JUDGMENT
R.M. Lodha, J.
1. The IInd Additional District Judge, South Goa, at Margao in Land Acquisition Case No.157/92 by his Judgment and Award dated 5.1.1999 fixed the market value of the acquired land at the rate of Rs.1 0 0/-per sq. metre on the date of publica tio n of Notificatio n un de r Sectio n 4 of the Land Acquisition Act. Aggrieved there by, the prese n t first appe al has been preferre d by the State of Goa thro u g h the Depu ty Collector (Land Acquisition Officer) at Quep e m and the Execu tive Engineer, P.W.D. (W.D.XXV), Gogal Margao.
2. The Govern m e n t of Goa iss ue d Notificatio n date d 11.5.1 9 8 8 tha t was publis he d in the Official Gazette on 4.8.19 8 8 whereby the lan d adme a s u r i n g 305 sq. metre s from the property surveyed un d e r Survey No.433/4 of Village Chinc hi ni m , Salcete Taluk a along with other land was soug h t to be acquire d for widening and improve me n t of Nation al Highway No.17. Survey No.433/4 in all ad me a s u r e d 875 sq. metre s . The Land Acquisition Officer vide his Award dated 11.1 0. 1 9 9 1 award e d compe n s a t i o n at the rate of Rs.1 3/-per sq. metre. The respo n d e n t herei n (claima n t) was diss a ti sfied with the awar d of the Land Acquisition Officer an d soug h t a refere nc e claiming compe n s a tio n of the acq uire d lan d at the rate of Rs.2 0 0/-per sq. metre. The claim a n t also claimed tha t he was entitled to Rs.20, 0 0 0/-toward s the const r u c tio n of reten tio n wall and compe n s a tio n for 12 cocon u t trees sta n d i ng on the acqui re d lan d at the rate of Rs.30 0 0/-per cocon u t tree.
3. Before the Referen ce Cour t, the claim a n t exami ne d his wife Ja n e t Crasto (AW.1) an d Rosa Florin a Coutin h o (AW.2). She prod u c e d two sale deeds (Exhibit AW.2/A an d Exhibit AW.2/B).
4. The Reference Cou rt , in the light of the evidence tha t was prod u c e d before it, after hea rin g the parties, fixed the mar k e t value of the acq uire d land as on 4.8.1 9 8 8 at the rate of Rs.1 0 0/-per sq. metre. The Referen ce Cou rt held tha t the claima n t was not entitled to compe n s a t i o n for the cocon u t trees at the rate of Rs.30 0 0/-per cocon u t tree and , accordin gly, dispos e d of the reference on 5.1.1 9 9 9 .
5. As alrea dy indicate d above, aggrieved by the said J u dg m e n t and Award dated 5.1.1 9 9 9 the State of Goa and the Exec u tive Engineer have filed this first appe al. The claim a n t ha s filed cros s objectio n s to the extent he was denied compe n s a t i o n at the rate of Rs.20 0/-per sq. metre and compe n s a t io n for the cocon u t trees at the rate of Rs.3,0 0 0/-per cocon u t tree.
6. I hear d Ms. Winnie Coutin h o , the learne d Gover n m e n t Advocate an d Mr. S. S. Kakodk a r , the lear n e d Advocate for the respo n d e n t .
7. In s up p o r t of the first app e al, the lear n e d Govern m e n t Advocate su b mit te d th at the refere nce Cou rt failed to apply the correct principle s for deter mi ni n g the mar ke t value of the acq uire d land . According to the lear ne d Govern m e n t Advocate, the acq uired lan d was one metre above the road level an d by keeping th a t factor in min d, the Reference Cou rt ough t to have given an app ro pria t e ded u ctio n . The lear n e d Govern m e n t Advocate would su b mi t th at there was no justification for the Refere nce Court in enh a n ci n g the comp e n s a t io n at the rate of Rs.10 0/-per sq. metre.
