1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 58 OF 2003 Smt. Radhabai K. Asgaonkar r/o. H.No. E-12/88, Khorlim, Mapusa, Goa. Through her power of attorney Bhiku Asgaonkar .... Appellant V/s 1. Deputy Collector & S.D.O., Land Acquisition Officer, Mapusa Sub Division, Mapusa. 2. The Director, Fire and Emergency Services, Panaji-Goa. .... Respondents Mr. V. A. Lawande, Advocate for the Appellant. Mr. Vivek Rodrigues, Addl. Govt. Advocate for the Respondents. CORAM : A.P. LAVANDE, J. Date of reservation of judgment :10th DECEMBER, 2008 Date of pronouncement of judgment : 16th DECEMBER, 2008 JUDGMENT : By this appeal, the appellant takes exception to judgment and award dated 23/08/2002 passed by Additional District Judge, Panaji in LAC No. 33/1998 rejecting the reference under Section 18 of the Land Acquisition Act, ('the Act', for short). 2. Vide notification issued under Section 4 of the Act, dated 28/01/1994 2 and published in the Official Gazette dated 31/03/1994, the Government of Goa sought to acquire lands of different persons for public purpose. An area admeasuring 481 sq. mts. bearing P.T. Sheet No. 145 surveyed under No. 2/1-A of City Survey Mapusa belonging to the appellant was part of the acquired land. The Land Acquisition Officer awarded compensation at the rate of Rs. 150/- per sq. mt. Dissatisfied, the appellant sought reference under Section 18 of the Act and claimed Rs. 5,000/- per sq. mt. 3. In Land Acquisition Case No. 33/1998, the appellant examined Bikhu Krishna Azgaonkar/AW1 and Mahadev Vaman Naik/AW2. The witnesses stated that the market rate of the acquired land was Rs. 1,500/- per sq. mt. on the basis of sale deed dated 28/07/1988 (Exhibit AW1/B). The appellant did not dispute before the reference Court that the acquired land was a paddy field owned by Communidade and the appellant was the tenant of the same. It was also not in dispute that the appellant had purchased the entire tenanted land for Rs. 250/-. Thus, indisputably, the acquired land was a tenanted agricultural land. The reference Court placing reliance upon the provisions of the Goa, Daman and Diu Agricultural Tenancy Act and the Goa Land Use (Regulation) Act, 1991 held that since the acquired land was tenanted agricultural land, it had no building potential and consequently the reference was answered against the appellant. In so far as claim of Rs. 50,000/- towards loss of income from sugarcane juice stall is concerned, the reference 3 Court held that such a claim was raised for the first time before the reference Court and therefore could not be entertained. On merits, the reference Court held that the appellant was in possession of the unacquired portion of land and as such could install juice stall in the said land. Consequently, the reference Court also rejected the claim of Rs. 50,000/-. 4. Mr. Lawande, learned Counsel for the appellant submitted that the findings given by the reference Court are legally not sustainable. According to the learned Counsel the reference Court ought to have considered the building potential of the acquired land and ought to have enhanced the compensation. Learned Counsel further urged that the provisions of Goa, Daman & Diu Agricultural Tenancy Act and the Goa Land Use (Regulation) Act, 1991 are not applicable in the present case. He, therefore, urged that the appeal be allowed. In support of his submission, learned Counsel relied upon the judgment of the Apex Court in State of Maharashtra V/s. Babu Govind Gavate etc. (AIR 1996 SC 904). 5. Per contra Mr. Rodrigues, learned Additional Government Advocate appearing on behalf of the respondents submitted that reference Court was absolutely justified in rejecting the reference. He further urged that since the acquired land was admittedly tenanted agricultural land, the same had no building potential, in view of the provisions of the Goa, Daman & Diu 4 Agricultural Tenancy Act and the Goa Land Use (Regulation) Act, 1991. According to learned Counsel the issue is no more res integra and is squarely covered by Division Bench judgment of this Court dated 9/02/2005 in First Appeal No. 221/2003 (Smt. Janaki N. Morajkar V/s. Special Land Acquisition Officer & Anr.) in which