1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 2 OF 2004 Shri Sateri Bhumika Temple, Kasarpal, Post Assonora, Goa 403 503. ... Appellants versus 1. Gomantak D. B. S. Sansthan Kasarpal, Post Assonora, Goa 403 503. 2. Shri Bhalchandra Chandrakant Parwar, expired through legal representatives: (a) Smt. Laxmi Bhalchandra Parwar, widow (b) Shri Ajit Bhalchandra Parwar, son (c) Shri Rameshwar Bhalchandra Parwar, son (d) Shri Anil Bhalchandra Parwar, son (e) Miss Surekha Bhalchandra Parwar, daughter, all of major age, residents of Kasarpal, Larambarcem, Post Assonora, Goa. 3. Shri Shankar Kapro Parwar, expired through legal representatives: (a) Shri Krishna Shankar Parwar, son 2 (b) Smt. Parvati Krishna Parwar, daughter-in-law (c) Shri Rajan Shankar Parwar, son (d) Smt. Jayashri Rajan Parwar, daughter-in-law (e) Shri Anand Shankar Parwar, son (f) Shri Bharati Shankar Parwar, daughter, all major in age, residents of Kasarpal, Latambarcem, P. O. Assonora, Goa. 4. Shri Vithal Chandrakant Parwar, expired through legal representatives: (a) Smt. Rukmini Vithal Parwar, widow (b) Shri Gajanan Vithal Parwar, son (c) Shri Anand Vithal Parwar, son (d) Miss Nalini Vithal Parwar, daughter, all major of age, residents of Kasarpal, Latambarcem, Post Assonora, Goa. 5. Shri Bablo Dhanu Parwar 6. Shri Shrikant Ganpat Parwar, expired through legal representatives: (a) Shri Narayan Ganpat Parwar, brother 3 (b) Shri Rajesh Ganpat Parwar, brother (c) Ms. Gulabi Ganpat Parwar, sister (d) Ms. Saroji Ganpat Parwar, sister (e) Mr. Khushali Ganpat Parwar, brother (f) Miss Anjani Ganpat Parwar, sister, all major of age and residents of Kasarpal, Latambarcem, Post Assonora, Goa. ... Respondents Shri Amrut Kansar, Advocate for the Appellants. Shri S. D. Lotlikar, Senior Advocate with Shri S. R. Rivonkar, Advocate for Respondent No.1. CORAM : F. M. REIS, J. DATE : 7TH JANUARY, 2011. ORAL JUDGMENT The above appeal challenges the Judgment and Award of the learned Additional District Judge at Mapusa passed in Land Acquisition Case No.169 of 1990 dated 8-9-2003. 2. The Government has acquired the land bearing survey No.817/1(part) situated at Latambarcem for construction of Left Bank 4 Main Canal of Tillari Irrigation Project. As there were different claimants for the compensation awarded under Section 11 of the Land Acquisition Act, 1894(herein after referred to as the said Act) the Land Acquisition Officer referred the matter under Section 30 of the said Act to the learned Additional District Judge. The learned Additional District Judge by the said Judgment dated 8-9-2003 directed that the compensation awarded by the Land Acquisition Officer is to be apportioned holding in favour of the respondent. Being aggrieved by the said Judgment, the appellants have preferred the present appeal. 3. Shri Amrut Kansar, learned Counsel appearing for the appellants has submitted that the Reference Court has totally misdirected itself in coming to the conclusion that the amount of compensation is to be paid to the respondents. Learned Counsel submitted that the land acquired belongs to the appellants which is a religious institution and the respondents have no right at all to any portion thereof. Learned Counsel further submitted that the evidence of the appellants was closed which resulted in total injustice to the appellants to prove their case. Learned Counsel further submitted that the appellants were not in a position to produce their evidence in view of the fact that the Reference Court had 5 closed their case and refused the adjournment. The learned Counsel further submitted that in the interest of justice the appellants should be given an opportunity to lead evidence and produce the necessary documents in support of their claim. Learned Counsel further submitted that the Reference Court has misinterpreted the Judgment passed in First Appeal No. 3 of 1980 by the learned Judicial Commissioner. As such, the impugned Judgment deserves to be quashed and set aside and/or in the alternative, the matter is to be remanded to the Reference Court for deciding the reference afresh after giving an opportunity to the appellants to lead evidence. 4. On the other hand, Shri S. D. Lotlikar, learned Senior Counsel appearing for respondent no.1 has supported the impugned Judgment. Learned Senior Counsel pointed out that the ownership of the respondent has been concluded, in view of the Judgment passed by the learned Judicial Commissioner and as such, the question of the appellants putting up any claim to the acquired portion of the land would not arise. Learned Senior Counsel further submitted that the Reference Court has rightly considered the evidence on record and a correct decision that the compensation fixed for the land acquired is to be 6 apportioned in favour of the respondent. Learned Senior Counsel, however, submitted that in case the matter is remanded for deciding the reference afresh, the respondent should be given a liberty to lead further evidence. 