1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NOS. 99 AND 100 OF 2003. FIRST APPEAL NO.99 OF 2003 1. Shri Harishchandra V. Ghadi (since deceased) through legal representatives : 1-a) Smt. Taramati Harishchandra Ghadi, widow 1-b) Shri Yeshwant Harishchandra Ghadi, son 1-c) Shri Vasant Harishchandra Ghadi, son 1-d) Shri Anand Harishchandra Ghadi, son 2. Shankar V. Ghadi 3. Mathura P. Ghadi Residents of Kasarpal, Latambarcem, (P.O.) Assonora. .. Appellants / Original applicants. V e r s u s 1. Special Land Acquisition Officer (N), Irrigation Dept. Mapusa, Goa. 2. Executive Engineer, Works Division VIII, Irrigation Department, Sarvona, Bicholim, Goa ... Respondents Mr. J. P. Mulgaonkar, Advocate for the appellants. Mr. G. Shirodkar, Government Advocate for the respondents. WITH FIRST APPEAL NO.100 OF 2003 2 1. Shri Custa Narayan Ghadi 2. Shri Bablo Narayan Ghadi Both major of age, Residents of Kesarpal, Bicholim Taluka, Goa ... Appellants V e r s u s 1. Special Land Acquisition Officer (N), Irrigation Dept., Mapusa, Goa. 2. Executive Engineer, Works Division VIII, I.D., Sarvona, Bicholim, Goa. ... Respondents Mr. J. P. Mulgaonkar, Advocate for the appellants. Mr. V. Rodrigues,Additional Government Advocate for the respondents. CORAM : A. P. LAVANDE, J. DATED : 21 st September, 2010. ORAL JUDGMENT : Since both these appeals are in respect of the lands of the respondents acquired under the same notification and the facts are almost similar, these appeals are being disposed of by a common judgment. 2. The appellants by these appeals have assailed the judgment and award dated 10th July, 2002 passed by the Additional District Judge, Mapusa in Land Acquisition Case 3 Nos.167/1996 and 162/1996 respectively rejecting the reference sought by the respondents. 3. Vide notification issued under Section 4 of the Land Acquisition Case ('The Act' for short) dated 2nd March, 1984, which was published in the official gazette dated 9th April, 1984, the Government acquired the lands belonging to the appellants for the purpose of construction of Left Bank Main Canal of Tillari Irrigation Project of Latambarcem village. In First Appeal No.99/2003, an area admeasuring 9987 square meters bearing survey no.827/3 was part of the acquired land; whereas in First Appeal 100/2003, an area admeasuring 12375 square meters bearing survey no.827/1(part), was acquired. The appellants claimed compensation at the rate of Rs.20/-per square meter. The Land Acquisition Officer (LAO) made award on 10th July, 1987 and awarded Rs.2.50 per square meter in respect of the lands of the appellants. 4. The appellants in both the appeals, aggrieved by the inadequate compensation granted by the LAO sought reference under Section 18 of the Act. In the said applications, the appellants claimed Rs.20/- per square meter as compensation. In both the cases, the Reference Court 4 framed only one issue i.e. “Whether the appellants herein were entitled to prove that the market value of the acquired land was Rs.20/- per square meter?”. 5. In both the cases, the claimants examined themselves and in support of their claim for higher compensation, examined Satyawan Dessai-AW2, Vilas Kesarkar-AW3, Dattaram Ghadi-AW4 and Atmaram Gawas- AW5. The respondents herein did not lead any evidence. The Reference Court rejected both the references primarily on the ground that the lands of the appellants were agricultural tenanted lands and, therefore, had no building potential in terms of Goa Land Use (Regulation) Act, 1991. The Reference Court also placed reliance upon the judgment of this Court in Gorakshwadi Shantinagar Gramvikas Samiti Vs. State of Goa and others; (2000)2 GLT 81 and another judgment between the same parties reported in 2000(2) GLT 407. The Reference Court held that since it was tenanted agricultural land, the same could not have been used for any purpose and the appellants having not led any evidence supporting higher compensation, rejected both the references. 6. Mr. Mulgaonkar, learned Counsel for the appellants in both the appeals, submitted that the lands of the 5 appellants were agricultural lands with cashew and coconut trees and there is absolutely no evidence on record to justify the finding recorded by the Reference Court that the lands were tenanted agricultural lands. He further submitted that even the Reference Court did not frame any issue regarding the tenancy. Neither the tenancy was admitted by the appellants nor any issue regarding the tenancy was framed by the Reference Court in respect of the acquired lands and, therefore, the finding recorded by the Reference Court in both the cases that the acquired lands were agricultural tenanted lands and as such, could not be used for any other purpose, is patently unsustainable in law. He further submitted that the acquired lands were situated at the distance of about 200 to 250 meters from the highway with plantation of cashew and coconut, and Kalika Temple was at the distance of about 50 meters from the acquired land, and facilities like primary and secondary school, bank, panchayat office were available within the distance of about 150 meters. He further submitted that the lands acquired in both the cases were adjoining agricultural