-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 299 OF 2003 WITH FIRST APPEAL NO. 1 OF 2004 AND MISCELLANEOUS CIVIL APPLICATION NO.388 OF 2010 FIRST APPEAL NO. 299 OF 2003 1. Special Land Acquisition Officer (N), T.I.P. Complex, P. O. Tivim Industrial Estate, Karaswada, Mapusa, Bardez – Goa. 2. Executive Engineer, Works Division VIII, G.T.I.D.C., T.I.P. Complex, Karaswada, Mapusa, Bardez – Goa. .....Appellants V e r s u s 1. Smt. Krishnabai Abasaheb Rane (deceased) thorugh L.R.'s 1a) Shri Shivajirao Abasaheb Rane, major, son 1b) Shri Jaisinghrao Abasaheb Rane, major, son 1c) Shri Mausing Rane, major, grandson All r/o Vadaval – Latambarcem, Bicholim taluka, Goa. 2. Shri Pratapsingh Abasaheb Rane, 3. Shri Sambhajirao Abasaheb Rane, All r/o Vadaval – Latambarcem, Bicholim taluka, Goa. …...Respondents -2- Mr. S. Vahidulla, Government Advocate for the Appellants. Mr. M. S. Sonak with Mr. J. Supekar, Advocates for the Respondents. AND FIRST APPEAL NO.1 OF 2004 WITH MISCELLANEOUS CIVIL APPLICATION NO.388 OF 2010 1. Krishnabai Abasaheb Rane (deceased) thorugh legal representatives: 1a) Shri Shivajirao Abasaheb Rane, major, son. 1b) Shri Jaisinhrao Abasaheb Rane, major, son. 1c) Shri Mausing Rane, major, grandson. All residents of Vadaval – Latambarcem, Bicholim Taluka- Goa. 2. Shri Pratapsingh Abasaheb Rane, 3. Shri Sambhajirao Abasaheb Rane, Both residents of Vadaval – Latambarcem, Bicholim Taluka - Goa. .....Appellants V e r s u s 1. Special Land acquisition Officer (N), Irrigation Department, Mapusa-Goa. 2. Executive Engineer, W.D. VIII, ID, Sarvana, Bicholim – Goa. …...Respondents Mr. M. S. Sonak with Mr. J. Supekar, Advocates for the Appellants. Mr. S. Vahidulla, Government Advocate for the Respondents. -3- CORAM : A. S. OKA F. M. REIS, JJ. Judgment Reserved on : 21 st June, 2010. Judgment Pronounced on : 20 th July, 2010. JUDGMENT (Per F. M. Reis, J.) Both the Appeals challenge the Judgment and Award dated 10th September, 2003, passed by the learned Addl. District Judge, at Mapusa, in Land Acquisition Case no. 82/1998. 2. The Appellants in First Appeal no. 299/2003, are the Acquiring Bodies and Respondents before the Reference Court while Appellants in First Appeal no. 1/2004, are the Applicants before the Reference Court. 3. The parties shall be referred to as they appear in the impugned Award. 4. By a Notification under Section 4 of the Land Acquisition Act, 1894, (hereinafter referred to as 'the said Act'), bearing no. 22/143/93-RD dated 25th January, 1995, published in Official Gazette dated 30th January, 1995, the Respondents acquired part of the property belonging to the Applicants surveyed under nos. 126 (part), 114/1 (part), 131 (part), 134 (part), 139 (part) and 97 (part) for the purpose of Vadaval Distributory of Left Bank Main Canal of Tillari Irrigation. By an Award dated 25th September, 1996, the compensation was fixed at the rate of Rs.9/- per square metre. Being dissatisfied with the said compensation, the -4- Applicants sought a reference under Section 18 of the said Act for enhancement of compensation and claimed that the market value of land as on the date of Section 4 Notification was Rs.40/- per square metre. The Reference Court after recording of evidence, by an impugned Judgment and Award dated 10th September, 2003, partly allowed the said reference and fixed the rate for the land acquired under survey no. 126 (part) at the rate of Rs.22/- per square metre besides statutory benefits. As far as compensation for the remaining portion of land acquired is concerned, the reference came to be rejected. 5. Being aggrieved, by the said Judgment and Award, the Applicants as well as Respondents have preferred the present Appeals. 6. The learned Government Counsel appearing for the Respondents has assailed the Judgment passed by the Reference Court and submitted that there was no cogent evidence on record for the Reference Court to determine the compensation at the rate of Rs.22/- per square metre. He further submitted that the Sale Deeds sought to be relied upon by the Applicants were at a distance of 2.5 kms from the acquired land and, consequently, there was no evidence at all adduced by the Applicants to establish that the land acquired and the land which was subject matter of the said Sale Deeds were comparable. He further submitted that the valuation report could not be considered for determining the compensation as the valuer had visited the land nearly four years after the Section 4 Notification. He further submitted that the land of the Applicants is to be considered as tenanted land and, consequently, the question of determining the compensation on the basis that it could be used for non-agricultural purpose, does not arise at all. He -5- accordingly contended that the Appeal preferred by the Respondents is to be allowed and the compensation fixed by the Reference Court in respect of the acquired land surveyed under no. 126 admeasuring 4126 square metres, deserves to be quashed and set aside. 