8. On the other ha n d , Mr. S.S. Kakodk a r , the lear n e d Cou n s el for the respo n d e n t sub m i tt e d that the mar k e t value fixed by the Reference Court at the rate of Rs.10 0/-per sq. metre s was rat h e r on lower side an d there was no justificatio n for the Referen ce Court in applying ded u c tio n of 50 % outrig ht from the price in the sale-deed (Exhibit AW.2/B) for arriving at the mar k e t rate on the grou n d tha t the acq uire d land was situ a te d adjace n t to the natio n al highw ay and was within the setb a c k are a. The lear ne d Advocate for the respo n d e n t su b mi t te d tha t the claima n t is not desiro u s of pres si n g the cros s objection s for the en h a n c e m e n t in so far as awar d of compe n s a t io n at the rate of Rs.10 0/-per sq. metre for the acq uire d land is concer n e d , it being just and proper , warr a n t s no interfere n ce .
9. That the entire area of the claima n t’s proper ty comprise d 875 sq. metre s is not in disp u t e . The said prope rty was surveyed un d e r Survey No.43 3/4 of Village Chinc hi ni m . Out of the said proper ty, an area of 305 sq. metres has been acquired for widening and improvement of the National Highway No.17. There is evidence to show that the acquired land is adjacent to Margao-Karwar National Highway. As a matter of fact, it is for this reason that for widening and improvement of that highway the respondent’s land has been acquired along with other lands. The acquired land is close to bus-stop as per evidence of AW.1. The church, the market, the school, the Bank and the Post Office are not far off. It appears from the evidence of AW.2, duly supported by Exhibit AW.2/B (Sale Deed) that a plot of land bearing Survey No.421/2 admeasuring about 402 sq. metres was sold at the rate of Rs.175/-per sq. metre vide Sale Deed dated 13.8.1985 (Exhibit AW.2/B). This very plot was later on sold vide Sale Deed Exhibit AW.2/A on 28.9.1990 at the rate of Rs.250/-per sq. metre. That plot of land which was sold vide Exhibit AW.2/B initially in the year 1985 and subsequently vide Sale Deed Exhibit AW.2/A in the year 1990 is situate in the same village. That plot is also situated by the side of Margao Karwar National Highway. It is not in dispute that the plot that was sold vide Exhibit AW.2/A and Exhibit AW.2/B is comparable with the acquired land. Was the Reference Court wrong in taking into consideration the Sale Deed dated 13.8.1985 (Exhibit DW.2/B) as the basis for determining the market value of the acquired land on 4.8.1988. Not so. Though, the deduction of 50 % applied by the Reference Court on the ground that the acquired land was situated adjacent to the National Highway and within the setb ac k area an d tha t the acq uir e d land was not suit a ble for cons t r u c tio n pu r po s e being adjace n t to the Nation al Highw ay may not be correct being on higher side but the sam e was not put in iss ue by the lear n e d Cou n s el for the claim a n t by not pres si ng the cross objection s . In any case, there is no justificatio n for ded u c tio n by more tha n 50 % . As a matt er of fact, the Referen ce Cour t was not justified in observing th at the acquire d land was not suit a b le for con s t r u c tio n being adjace n t to the Nation al Highway and within the setb a c k are a. Be tha t as it may, I up hold 50 % ded u c tio n from the sale-price men tio n e d in the sale deed dated 13.0 8. 1 9 8 5 an d mai nt a i n 10 % incre a s e per year and the concl u sio n of the Referen ce Court tha t the mar k e t value of the acq uire d land was Rs.10 0/-per sq. metre on 4.8.1 9 8 8 . There being no evidence to the contr a r y tha t the land price in the are a went sou t h w a r d du ri ng the period from 1985 to 198 8, the 10 % incre a s e in the rate of the lan d per year appea r s to be justified.
