{"id":54682,"date":"2007-03-02T00:00:00","date_gmt":"2007-03-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/nelson-fernandes-and-ors-vs-special-land-acquisition-on-2-march-2007"},"modified":"2016-08-07T14:56:08","modified_gmt":"2016-08-07T09:26:08","slug":"nelson-fernandes-and-ors-vs-special-land-acquisition-on-2-march-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/nelson-fernandes-and-ors-vs-special-land-acquisition-on-2-march-2007","title":{"rendered":"Nelson Fernandes And Ors vs Special Land Acquisition … on 2 March, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Nelson Fernandes And Ors vs Special Land Acquisition … on 2 March, 2007<\/div>\n
Author: . A Lakshmanan<\/div>\n
Bench: Dr. Ar. Lakshmanan, Altamas Kabir<\/div>\n
           CASE NO.:\nAppeal (civil)  1136 of 2007\n\nPETITIONER:\nNelson Fernandes and Ors\n\nRESPONDENT:\nSpecial Land Acquisition Officer,South Goa & Ors\n\nDATE OF JUDGMENT: 02\/03\/2007\n\nBENCH:\nDr. AR. Lakshmanan & Altamas Kabir\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n(Arising Out of SLP (C) NOS. 16533-16534 OF 2005)
\nWITH <\/p>\n
CIVIL APPEAL NO.1137 OF 2007
\n(Arising Out of SLP (C) NOS. 16503-16504 OF 2005)<\/p>\n
Dr. AR. Lakshmanan, J.\n<\/p>\n
CIVIL APPEAL NO.               OF 2007
\n(Arising Out of SLP (C) NOS. 16533-16534 OF 2005)
\nLeave granted.\n<\/p>\n
The above appeal was filed against the final
\njudgment and order dated 01.03.2005 passed by the
\nDivision Bench of the Bombay High Court at Goa in First
\nAppeal Nos. 66 of 2002 and 75 of 2002 arising out of
\nLand Acquisition Case No. 58 of 1996 wherein the
\nDivision Bench rejected the claim of compensation of the
\nappellants for acquisition of the land belonging to them of
\nRs.750\/- per sq. metre and reduced the rate of
\ncompensation from Rs.192\/- per sq. metre as awarded by
\nthe District Judge to Rs.38\/- per sq. metre after re-
\nappraising the evidence and substituting their own
\nfinding of facts in place of the findings of the District
\nJudge.\n<\/p>\n
In the above case, notification under Section 4 of
\nthe Land Acquisition Act, 1894 (hereinafter called the
\n‘Act’ for short) was published by the Special Land
\nAcquisition Officer South Goa for acquisition of land for
\nconstruction of new BG line for the Konkan Railways.
\nThe notification was published in the local dailies on 5th
\nand 6th August, 1994.  Under Section 6 of the Act a
\ndeclaration stating the government’s intention to acquire
\nthe land for the purpose of construction of new broad
\ngauge line of the Konkan Railways between Roha and
\nMangalore was made on 09.11.1994.  An award was
\npassed by the Special Land Acquisition Officer granting
\ncompensation to the appellant @ Rs.4\/- per sq. metre
\nand Rs.59,192\/- for trees standing on the said land.  The
\nappellant on 06.12.1996 made an application before the
\nLand Acquisition Officer to refer the matter for
\ndetermination of compensation under Section 18 of the
\nAct and claimed a sum of Rs.89,06,250\/- for the
\nacquired land and Rs.71,000\/- for the trees standing
\nthereon.  Reference under Section 18 was made by the
\nSpecial Land Acquisition Officer to District and Sessions
\nJudge on 28.02.1996 and reference under Section 19 of
\nthe Act was made by the Special Land Acquisition Officer,
\nMargao.  Evidence was adduced by the appellant – Mr.
\nNelson Fernandes before the Addl. District Judge.  Two
\nsale deeds dated 13.12.1993 are annexed and marked as
\nAnnexure-P5.  Evidence was adduced by Government
\nApproved Valuer – Pratima Kumar on the valuation report
\nsubmitted by her before the Addl. District Judge, Margao
\non 15.12.2000.  Evidence was adduced by Bartoleuma
\nGama on the sale of land by him @ Rs. 449\/- per sq.
\nmetre by sale deed being Ex.AW1\/B was annexed and
\nmarked as Annexure-P7.\n<\/p>\n
The Addl. District Judge passed an award
\nincreasing the rate of compensation from Rs. 4\/- per sq.
\nmetre to Rs.192\/- per sq. metre, but did not give any
\ncompensation for the trees standing on the said land.
