-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 320 OF 2003 1. Adv. N. S. Verlekar, R/o. Margao. 2. Adv. Raghuvir Sinai Kakodkar, (Since deceased), a) Smt. Jayashree R. S. Kakodkar, widow of late Raghuvir S. S. Kakodkar, major in age, b) Shri Sandesh R. S. Kakodkar, s/o. Late Raghuvir S. S. Kakodkar, major in age, married to c) Smt. Reema S. S. Kakodkar, All residing at “JAYASHREE” Marutigad Road, Curchorem, Goa. …... Appellants V e r s u s 1. Government of Goa, Daman and Diu. 2. Director of Land Survey, Panaji. …... Respondents Mr. Sudin Usgaonkar, Advocate for the Appellants. Mr. Vivek Rodrigues, Addl. Government Advocate for the Respondents. Coram :- F. M. REIS, J Date : 20 th September, 2011. ORAL JUDGMENT Heard Shri Sudin Usgaonkar, learned Advocate appearing for the Appellant and Shri V. Rodrigues, learned Addl. Government Advocate appearing for the Respondent. -2- 2. The above Appeal challenges the Judgment and Award dated 20.06.2003 passed in Land Acquisition Case no.25/1987, whereby reference under Section 30 of the Land Acquisition Act, 1894, (hereinafter referred to as the said 'Act'), came to be disposed of by the Reference Court whereby the claim of the Appellants came to be rejected for the compensation and the claim of the Respondent no.1 was accepted. 3. An area of land admeasuring 7150 square metres was acquired from the plot bearing survey no. 55/1 of Village Pilliem of Sanguem Taluka by the Government pursuance to a Notification dated 23.02.1985 and the compensation came to be awarded by an Award dated 27.03.1986. The land was acquired by the Government for the improvement of the National Highway-4A leading to Belgaum and in view of the dispute with regard to the ownership of the said plot acquired, the reference was made to the learned District Judge for decision under Section 30 of the said Act. 4. In the said proceedings before the Reference Court, the Appellants filed their claim and pointed out that they were interested in the land acquired admeasuring 7150 square metres from the property surveyed under no. 55/1 and 55/2 of Village Pilliem in view of their absolute ownership. It is further their case that the said amount was handed over to the Appellant no.1 in Execution Proceedings no. 8/1972 in an auction held therein. The plan of the property sold by the said auction was also prepared in the said proceedings according to the Appellants. It is further their case that the said land which was purchased in the public auction dated 12.12.1974 is enrolled in the matriz records under no.4 and it -3- is further their contention that the plot of land was sold by the Appellant no.1 to the Appellant no.2. The Appellants claim that they were in quite peaceful possession of the said portion of the acquired land since possession thereof was handed over to the Appellants. It is further their case that the Respondents have no claim over any portion of the said land or to the compensation awarded by the Land Acquisition Officer. 5. On the other hand, the Respondents also filed their written statement and pointed out that the property surveyed under no. 55/1 belongs to the Government of Goa and the Appellants have no right or claim therein. It is further their case that the said property surveyed under no. 55/1 corresponds to old Survey no. 16 of Pilliem Village and disputed the contention of the Appellants that the Respondents are not entitled to the compensation. 6. The learned Judge, after framing the issues and recording of evidence, by the impugned Judgment and Award dated 20.06.2003, came to the conclusion that the Respondent no.1 is entitled to the compensation awarded. Being aggrieved by the said Judgment, the Appellants have preferred the present Appeal. 7. At the hearing of the above Appeal, Shri Sudin Usgaonkar, the learned Counsel appearing for the Appellants has essentially assailed the impugned Judgment apart from the fact that the Appellants have a right and interest to the immoveable property which is the subject matter of the acquisition. Nevertheless, according to the learned Counsel appearing for the Appellants, the -4- reference under Section 30 itself was a nullity as the Land Acquisition Officer was not entitled to make such a reference in view of the Judgment of the Apex Court reported in (2003) 3 S.C.C. 128 in the case of Sharda Devi vs. State of Bihar & anr. The learned Counsel further pointed out that the Reference Court has erroneously awarded the compensation to the Respondents as according to him, there was no sufficient evidence on record to justify that the Appellants were not entitled to the compensation awarded by the Land Acquisition Officer. The learned Counsel further pointed out that the claim of the Appellants was upheld and accepted by the Revenue Authorities as according to him, the proceedings which were pending before the Revenue Authorities came to be disposed of in favour of the Appellants herein in respect of the suit acquired land. The learned Counsel has further pointed out that the Respondents have filed a Civil Suit disputing the title of the Appellants in the Court of the learned District Judge, South Goa, Margao, which has not been disposed of but, however, according to the learned Counsel, the pendency of the suit does not in any way effect the right of the Appellants to claim the compensation in the above proceedings. The learned Counsel as such submitted that the impugned Judgment deserves to be quashed and set aside and the amount of compensation be directed to be paid to the Appellants. 