- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 273 OF 2004. Shri Peter Paul Clemento Alemida, Resident of H. No.142, Karaswado, Mapusa. .......... Appellant. Versus Rajaram Shantaram Salgaonkar, (since deceased, repreented by his legal heirs) a. Mrs. Rajaram S. Salgaonkar, widow b. Mr. Bhanudas Rajaram Salgaonkar, c. Mr. Suresh Rajaram Salgaonkar, d. Mr. Anand Rajaram Salgaonkar, All residents of Sirsaim, Bardez Goa. .......... Respondents. Mr. Sudin M. S. Usgaonkar, Advocate for the Appellant. Mr. R. G. Ramani, Advocate for the Respondents. Coram:-F. M. REIS, J. Date:-22nd OCTOBER, 2010. ORAL JUDGMENT The above Appeal challenges the Judgment and Award - 2 - in Land Acquisition Case no.70/1997 dated 25.8.2004 passed by the learned Additional District Judge, Panaji. 2. By notification issued under section 4 of the Land Acquisition Act( herein after referred to as “the said Act”) dated 16.9.1993 which was published in the Official Gazette dated 24.9.1993, land was acquired for the construction of new B.G. Line between Roha and Mangalore in the villages of Tivim, Sirsaim in Bardez Taluka and village Shirigao in Bicholim Taluka surveyed under no.120/18 of Sirsaim village of Bicholim Taluka, admeasuring an area of 390 square metres. 3. Compensation was awarded by the Land Acquisition Officer to the tune of Rs.33,856/- for the acquired land. 4. In view of the dispute between the Appellant and the Respondents, the Land Acquisition Officer made a reference under section 30 of the said Act to the learned Additional District Judge for deciding the rival claims. 5. By Judgment and Award dated 25.8.2004, the learned - 3 - District Judge held that the Respondents were entitled to claim the entire compensation in respect of an area admeasuring 390 square metres together with interest there of. 6. Being aggrieved by the said Judgment, the Appellant has preferred the present appeal. 7. Mr. S. Usgaonkar, learned Counsel for the Appellant claimed that the Appellant was the owner of the land acquired, and that the claim of tenancy by the Respondents is disputed and as such, the question of determining such issue by the Reference Court was without jurisdiction. The learned Counsel further submitted that the Reference Court has exceeded its jurisdiction in deciding the issue of tenancy and as such came to an erroneous conclusion that the amount of compensation is to be paid to the Respondents herein. Learned Counsel further submitted that the Respondents have a purchase certificate issued in their favour which has been challenged by the Appellant and as such the learned Reference Court came to the erroneous conclusion that they are deemed owner and entitled for entire compensation awarded in the proceeding. Learned Counsel further submitted that the Appellant has filed civil suit before the - 4 - learned Civil Judge, Senior Division, Bicholim and the issue of tenancy has been referred to the learned Mamlatdar and the same is pending adjudication. He has further submitted that the issue with regards to purchase certificate has also been challenged by the Appellant and the proceedings are pending before this Court in connection with the purchase certificate obtained by the Respondents. Learned Counsel as such submitted that unless and until issue of tenancy is finally decided by the competent Court the question of making the payment of the compensation to the Respondents would not arise at all. 8. On the other hand Mr. R. G. Ramani, learned Counsel for the Respondents has submitted that the Respondents are the tenants of the property surveyed under no. 120/18 and have purchased the said land, pursuant to the certificate of purchase issued by the Mamlatdar dated 18.1.1996. He further submitted that unless and until said purchase certificate is set aside, the same holds good and there is no question of any claim being put up by the Appellant to the compensation awarded in respect of the land acquired. He has further submitted that there is no infirmity committed by the Reference Court and as such the appeal deserves to be dismissed. - 5 - 9. On perusal of the record and upon hearing the learned counsel for the Appellant and the Respondents the following point for determination arises in the present appeal:- POINTS FOR DETERMINATION Whether the Reference Court was justified to award the compensation to the Respondents? 10. On perusal of the impugned Judgment, I find that the Reference Court has decided the reference merely on the basis of exhibit 31 which is a purchase certificate issued in favour of the deceased Respondent by the learned Mamlatdar. The Reference Court in fact noted that a revision was pending challenging the said purchase certificate. There is no dispute that in the statement of claim put forward by the Appellant it is his claim that the entries in the survey record with regards to tenancy of the Respondents are erroneous. The Appellant claim that he is entitled to the compensation as owner thereof. There is no doubt that dispute was raised as to whether the Respondent was a tenant of the land acquired. 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 Goa Daman and Diu, Agricultural Tenancy Act, 1964. However, the jurisdiction of other Court to decide the issue of tenancy is specifically ousted in - 6 - view of sub section 1 of section 58 of the said Act of 1964. Even the purchase certificate which has been issued in favour of the Respondents has been challenged by the Appellant and the matter is stated to be pending before this Court. Apart from that the learned Counsel appearing for the Appellant has also submitted that in a civil suit filed by him before the learned Judge at Bicholim, issue of tenancy has been raised and the same is pending adjudication before the learned Mamlatdar being case bearing no.TNC/SR/ISSUE/6/ 2010/640. Hence, I find that the learned Reference Court was not justified in passing the impugned Judgment until the claim of tenancy is finally adjudicated by the competent Forum. 11. In view of the above, I find that the impugned Judgment deserves to be quashed and set aside and the matter be remanded to the Reference Court to decide the reference afresh after issue of tenancy is finally decided. Point for determination is answered accordingly. 12. In view of above, I pass the following:- O R D E R i. The Appeal is partly allowed. - 7 - ii. The Impugned Judgment and Award dated 25.8.2004 is quashed and set aside. iii. The reference in Land Acquisition Case no. 70/1997 is restored to the file of the Reference Court. iv. The Reference Court shall stay the proceedings until the decision with regards to claim of the Respondents of tenancy of the acquired land is finally adjudicated by the competent Court. The Reference Court shall proceed to decide the above reference upon receipt of the findings in the said tenancy/deemed purchaser proceedings which are pending before the Competent Forum. v. The appeal stands disposed of accordingly with no order as to costs. vi. Parties are directed to appear before the Reference Court on 18.12.2010 at 10.00a.m. and abide by its further directions. F. M. REIS, J. vn*