\nFirst Appeal Nos. 66 and 75 of 2002 were preferred by
\nboth the appellants and the respondents before the High
\nCourt against the judgment and award dated 29.08.2001
\nof the learned District Judge.\n<\/p>\n
First Appeal Nos. 66 of 2002 and 75 of 2002 were
\ndisposed of by the Division Bench of the High Court by
\nrejecting the appeal of the appellants and allowing the
\nappeal of the respondents.  The Division Bench rejected
\nthe report of the valuer and the findings of the District
\nJudge and reduced the rate of compensation from Rs.
\n192\/- per sq. metre as awarded by the District Judge to
\nRs. 38\/- per sq. metre.  Hence the above appeal.\n<\/p>\n
CIVIL APPEAL NO.               OF 2007
\n(Arising Out of SLP (C) NOS. 16503-16504 OF 2005)
\nLeave granted.\n<\/p>\n
The above appeal was filed against the final
\njudgment and order dated 09.03.2005 passed by the
\nDivision Bench of the Bombay High Court at Goa in First
\nAppeal Nos. 63 and 67 of 2002 arising out of Land
\nAcquisition Case No. 391 of 1995 wherein the Division
\nBench rejected the claim of compensation of the
\nappellants for acquisition of the land belonging to them of
\nRs.470\/- per sq. metre and reduced the rate of
\ncompensation from Rs.108\/- per sq. metre as awarded by
\nthe District Judge to Rs.27\/- per sq. metre after re-
\nappraising the evidence and substituting their own
\nfinding of facts in place of the findings of the District
\nJudge.\n<\/p>\n
In the above case, notification under Section 4 of
\nthe Act was published by the Special Land Acquisition
\nOfficer, for acquisition of land for construction of new BG
\nline for the Konkan Railways.  The notification was
\npublished in the local dailies.  Declaration was made on
\n16.06.1992 and award was passed on 24.01.1995
\ngranting compensation to the appellant @ Rs. 4\/- per sq.
\nmetre and Rs.82,282\/- for trees standing on the land.
\nThe appellant on 27.03.1995 made an application before
\nthe Land Acquisition Officer to refer the matter for
\ndetermination of compensation under Section 18 of the
\nAct and claimed a sum of Rs. 470\/- per sq. metre for the
\nacquired land and in support of their contention relied on
\n3 sale deeds of adjoining plots, one award and a report of
\na valuer.  Reference under Section 18 was made by the
\nSpecial Land Acquisition Officer to the District and
\nSessions Judge on 06.09.1995.  Evidence was adduced
\nby the appellant before the District Judge on 30.02.1999
\nand 24.09.1999.  Evidence was adduced by Government
\nApproved Valuer – Pratima Kumar on the valuation report
\nsubmitted by her before the Addl. District Judge, Margao
\non 15.12.2000. Evidence was adduced by Antonio
\nRosario Rodrigues on the purchase of land by him at Rs.
\n480\/- per sq. metre by sale deed being Ex.AW1\/F was
\nmarked as Annexure-P7.  Likewise, evidence adduced by
\nMaria Piea Carvalho on the purchase of land by her at
\nRs.200\/- per sq. metre by sale deed being AW1\/E was
\nmarked as Annexure-P8.\n<\/p>\n
The Addl. District Judge passed an award
\nincreasing the rate of compensation from Rs.4\/- to
\nRs.108\/- per sq. metre but did not give any
\ncompensation for the trees standing on the said land.
\nFirst Appeal No. 67 of 2002 was preferred by the
\nappellants and 63 of 2002 was preferred by the
\nrespondents before the Bombay High Court at Goa
\nagainst the judgment and award dated 29.08.2001 of the
\nDistrict Judge.  Both the appeals were disposed of by the
\nDivision Bench by rejecting the appeal of the appellants
\nand allowing the appeal of the respondents.  The Division
\nBench rejected the report of the valuer and the findings
\nof the District Judge and reduced the rate of
\ncompensation from Rs. 108\/- per sq. metre as awarded
\nby the District Judge to Rs. 27\/- per sq. metre.  Hence
\nthe above appeal.\n<\/p>\n
We heard Mr. Dinesh Dwivedi, learned senior
\ncounsel for the appellant and Mr. Atul Y. Chitale, learned
\ncounsel for the Konkan Railways.\n<\/p>\n
Though notice was served on the first respondent –
\nSpecial Land Acquisition Officer South Goa and service of
\nnotice is complete, there is no representation on behalf of
\nrespondent No.1.  However, Mr. Atul Y. Chitale, learned
\ncounsel appeared and made his submissions.