7. On the other hand, Shri Sonak, the learned Counsel appearing for the Applicants has assailed the Judgment of the Reference Court and submitted that the well settled principles as stipulated under Section 23 of the said Act for the purpose of determining the compensation has not at all been considered by the Reference Court whilst passing the impugned Award. He further submitted that the Reference Court has taken an erroneous view that the land of the Applicants was a tenanted land. He further submitted that there is no evidence on record to the effect that the land of the Applicants was a tenanted land and, in fact, there was no issue to that effect raised before the Reference Court. He further submitted that the Respondents have failed to produce the relevant Survey Records to substantiate their contention that the land of the Applicants was a tenanted land. He further submitted that the Reference Court has relied upon a an isolated statement of the Applicants in the cross examination to come to the conclusion that the land was a tenanted land when, on the contrary, on reading of the evidence as a whole, there is no admission on the part of the Applicants that the land acquired was a tenanted land. The learned Counsel for the Applicants has submitted that apart from the land acquired which was subject matter of a reference, different other portions of land belonging to the Applicants were also acquired by the Respondents and, consequently, there is no evidence on record to establish that the alleged admission by Aw.1 is in respect of the land acquired. He further -6- submitted that the alleged tenants have not even put up a claim for any such compensation. The learned Counsel has also submitted that on a bare statement on the part of Aw.1 that in the Survey Records, the names of the tenants do figure, there was no justification for the Reference Court to come to the conclusion that there were tenants in the acquired land. The learned Counsel further submitted that the Applicants have filed an application under Order 41 Rule 27 of the Civil Procedure Code to rely upon additional evidence in the form of Judgment and Order dated 29th April, 2008, whereby another portion of the land which is surveyed under no. 114 (part) situated at Latambarcem Village was acquired by the Respondents vide Notification under Section 4 of the Act dated 23rd June, 1994, wherein the compensation was enhanced by the Reference Court to Rs.17.55 per square metre. The Respondents filed a First Appeal no. 126/2004 and the Applicants preferred Cross Objections and by Judgment and Award dated 29th April, 2008, this Court dismissed the Appeal preferred by the Respondents and partly allowed the Cross Objections and fixed the compensation at the rate of Rs.32.50 per square metre. He further submitted that as the said Judgment is inter partes and is pertaining to the remaining portion of the land belonging to the Applicants it could form a safe basis for determining the market value of land acquired. He further submitted that land in the subject matter of the said Judgment is surveyed under survey no. 114 (part) and the remaining portion of the land of the Applicants surveyed under no. 114/1 (part) was acquired in the present proceedings, wherein no claim of tenancy was raised by the Respondents. He, as such contended that the matter may be at least remanded for fresh adjudication. 8. In reply, the learned Counsel for the Respondents submitted that the -7- Applicants have not made a case under Order 41 Rule 27 for allowing any additional evidence. He further submitted if though the contention of the Applicants that the survey numbers of the properties acquired in the two acquisition may prima facie appear to be correct, nevertheless the nature and similarities of the land have not been established. He further submitted that in case the matter is remanded, the Respondents be allowed to lead evidence in rebuttal and also produce the Survey Records in respect of the land acquired to establish the existence of tenants of the portions of the acquired land. 9. After hearing the learned Counsel and on perusal of the record, we find that the following point arises for determination in the present Appeal : POINT FOR DETERMINATION 1. Whether the Reference Court was justified to partly allow the reference filed in respect of the land surveyed under no. 126 admeasuring an area of 4,600 square metres at the rate of Rs.22/- per square metre and reject the compensation for the remaining portion of the land ? 10. Whilst dealing with the said application under Order 41 Rule 27 of the Civil Procedure Code, we find that there is no dispute that part of the property which is the subject matter of the present acquisition is surveyed under no. 114/1 (part). The land which was the subject matter of the acquisition in First Appeal no. 16/2004, is also part of the property surveyed under no. 114 (part) situated at Latambarcem Village. As such, the Judgment passed by this Court can also be the -8- basis for the purpose of determining the compensation in the present case. In the facts and circumstances of the case and considering that the said Judgment was passed during the pendency of the present Appeal, we allow the said application and permit the Applicants to rely upon the said Judgment dated 29th April, 2008 in the present Appeal. 