Partly allowed

State of Goa and Anr. v. Edgar F.Dias Valles

Bombay HC17 Sept 2010FA/24/2002

Case brief

AI extract

What is this about?

The High Court dismissed the State's appeal against enhancement of compensation in a land acquisition case. It upheld a compensation rate of Rs. 1000 per square metre for developed land in a posh locality. The court set aside unwarranted deductions for development and road setbacks.

What did the court decide?

Appellant (Owner) awarded compensation at Rs. 1000 per square metre plus solatium and interest; State appeal dismissed; Owner appeal partly allowed.

State of Goa and Anr. Vs Edgar F.Dias Valles — Land Acquisition | Bombay HC (2010)

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IN THE HIGH COURT OF BOMBAY AT GOA

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FIRST APPEAL NO. 172 OF 2001 WITH FIRST APPEAL NO. 24 OF 2002

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FIRST APPEAL NO. 172 OF 2001

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Shri Edgar Francisco Valles, represented by his constituted attorney Smt. Agusta Iria Valles, r/o St. Inez, Panaji Goa.

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... Appellant

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V e r s u s

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Deputy Collector and Sub Divisional Officer, Collectorate, Panaji Goa.

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Executive Engineer, Works Division II (R & B-N) P.W.D.,Panaji Goa. ... Respondents

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Mr. M. B. da Costa, Senior Advocate with Mr. J. A. Lobo, Advocate for the Appellant.

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Mr. G. Shirodkar, Government Advocate for the Respondents.

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WITH

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FIRST APPEAL NO. 24 OF 2002

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State of Goa, through the Dy. Collector & SDO, Panaji Goa.

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... Appellant

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V e r s u s

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Shri Edgar F. Dias Valles, r/o St. Inez, Panaji Goa. ... Respondent

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Mr. G. Shirodkar, Government Advocate for the Appellant.

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Mr. M. B. da Costa, Senior Advocate with Mr. J. A. Lobo, Advocate for the Respondent.

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CORAM : D. G. KARNIK, J.

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DATED : 17th SEPTEMBER, 2010.

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ORAL JUDGMENT :

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This appeal is directed against the judgment and order dated 23^rd July, 2001 passed by the IInd Additional District Judge, Panaji, passed in Land Acquisition Case No. 42/97.

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The appellant was an owner of land bearing P.T. Sheet No. 104/7 admeasuring 2365 square metres abutting two public roads situated at Altinho, Panaji, State of Goa. By a Notification dated 6^th March, 1992 issued under Section 4 of the Land Acquisition Act, a portion of the land of admeasuring 265 square metres abutting the two roads was proposed to be acquired for widening of the traffic circle at the intersection of two public roads. The Land Acquisition Officer published the award on 1^st March, 1995 awarding compensation at the rate of Rs.100/- per square metre for the acquired land. Aggrieved by the amount of compensation, the appellant filed an application to the Collector for making a reference to the Court. Accordingly, the matter was referred by the Collector to the District Court. By a judgment and order dated 23^rd July, 2001, the District Court (hereinafter referred to as the Reference Court ) enhanced the amount of compensation to Rs.200/- per square metre. Aggrieved by the decision of the Reference Court, the appellant has approached this Court by filing an Appeal No.172 of 2001. Appeal No. 24 of 2002 is filed by the

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State challenging the enhancement of compensation. Since both the appeals are directed against the same judgment, they are disposed of by this common judgment.

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Before the Reference Court, the appellant examined Maria

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Filomena Fernandes, who is relative as also power of attorney of the appellant. He also examined Rui Rebeiro Santana (PW2), a Civil Engineer and valuer, who also happens to be a vendor in one of the sale deeds relied upon by the appellant. The appellant also examined Raghu Pikale (PW3) and Dr. Carmo Gracias (PW4) to prove the sale deeds relied upon by the appellant. The respondent examined Avdhut Bhonsle (RW1), Assistant Engineer in P.W.D. and Mr. Laxmikant Chodankar (RW2), Superintendent Survey Works in P.W.D. From the deposition of the witnesses and in particular PW1, PW2 and RW1 and RW2, there appears to be no dispute regarding the description and location of the land acquired. The acquired land forms a part of the land of P.T. Sheet No. 104/7 belonging to the appellant. The total area of the plot of land belonging to the appellant is 2365 square metres. The plot is situated at the intersection of two roads and faces two roads. Out of the said plot a portion of 265 square metres abutting the intersection of the two roads was acquired for the purpose of road widening i.e. to say widening of the intersection. The acquired land is situated at Altinho hill which is a posh residential locality where the senior government officers, Ministers and