10. In Chim a n l al Hargovin d d a s v. Special Land Acquisition Officer, Poona and an r. , the Su p r e m e Cour t laid down the following guideline s for deter mi ni ng the mar k et value of the lan d on the date of pu blica tio n of notificatio n un d e r Sectio n 4 of the Land Acquisitio n Act : ” 4. The following factor s m u s t be etched on the men t al scree n :
(1) A referenc e un de r Section 18 of the Land Acquisition Act is not an appe al again s t the award and the Cour t can no t take into accou n t the mate ri al relied upon by the Land Acquisitio n Officer in his Award u nle s s the sa m e mate rial is prod u ce d an d proved before the cour t.
(2) So also the Award of the Land Acquisition Officer is not to be treate d as a judg me n t of the trial Court open or expose d to challenge before the Cou rt heari ng the Reference. It is merely an offer mad e by the Land Acquisition Officer and the mat eri al utilised by him for maki ng his valu a tio n can no t be utilised by the Court u nles s prod u ce d and proved before it. It is not the functio n of the Cou rt to sit in appe al again s t the Award, ap prove or disa p p r ove its reaso ni n g, or correct its error or affirm, modify or reverse the conclu sio n reac he d by the Land Acquisition Officer, as if it were an appellate Court.
(3) The Cour t ha s to treat the refere nce as an original proceedi ng before it and deter mi n e the ma r ke t value afresh on the basi s of the mate rial prod u ce d before it.
(4) The claima n t is in the position of a plain tiff who ha s to show th at the price offered for his land in the awar d is inadeq u a t e on the basi s of the mat eri als prod u c e d in the Cou rt. Of cour se the mat eri als placed an d proved by the other side can also be take n into acco u n t for this pur po s e .
(5) The ma r ke t value of lan d u nd e r acq uisitio n ha s to be deter mi ne d as on the cr ucial date of publicatio n of the notificatio n un d e r S.4 of the Land Acquisition Act (dates of Notification s un de r Ss.6 and 9 are irrelevan t).
(6) The deter mi n a tio n ha s to be made sta n di n g on the date line of valu a tio n (date of pu blica tion of notificatio n u nd e r S.4) as if the valuer is a hypot h e tic al pur c h a s e r willing to purc h a s e land from the open mar k e t an d is prep a r e d to pay a rea so n a b le price as on that day. It ha s also to be as s u m e d tha t the vendor is willing to sell the land at a rea so n a bl e price.
(7) In doing so by the inst a n c e s met h od , the Cour t ha s to correlate the mar ke t value reflected in the most comp a r a b le inst a n c e which provides the index of mar ke t value.
(8)Only gen ui ne inst a n c e s have to be take n into acco u n t . (Sometime s ins ta n c e s are rigged up in an ticipa tio n of Acquisitio n of land).
(9) Even post-notification inst a n ce s can be take n into acco u n t (1) if they are very proxim a te , (2) genui n e an d (3) the acq ui sitio n itself has not motivate d the pur c h a s e r to pay a higher price on acco u n t of the res ult a n t improveme n t in develop me n t prospec t s .
(10) The most comp a r a bl e inst a n ce s out of the genui n e insta n ce s have to be identified on the following consider a tio n s :
(i) proximity from time angle.
(ii) proximity from situ a tio n angle.
(11) Having identified the inst a n c e s which provide the index of mar k e t value the price reflected therein may be take n as the nor m and the ma r ke t value of the land u n d e r acq ui sitio n may be ded u c e d by maki ng suita ble adju s t m e n t s for the plu s and min u s factor s vis-a-vis land u n d e r acq uisitio n by placing the two in juxta po sitio n.
(12) A bala n ce-sheet of plu s and min u s factors may be drawn for this pur p o s e and the releva n t factors may be evalu a t e d in term s of price variatio n as a pr u de n t purc h a s e r would do.
