-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 117 OF 2004 1. Deputy Collector & SDO Ponda Sub-Division, Ponda – Goa. 2. Director of Tourism, Patto – Panaji. …... Appellants V e r s u s Smt. Janaki Datta Naik, Through her Power of attorney Shri Vinayak Datta Naik, R/o. Priol, Ponda – Goa. ….. Respondent Mr. V. Rodrigues, Additional Government Advocate for the Appellants. Mr. R. G. Ramani, Advocate for the Respondent. CORAM: F. M. REIS, J. DATE : 3 rd September, 2010. ORAL JUDGMENT The above Appeal challenges the Judgment and Award dated 26th February, 2004, passed by the learned IInd Ad-hoc Additional District Judge at Panaji, in Land Acquisition Case no.232/1996. 2. The land of the Respondent admeasuring 3200 square metres was acquired by the Appellants from the property surveyed under no. 45/2 situated at Village Priol, Ponda, for parking facilities at Mangueshi Temple, Ponda Taluka, pursuant to a Notification under Section 4 of the Land Acquisition Act, 1894, (hereinafter referred to as the 'said Act'), dated -2- 30.08.1994. By an Award under Section 11 of the said Act passed by the Land Acquisition Officer, the amount of compensation was fixed at Rs.22.50 per square metre. Being dissatisfied with the said amount, the Respondent filed a reference under Section 18 of the said Act for enhancement of compensation and claimed a compensation at the rate of Rs.220/- per square metre. By Judgment and Award dated 26.02.2004, the Reference Court has enhanced the compensation and fixed the market value of the land acquired at the rate of Rs.30/- per square metre. 3. Being aggrieved by the said Award, the Appellants have preferred the present Appeal. 4. The learned Addl. Government Advocate appearing for the Appellants, has assailed the impugned Judgment and Award and submitted that the Reference Court has enhanced the amount without any evidence on record. He pointed out that it is an admitted fact that the Respondent was a tenant of the acquired land and, as such, the question of the said land having any potentialities of being used for building purpose would not arise at all. He further submitted that in view of the Goa Land Use (Regulation) Act, 1991, the land which has vested in a tenant has no potential value as the same cannot be used for non-agricultural purpose. The learned Counsel has further submitted that the value which the Respondent can claim is on the basis of agricultural value of the land acquired for which no evidence has been adduced by the Respondent on that count. He further submitted that the -3- Reference Court has erroneously enhanced the compensation on the basis that, in view of the acquisition, the Respondent has been deprived of gaining any income from the acquired land while, on the contrary, the Appellants would utilise the land for parking purpose and would make profits which is not at all relevant for determining the market value of land. He further submitted that there is no evidence on record to substantiate any deprivation on the part of the Appellant and, as such, the enhancement for compensation awarded by the Land Acquisition Officer deserves to be quashed. 5. On the other hand, Shri R. G. Ramani, the learned Counsel appearing for the Respondent has supported the impugned Judgment. He submitted that in view of the said acquisition, the Appellant has been deprived of the source of income and, as such, the Reference Court was justified to enhance the compensation from Rs.22.50 to Rs.30/- per square metre. He further submitted that the Respondent claimed for a compensation of Rs.220/- per square metre and considering the enhancement granted by the Reference Court, the question of this Court interfering with the impugned Judgment does not arise at all. In support of his contention, he relied upon the Judgment of the Apex Court reported in (2010) 5 S.C.C. 708 in the case of Special Land Acquisition Officer vs. Karigowda & Ors. 6. Having heard the learned Counsel for the parties and on perusal of the evidence on record, the following point for determination arises in the present Appeal : -4- POINT FOR DETERMINATION : Whether the Reference Court was justified to fix the market value of land acquired as on the date of Section 4 Notification at the rate of Rs.30/- per square metre ? 7. There is no dispute that the Respondent was a tenant of the acquired land. Under the Goa Land Use (Regulation) Act, 1991, there is total bar for using the land which has been vested in a tenant for any purpose other than agricultural. The Respondent admits that their names reflect in the Survey Records as tenants. Hence, considering that the land is vested in a tenant, the question of considering the said land as having the potentiality of being used for building purpose, would not arise. 8. The Division Bench of this Court in First Appeal No. 12 of 2007 disposed on 10th June, 2010 has held at paras 9, 10, 11 and 12 thus :- “9. We have given careful consideration to the submissions advanced. It is not in dispute that the appellant being the tenant is a deemed purchaser of the acquired land which is an agricultural land. The land vests in the appellant under the provisions of the Section 18 A of the Goa, Daman and Diu Agricultural Tenancy Act, 1964 (hereinafter referred to as “the said Act of 1964”). The section 2 of the said Act of 1991 provides that no land which is vested in a -5- tenant under the provision of the said Act of 1964 shall be used or allowed to be used for any purpose other than agriculture. 