- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 129 OF 2004. Mrs. Lia De Sa, R/o. H. No. 86, C-1, Panaji-Goa. .......... Appellant. Versus Special Land Acquisition Officer, (North Goa District), Konkan Railway Corporation Ltd., First Floor, Souza Towers, Panaji Goa. .......... Respondent. Mr. S. Padiyar, Advocate for the Appellant. Mr. E. Afonso, Advocate for the Respondent. CORAM:-F. M. REIS, J. DATE:-24 th SE PTEMBER, 2010. ORAL JUDGMENT The above Appeal takes exception to the Judgment and Award dated 23/2/2004 passed by the learned Additional District Judge, North Goa, Panaji, in the Land Acquisition case no.180/1996. The land belonging to the Appellant came to be acquired pursuant to the notification under section 4 of the Land Acquisition Act, (hereinafter referred to as 'the said Act') published in the official - 2 - Gazette dated 13/6/1991 by the Respondent for the construction of a new B. G. line between Roha and Mangalore in the village of Ella and Carambolim in Tiswadi, Taluka. The land of the Appellant which was the subject matter of the acquisition was admeasuring an area of 400 square metres from the property surveyed under no. 32/6 of Ella Village of Tiswadi Taluka. 2. By an Award under section 11 of the said Act, dated 3/1/1994, the Land Acquisition Officer has awarded compensation at the rate of Rs. 10.80 per square metre for the land acquired and as far as apportionment of the compensation is concern, the dispute was referred for adjudication under section 30 of the said Act. Learned Counsel for the Appellant has stated that the said reference under section 30 of the said Act bearing Land Acquisition case no. 85/1995 is still pending before the learned District Judge, Panaji. 3. Being dissatisfied by the amount awarded for the land acquired in the said award, the Appellant proffered a reference under section 18 of the Act and claimed a compensation at the rate of Rs.200/- per square metre for the land acquired. The Reference Court by impugned Judgment and Award dated 23/2/2004 rejected the - 3 - reference filed by the Appellant. Being aggrieved by the said Judgment and Award, the Appellant has preferred the present appeal. 4. The learned Counsel Mr. S. D. Padiyar, appearing for the Appellant has assailed the impugned judgment and submitted that the Reference Court has gone on the wrong premise that the acquired land was a tenanted property when on a contrary there was a dispute raised between the Appellant and so called tenants which is pending adjudication before the learned Mamlatdar in view of the reference made by the learned District Judge in said Land Acquisition case no.85/1995. He further submitted that the issue is still pending adjudication before the learned Mamlatdar of Tiswadi in case no. TNC/DECL/29/2002/JM-III and has not yet been disposed of. The learned Counsel further submitted that in support of his claim for enhancement he has produced two sale deeds which are dated 1/3/1989 and 5/9/1991 in respect of the land situated in the vicinity of the acquired land which according to the learned Counsel is comparable with the acquired land. Learned Counsel further submitted that the Reference Court has rejected the said sale instance on the spacious ground that the land acquired was tenanted property. The learned Counsel further submitted that the said findings of the - 4 - Reference Court cannot be sustain as the matter has not been disposed of with regards to the existence of the tenancy or not in the acquired land. He further submitted that the Reference Court ought to have stayed the adjudication of the reference filed by the Appellant and awaited the decision by the learned Mamlatdar with regards to the disputed claim of tenancy and thereafter disposed of the reference under section 18 of the said Act. In support of his submission he relied upon the Judgment of the Division Bench of this Court passed in First Appeal No. 310 of 2006 dated 5.7.2010. 5. Upon hearing the learned counsel for the Appellant and on perusal of the records, the following point for determination arise in the present appeal:- POINT FOR DETERMINATION Whether the Reference Court was justified in deciding the reference under section 18 of the said act in the negative? 6. There is no dispute that while passing the Award under section 11 of the said Act, the Land Acquisition Officer has referred the dispute with regards to a claim of a tenant before the learned - 5 - District Judge under the provision of section 30 of the said Act. There is also no dispute that the Reference under section 30 of the said Act has not yet been decided. In view of a reference in Land Acquisition case no.85/1995 the dispute as to whether the acquired land is tenanted or not is pending adjudication before the learned Mamlatdar of Tiswadi Taluka. The Apex Court in the Judgment reported in the case of Mahdumati Atchut Parab Vs. Rajaram V. Parab and others [( 2009)4 SCC 183] has held that the issue of tenancy could have been decided only by the Mamlatdar in view of the provisions of section 7 read with section 58 of the Agricultural Tenancy Act, 1964. Moreover the Jurisdiction of the other Court to decide the issue of tenancy is specifically ousted in view of sub section 1 of section 58 of the said Act of 1964. As such the reference Court was not justified in disposing of the reference filed by the Appellant under section 18 of the said Act on the assumption that the said land was a tenanted land once there is a disputed tenancy and the matter is pending adjudication before the competent forum. The Reference Court ought to have resisted with the adjudication of the reference under section 18 of the said Act until and unless such dispute is finally decided. In case the acquired land is not a tenanted naturally the sale instances produced by the Appellant subject to the Appellant establishing the - 6 - comparability of the land acquired with the sale instance, can be considered for the purpose of determining the market value of the acquired land. No doubt in case the tenancy is established the said sale instances produced by the Appellant will have no comparability with the acquired land. Considering the facts and circumstance of the case, and in view of the Judgment of the Division Bench dated 5.7.2010 in First Appeal no.31/2006 relied upon by the learned counsel for the Appellant, I find that the Reference Court was not justified in rejecting the reference filed by the Appellant on the ground that the acquired land is a tenanted land. As such the impugned Judgment cannot be sustained. Point for determination is answered accordingly. 7. In view of the above, I pass following:- O R D E R i. The appeal is partly allowed. ii. The impugned Judgment and Award dated 23.2.2004 is quashed and set aside and the Land Acquisition case no. 180/1996 under section 18 of the said Act is restored to the file of the Reference Court. - 7 - iii. The said reference proceedings shall be stayed until final disposal of the proceedings in said case no. TNC/DECL/29/2002/JM-III and after such adjudication, the reference Court shall proceed to decide the reference a fresh after hearing both the parties in accordance with law. F. M. REIS, J. vn*