\nMr. Dinesh Dwivedi, learned senior counsel
\nappearing for the claimants submitted that the Division
\nBench was under the obligation to satisfy the conditions
\nimposed under Section 23 of the Act for the purpose of
\ndetermining the amount of compensation to be awarded
\nto the appellants and that the Court is bound and obliged
\nto ensure that its judgment is in conformity with the
\nprovisions of the statute.  He further submitted that
\nCourt cannot reject the opinion of an expert and
\nsubstitute its own opinion in place instead of the same.
\nLikewise, the Court has committed an error in regard to
\nthe rate of compensation to be awarded for acquisition of
\nland after rejecting all the evidence on record including
\nthe opinion of expert.  It is also submitted that Court
\ncannot fix separate rate of compensation for similarly
\nplaced lands and that the Court has to consider the sale
\nof land in the locality and the facilities available thereon.
\nMr. Dwivedi, learned senior counsel took us
\nthrough the pleadings and the grounds alleged in the
\ngrounds of appeal and submitted that while fixing the
\nrate of compensation, the District Judge did not consider
\nthat the land in question was situated at a place which is
\nof high commercial value and is well connected to other
\ncities and that the High Court has failed to appreciate
\nthat the compensation awarded by the Courts below has
\nno basis whatsoever and was not supported by cogent
\nreasons.  Likewise, the Court did not consider the future
\nprospect of development of the land in question and also
\nfailed to appreciate that the trees grown by the appellants
\non the land in question were of high value at the time of
\nawarding the compensation. It is also submitted that the
\nHigh Court has failed to appreciate the documentary
\nevidence submitted in support of the claim made by the
\nappellants.  According to the learned senior counsel, the
\nHigh Court ought to have enhanced the compensation
\nawarded to the appellant in view of the evidence adduced
\nby it.  The High Court also did not assess the damages
\nthat the appellant is bound to sustain by such
\nacquisition.  The High Court also erred in passing the
\norder impugned holding that the appellant was entitled to
\ncompensation @ Rs.38\/- per sq. metre and that the
\nDivision Bench erred in passing the order impugned
\nthereby reducing the rate of compensation from Rs.192\/-
\nto Rs.38\/- without considering the prayer of the
\nappellant to fix the rate of compensation at Rs.750\/-.
\nThus, it is argued that the High Court has erred in
\npassing the order impugned in utter mis-interpretation of
\nthe evidence on record and that the High Court by the
\nimpugned order rejected the just and equitable claim of
\nthe appellant and acted in a flagrant error of law and
\nfacts which, according to the appellant, resulting in
\nmanifest injustice being caused to the appellant.  The
\nHigh Court also erred in holding that the appellant’s land
\nwas hilly and deduction of 65% ought to have been made
\nby the learned Judge and not 33% as done by him.
\nLikewise, the learned Judges of the Division Bench have
\nalso erred in holding that the acquired land had lost its
\nsignificance after construction of a bridge over the Zuari
\nRiver.\n<\/p>\n
Similar argument was also advanced by the other
\ncounsel in the other connected appeals.  It was
\nsubmitted that the High Court failed to appreciate that
\nthe land in question was well developed and the
\nconstruction thereon and the same was acquired and
\nthat the High Court has failed to appreciate that the
\ncompensation awarded by the Courts below had no basis
\nwhatsoever and was not supported by cogent reasons. It
\nwas further argued that the Court did not consider that
\nthe land in question was substituted at a place which is
\nof high commercial value and well connected to other
\ncities.  Concluding his arguments, learned senior counsel
\nsubmitted that the High Court at Goa has erred in
\npassing the order impugned thereby reducing the rate of
\ncompensation from Rs.108\/- as an order passed by the
\nlearned District Judge to Rs. 27\/- without considering
\nthe prayer of the appellant to fix the rate of compensation
\nat Rs. 470 per sq. metre.  It was also submitted that the
\nHigh Court has erred in passing the order impugned
\nwithout any application of mind and also by rejecting the
\njust and equitable claim of the appellant and acted in a
\nflagrant error of law and facts.  Therefore, it was
\nsubmitted that the order passed by the High Court is
\nerroneous and resulting in manifest injustice being
\ncaused to the appellant.\n<\/p>\n
Mr. Atul Y. Chitale, learned counsel appearing for
\nrespondent No.2 – Konkan Railways submitted that the
\nland acquired by the State Government for KRCL project
\nin question is for public purpose and not for any
\ncommercial exploitation and for construction of new
\nbroad gauge line for Konkan Railway adjacent to the land
\nalready acquired for the same purpose earlier.  He further
\nsubmitted that the acquired land is 11,875 sq. metres,