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VIPs reside. The land is situated at the plateau of the hillock of Altinho. Mrs. Maria Filomena Fernandes (PW1) has given description of the surrounding area. She has stated that the Doordarshan Kendra is situated at a distance of about 500 metres. Electricity Department is also situated at a distance of 500 metres. Bungalows of the Chief Minister, ministers, senior Government servants like Chief Secretary, Director General of Police and Secretaries are at a distance of 500 metres from the acquired land. Government Polytechnic College, C.M.M. Hospital, Nirmala College for B.Ed, Dempo College of Commerce and bungalows of businessmen are also situated within the radius of 500 metres from the acquired land. A bus stop is situated near the acquired land where the KTC buses arrive and halt. She has further stated that amenities such as electricity, water, telephone are very close to the acquired land. PW1 also filed on record the sale deeds of the lands in the locality which have been relied upon. PW2, Rui Rebeiro Santana an owner of the land in the vicinity has deposed about the location of the acquired land. He was previously working in the P.W.D. Department and then in the Mormugao Municipality till he retired in the year 1973. Thereafter, he started dealing with the work of preparing RCC designs and plans and he is also an approved valuer for the purpose gift tax, income tax and wealth tax. After describing the location of the land, he stated that the bungalows of Chief Minister, ministers, Bishop's palace, New Goa college of Arts, P.W.D., and Government Polytechnic are located on the western side of the hillock

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of Altinho and nearby the acquired land. The acquired land is situated at the junction of three roads, and abuts two of them and was acquired for the purpose of road widening at the junction of the roads. Avdhut Bhonsle, RW1 has stated that one road abutting the acquired land leads to Government Polytechnic college and while T.V. station is on the northern side of the acquired land. He has also stated that E-type Government quarters are situated in the vicinity. He stated that the Government Polytechnic college is at a distance of about 150 to 200 metres from the acquired land and mental hospital was around 120 metres. The electricity sub-station was around 60 square metres while I.T.I. is around 150 metres from the acquired land. The road towards Government Polytechnic was about 7.5 metres wide, the road leading to St. Inez was around 9.5 metres wide and the road going towards TV station was 8 metres wide at the intersection. 265 square metres of plot No.104/7 was acquired for road widening at the junction. In the cross examination, RW1 Avdhut Bhonsle and RW2 Laxmikant Chodankar admitted that there were developments in the vicinity of the acquired land such as private residential houses, electricity department quarters, AIR quarters and other residential houses etc. He also admitted that Polytechnic college and hostel were within 200 to 300 metres from the acquired land. It is thus clear that the acquired land is situated in a posh and developed area and bungalows of the Chief Minister, Ministers, Bishop's house as also other VIPs' houses are situated within the radius of 500 metres from the acquired land. T.V. Station,

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I.T.I., Government Polytechnic College, Electricity Employees Quarters are all located nearby. The acquired land is abutting the two roads and was a developed land. The surrounding area appears to be completely developed. The electricity sub- station is in the vicinity of the acquired land which has direct access from two roads and the water facility is available at or near the acquired land.

