JOSE BISMARK SILVEIRA Vs. SPECIAL LAND ACQUISITION OFFICER

JUDGEMENT

(1.) BOTH these appeals are being disposed of by common Judgment since both appeals are preferred against the same Judgment and Award. In First Appeal No.125/2004, the appellant is aggrieved by inadequacy of compensation granted in respect of the acquired land whereas in First Appeal No.85/2005, the appellant is aggrieved by the higher compensation granted to the respondents. The appeals are preferred against the Judgment and Award dated 15th March, 2004, passed by IInd Addl. District Judge, Panaji in Land Acquisition Case No. 209/96

(2.) BRIEFLY, the facts which are relevant for disposal of these two appeals are as follows: By Notification issued under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter, referred to as � the Act') dated 23.9.91, published on 30.12.1991, the Government acquired 1,87,781 sq. metres of land for the purpose of construction of B.G. line between Roha - Mangalore. The said acquisition was for Konkan Railway Corporation Ltd. An area of 3150 sq. metres situated at Malar Village bearing Survey No.4/2 (part) belonging to Jose Bismark Silveira (hereinafter, referred to as 'the applicant') was part of acquired land. The Land Acquisition Officer, by Award dated 7.3.1994 awarded Rs.12/- per sq. metre in respect of the land belonging to the applicant. The applicant sought reference under Section 18 of the Act. In Land Acquisition Case No.209/96 before the IInd Addl. District Judge, North Goa, Panaji, the applicant examined three witnesses, namely Jose Mismark Silveira (AW.1), Dr. Edgar Silveira (AW.2) and Shri Prazeres Gonsalves (AW3). The applicant also produced Form I & XIV in respect of the acquired land, and sale deed dated 5.11.1985 in respect 900 sq. metres of land of Mallar Village. The applicant also produced a copy of the Sale Deed dated 24.10.1990 by which he sold a plot of land bearing Survey No.3/2 at the rate of 60/- per sq. metre. The applicant also produced Awards passed in Land Acquisition Case Nos.148/96 (Exhibit-20) and 211/96 (Exhibit-21). Prazeres Gonsalves (AW3) produced survey records and also sketch (Exhibit-23). The respondents examined Shri Anup Pednekar (RW.1) and Shri Vinay Naik (RW.2). The reference Court relied upon Sale Deed dated 24.10.1990 holding that the same was comparable to the acquired land and since the land was sold at the rate of Rs.60/- per sq. metre in the year 1990, the reference Court fixed the market rate of the acquired land by increasing the value by 10% and deducting 25% thereafter on account of the mundkarial houses existing in the unacquired portion of the property bearing Survey No.4/2. The reference Court did not rely upon the Awards passed in the Land Acquisition Case Nos.148/96 and 211/96 on the ground that appeals against the said Awards were pending in this Court.

(3.) PER contra, Mr. Afonso, learned Counsel appearing for the respondent in First Appeal No.125/2004, submitted that the applicant himself in cross examination has admitted that he sold one mundkarial house to a mundkar at the rate of Rs.10/- per sq. metre about a year back and, therefore, the reference Court ought to have rejected the reference. Mr. Afonso further submitted that in any event, the reference Court was absolutely justified in placing reliance on the sale deed dated 24.10.1990 for the purpose of fixing the compensation since the applicant himself was party to the sale deed. According to the learned Counsel, the reference Court ought to have held that the applicant had not led any evidence to make out a case for higher compensation in respect of the acquired land. Placing reliance on the Judgment of the Apex Court, in Printer s House Pvt. Ltd. vs. Mst. Saiyadan (Deceased) by LRs. and ors. ((1994) 2 SCC 133), the learned Counsel submitted that the reference Court was justified in relying upon Sale Deed dated 24.10.1990 being proximate in point of time. The learned Counsel further submitted that each case has to be decided on the basis of the evidence led in that particular case. Relying upon the Judgment of the Apex Court in Ravinder Narain and another vs. Union of India, ((2003) 4 SCC 481), the learned Counsel submitted that comparable sale method is the best method to asses s the compensation in respect of the acquired land. The learned Counsel relied upon another Judgment of the Apex Court in Special Tehsildar Land Acquisition, Vishakapatnam vs. A. Mangala Gowri (Smt.), ((1991) 4 SCC 218) and submitted that the price paid in sale of same land under acquisition within period proximate to date of acquisition is a vital evidence which must be relied upon by the reference Court. According to the learned Counsel, in the present case, the sale deed dated 24.10.1990, which is produced by the applicant himself in respect of plot of land is proximate from the time factor considering that the Notification was issued in the present case in September, 1991. According to the learned Counsel, the consideration mentioned in the sale deed of a plot in which the claimant himself is a party, is the best evidence to fix the compensation. In support of his submission, the learned Counsel relied upon the Judgment of the Apex Court in V. Subrahmanya Rao vs. Land Acquisition Zone Officer, ((2004) 10 SCC 640). According to Mr. Afonso, the entire Village of Mallar cannot be taken as one unit and same compensation cannot be paid in respect of different lands, although acquired by the same notification, especially when large tracts of lands are acquired by the same notification. In support of this submission, the learned Counsel relied upon the Judgment of the Apex Court in Basant Kumar and ors. vs. Union of India and ors. ((1996) 11 SCC 542). According to the learned Counsel, when the evidence regarding value of the acquired land is available, it is unnecessary to travel beyond that evidence.