\nhilly area, about 30 metres from the road level and is
\nundeveloped land as most of the area is a low lying area
\nand that the topography of the acquired land in question
\nare such that a major part of the land is of Bharad type
\nwith fess paddy fields cultivated for both the seasons,
\npart of the land is under coconut cultivation and some
\nportion is under water and to develop the land would be
\nexpensive, as the land would require to be filled up and
\nthen developed.  According to learned counsel, the Land
\nAcquisition Officer, in his award, took into consideration
\nthe following in fixing the rates:\n<\/p>\n
1)\tprevailing conditions of the land;\n<\/p>\n
2)\trates awarded recently for such types of land and
\napproved by the Government and;\n<\/p>\n
3)\trestrictions under Goa, Daman and Diu
\nAgricultural Tenancy Act, 1964.\n<\/p>\n
He further submitted that the Land Acquisition
\nCollector arrived at the valuation of the trees, after
\nconsidering the fact that the valuation had been done by
\nthe technical staff of the Directorate of Agriculture and
\nDeputy Conservator of Forests and, therefore, the
\nappellant would be entitled to the market value of the
\nland as on the date of publication of the notification
\nunder Section 4 of the Act i.e. on 01.08.1994 and that
\nthe rate of land approved by the Government under
\nSection 11(1) of the Act in respect of untenanted
\nBharad\/garden in orchard zone types of land in village
\nCortalim as on 17.01.1995 was Rs. 4\/- per sq. metre.  He
\nthen submitted that the valuation report of Mrs. Pratima
\nKumar cannot be relied upon by the appellant as she is
\nnot competent to value the land in question and that the
\nvaluation of Rs.500\/- per sq. metre arrived at by the
\nvaluer is not based on any known method of valuation,
\nbut is solely on the basis of the facility available.  Further
\nno reasons have been given in support of the opinion
\narrived at by the valuer.\n<\/p>\n
Learned counsel also submitted that the
\ncompensation payable to the appellant for the acquired
\nland cannot be based on the average price of the two sale
\ndeeds dated 11.12.1993 relied upon by the appellant as
\nthe sale deed dated 11.12.1993 pertain to plots that are
\nsmaller in size i.e. Rs.365\/- sq. metre and Rs.275\/- sq.
\nmetre.  This apart, plots were not developed by making
\nroads, drainages etc. as required under the planning law
\nand sub-divisions made were also approved by the Town
\nand Country Planning Department as well as the village
\npanchayat.  Hence, the price at which the plots were sold
\ni.e. at Rs.250 per sq. metre cannot be considered for the
\npurpose of valuation of the acquired land.  Further, the
\nprice fetched for smaller plots cannot be  applied to lands
\ncovering large area as held by this Court in various
\njudgments and, in particular, 1977 (1) SCC 684 Prithvi
\nraj Taneja (dead) by LRs Vs. State of Madhya
\nPradesh and Anr.  It is further argued that the acquired
\nland in question is located at a distance of 15 kms. from
\nthe airport, 20 kms. from Vasco city, 18 kms. from
\nPanaji, 3 kms. from Cortalim market and there is no
\napproach road to the location.\n<\/p>\n
It was further submitted that the comparable sales
\nmethod of valuation of land can be adopted in case where
\nthe acquired land in question is being compared to the
\nsimilar type of acquired land, made pursuant to the same
\npreliminary notification.  But if any of the factors such as
\nlocation, shape, size potentiality or tenure of the acquired
\nland widely differs from the other plots then the market
\nvalue of the acquired land has to be determined
\nindependently of the others as held by this Court in
\nPrinter House Pvt. Ltd. vs. Mst. Saiyadan<\/a> (deceased)
\nby LRs and Others, 1994 (2) SCC 133.  It was also
\nsubmitted that while determining the amount to be
\nawarded for the acquired land in the year 1994, the LAO
\nwhile passing the award dated 25.08.1995, in terms of
\nthe provisions of the Act had considered:\n<\/p>\n
a)\tthe area and the nature of the acquired land,\n<\/p>\n
b)\tthe objects filed by the petitioner,\n<\/p>\n
c)\tdamages sustained by the petitioner,\n<\/p>\n
d)\tinspected the land under acquisition to ascertain
\nthe advantages and disadvantages from the valuation
\npoint of view,\n<\/p>\n
e)\tthe market value of trees, structure etc.\n<\/p>\n
f)\tthe provisions of the Goa, Daman and Diu
\nAgricultural Tenancy Act, 1964 as applicable to the
\nAcquired land,\n<\/p>\n
g)\tthe rate of land approved by Government under
\nsection 11(1) of the said Act in respect of various types of
\nland in the aforesaid villages which are as follows:
\nLetter of Dy.\n<\/p>\n
Collector (L.A)
\nof Collectorate
\nof South Goa
\nNo.\n<\/p>\n
Date
\nVillage
\nType of Land
\nRate per Sq.\n<\/p>\n
Mtrs. Rs.\n<\/p>\n
Ps.\n<\/p>\n
2\/4\/94-\n<\/p>\n
CVS\/57-\n<\/p>\n
LAR\/418
\n19.09.1994
\nSancoale
\nTenanted
\nDouble
\nCropped
\nPaddy
\n9.00<\/p>\n
Coconut
\nBharad
\nMarshy\/Under
\nWater
\n4.00  2.00
\n2\/4\/94-\n<\/p>\n
CVS\/90-\n<\/p>\n
LAR\/474
\n24.10.1994
\nSancoale
\n(Addl.)