5. Before going to the merits of the dispute, it would be pertinent to consider whether the Reference Court was justified to close the evidence of the applicants. On perusal of the records, I find that the proceedings for reference were made by the Land Acquisition Officer pursuant to the letter dated 10-9-1990 which was received on 11-9-1990. Notices were issued to the parties returnable on 10-11-1994. The matter was thereafter adjourned for different reasons from time to time, initially for serving the parties, and thereafter to bring the legal representatives of the deceased parties on record. Ultimately, the issues came to be settled on 2-7-2002 and the matter was posted to 26-7-2002 for filing the affidavit on which day, time was sought by the applicants. Thereafter, the matter was posted for filing of affidavit on 23-8-2002 when time was also sought by the applicants and the matter was posted to 17-9-2002 when another last opportunity was given to the applicants to file the affidavit and the matter was posted to 18-10-2002 when an application 7 was moved for adjournment which came to be rejected and evidence was ordered to be closed. 6. On perusal of the said application, the grounds for adjournment was that Datta Vithoba Ghadi who was appointed by the General Body as the attorney to depose in the said case was awaiting the required approval from the Mamlatdar of Bicholim. There was no serious objection on the part of the respondents to the said application. The Reference Court rejected the said prayer and closed the evidence of the applicants. 7. There is no dispute that the applicants were a temple institution and that there is a specific procedure to authorize a person to depose on their behalf. The fact that the approval which would authorize the said Shri Datta Vithoba Ghadi to depose in the case was to be obtained was not disputed by the respondent. Though, a last opportunity was given to the applicants to file the affidavit, I find that in the interest of justice, considering that the appellants was a temple institution which is governed by specific provisions of law, the Reference Court ought to have given another opportunity to the applicants to file their affidavit. 8 Shri S. D. Lotlikar, learned Senior Counsel in fact did not strongly object the contention of the learned Counsel appearing for the appellants that another opportunity could have been given to the appellants to file the affidavit in evidence. Failure in giving such opportunity has resulted in grave prejudice to the interest of the appellants in producing the requisite evidence in support of their claim to the compensation awarded by the Land Acquisition Officer. In such circumstances, I find that the Reference Court was not justified in closing the evidence of the applicants on 18-10-2002 and as such, in the interest of justice, it would be appropriate that the Reference Court be directed to decide the reference afresh after giving both the parties an opportunity to lead evidence in accordance with law. It is made clear that the merits of the rival claims put forth by the appellants and the respondents have not been considered as the Reference Court will have to re-assess the evidence produced by the parties and pass a fresh Judgment after hearing both the parties in accordance with law. No doubt, the appellants should be at liberty to lead evidence subject to payment of costs which are quantified at Rs.3000/-. Learned Senior Counsel appearing for respondent no.1 submitted that the said amount may be directed to be deposited in the Goa State Legal Services Authority. 9 8. In view of the above, I pass the following order:- ORDER (i) The appeal is partly allowed. (ii) The impugned Judgment and Award dated 8-9-2003 is quashed and set aside. (iii) The Land Acquisition Case No. 169 of 1990 is restored to the file of the Reference Court subject to the appellants depositing the costs of Rs.3000/- to the Goa State Legal Services Authority within a period of one month from today. (iv) The Reference Court shall decide the said reference afresh after giving an opportunity to both the parties to lead further evidence and to produce their documents and thereafter pass a fresh Judgment in accordance with law. (v) The appeal stands disposed of accordingly with no order as to costs. (vi) The parties are directed to appear 10 before the Reference Court on 14-2-2011 at 10.00 a.m. F. M. REIS, J. RD