10. The submission of the Learned Counsel appearing for the Appellant is based on Section 3 of the said Act of 1991. Section 3 of the said Act of 1991 reads thus: “3. Exemption- The provision of this Act shall not apply to acquisition of any land vested in a tenant under the Goa, Daman and Diu Agricultural Tenancy Act, 1964 (Act 7 of 1964) by the State for a public purpose under the provisions of the Land Acquisition Act, 1894 (Central Act 1 of 1894). 11. We find that what is provided in the Section 3 is that if a land vested in a tenant under the said Act of 1964 is acquired under the said Act by the State for a public purpose, the embargo of Section 2 will not come in the way of the State using the acquired land for any purpose other than agriculture. The implication of section 3 is that the prohibition imposed by the section 2 will not prevent non- agricultural user of the said land by the state or by the acquiring body after its acquisition under the said Act. As pointed out by the Learned Counsel appearing for -6- the second respondent, in F.A no.223 of 2003, the same submission was canvassed before this Court. This Court for reasons recorded rejected the said submission. This Court observed that Section 3 only permits the State to use an agricultural tenanted land for any purpose other than agriculture if the land is acquired under the said Act for any such purpose. This Court relied upon Section 2 of the said Act of 1991 and rejected the submission based on Section 3. 12. When comparison method is adopted to determine the market value of the acquired land, the test is what a willing genuine and bona fide buyer will offer as price for the acquired land on the date of publication of a notification under section 4 of the said Act. In view of section 2 of the said Act of 1991, a genuine buyer will offer a price which is payable only in respect of an agricultural land. He will not offer the price on the basis of the potential for non-agricultural use in as much as in view of section 2 of the said Act of 1991, no use except agricultural use will be ever permitted. Therefore, we reject the submission based on Section 3 of the said Act of 1991.Therefore, for the purposes of the determination of the market value -7- of the acquired land, a sale instance of a developed land or a sale distance of a land having potential for non-agricultural use will not be relevant.” 9. In the present case, considering that the Respondent has failed to adduce evidence to show the agricultural value of the land acquired, the question of comparing the sale instances produced by the Respondent at exhibit 9 having potentiality of being used for construction purpose, would not arise at all. The Reference Court whilst enhancing the compensation, has taken into consideration that the Respondent has been deprived of the income of the portion of the land which has been acquired as against the fact that the Appellants would earn profits by using the land for parking purpose. This fact is totally irrelevant for the purpose of determining the compensation under the provisions of Section 23 of the said Act. The provisions of Goa Land Use (Regulation) Act, 1991, expressly provides that such restrictions are not applicable for lands which have been compulsorily acquired. In the present case, the land vested in a tenant, under no circumstances, could be used by the Respondent even for the purpose for which the land has been acquired. Hence, these considerations are not at all material for determining the market value of land. No doubt, the Apex Court in the case of Karigowda (supra ) at para 19 has considered that the Court is entitled to apply for some type of reasonable guesswork to balance the equity for just and fair market value and in terms of the parameters specified in Section 23 of the said Act. But however, the same should be on the basis that the land had potentiality of -8- being used for specific purpose. In the present case, in view of the restrictions imposed under the said Goa Land Use (Regulation) Act, 1991, the land had no potentiality for being used for any other purpose. For the purpose of assessing the loss of profits on account of such acquisition, the Respondent has failed to produce any evidence to demonstrate what income was derived from the acquired portion of the land. In fact, Aw.2, in his deposition has stated that the acquired land was not cultivated for some years back before the said acquisition. As such the question of being deprived of any income by the Respondent would not arise. In view of the above, I find that the Reference Court was not justified to enhance the compensation from Rs.22.50 to Rs.30/- per square metre. There is no evidence on record to substantiate such enhancement by the Respondent. The point for determination is answered accordingly. 10. In view of the above, I pass the following : O R D E R (i) The Appeal is allowed. (ii) The impugned Judgment and Award dated 26.02.2004 is quashed and set aside. (iii) The Registry is directed to refund the amount deposited to the Appellants with accrued interest thereon. (iv)The Appeal stands disposed of accordingly with no orders as to costs. F. M. REIS, J. arp/* -9-