\nTenanted
\nDouble
\nCropped
\nPaddy
\n9.00
\n2\/4\/94-\n<\/p>\n
CVS\/65-\n<\/p>\n
LAR\/12
\n17.01.1995
\nCortalim
\nUntenanted
\nBharad\/
\nGarden in
\nOrchard Zone
\n4.00<\/p>\n
According to the learned counsel, the High Court,
\nafter considering all the above-mentioned facts, had
\ncorrectly made the deduction, that the land in question is
\nan undeveloped stretch of land which is held by the
\ntenants and has no marketable title and cannot be used
\nfor any other purpose other than what it was being used
\nfor now and that no approvals to develop the land has
\nbeen taken from the appropriate authority. It is also
\nsubmitted that for laying of the track, respondent No.2
\nhad to carry out the filling of the acquired land up to 6
\nmetre of height.  Concluding his argument, learned
\ncounsel for the Konkan Railways submitted that the High
\nCourt, after hearing both the parties and after
\nconsidering the evidence on record had correctly reduced
\nthe compensation awarded by the ADJ from Rs. 192\/-
\nper sq. metre to Rs. 38\/- per sq. metre for the acquired
\nland by a well-reasoned judgment and order and that in
\nview of the above, this Court should dismiss the civil
\nappeal filed by the appellants with costs.
\nWe have carefully considered the rival submissions
\nwith reference to the pleadings, documents and
\nannexures filed in the instant case. In the instant case,
\nno document whatsoever was filed by both the
\nrespondents.\n<\/p>\n
In determining the amount of compensation to be
\nawarded, the LAO shall be guided by the provisions of
\nSections 23 and 24 of the Act.  As per Section 22 of the
\nAct, the market value of the land has to be determined at
\nthe date of publication of notice under Section 4 of the
\nAct i.e. 25.08.1994.  As per Section 24, the LAO shall
\nalso exclude any increase in the value of land likely to
\naccrue from use to which it will be put once acquired.
\nThe market value of the land means the price of the land
\nwhich a willing seller is reasonably expected to fetch in
\nthe open market from a willing purchaser.  In other
\nwords, it is a price of the land in hypothetical market.
\nDuring the site inspection, it has been observed that the
\nland under acquisition is situated in Sancoale and
\nCortalim village adjacent to the land already acquired for
\nthe same purpose earlier.\n<\/p>\n
In the instant case, two sale deeds were relied upon
\ndated 13.12.1993 which is 8 months before Section 4(1)
\nnotification. The property was sold at Rs. 250 per sq.
\nmetre. We have perused the sale deed and the recitals in
\nthe document.  The property is an extent of Rs. 385\/- sq.
\nmetre as shown in the plan attached.  Thereafter, the
\nowners as recited in the partition deed developed the said
\nproperty by making roads, drainage etc. as required
\nunder the planning laws which were approved by the
\ntown and country planning authorities on 22.10.1993
\nand by the village panchayat by their license VPC\/4 93-
\n94\/754 dated 15.11.1993.  The land in question is more
\nparticularly described in the second schedule.  An extent
\nadmeasuring 385 sq. metre was sold for a total price of
\nRs. 96,250\/- which was the then market value.  Another
\nsale deed was sold on the same date admeasuring
\naround 257 sq. metres as shown in the plan attached.  It
\nis stated in the deed that all the co-owners have
\ndeveloped the property by making roads, drainage etc. as
\nrequired under the standing laws.  The total sale
\nconsideration is Rs.64,250\/-  The Government registered
\nvaluer Mrs. Pratiba Kumar was examined as  witness AW\n<\/p>\n
2.  She is also a panel valuer for LIC, GIC and Bank of
\nIndia.  She has prepared the valuation report at the
\nrequest of the appellants.  According to the report, the
\nacquired land admeasures 11,875\/- sq. metres and the
\nsaid property is a joint property of the applicants which
\nis situated close to the ferry point at Cortalim and it is
\nabutting the public road and that the acquired land
\naborts the acquired land of LAC 391\/95 which touches
\nthe public road which was acquired for Konkan Railways
\nbroad gauge line.  The acquired land is situated in
\nsettlement zone S2 police station, petrol pump,
\nsalgaonkar ship yard, government warehouse within a
\nrange of about 200 metres and market, school, bank etc.