lands and were situated in the close vicinity. He further submitted that in respect of the land belonging to Shri Satyawan Dessai- AW2, who was examined in both the cases, whose land was also acquired by the same notification, the Reference Court granted 6 compensation at the rate of Rs.6/- per square meter, which has been maintained in First Appeal No.75/1997 by the judgment and order dated 30th January, 2004. He further submitted that since the acquired land is similar to the land in First Appeal No.75/1997, he is also entitled to the same rate. 7. Per contra, Mr. Shirodkar, learned Government Advocate supported the impugned judgment and award. However, he fairly conceded that the learned Single Judge of this Court has maintained compensation at the rate of Rs.6/- per square meter granted to Shri Satyawan Dessai-AW2 (the appellant in First Appeal No.75/1997) and in respect of the lands of Shri Ganpat Khonolkar ( the appellant in First Appeal No.82/1997, whose lands were acquired by the same notification). He fairly conceded that the acquired lands belonging to the appellants i.e. Shri. Ganpat Khanolkar and Satyawan Dessai were in the close vicinity and were almost similar. 8. I have carefully considered the rival submissions and perused the record. 9. In view of the rival submissions, the following point arises for determination in the present appeal : 7 “Whether the market rate of the acquired land of the appellants as on the date of publication of Section 4 notification was Rs.20/- per square meter ? If not, what was the market rate of the acquired land as on the date of publication of Section 4 notification ? ” 10. The evidence of the five witnesses examined on behalf of the appellants, discloses that the lands of the appellants were agricultural lands with cashew and coconut trees. The acquired lands were situated at the distance of about 200 to 250 meters from the highway with plantation of cashew and coconut, and Kalika Temple was at the distance of about 50 meters from the acquired land, and facilities like primary and secondary school, bank, panchayat office were available within the distance of about 150 meters. 11. In so far as the submission of Mr.Mulgaonkar that the Reference Court has erred in recording the finding of tenancy in respect of the acquired land is concerned, I find considerable merit in this submission. Neither the appellants nor the respondents claimed that the acquired lands were tenanted agricultural lands nor any issue to that effect was framed in both the cases. This being the position, the 8 learned Reference Court has clearly committed error in holding that the acquired lands were agricultural tenanted lands without framing any issue to that effect. Even if such issue were to be framed, the Reference Court could not have decided such issue since in terms of Section 7 of Goa, Daman and Diu Agricultural Tenancy Act, 1964, exclusive jurisdiction to decide the issue of tenancy vests exclusively with the Mamlatdar. Even on this count, the finding recorded by the Reference Court cannot be sustained in the absence of any admission on the part of the appellants. 12. The next question which arises for consideration is to what compensation the appellants are entitled. The appellants have not led any cogent evidence to establish their claim that the market rate of the acquired land was Rs.20/- as on the date of publication of Section 4 notification. However, the fact remains that in respect of the lands belonging to Shri Satyawan Dessai-AW2 and Shri G. Khanolkar, whose lands were also acquired by the said notification, the Reference Court had granted compensation at the rate of Rs.6/- per square meter, which was maintained by this Court by judgment and order dated 30th January, 2004 passed in First Appeal No.75 and 82 of 1997. Mr. Shirodkar has not seriously disputed that the lands involved in the above 9 referred two appeals as well as the lands involved in the present appeals, are almost similar and indisputably have been acquired by the same notification. It is well settled that if the lands belonging to different persons are acquired by the same notification, the said persons are entitled to same compensation, provided the lands are similar. Moreover, the appellants had also produced an order passed by the Lok Adalat dated 7th March, 1998. Atmaram Gawas-AW5 also produced a copy of such order exhibit 19 in respect of his land which was also acquired by the same notification. By the said order, the market rate was fixed at the rate of Rs.6/- per square meter. This is an additional ground for holding that the appellants are also entitled to compensation at the rate of Rs.6/- per square meter in respect of the acquired land. Accordingly, the appellants are held entitled to compensation at the rate of Rs.6/- per square meter in respect of the acquired lands. 13. For the reasons aforesaid, both the appeals are partly allowed. The market rate of the acquired lands of the appellants, is fixed at the rate of Rs.6/- per square meter. Needless to mention that the appellants are also entitled to all the statutory benefits under the Act. 10 14. The appeals stand disposed of accordingly with no order as to costs. A. P. LAVANDE, J. SMA