its rear side, from the same property. He therefore submitted that the deduction of 35% made on account of the acquired land being abutting the existing road and within the setback area, cannot be faulted.
12. The learned Additional Government Advocate further submitted that the evidence on record and more particularly that of the Surveyor (AW2) is not at all sufficient to prove that any land belonging to the applicants had been severed and rendered useless. He pointed out that AW 2 had visited the acquired land in 1997 which is after three years from the date of acquisition. He further pointed out that no land from survey no. 149 was subject matter of acquisition. He, therefore, argued that grant of compensation on the ground of severance and that also at the same rate of Rs. 40/- per square metre was not warranted.
13. The learned Additional Government Advocate submitted that there is no convincing evidence produced by the applicants to prove that the possession of the land was taken in the year 1981. He therefore argued that the question of holding that the applicants are entitled to receive interest under Section28 of the L.A. Act from May 1981 does not arise and hence the finding of the Reference Court, in this regard, is liable to be set aside.
14. The learned Additional Government Advocate appearing on behalf of the respondent finally urged that the cross-objection be allowed and the impugned judgment and award be quashed and set aside or appropriately modified.
15. I have carefully gone through the original record and proceedings, in the light of the arguments advanced by the Learned Counsel for the parties and the judgments cited by them.
16. Following point arise for determination:
(I) To what compensation, the applicants are entitled in respect of the acquired land admeasuring 775 square metres from survey no. 104/2 of Honda Village?(II) Whether an area of 671 square metres from survey no. 104/2 and 766 square metres from survey no. 149 of Honda village has been severed and rendered useless, on account of acquisition?(III) To what compensation, the applicants are entitled in respect of the said severed land, if any?(IV) Whether the applicants are entitled to interest under Section 28 of the L.A. Act from May, 1981?
Point No. 1.
17. AW1, who is the applicant no. 2 has deposed that the acquired land is situated at Honda village of Sattari Taluka. He has stated that public transport is frequently available on Honda-Valpoi road which is abutting the acquired land and that such frequency is after every 15-20 minutes. PW 1 has stated that before acquisition, water pipe line, low tension electricity line and telephone line were passing by the side of the said public road and that high tension wire is about 80 metres away. He has further stated that acquired land is plain, leveled and bharad land and fit for construction of buildings and P.D.A. has classified this land as settlement zone. According to AW1, at the time of acquisition there were houses situated at a distance of about 200 metres from the acquired land and there is a colony known as Narayan Nagar Colony which is about 800 metres away. He has stated that industrial estate of Honda and ACGL factory are at a distance of one and half kilometre from the acquired land and the Industrial Technical Institute is about 250 metres away. AW 1 has deposed that there are two schools one of the Government and the other private which are about 200-250 metres away and even the Honda Police out post is situated at the same distance. He has stated that Village Panchayat office is also at a distance of about 250 metres and there are two petrol pumps about 900 metres away from the acquired land. According to AW1 shops are situated at Honda Tisk at a distance of about 700-800 metres and there is temple known as Mahadeva temple at a distance of 150 metres from the acquired land. He has further deposed that Government College of Arts, Science and Commerce of Sanquelim is about 3 kilometres away from the acquired land and Cottage Hospital of Sanquelim is about 4 Kilometres away.
18. The above evidence of AW1 has been duly corroborated by the Government Approved Valuer namely Subhashchandra Narayan Bhobe examined as AW3. All these facts are also mentioned by AW3 in his valuation report which is at Exhibit AW3/A. A perusal of evidence of RW1 himself reveals that the acquired land falls in settlement area.
19. From the above evidence on record, it can be said to have been established that the acquired land was a land with building potentiality which was situated within the settlement area and it has the advantage of most of the necessary facilities and amenities available nearby.