\nare within a range of 1 km and in the year 1994 and even
\nprior to a point when electricity, telephone and water
\nfacility were available to the acquired land.  After taking
\ninto consideration all the factors mentioned in her report,
\nshe has arrived at the market value of Rs. 500\/- per sq.
\nmetre.  Nothing has been elicited from her in the cross-
\nexamination in regard to her statements made in the
\nchief examination.  It is thus seen from the above report
\nthat the approved valuer, taking into consideration the
\nlocation of the property amenities available and also the
\ncost of similar properties in the locality, has arrived at
\nthe present fair market rate of the land which was fixed
\nat Rs. 500 per sq. metre.\n<\/p>\n
The Addl. District Judge South Goa considered the
\n2 sale deeds relied upon by the appellants.  Both the sale
\ndeeds are dated 13.12.1993 Ex AW1\/B and Ex AW1\/C.
\nThe executants of the sale deed was examined as AW3
\nand AW1.  According to them, the land was sold @ Rs.
\n250\/- per sq. metre which is situated about 3 kms away
\nfrom the acquired land and that the second sale deed is
\nin respect of Rs. 257 sq. metres and also situated at a
\ndistance of about 3 kms.  Both the sale deeds are about 8
\nmonths prior to the acquisition of the land.  Both the
\nlands were sold @ Rs. 250\/- per sq. metre.
\nIt was argued that small extent of land sold cannot
\nbe taken into account.  According to the District Judge
\ndeduction has to be made where there is larger area of
\nundeveloped land under acquisition provision has to be
\nmade for providing the minimum amenities of town line
\nsuch as water connections, well laid out roads, drainage
\nfacility, electricity connections etc and that the process
\nnecessarily involves deduction of the cost of factors
\nrequired to bring the undeveloped lands on par with the
\ndeveloped lands.\n<\/p>\n
In the instant case, taking the average of both the
\nsale deeds Ex. AW 1\/B and AW 1\/C the District Judge
\nmade a deduction @ 33% for the development charges
\nand on deduction of 33% from Rs. 250\/- per sq. metre
\nthe actual price of the acquired land would be
\napproximately Rs. 192\/- per sq. metre which, according
\nto the opinion of the District Judge would be reasonable
\nfor the acquired land.  By holding so, he passed the
\nfollowing Award.\n<\/p>\n
“Award<\/p>\n
This compensation awarded by the Land Acquisition
\nOfficer is enhanced to Rs. 192\/- per sq.mt. The
\nrespondents shall pay to the applicants the said
\ncompensation in addition to proportionate solatium
\ncharges on the amount thereof and the interest at the
\nrate of 9% during the period of one year from the date
\nof possession of the land delivered to the respondents
\nin terms of section 28 of the Land Acquisition Act and
\nthereafter at the rate of 15% per year under section 28
\nof the said Act from the date of expiry of the period of
\none year till the actual payment of the whole amount
\nof compensation plus 12% interest over and above the
\nmarket value of the land from the date of notification
\nunder section 4 of the Act up to the date of the award
\nor taking possession whichever is earlier in terms of
\nsection 1A of section 23 of the LA Act. The amount
\nalready paid shall be adjusted against the
\ncompensation awarded and the applicants shall be
\nentitled to the refund of the court fee paid by them and
\nthe costs of Rs. 1000\/- to be paid by the respondents.”\n<\/p>\n
The High Court, in para 10 of its judgment,
\nhowever, held that the District Judge was not justified in
\nprinciple to take an average of the price of two sale deeds
\nand apply the same for fixing the compensation payable
\nto the claimants.  The High Court held that the two sale
\ndeeds could be used as a guide for the purpose of fixing
\nthe compensation to the acquired land and the same
\ncould be used but by making further deductions.
