1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 271 OF 2005 Maria Aleixinha Soares House No.490, Opposite Don Bosco Institute, Fatorda, Margao-Goa. ... Appellant versus 1. Deputy Collector(Land Acquisition Officer) Collectorate of South Goa, Land Acquisition Branch, Margao-Goa. 2. The Director of Sports and Youth Affairs, Panaji-Goa. ... Respondents Shri M. B. D'Costa, Senior Advocate with Shri J. A. Lobo, Advocate for the Appellant. Shri G. Shirodkar, Government Advocate for Respondent Nos.1 and 2. CORAM : F. M. REIS, J. DATE : 7TH APRIL, 2011. ORAL JUDGMENT The above appeal challenges the Judgment and Award dated 13-7-2005 passed by the learned Additional District Judge at Margao in Land Acquisition Case No. 95 of 1997. 2 2. By notification dated 10-8-1988 issued under Sections 4 and 17 of the Land Acquisition Act, 1894(hereinafter referred to as the said Act) an additional area was acquired for the purpose of Multipurpose Stadium at Fatorda, Margao. Amongst the lands which were acquired, an area of 695 sq. meters was acquired belonging to the appellant herein, surveyed under Chalta No.9, P.T. Sheet No.112, Margao City, Sub-Division 8. 3. By an award passed under Section 11 of the said Act, the Land Acquisition Officer offered a compensation of Rs.20/- per sq. meter to the appellant and awarded 50% of the compensation to the appellant and the remaining 50% to the Communidade of Margao as owners of the land acquired. Being dissatisfied with the said amount, the appellant sought a reference under Section 18 of the said Act and claimed Rs.500/- for the land acquired. The Reference Court by Judgment and Award dated 13-7-2005 rejected the reference filed by the appellant. Being aggrieved by the said Judgment, the appellant has preferred the present appeal. 3 4. Shri M. B. D'Costa, learned Senior Counsel for the appellant has assailed the impugned Judgment and pointed out that the Reference Court has failed to consider the awards produced by the appellant which are comparable to the land acquired and as such came to an erroneous conclusion that the appellant was not entitled for enhancement of the compensation. Learned Senior Counsel has further pointed out that the land acquired was in the City of Margao which is adjoining to the main road and had potential of being used or developed for non-agricultural purposes by the appellant. Learned Senior Counsel has further pointed out that the restrictions in the uses of tenanted lands was not applicable to the appellant as the land was acquired in the year 1988. Learned Senior Counsel further submitted that though there are restrictions in the transfer of agricultural lands, nevertheless it does not preclude any occupant to construct and/or use the land for non agricultural purpose after obtaining the requisite permissions. Learned Senior Counsel has further submitted that the award passed by the learned District Judge in respect of the land acquired in the year 1985 which is at Exh.22 is adjoining to the land acquired. Learned Senior Counsel further submitted that even the awards produced at Exhs.23 and 24 are in the vicinity of the acquired land. Learned Senior Counsel further pointed out that the 4 appellant also produced the awards at Exhs.25 and 26 which are in respect of lands which were in the vicinity of the acquired land. Learned Senior Counsel further submitted that considering the said awards, it was evident that the market rate of the said land was ranging from Rs.80/- to Rs.125/- per sq. meter, and as such submitted that the Reference Court was not justified in rejecting the reference and consequently the impugned Judgment deserves to be quashed and set aside. 5. On the other hand, Shri G. Shirodkar, learned Government Advocate appearing for respondent Nos.1 and 2 has supported the impugned Judgment. Learned Government Advocate submitted that the acquired land was a tenanted land and as such fixing compensation on the basis that the same could be used for commercial purpose would not arise. Learned Government Advocate further took me through the evidence on record and pointed out that the acquired land was a Communidade land and in view of the restrictions imposed with regard to such lands, the amount of compensation awarded was just and proper. Learned Government Advocate further submitted that the awards produced by the appellant are not comparable with the land acquired. Learned Government Advocate further submitted that the report of the 5 agricultural expert cannot be relied upon as the same is not on the basis of the actual income derived from the land acquired. Learned Government Advocate submitted that the appeal deserves to be rejected. 