8. On the other hand, Shri Rodrigues, learned Addl. Government Advocate appearing for the Respondents, did not dispute the contentions of the learned Counsel appearing for the Appellants that in the case of Sharda Devi vs. State of Bihar & anr. (supra), the reference under Section 30 of the said Act itself is a nullity. The learned Addl. Government Advocate further pointed out that the land acquired belonged to the Respondents and, as such, a Civil Suit has been -5- filed by the Respondents which is pending before the learned District Judge, South Goa, Margao. The learned Counsel further pointed out that in case the Appellants withdraw the amount of compensation awarded by the Land Acquisition Officer, the Respondents should be protected to recover the said amount in case the claim opf the Respondents over the acquired land is finally decided in favour of the Appellants in the said Civil Proceedings. The learned Counsel further pointed out that even under Section 31 of the said Act, in case any person receives such compensation, he is bound to refund the said amount t o the person who is lawfully entitled to such compensation. The learned Addl. Government Advocate as such pointed out that the rights of the Respondents to recover the said amount in accordance with the provisions of Section 31 of the said Act, should be protected in case the amount is allowed to be withdrawn by the Appellants. 9. Shri Usgaonkar, the learned Counsel appearing for the Appellants in reply to the submissions of the learned Addl. Government Advocate appearing for the Respondents, pointed out that in case the Respondents succeed to establish the rights in the acquired portion of the land, the consequences in law will follow whereby the Appellants would be liable to refund the compensation to the Respondents. The learned Counsel as such submitted that the Appellants should be allowed to withdraw the amount of compensation deposited before the Reference Court in view of the said Judgment of the Apex Court. 10. Having heard the learned Counsel and on perusal of the record, I find that the learned Counsel appearing for the Appellants is justified in his submission that the reference under Section 30 of the said Act was a nullity. The Apex Court in -6- the said Judgment in the case of Sharda Devi vs. State of Bihar & anr. (supra) has held after considering the Judgments at Para 36 thus : “36. To sum up, the State is not a “person interested” as defined in Section 3(b) of the Act. It is not a party to the proceedings before the Collector in the sense, which the expression “parties to the litigation” carries. The Collector holds the proceedings and makes an award as a representative of the State Government. Land or an interest in land pre-owned by the State cannot be the subject-matter of acquisition by the State. The question of deciding the ownership of the State or holding of any interest by the State Government in proceedings before the Collector cannot arise in the proceedings before the Collector [as defined in Section 3(c) of the Act]. If it was government land there was no question of initiating the proceedings for acquisition at all. The Government would not acquire the land, which already vests in it. A dispute as to the pre-existing right or interest of the State Government in the property sought to be acquired is not a dispute capable of being adjudicated upon or referred to the civil court for determination either under Section 18 or Section 30 of the Act. The reference made by the Collector to the court was wholly without jurisdiction and the civil court ought to have refused to entertain the reference and ought to have rejected the same. All the proceedings under Section 30 of the Act beginning from the reference and adjudication thereon by the civil court suffer from lack of inherent jurisdiction and are therefore a nullity liable to be declared so.” -7- 11. Considering the said Judgment of the Apex Court, the reference to the learned District Judge under Section 30 of the said Act by the Land Acquisition Officer is without jurisdiction and, as such, such reference ought to have been rejected. On this count alone, the impugned Judgment deserves to be quashed and set aside. 12. Dealing with the contention of the learned Addl. Government Advocate appearing for the Respondents, there is no dispute that the Appellants were the only persons who claim to have interest in the acquired portion of the land and accordingly had put up their claim before the Land Acquisition Officer as persons interested. As such, as there are no other persons put up any claim to the compensation awarded by the Land Acquisition Officer, the Appellants would be entitled to recover the said amount of compensation deposited before the Reference Court along with interest accrued thereon. But, however, the learned Addl. Government Advocate is justified to contend that in case the Respondents finally succeed in the suit which is pending before the learned District Judge wherein the portion of the land acquired is also the subject matter of the said suit, some protection is to be given to the claim of the Respondents in case they succeed to establish their claim over the said land. It is not in dispute that the Appellants are also parties to the said suit and any Judgment passed therein, would also be binding on the Appellants. No doubt, under the provisions of Section 31 of the said Act, the persons who have received the compensation, shall be bound to refund the said amount to the person who is lawfully entitled to such amount. In the facts and circumstances of the case, I find that in the interest of -8- justice, it would be appropriate that a direction be given to the effect that the Appellants be allowed to withdraw the amount of compensation deposited along with interest accrued thereon subject to the condition that in case the dispute pending in the Civil Suit is finally decided in favour of the Respondents, the Appellants would be liable to refund the said amount or part thereof, in accordance with law. All the contentions of both the parties on merits over their claim to the said land are left open. 13. In view of the above, I pass the following : ORDER (i) The Appeal is partly allowed. (ii) The impugned Judgment and Decree dated 20.06.2003 is quashed and set aside. (iii) The Appellants are entitled to receive the compensation deposited alongwith interest accrued thereon subject to the Appellants being liable to refund the said amount or any part thereof to the Respondents in case the claim of the Respondents over the acquired portion of the land is finally adjudicated in the favour of the Respondents in accordance with law. (iv)The Appeal stands disposed of accordingly with no orders as to costs. F .M. REIS, J. arp/*