\nAccording to them, to carry out the development of such
\nland which was not at one level the applicant would have
\nto spend a considerable amount towards the
\ndevelopment, namely, level terracing roads etc. and,
\ntherefore, considering the nature of the land which was
\nhilly at least a deduction of 65% ought to have been
\ntaken by the Addl. District Judge and not 33% as done
\nby him.  Again, the High Court was of the view that the
\nDistrict Judge ought to have made a further deduction of
\nat least 10% since the distance between the acquired
\nland and the plots was about 3 kms.  Further, the High
\nCourt held that the prices fetched from small plots
\ncannot be applied to the lands covering large area and,
\ntherefore, a further deduction ought to have been made
\non this ground of at least of 10%.  The High Court,
\ntherefore, held that considering the location of the
\nacquired land vis-`-vis its nature and the plot of the sale
\ndeeds, the District Judge ought to have made a
\ndeduction of at least 85% and in view of the said
\ndeduction, the price of the acquired land works out to Rs.
\n37.50 which is rounded of to Rs.38\/- per sq. metre. A
\nfurther direction was issued that the compensation paid
\ntowards the trees must be adjusted from the
\ncompensation fixed for the lands.\n<\/p>\n
In our opinion, the High Court has adopted a rough
\nand ready method for making deductions which is
\nimpermissible in law.  We have already noticed the
\nvaluers report.  No reason whatsoever was given by the
\nReference Court or by the High Court as to why the
\nreport of the valuer and her evidence cannot be relied on.
\nIn our opinion, the compensation awarded by the High
\nCourt had no basis whatsoever and was not supported by
\ncogent reasons and that it did not consider the future
\nprospect of the development of the land in question.  The
\nHigh Court also did not assess the injury that the
\nappellant is likely to sustain due to loss of his future
\nearnings from the said land and also did not assess the
\ndamage already suffered due to diminution of the profits
\nof the land between the time of publication of the notice
\nand time of the collector taking possession.  The Division
\nBench of the High Court has miserably erred in passing
\nthe order impugned thereby reducing the rate of
\ncompensation from Rs. 192\/- to Rs. 38\/- and in utter
\nmis-reading of the evidence on record and acted in a
\nflagrant error of law and facts.  In our view, the orders
\npassed by the Division Bench resulted in manifest
\ninjustice being caused to the appellants.  The High Court
\nalso erred in passing the order by holding that the
\nopinion of the government approved valuer was not based
\non any opinion method of valuation but solely on the
\nbasis of facilities available to the land.  In our view, the
\nHigh Court ought to have appreciated that the
\ngovernment approved valuer is an expert in her field and
\nthe opinion of such an expert ought not to have been
\nrejected shabbily.\n<\/p>\n
Both the Special Land Acquisition Officer, the
\nDistrict Judge and of the High Court have failed to notice
\nthat the purpose of acquisition is for Railways and that
\nthe purpose is a relevant factor to be taken into
\nconsideration for fixing the compensation.  In this
\ncontext, we may usefully refer the judgment of this Court
\nof Viluben Jhalejar Contractor (D) by Lrs. Vs. State of
\nGujarat reported in JT 2005 (4) SC 282.  This Court held
\nthat the purpose for which the land is acquired must also
\nbe taken into consideration in fixing the market value
\nand the deduction of development charges.  In the above
\ncase, the lands were acquired because they were
\nsubmerged under water of a dam.  Owners claimed
\ncompensation of Rs. 40\/- per sq. ft.  LAO awarded
\ncompensation ranging from Rs. 35\/- to Rs. 60\/- per sq.
\nmtr.  Reference Court fixed the market value of the land
\nat Rs. 200\/- per sq. mtr. and after deduction of
\ndevelopment charges, determined the compensation @
\nRs. 134\/- per sq. mtr.  In arriving at the compensation,
\nReference court placed reliance on the comparative sale
\nof a piece of land measuring 46.30 sq. metre @ Rs. 270
\nper sq. mtr.  On appeal, the High Court awarded
\ncompensation of Rs. 180\/- per sq. mtr. in respect of large
\nplots and Rs. 200\/- per sq. mtr. in respect of smaller
\nplots.  On further appeal, this Court held that since the
\nlands were acquired for being submerged in water of dam
\nand had no potential value and the sale instance relied
\nwas a small plot measuring 46.30 sq. mtr. whereas the
\nacquisition in the present case was in respect of large
\narea, interest of justice would be subserved by awarding
\ncompensation of Rs. 160\/- per sq. mtr. in respect of
\nlarger plots and Rs.175\/- per sq. mtr. for smaller plots.
\nIn Basavva (Smt.) and Ors. Vs. Spl. LAO and Ors.
\nreported in JT 1996 5 SC 580, this Court held that the
\npurpose by which acquisition is made is also a relevant
\nfactor for determining the market value.
\nWe are not, however, oblivious of the fact that
\nnormally 1\/3 deduction of further amount of
\ncompensation has been directed in some cases.
