Dismissed

The Executive Engineer Works Division Xviii (Roads) v. Shri. Ulhas Gopinath Raikar

Bombay HC22 Jan 2016FA/44/2012

Case brief

AI extract

What is this about?

This appeal challenged a Reference Court order enhancing compensation under Section 18 of the Land Acquisition Act. The High Court held that the reliance on a prior sale deed of part of the same survey number was valid evidence. Considering factors like land size and location, the trial court's determination of just and reasonable compensation was upheld, and the appeal was dismissed.

What did the court decide?

Appeal dismissed with costs.

The Executive Engineer Works Division Xviii (Roads) Vs Shri… — Land Acquisition | Bombay HC (2016)

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IN THE HIGH COURT OF BOMBAY AT GOA.

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FIRST APPEAL NO.44 0F 2012.

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The Executive Engineer, Works Division XVIII(Roads) P.W.D, Ponda, Goa.

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…... Appellant.

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Versus

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Shri Ulhas Gopinath Raikar, “Sweta” Plot No.35, Airways Housing Colony, Near MES College, Bus-Stop, Zuarinagar403726.

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…... Respondent.

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Ms. Susan Linhares, Additional Government Advocate for the appellant. Mr. R. G. Ramani, Advocate for the respondent.

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Coram:- K. L. WADANE,J. Reserved on: 15^th January, 2016. Pronounced on:22^nd January, 2016.

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JUDGMENT

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The appellants challenges the order dated 12.9.2011 passed by the learned Ad-hoc District Judge-1, North Goa at Panaji in Land Acquisition Case No. 35/2010 by which the learned Reference Court has allowed the reference of the respondent under Section 18 of the Land Acquisition Act, (“the Act” for short) and enhanced the compensation to the extent of Rs.202/- per square metre.

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Parties shall hereinafter referred as per their original status.

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The brief facts of the case may be stated as follows:-

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An area of 140 square metres belonging to the applicant/respondent herein was acquired from survey no. 43/7 situated at Madkai Village in Ponda Taluka for the purpose of construction of a road from main road Madkai, Tonca to Satki Lake in V.P. Madkai in Ponda Taluka.

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The respondent issued and published notification dated 29.12.2005 under Section 4(1) of the Act and notification under Section 6 of the Act was issued on 18.8.2006. The award was passed on 31.12.2007 by the Land Acquisition Officer and possession of the acquired land was taken on 6.09.2010 by making payment of the compensation. The Land Acquisition Officer awarded compensation at the rate of Rs. 58/- per square metre for the acquired land.

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Being aggrieved with the same, the applicant made a reference under Section 18 of the Land Acquisition Act on the grounds that the acquired land has building potentials and similar land in the locality was sold at Rs.300/- per square metre. The market value of the land of the applicant at the relevant time was not less then Rs.300/- per square metre, therefore, the applicant has claimed compensation at the rate of Rs.300/- per square metres.

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In order to establish the claim of the applicant, he has filed his affidavit his oral evidence and produced on record survey plan, form I and XIV extract, sketch, copy of the judgment in Regular Civil Suit No. 237/2004, copy of the sale deed dated 13.12.2003 and copy of the award at Exhibits 12 to 17 respectively.

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As against this, neither oral nor documentary evidence was produced on behalf of the respondent.

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Considering the oral as well as documentary evidence on record, and mainly relied upon the documentary evidence i.e copy of the sale deed at Exh.16. The learned Reference Court enhanced the the compensation from Rs.58/per square metre to Rs.202/- per square metre, together with other statutory benefits.

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I have heard the argument of Ms. S. Linhares, learned Additional Government Advocate appearing for the appellant herein/original respondent Mr. R. G. Ramani, learned Counsel appearing for the respondent herein/original applicant.

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During the course of arguments Ms. S. Linhares has argued that the land under the sale deed is a small piece of land which could not fetch higher price then the larger plot,

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therefore, the learned Reference Court has wrongly relied upon the sale deed dated 13.12.2003. Mr. S. Linhares, further argued that additions in the price considered by the learned Reference Court is not in accordance with law. Therefore, Ms. Linhares, prayed to allow the appeal.