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As regards the valuation, the appellant has produced before the trial Court certified copies of a sale deed dated 5^th January, 1983 at Exhibit 18, a sale deed dated 16^th May,1981 at Exhibit 19, a sale deed dated 28^th November, 1981 at Exhibit 20, a sale deed dated 25^th September, 1986 at Exhibit 31 and a sale deed dated 9^th March, 1988 at Exhibit 34. The appellant also produced on record a certified copy of an award dated 30^th April, 1998 at Exhibit 15 in respect of land which was acquired under Section 4 Notification dated 17^th October, 1986. The sale deed dated 28^th November, 1981 at Exhibit 20 was proved by Rui Rebeiro Santana, PW2. The land therein was sold at the rate of Rs.240/- per square metre. He stated that the said land was in the vicinity and was situated at a distance of 500 metres from the acquired land. Rui Rebeiro Santana, who also works as a valuer and had visited the acquired land as also the lands covered under the various sale deeds referred to above, as also the land covered by the award dated 30^th April, 1998. He stated that the land covered by the award dated 30^th April, 1998 at Exhibit 15 was at a distance of 1 km and the compensation awarded in the award was Rs.

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664/- per square metre. Relevant valuation date being the date of notification under Section 4 was 17^th October, 1986. Raghu Pikale (PW3) was a promoter of the Varuna Co-op. Housing Society and he also owned one plot of land in the said society. He proved the sale deed at Exhibit 31 dated 25^th September, 1986 under which he sold the plot at the rate of Rs. 744/- per square metre. The plot is situated in the vicinity of the acquired land. Dr. Carmo Gracias (PW4) deposed about the remaining two sale deeds. The Reference Court has discussed the aforementioned sale deeds in para 10 of the decision and I agree with the reasoning as well as the conclusion reached by the learned Reference Court that the sale deeds were relevant being in respect of the lands in the locality. The award dated 30^th April, 1998 at Exhibit 15 has also rightly been relied upon by the Reference Court for considering the market value of the land. All the sale deeds are prior to the Notification under Section 4. The learned Reference Court has considered the rates of the lands mentioned in the sale deeds as the market rate on the respective dates of sale and taken annual increase in value at 10% for arriving of the price as on the date of the notification under Section 4 for the acquired land. In my view, the approach of the leaned Reference Judge taking 10% increase is appropriate. In Land Acquisition Officer and Revenue Divisional Officer V/s Ramanjulu and others (2005) 9 Supreme Court Cases 594 , the Supreme Court allowed increase in the market value at the rate of 10% per annum. In Krishi Utpadan Mandi Samiti, Sahaswan, V/s Bipin

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Kumar and another (2004) 2 SCC 283 , the Supreme Court held that appreciation at the rate of 15% for every subsequent year was reasonable. In Revenue Divisional Officer-cum-Land Acquisition Officer V/s Shaik Azam Saheb and others (2009) 4 SCC 395 ( para 19), the Supreme Court considered 10% increase in the market value per year to be appropriate. In General Manager, Oil and Natural Gas Corporation Limited V/s Rameshbhai Jivanbhai Patel and another (2008) 14 SCC 745 , the Supreme Court held that the increase should be at a cumulative rate and not at a flat rate i.e. the increase should be calculated at compound rate and not at a simple rate.

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If one takes into consideration the fact that the acquired land is situated in a very posh developed locality wherein the Chief Minister, the Ministers and other VIPs like the Bishop as well as businessmen are residing, escalation in the price at the rate of 10% per annum adopted by the Reference Court with reference to the previous sale deeds for arriving at the price of the acquired land cannot be faulted with. Of course determination of market value of a property involves some guess work. The amount of increase which may vary between 5% to 15% per annum depending on the facts and circumstances of each case. Though the learned Counsel for the appellant submitted that the Reference Court should have taken into consideration 15% increase, he did not take a serious exception to the view taken by the learned Reference Court in

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considering increase in the market value at 10% per year. Considering the sale quoted in the comparable sales, the Reference Court came to the conclusion that on the date of the notification i.e 6^th March, 1992 the market price of a developed plot in the locality was Rs.1000/- per square metre. In my view, this finding recorded is based on the evidence and on re-appreciation of the evidence adduced on record. I am of the view that the finding is proper and the market value of the developed plots in the locality as on the date of notification were Rs.1000/- per square metre.