\nHowever, the purpose for which the land acquired must
\nalso be taken into consideration.  In the instant case, the
\nland was acquired for the construction of new BG line for
\nthe Konkan Railways.  This Court in Hasanali
\nKhanbhai & Sons & Ors. Vs. State of Gujarat, 1995 2
\nSCC 422 and L.A.O. vs. Nookala Rajamallu, 2003 (10)
\nScale 307 had noticed that where lands are acquired for
\nspecific purposes deduction by way of development
\ncharges is permissible.  In the instant case, acquisition is
\nfor laying a railway line.  Therefore, the question of
\ndevelopment thereof would not arise.  Therefore, the
\norder passed by the High Court is liable to be set aside
\nand in view of the availability of basic civic amenities
\nsuch as school, bank, police station, water supply,
\nelectricity, high way, transport, post, petrol pump,
\nindustry, telecommunication and other businesses, the
\nclaim of compensation should reasonably be fixed @ Rs.
\n250\/- per sq. mtr. with the deduction of 20%.  The
\nappellant shall be entitled to all other statutory benefits
\nsuch as solatium, interest etc. etc.  The appellants also
\nwill be entitled to compensation for the trees standing on
\nthe said land in a sum of Rs. 59,192 as fixed.  I.A. No. 1
\nof 2006 for substitution is ordered as prayed for.\n<\/p>\n
CIVIL APPEAL NO.               OF 2007
\n(Arising Out of SLP (C) NOS. 16503-16504 OF 2005)
\nIn this case, the LAO awarded compensation to the
\nappellant @ Rs 4\/- per sq. mtr. and Rs.82,282\/- for trees
\nstanding on the said land.  The appellants claimed a sum
\nof Rs. 470\/- per sq. mtr. for the acquired land and in
\nsupport of their contention relied on 3 sale deeds of
\nadjoining plots, one award and a report of a valuer.  The
\nDistrict Judge in accordance with the rate of
\ncompensation from Rs.4\/- to Rs.108\/- but did not give
\nany compensation for the trees standing on the land.  In
\nthe first appeal preferred by the appellant and the appeal
\npreferred by the respondents, the High Court against the
\njudgment and award dated 29.08.2001 of the District
\nJudge rejected the appeal of the appellants and allowed
\nthe appeal of the respondents.  The Division Bench
\nrejected the report of the valuer and findings of the
\nDistrict Judge and reduced the rate of compensation
\nfrom Rs. 108\/- as awarded by the learned District Judge
\nto Rs. 27\/-.  This case also stands on the same footing as
\nthat of the other appellant in SLP (C) Nos. 16533-16534
\nof 2005.  Therefore, they are also entitled to
\ncompensation on par with the other appeal.  In this case,
\nthe appellant adduced two sale deeds AW1F and AW1E
\non the purchase of land by him at Rs. 480 per sq. mtr.
\nand Rs. 200 per sq. mtr. respectively.  The Government
\nvalued approver also submitted his report and also
\ndeposed before the Court.  The land in question is also
\nacquired for the same purpose.  Therefore, the appellant
\nin this case is also entitled to the same compensation at
\nRs. 250\/- per sq. mtr. with deduction of 20%.  The
\nappellant will be entitled to compensation for the trees
\nstanding thereon at Rs. 82,232\/- as justified by the
\nL.A.O. The appellant will also entitled to all the other
\nstatutory benefits such as solatium, interest etc.  Both
\nthe appeals are ordered accordingly.  Since the
\nacquisition was made under Section 4(1) notification and
\nthe matter was pending from the year 1996 the appellant
\nshall be entitled for payment of compensation now fixed
\nby this Court together with solatium, interest and other
\nstatutory benefits as permissible under law and that the
\ncompensation and other payment shall be made within 3
\nmonths from today after adjusting the payments which
\nhave already been made.  No costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Nelson Fernandes And Ors vs Special Land Acquisition … on 2 March, 2007 Author: . A Lakshmanan Bench: Dr. Ar. Lakshmanan, Altamas Kabir CASE NO.: Appeal (civil) 1136 of 2007 PETITIONER: Nelson Fernandes and Ors RESPONDENT: Special Land Acquisition Officer,South Goa & Ors DATE OF JUDGMENT: 02\/03\/2007 BENCH: Dr. AR. Lakshmanan […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-54682","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nNelson Fernandes And Ors vs Special Land Acquisition ... on 2 March, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/nelson-fernandes-and-ors-vs-special-land-acquisition-on-2-march-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Nelson Fernandes And Ors vs Special Land Acquisition ... on 2 March, 2007 - 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