20. AW 1 has produced altogether nine sale deeds which are at Exhibits AW1/A to AW1/I. AW3, the valuer has prepared the valuation report on the basis of the same sale deeds. However, AW3 has not given appropriate reasons for arriving at the market value of Rs. 100/- per square metre. Some of the sale deeds produced by AW 1 are post-notification and the plots of some of them are at a distance of more than a kilometre away from the acquired land. As stated by AW1, the nature of the plots of these sale deeds is similar to that of the acquired land. I find that, as rightly pointed out by the Learned Counsel for the applicants, two of the said sale deeds which are dated 29/04/1993 and which are at Exhibits AW1/B and AW1/F are very close to the acquired land being about 250 metres away. By sale deed at Exhibit AW1/B, plot "B" admeasuring 1175 square metres from survey no. 2/1 has been sold for Rs. 1,17,500/-whereas by the sale deed which is at Exhibit AW1/F, the plot "C" admeasuring 1200 square metres of the same property bearing survey no. 2/1 has been sold for Rs. 1,20,000/-. The said plots are thus sold by the said sale deeds @ Rs. 100/- per square metre. It is seen that plan is annexed to these sale deeds which reveal that these plots are adjoining one another and a six metres wide road has been reserved for the said plots on the southern side. The evidence of AW 3 reveals that the plots of these sale deeds were already converted. Since a road of six metres width has been left and the land has been converted from agricultural to non-agriculture purpose, it can be easily said that price of the plots "B" and "C" would be higher than undeveloped land, on account of the expenditure made for conversion and on account of loss of land for keeping the six metres wide road. Admittedly the acquired land is undeveloped and unconverted land. It is at a lower level as compared to the bridge. Obviously, appropriate deduction in the price of the plots of said sale deeds will have to be made so as to arrive at the market rate of the acquired land. It is well settled that depending upon the development and other aspects, such deduction can differ from case to case. In the case of "Subh Ram and Ors Vs State of Haryana and anr." [MANU/SC/1790/2009 : 2010(1) SCC 444], the Apex Court has observed that the percentage of deduction may vary between 20% to 75% depending on several circumstances. In my view, considering the plus and minus factors, the deduction of 40% made by the learned Reference Court is just and reasonable.
21. However, it is seen that the Reference Court has not taken into account the gap of about one year between the date of publication of notification under Section 4(1) of the L.A. Act and the date of the sale deeds. The date of said notification is 25/4/1994 whereas the date of the above two sale deeds is 29/04/1993. There is therefore a gap of about an year. Indisputably, the prices of land go on increasing and it is well known that there is annual increase of at lease 10% in the price of lands in Goa. Judicial notice of such annual increase can be taken. Making addition of 10% to the price of sale deeds, on account of the annual increase, the price of the sale deed plots in April 1994 becomes Rs. 110/- and making a deduction of 40% from the same, the price works out to Rs. 66/- per square metre.
22. In the case of "Gopal Baburao Gaudo"(supra), the Hon'ble Supreme Court has held thus:
4. A long strip of land measuring more than two-thirds of an acre lying alongside and adjoining the highway cannot be treated as a land without value or without any potential for development, merely on the ground that the law relating to highways prohibited construction on either side of the highway, upto a depth of 40 m from the centre of the highway. All that was required to create or realise potential of such land was to annex or merge the said strip of land with the land to its rear. In that event, the strip of land will become the `access' to the rear side land from the main road and will also become the frontage of the aggregate land, thereby enhancing the potential and value of the rear side land, as also creating a potential for its own use.5. The contention that a land adjoining the highway should be treated as having no development potential (and therefore as land without much value except as ordinary agricultural land), while considering the lands to its rear which are farther away from the road, or other adjoining lands of the same extent, but having more depth (so as to extend beyond the 40 m margin) as having potential for development, is illogical and cannot be accepted.
23. In the present case, an area of 775 square metres has been acquired from survey no. 104/2 whereas further area admeasuring 671 square metres from the same survey holding has been rendered useless. Thus, the property of the applicants bearing survey no. 104/2, admittedly, had an area of 1446 square metres. The shape of the said survey holding no. 104/2 can be seen from the survey plan which is at Exhibit AW1/J as also from the plans drawn by AW2 which are at Exhibits AW2/A and AW2/B. Considering the area of the said survey no. 104/2 and the shape of the same, I do not subscribe to the submission made by the learned Additional Government Advocate that the judgment of the Apex Court in the case of "Gopal Baburao Gaudo"(supra), is not applicable. I am of the view that the said land of the applicants though was adjoining Sanquelim- Valpoi road, it was in the settlement zone and fit for construction and therefore had potential for development. The Judgment of the Honorable Supreme Court in the case of "Gopal Baburao Gaudo"(supra), is fairly applicable to the case.
24. In the circumstances above, in my considered opinion, the deduction of 35% made by the Reference Court, on the ground that the acquired land was abutting the existing road and within the setback area and hence could not have been utilized for construction, is not correct. No deduction could have been made on such ground.