this Court has held that tenanted agricultural land cannot have building potential in view of the above referred two Acts. 6. I have considered the submissions made by learned Counsel for the parties, perused the record and the judgments relied upon. 7. In view of the rival submission, the following point arises for determination in the appeal. Whether the appellant is entitled to compensation at the rate of Rs. 1,500/- per sq. mt. in respect of the acquired land? 8. Indisputably, the acquired land was tenanted agricultural land. The reference Court had held that since the acquired land was tenanted agricultural land it had no building potential and therefore in the absence of any cogent evidence that the compensation awarded by the Land Acquisition Officer was inadequate, the appellant was not entitled to higher compensation. In my considered opinion, the issue involved in the present appeal is squarely covered by Division Bench judgment of this Court in the 5 case of Smt. Janaki N. Morajkar (supra). In Smt. Janaki's case the reference Court had refused to enhance the compensation in respect of the tenanted agricultural land which was acquired. Smt. Janaki Morajkar had claimed compensation on the basis of building potential. The Division Bench of this Court (to which I was a party) after placing reliance upon Section 2 of the Goa Land Regulation Act, 1991 held that the agricultural tenanted land does not have building potential and the compensation has to be ascertained on the basis of the agricultural income thereof. Section 2 of the said Act reads thus: “2. Regulation of use of land.--- Notwithstanding anything contained in the Goa, Daman and Diu Town and Country Planning Act, 1974 (Act 21 of 1975) or in any plan or scheme made thereunder, or in the Goa Land Revenue Code, 1968 (Act 9 of 1969), no land which is vested in a tenant under the provisions of the Goa, Daman and Diu Agricultural Tenancy Act, 1964 (Act 7 of 1964) shall be used or allowed to be used for any purpose other than agriculture. Explanation: --- The expression 'agriculture', 'land' and 'tenant' shall have the same meaning assigned to them under the Goa, Daman and Diu Agricultural Tenancy Act, 1964 (Act 7 of 1964).” 9. From bare perusal of Section 2, it is clear that tenanted agricultural land which is vested in a tenant under the provisions of Goa, Daman and Diu Agricultural Tenancy Act, cannot be put to any use other than the agriculture. This being the compensation payable in respect of the acquired land cannot be fixed on the basis of its building potential since such a use is impermissible in law. The appellant has not led any evidence to prove the 6 income from the acquired land. Thus there is absolutely no evidence led by the appellant to prove that compensation awarded by the Land Acquisition Officer was inadequate. Therefore, the reference Court was justified in rejecting the reference. The judgment relied upon by Mr. Lawande does not advance the case of the appellant. 10. The appellant has filed MCA No. 75/2003 under Order 41, Rule 27 of CPC seeking to rely upon judgment in First Appeal No. 5/2001 which is an award passed by the Lok Adalat and also award dated 5/03/1999, passed by ADJ, North Goa, Panaji in LAC No. 146/1997 by consent. In the award passed by the High Court compensation at the rate of Rs. 195/- per sq. mt. has been agreed and in the award passed by ADJ, Panaji compensation at the rate of Rs. 187.50 has been agreed. The appellant has not been able to establish that the lands involved in both this awards were in respect of tenanted agricultural lands acquired by the same notification. In any case, the said awards have been passed on the basis of settlement between the parties and as such cannot be the basis in deciding the compensation in the present matter. In the absence of any parity between the lands acquired in the present case and the lands forming subject matter of the said awards, the said awards do not advance the case of the appellant. 11. For the reasons stated hereinabove, I find no merit in the present 7 appeal. Hence, First Appeal No. 58/2003 is dismissed and MCA No. 75/2003 is disposed of with no order as to costs. A.P. LAVANDE, J. NH/-