(13) The mar k e t value of the land un d e r acq ui sition ha s ther e after to be ded u c e d by loadi ng the price reflected in the inst a n c e take n as nor m for plus factors and u nloa di n g it for min u s factors . Plus factors
1. Smallnes s of size.
2. Proximity to a road.
3. Fron t age on a road.
4. Nearne s s to developed area.
5. Regular sh a p e .
6. Level vis-a-vis lan d un de r acq uisitio n.
7. Special value for an owner of an adjoining prope rty to who m it may have some very special adva n t a ge.
(14) The exercise indica te d in clau s e s (11) to (13) ha s to be un de r t a k e n in a com mo n sen s e ma n n e r as a pru d e n t ma n of the world of busi n e s s would do. We may illust r a t e some suc h illustr a tive (not exha u s tive) factors :- (for table see below)
(15) The evalu a tio n of the se factor s of cour se depe n d s on the facts of eac h case. There can no t be any har d an d fast or rigid rule. Com mo n sen s e is the best an d most reliable guide. For insta n c e, take the factor regar di ng the size. A buildi ng plot of lan d say 500 to 1000 sq. yds. can n o t be comp a r e d with a large tract or block of land of say 100 0 0 eq. yds. or more. Firstly while a smaller plot is within the reac h of ma ny, a large block of land will have to be developed by prep a ri ng a lay out, carving out road s , leaving open space, plotting out sm aller plots, waiting for purc h a s e r s (mea nw h ile the investe d money will be blocked up) and the haza r d s of an entre p r e n e u r . The factor can be disco u n t e d by ma ki ng a ded u ctio n by way of an allowa n ce at an appro p ri a te rate ranging approx. betwee n 20% to 50% to acco u n t for land req uire d to be set apa r t for carving out lan d s an d plotting out sm all plots. The disco u n t i ng will to some exten t also depe n d on whet h e r it is a rur al area or urb a n area, whet he r building activity is picking up, and whet he r waiting period duri ng which the capital of the entre p r e n e u r would be locked up, will be longer or short er and the atten d a n t hazar d s . Minu s factors
1. Largen e s s of area.
2. Situ a tio n in the interior at a dista n c e from the road.
3. Narrow strip of land with very small frontage comp a r e d to dept h .
4. Lower level requiring the depre s se d portion to be filled up.
5. Remoteness from developed locality.
6. Some special disadvantageous factor which would deter a purchaser.
(16) Every case must be dealt with on its own fact pattern bearing in mind all these factors as a prudent purchaser of land in which position the Judge must place himself.
(17) These are general guidelines to be applied with understanding informed with common sense.
11. Keeping the aforesaid factors in mind, I find that the Reference Court has correctly taken into account the market value reflected in the sale instance Exhibit AW.2/B as the basis. That sale instance pertains to a small parcel of land like the acquired land. That land abutted the National Highway as the acquired land. The land that was sold vide Sale Deed Exhibit AW.2/B and the acquired land are in the same village and not very far off. The market value reflected therein has been unloaded to account for the minus factor, particularly that the acquired land was part of setback area and thereby 50 % deduction has been made. The increase of 10 % per year taking market value of the acquired land in the year 1985 at the rate of Rs.87/-per sq. metre cannot be said to be unreasonable. It is established from Exh. AW.2/A that prices of the immovable properties increased year-after-year in Goa in eighties. There is no evidence to the contrary. Thus, the market value of Rs.100/-per sq. metre fixed by the reference Court is neither u nre alis tic nor exces sive.
12. The conte n tio n of the learn e d Govern m e n t Advocate that the level of the acq ui re d land being one metre higher tha n the road level, some ded u c tion need ed to be mad e is wholly misco nceived. As to on what basis this argu m e n t ha s been adva n ce d is not show n . As a matte r of com mo n knowledge, the parcel of the land at the level higher tha n the road does not suffer from any min u s factor like the lan d th a t is below the road level.
13. Having take n into acco u n t all the relevan t factors , I am of the view th at the mar k e t value fixed by the refere nce Cour t at the rate of Rs.1 0 0/-per sq. metre is reaso n a b l e an d realis tic; it is base d on the evidence on record an d can n o t be said to suffer from applicatio n of any erro n eo u s principle.
14. In view of the foregoing reaso n s , the appe al as well as the cross objection s are dismis s e d with no order as to cost s.