6. Having heard the learned Counsel, the following points for determination arise:- 1. Whether the Reference Court was justified to reject the reference? 7. The learned Senior Counsel pointed out to the plan which is on record at Exh.29 and submitted that the land acquired in respect of the award passed in the case at Exh.22 as shown in yellow colour is very close to the land acquired and is the most comparable instance produced by the appellant. On perusal of the said plan, I find that amongst the awards which have been produced by the appellant there can be no dispute that the award at Exh.22 is at a distance of hardly 25 meters from the land acquired. On perusal of the said Judgment at Exh.22, it reveals that the land which was subject matter of the said acquisition was an undeveloped land and it was also under paddy cultivation on some occasions but, however, the said land was not a tenanted land. There is 6 no dispute that the land acquired is a tenanted land and subject to restrictions as provided under the provisions of the Goa Agricultural Tenancy Act, 1964. The said Act imposes restrictions with regard to transfer of such lands. Apart from that, agricultural tenants were entitled to construct only farm houses and the question of using such land for commercial purposes could not arise. Considering all such factors will have to be considered for the purpose of fixing the market value of the land acquired in the present case. On perusal of the award passed at Exh.22, an area of 16,800 sq. meters was acquired at the rate of Rs.80/- per sq. meter. Though, the acquisition therein was of the year 1985 and the acquisition in the present case was of the year 1988, considering that the land acquired therein was also used as a paddy field the said award can form the basis for fixing the compensation in the present case. The land acquired was a tenanted paddy field and as such subject to restrictions as enumerated herein above, the land in the said acquisition proceedings was not tenanted. Apart from that, the land therein was suitable for development by sub-dividing the land into plots which is not the case in the present case in view of statutory restrictions though at the relevant time, the Goa Land Use Act, 1991 was not in force. But, however, there were formalities to be complied with for the charge of 7 user as well as for the transfer of land under the Agricultural Tenancy Act, 1964. Considering all those negative factors, 50% deduction would have to be effected for fixing the compensation in the present case. The amount as such works out to Rs.40/- per sq. meter. The learned Reference Court was not justified to reject the reference filed by the appellant. Merely because the yield in the acquired land has not been established the reference could not be refused. When there were comparable instances in the vicinity of the acquired land the same could be considered after considering the disadvantages of the acquired land. The restriction in the transfer of land under the Code of Communidade by itself does not preclude the Reference Court to award a just compensation in the facts of the case as held by the Division Bench of this Court. The land acquired is situated in Margao city having infrastructural facilities as stated by AW2/Pascoal Noronha. I find that the appellant is entitled for enhancement of the compensation as offered by the Land Acquisition Officer. 8. Considering the award passed under Section 11 of the said Act, the appellant would be entitled to 50% of the compensation considering the apportionment by the Land Acquisition Officer which 8 has not been challenged by the appellant. The amount works out to Rs.20/- per sq. meter and after deducting an amount of Rs.10/- offered by the Land Acquisition Officer, the appellant would be entitled to an excess amount of Rs.10/- per sq. meter. The point for determination is answered accordingly. 9. In view of the above, I pass the following order:- ORDER 1. The appeal is partly allowed. 2. The impugned Judgment and Award dated 13-7-2005 is quashed and set aside. 3. The appellant is entitled for an excess compensation of Rs.10/- per sq. meter for the land acquired admeasuring 695 sq. meters. 4. Needless to say that the appellant would be entitled for statutory benefits under Sections 23(1)(A), 23(2) and 28 of the said Act in accordance with law. 5. Appeal stands disposed of accordingly with no order as to costs. F. M. REIS, J. RD