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Page 2805

1. Challenge in this appeal is to the award dated 7/01/2003 of the learned Additional District Judge, Mapusa, enhancing the compensation from Rs. 20/- to Rs. 80/- per sq. meter.

2. Some facts are required to be stated to dispose off the present appeal.

3. By notification issued under Section 4(1) of the Land Acquisition Act, 1894 and published on Gazette dated 25/10/1984 the government acquired 10,491 sq. mts. of land forming part of Chalta No. 3 of P.T. sheet No. 67 of Mapusa belonging to the Respondent-Communidade for the purpose of housing activities of the Appellant-Goa Housing Board and by award dated 29/10/1987 the Land Acquisition Officer offered to the said Communidade compensation at the rate of Rs. 20/- per sq. mt.

4. Dissatisfied with the said award of the Land Acquisition Officer, the Communidade preferred a reference and in the said reference examined 4 witnesses to support its case for enhancement. The Communidade produced an award in respect of the same land admeasuring 5585 sq. mts. acquired subsequently for water reservoir by notification published on Gazette dated 7/03/1986 by which the Communidade was paid Rs. 50/-per sq. mt. The Communidade also produced a sale deed dated 17/03/1979, Exhibit AW1/E by which a developed plot of land admeasuring 396 sq. mts. was sold at the rate of Rs. 80/-per sq. mt. and in support thereof the said Communidade examined Verlekar/AW3, the purchaser of the said plot. The Communidade also produced another sale deed dated 28/07/1988 of a plot of land admeasuring 1139 sq. mts. at the rate of Rs. 1,165/-per sq. mt. and in support thereof examined its purchaser Kamat/AW4. The Communidade had also examined an expert namely Macedo/AW2, an engineer, who had valued the acquired land at the rate of Rs. 150/-per sq. mt. based on the aforesaid two sale deeds.

5. The Goa Housing Board had also examined 3 witnesses namely their Engineers to oppose the Communidade's claim for enhancement.

6. The Communidade's attorney Shri Braganza/AW1 in his evidence had stated that a part of the same property was acquired by the State Government for the purpose of construction of ground level water reservoir for PWD of an area of 5585 sq. mts. and had offered the Communidade compensation at the rate of Rs. 50/-per sq. mt., which land was at a distance of about 800 mts. from the acquired land and which was otherwise little sloppy while the acquired land was plain. As regards the location of the acquired land there is no dispute that the same was situated at the outskirts of Mapusa and within the jurisdiction of Mapusa Municipal Council and as stated by the said attorney, St. Xavier's College was at a distance of about 800 mts., St. Britto's High School, St Mary's High School, New Goa High School (Amonkar's), Janata High School were all situated within a distance of about 1.5 kms. and there were hospitals such as Bhagyoday, Dr. Ratan's, Asilo, Holy Cross, within the radius of 1.5 kms. The Municipal market, the shopping center, the Kadamba bus stand too were situated within the same distance while Pedem Sports Complex was at a distance of about 2 kms., Page 2806 while the Dhuler Sports Complex was at a distance of 1.5 kms. away. He had also stated that road facilities were touching the acquired land. In fact, the Land Acquisition Officer's award dated 29/10/1987 shows that the acquired land was separated by a tarred road from an existing Housing Board Colony, land for which was acquired by notification published on 17/12/1983. In other words, the acquired land had building potential and was suitable for construction and in fact was acquired for building purposes. As regards the sale deed dated 17/03/1979 which was otherwise of a developed plot as stated by Verlekar/AW3, the Appellant's attorney stated that it was formerly a stone quarry, but according to Verlekar/AW3, it had all facilities like water, electricity, telephone etc. As per Engineer Macedo/AW2 this plot was situated at a distance of about 700 mts. from the acquired property.

11. Nevertheless, learned Counsel on behalf of the Goa Housing Board submits that the Communidade's land was not freehold land and had restrictions for its sale imposed under the Code of Communidades, 1961 and in this context learned Counsel has placed reliance on an unreported Page 2808 Division Bench decision of this Court dated 21/12/2004 in First Appeal No. 5/2004 in the case of Communidade of Kerim v. Land Acquisition Officer and Anr. wherein this Court referring to its earlier decision in the case of Communidade of Candolim v. Deputy Collector (North), Panaji dated 28/09/2004 in First Appeal No. 218 of 2002 observed that the land held by the Communidade is not a freehold land and its free use is not permissible as it suffers from statutory restrictions and the obvious consequences that would follow from the same is on its market value and therefore such land could not be compared with other sale instances in respect of the freehold land.