25. In view of the above, I hold that the market value of the acquired land is Rs. 66/- per square metre. Point no. 1 is therefore answered accordingly.
Points No. 2 and 3
26. AW 1 has deposed that their land is surveyed under no. 104/2, 149/1 and 105/1. He has stated that the portion of the land in survey no. 104/2 on the northern side of the road now constructed is blocking between new course of nallah and the bed of the original nallah due to which the said portion has become useless to him. AW1 has further stated that the portion of the land in survey no. 104/2 on the southern side of the new road constructed is also locked in between the new road and the old bed of nallah due to which the said portion has also become useless to him. AW1 has further stated that the portion of survey no. 149/1 is also locked between the new course of nallah and old bed of old nallah which has become useless for him. According to AW1, the surveyor, engaged by him, has shown the portion of the land from survey no. 104/2 in yellow colour and portion of the land in survey no. 149/2 in pink colour which is lost to the applicants on account of acquisition. AW 1 has stated that compensation was paid to him for the area of 775 square metres of survey no. 104/2 but in respect of area of 661 square metres of said survey no. 104/2 which has been lost by him due to severance, he has not been paid any compensation. He has further stated that he has also not been paid compensation for the area of 776 square metres from survey no. 149. According to him, he is entitled for severance charges for total area of 1437 square metres and that the total area affected by acquisition is 2,212 square metres. I find that the said evidence of AW1 has not been much shaken in his cross-examination.
27. The applicants had engaged an expert that is a Surveyor for admeasuring the said severed land. AW2 is the said surveyor and he has drawn the plans showing the said land which is severed and lying in survey nos. 104/2 and 149. AW2 has stated that he has prepared two plans which are at Exhibits AW2/A and AW2/B. He has identified his signature on the same. He has drawn these plans on the basis of survey plan which is at Exh. AW1/J. AW2 has clearly explained as to how the applicants have lost the area of 1446 square metres from survey no. 104/2 which includes the acquired land and an area of 766 square metres from survey no. 149. AW2 has stated that the area which is lost is not approachable either from the property bearing survey no. 104 or from the property bearing survey no. 149/1. He has stated that due to the cutting of the nallah, the lost parts have remained in between the earlier bank of the nallah and the new bank of the nallah. The evidence of AW1 and AW2 duly proves that the said area of 671 square metres from survey no. 104/2 and 766 square metres from survey no. 149 has become totally useless and is wasted on account of the acquisition. I am therefore of the considered view that the learned Reference Court has not committed any error in holding that the said areas have been rendered totally useless due to which the applicants are entitled for the same compensation for that area which is awarded for the acquired land.
28. I therefore hold that an area of 671 square metres from survey no. 104/2 and area 766 square metres from survey no, 149 belonging to the applicants has been rendered totally useless and the applicants are entitled to receive the compensation @ Rs. 66/- per square metre for the said severed land.
Point No. 4
29. AW1 in his evidence has stated that the possession of the acquired land was taken in May, 1981 and at that time the construction had started. He has further stated that he had put up his objection since the construction was going on. There is no denial of the said statement of AW1 made by respondents in his cross-examination. RW1, the witness of respondents has himself stated that the bridge was constructed in the year 1981-82 and that the acquisition was for the construction of the bridge and also for cutting the strip of nallah. In his cross-examination also he has admitted that the bridge was constructed in the year 1981 and the strip of nallah was also straightened in the year 1981. The respondents have not produced any document of handing over and taking over of possession of the acquired land. In view of the evidence on record it is established that the possession of the acquired land was taken in May, 1981. Therefore, the applicants are entitled for interest under Section 28 of the L.A. Act as from May, 1981 has been rightly held by the learned Reference Court. Point no. 4 therefore gets answered in the affirmative. In the result,
(a) The appeal is partly allowed whereas the cross objection is rejected.(b) The part of the impugned judgment and award of the Reference Court fixing the market rate of the acquired land and severance charges for the severed land @ Rs. 40/- per square metre, is quashed and set aside.(c) The market rate of the acquired land is fixed at Rs. 66/- per square metre. The compensation towards severance charges in respect of 671 square metres from survey no. 104/2 and 766 square metres from survey no. 149 is fixed at Rs. 66/- per square metre.(d) Rest of the award of the Reference Court is maintained.
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