JUDGMENT
T.K. Chandrashekara Das, J.
1. This Land Acquisition Appeal is filed by the Claimant. Notification under Section 4(1) of the Land Acquisition Act, in respect of the land in question, was published in the Government Gazette dated 9.9.82 for acquiring an extent of land measuring 32,225 sq. metres at Bordem village, Bicholim Taluka for the purpose of setting up I.T.I. The Land Acquisition Officer awarded the compensation at the rate of Rs.10.50 per sq.metre as per his Award dated 30.6.1983. On a Reference sought by the appellant, the Reference Court on classification of the land, taking into account gradient of the land has divided the land measuring 20,000 sq.metres as flat land and the remaining extent is sloppy land. Based on the material available, the Land Reference Court enhanced the compensation of flat land to Rs.24.75 per sq. metre and of sloppy land to Rs.14.75 per sq. metre. Being not satisfied by the award of the Court below, the present appeal has been filed by the claimant.
2. The learned Counsel for the appellant Mr. Kantak has contended that in view of the materials before the Court, the appellant is at least entitled to Rs.30/- per sq. metre for flat land and Rs.20/- per sq. metre for sloppy land. He pointed out that Exh.A/2, a Sale Deed dated 16.4.79 has been produced and the land valued therein was Rs.64/- per sq. metre. He emphatically argued that since the document is much prior to the date of the Notification, the Land Acquisition Officer ought to have taken into account that valuation.
3. We cannot agree to this submission for the simple reason that the land covered by the Sale Deed dated 16.4.1979 is only 231 sq. metres, whereas, the land acquired, as indicated earlier, is a larger extent, in the light of the decision of the Supreme Court in Koyappathodi M. Ayisha Umma v. State of Kerala, . Secondly, in P. Ram Reddy and others v. Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad and others, , it was held that document cannot be relied on, unless vendor or vendee is examined. Neither the vendor nor the purchaser or the attesting witness of the said document has been examined before the Court below, about the genuiness of the transactions. Therefore, the Lower Court was justified in frefusing to consider the said document at Exh.A/2.
4. Another contention raised by the Counsel for the appellant, is that the valuer Aw.3 has valued the property and his evidence and Report ought to have been considered by the Court below. This contention also cannot be entertained for the reason that first of all expertise of the said witness, in valuing the property, has not been spoken to either by the appellant or the expert himself. Secondly, he visited the property in 1987 and made the valuation as on 9.9.82. We are at a loss to understand, in the absence of any explanation or clarification made by him, how the valuation taken after five years from the date of notification would be taken as a relevant factor for the purpose of deciding the market value the land. Therefore, for these reasons neither the evidence of A.W.3 or his valuation Report can be taken into account for the purpose of valuation of the property. In view of this we are of the opinion that the judgment and decree of the lower Court does not warrant any interference by this Court.
5. The learned Counsel for the appellant next contended that since the Award made by the Land Acquisition Officer was on 30.6.83, the appellant is entitled to the benefit conferred under Section 23(1-A), with solatium in the light of the amended provisions of the Land Acquisition Act. We have no hesitation regarding the entitlement of the appellant of the benefits conferred under Section 23(1-A) and the solatium under the amended provisions of the Land Acquisition Act. However, a question that cropped up before us is that whether or not in awarding compensation under Section 23(1-A) and solatium under Section 23(2) the value of the trees separately granted by the Land Acquisition Officer, is also to be taken into account for the purpose of the above provisions. The learned Counsel for the appellant submits that Section 23(1-A) takes in the market value of the land and the land has been defined under Section 3(a) which includes benefits arising out of land and things attached to the earth. The value of the trees also should be included in the market value of the land for the purpose of claiming benefit under Section 23(1-A) and Section 23(2) of the Land Acquisition Act. The learned Addl. Govt. Advocate, on the other hand, submits that in view of Section 23(1-A), the appellant is not entitled to include the value of the trees in the market value of the land.
6. The Learned Counsel for the appellant relied on a decision of this Court in Shantaram Shirgaonkar and Ors. v. Land Acquisition Officer and anr., 1989(2) Goa Law Times 337, which held that the value of the trees also will include for the purpose of calculating the amount entitled under Section 23(1-A) and Section 23(2). The question posed in that decision was whether apart from the value of the trees the damages for serverance also should be included for the purpose of calculating under Section 23(1) and solatium. The Division Bench of the his Court has categorically held in the above decision that the person interested, who suffered damages will not be entitled to the benefit of solatium under Section 23(2). The question before the Division Bench was really with regard to the grant of solatium on severance charges apart from value of the trees. The same principle, of course, will be applicable for extending the benefits under Section 23(1-A). Therefore, we are of the opinion that, accepting the contention of the learned counsel for the appellant, the value of the trees also will be included in the market value of the land for the purpose of calculating benefit under Section 23(1-A) and 23(2) of the amended provisions of the Land Acquisition Act.
8. In view of the above, though we are dismissing the appeal except to indicate that the appellant is entitled to the benefit of Section 23(1-A) for the value of the trees of Rs.13,760/- made by the Land Acquisition Officer. Decree of the Lower Court stands modified to the above extent.
Parties to bear their respective cost.