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The Reference Court has deducted 60% from the market value for the development of the acquired land. In my view, this deduction is unwarranted. The acquired land was abutting the two roads and was acquired for the purpose of road widening at the junction. KTC bus transport facility was at the door step. High tension electric lines were passing through the part of the total land and electricity transformer was also in the locality. The electricity supply was thus assured. The total area of the plot was about 2400 square metres and as per the development rules, no sub-division was necessary before commencing any construction on the entire land. The acquired land was totally developed land and hardly any expenses were required to be incurred for commencing the building construction. Other two sale deeds plots were similarly developed and would have required the same level of expenses for commencing the development ( like preparation of plans, obtaining

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necessary building permission etc. ) as was required for the acquired land for the purpose of construction. There is no justification for deduction of 60% of the value for the purpose of development.

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The Reference Court has made a further deduction of 50%

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on the ground that the acquired land was a triangular piece of land adjacent to a junction of the roads and could not have been built upon as it formed part of the road set back. In my view, the view taken by the Reference Court is erroneous. It is true that a portion of land abutting the road is unbuildable by itself because the owner is required to keep a certain distance between an edge of the road and the building. Construction of a building is not permissible within 10 to 15 feets from the edge of the road and the strip of land abutting the road cannot be built upon. But that does not mean that the strip of 10 to 15 feets which is required to be kept open does not have or has very little market value. If the owner of the land owns a plot which is large enough even after leaving open the strip of land abutting the road he would be able to build upon the remaining land. For calculating the permissible to be built upon or the F.S.I./F.A.R., this open strip of land abutting the road is taken into consideration. Even in respect of any buildable plot, apart from 10 to 15 feets which is required to be kept open abutting a road some side margins from all sides of the plot, depending upon the development rules, are required to be maintained. That does not mean that the land abutting the

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edges of the plot has a less market value than the remaining area of the plot. The purchaser of a plot purchases the plot by taking into consideration the total area, size, shape and location of the plot and also taking into consideration that the part of the area of plot abutting the road or side margins are required to be kept open. Even in respect of a voluntary sale, some part of the plot which is abutting the road or which forms part of the side margins is always required to be kept open and the total price of a plot is arrived at taking into consideration all the aforementioned factors. The acquired land was the part of the larger plot of land and by reason of acquisition of the front portion abutting the road the portion immediately behind the acquired land would face the widened road. That portion which would abut the widened road after acquisition cannot be built upon. The portion which was buildable would become unbuildable and suffer injurious affection. In my view, therefore, there can be no deduction in the price on account of the fact that the acquired portion was abutting the main road. I am fortified in my view by two decisions of the Supreme Court in the case of State of Goa and another V/s Gopal Baburao Gaudo and others (2009) 10 SCC 686 as also in the case of C.R. Nagaraja Shetty (2) V/s Special Land Acquisition Officer (2009) 11 SCC 75.

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The learned Government Advocate submitted that the high tension lines were passing through the acquired land and therefore, building construction was not permissible on the acquired land and,

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therefore, the acquired land had no market value. As stated earlier, the acquired land forms part of the larger plot of land admeasuring 2400 square metres. FSI was to be taken into on the basis of the total area of land. By acquisition of 265 square metres of land the owner of the land had lost the FSI attributable to 265 square metres. This is not the case wherein the entire land was unbuildable on account of high tension lines. The portion below the high tension lines may not be buildable but the FSI/FAR attributable to that portion could be used in the remaining land. In my view, therefore, the fact that the high tension lines were passing through a portion of the acquired land would not result in diminution of its value in the facts and circumstances of the present case.

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For these reasons, the appeal filed by the State is required to be dismissed and appeal filed by the owner is required to be partly allowed.

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The owner's appeal is accordingly partly allowed. The appellant shall be entitled to the compensation at the rate of Rs.1000/- per square metre i.e. Rs.2,65,000/- for the acquired land. The State shall also pay the statutory charges like solatium and interest on the amount of compensation.

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D. G. KARNIK, J.

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at*

State of Goa and Anr. v. Edgar F.Dias Valles

Case brief

What is this about?

What did the court decide?

State of Goa and Anr. v. Edgar F.Dias Valles

Case brief

What is this about?

What did the court decide?

What the court decided

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