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As against this Mr. Ramani, learned counsel appearing for the applicant has argued that sale deed land is a part of same survey no. 43/7 sold by the applicant to one Ms. Kalpita Gauade. The area sold was 574 square metres for a consideration of Rs. 86,000/- i.e. at the rate of Rs. 149/- per square metre. So according to Mr. Ramani, the best available evidence is produced by the applicant and, therefore, the learned Reference Court has rightly determined the compensation and additions as the sale deed executed was two years prior to the notification under Section 4(1) of the Act.

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Considering the evidence on record and the rival submissions of both sides, a very short question arises for my determination:-

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POINTS FOR DETERMINATION

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1. Whether the amount of compensation determined by the Reference Court is just and reasonable?

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FINDINGS

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just and reasonable? …... In the affirmative. 2. What Order? …... Appeal is dismissed.

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In order to establish the price of the acquired land as on the date of the notification, the applicant has deposed by filing affidavit at Exh. 11 and his oral evidence in the form of contents of affidavit are on the line of the contents of the reference under Section of 18 of the Act. So he has testified his pleadings at Exh. 1 i.e. reference under Section 18 of the Act at verbatim.

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As against this, no affidavit is adduced on behalf of the respondent. On perusal of the contents of the sale deed dated 13.12.2003, it appears that the applicant and his wife sold an area of 574 square metres at the rate of Rs.149/- per square metre to one Ms. Kalpita Gaude. It is material to note that the part of the same survey number has been sold. So in my opinion, this is the best evidence available with the applicant which he has produced on record. Considering the deed of sale, it cannot be said that the applicant in anticipation of the acquisition of the land in future has created such document nor there are other circumstances to suggest that in anticipation, the claimant has prepared this document. Therefore, by no stretch of imagination, it can be said that the sale deed is a creation with intend to claim/grab higher compensation then the actual price of the land.

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The Apex Court in the case in the case of Viluben

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Jhalejar Contractor Vs. State of Gujarat, reported in (2005) 4 SCC 789 has considered positive and negative factors to be taken into consideration while determining the amount of compensation, which are as follows:-

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	Positive factors		Negative factors
i	smallness of size	i	largeness of area
ii	Proximity to a road.	ii	Situation in the interior at a distance from the road.
iii	Frontage on a road.	iii	Narrow strip of land with very small frontage compared to depth.
iv	Nearness to developed area	iv	Lower level requiring the depressed portion to be filled up.
v	Regular Shape	v	remoteness from developed locality
vi	level vis-a-vis land under acquisition	vi	some special disadvantageous factors which would deter a purchaser
vii	special value for an owner of an adjoining property to whom it may have some very special advantage

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Looking to the positive factors to be taken into consideration, here in the present case, the acquired land is small in size i.e 140 square metres wherein sale deed land is 574 square metres, therefore, the learned Reference Court has rightly considered the additions of the compensation.

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Here in the present case, the best evidence amongst other evidence i.e. sale deed of part of the same survey number has been produced.

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The sale deed considered by the Reference Court is of dated 13.12.2003 and notification under Section 4(1) of the Act was published on 29.12.2005, therefore, the learned Reference Court has made appropriate additions while determining the compensation.

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Considering the evidence on record, I am of the opinion that the learned Reference Court has rightly awarded the reasonable compensation to the acquired land. On perusal of the reasons recorded by the learned Reference Court, it appears that the reasons are based upon the evidence on record. It has been properly appreciated, therefore, it is not necessary to disturb the findings given by the Reference Court. Hence, point for determination is answered accordingly.

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Therefore, there is no substance in the appeal, accordingly, it is dismissed with costs.

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K. L. WADANE, J.

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vn*

The Executive Engineer Works Division Xviii (Roads) v. Shri. Ulhas Gopinath Raikar

Case brief

What is this about?

What did the court decide?

The Executive Engineer Works Division Xviii (Roads) v. Shri. Ulhas Gopinath Raikar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

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