11. The Reference Court by the impugned Judgment and Award, refused the compensation for the land acquired apart from the land surveyed under no. 126 (part) on the ground that the same were tenanted lands. On perusal of the Award passed by the Land Acquisition Officer under Section 11 of the said Act, we find that the Land Acquisition Officer had rejected the claim of tenancy of one Anant Arjun Naik on the ground that no documentary evidence was produced by him to substantiate his claim of tenancy and, as such, the compensation awarded was apportioned in favour of the Applicant no.2 herein. The Reference Court has come to the conclusion that the land was tenanted only on the basis of alleged admission on the part of Aw.1 to the effect that an area of 30,039 square metres was tenanted land. The subject matter of the land acquired in the present acquisition is in respect of survey no. 114/1 (part), admeasuring an area of 11,538 square metres, survey no. 126 admeasuring an area of 4,600 square metres, survey no. 131 admeasuring an area of 8,951 square metres, survey no. 134 admeasuring an area of 4,950 square metre, survey no. 39, admeasuring an area of 12301 square metre and survey no. 97 admeasuring an area of 6250 square metres. From the records and proceedings of the Reference Court, we find that the Survey Records in respect of the land acquired have not been produced by any of the parties. On perusal of the Award passed by the Land Acquisition Officer under Section 11 of -9- the Act, we find that in respect of the property surveyed under no. 114/1 (part) admeasuring 11538 square metres, there was no claim for tenancy and, in fact, the total amount of compensation was paid to the Applicants. So also, with regard to the property surveyed under no. 139 (part) and 97 (part), admeasuring an area of 12301 and 6250 square metres respectively, no tenant has been apportioned any compensation. This is also in respect of survey no. 134 (part) admeasuring 4950 square metres and the property surveyed under no. 131 (part). The said Award as such discloses that there was no claim for tenancy by any person pursuant to the Notifications issued under the said Act. On the face of the statements in the Award, the learned Counsel appearing for the Respondents was unable to substantiate as to on what basis the contention was raised that the said lands were tenanted lands. The evidence of the Applicants as a whole, as such disclose that at one breath, the Applicants claim that they are entitled for the full compensation but merely because of the deposition of Aw.1 referred to by the Reference Court, their claim for compensation came to be rejected. The Reference Court has considered the said Award and has accepted the said admission of Aw.1 that there were tenants in the acquired land in respect of some portions. As these statements were made during the cross-examination though no issues to that effect or any documentary evidence adduced by the Respondents on that count, the Applicants did not get an opportunity to explain the alleged admission. It is also to be noted that in the Judgment of this Court dated 29th April, 2008, the land surveyed under survey no. 114 (part) which was acquired belonging to the Applicants, was not shown to be tenanted. All these aspects will have to be considered by the Reference Court afresh. Considering the rival contentions of the learned Counsel of the respective parties, we find that that the Reference Court should decide the -10- reference filed by the Applicants afresh after giving the parties an opportunity to lead further evidence. The Respondents shall also be at liberty to lead evidence that the Sale Deed plots and the land in the said Judgment are dissimilar to the acquired land being not comparable. The parties shall also be at liberty to lead evidence to establish the existence or otherwise of the tenants in the acquired land. As such, the matter will have to be remanded to the Reference Court for the said purpose. 12. Dealing with the contentions of the learned Counsel appearing for the Applicants with regard to the enhancement of compensation on the basis of the said Judgment passed by this Court dated 29th April, 2008, we find that merely producing the said Judgment would not enable this Court to fix the market value of the land acquired in the present land acquisition proceedings as there is no evidence on record to ascertain the comparability of the said land and the land acquired in the present case. For the purpose of ascertaining such comparability of the land, we find that in the interest of justice, the Applicants should be permitted to lead evidence on that count before the Reference Court. The point for determination is answered accordingly. 13. In view of the above, we pass the following : ORDER (i) Both the Appeals are partly allowed. (ii) The impugned Judgment and Award dated 10th September, -11- 2003, is quashed and set aside. (iii) The Land Acquisition Case no.82/1998 is restored to the file of the Reference Court who is directed to decide the said reference afresh after giving an opportunity to the Applicants and the Respondents to adduce further evidence in the light of what has been stated hereinabove in accordance with law. (iv)All the issues raised by the parties are left open. 14. The above Appeals stand disposed of accordingly with no orders as to costs. 15. The parties are directed to appear before the Reference Court on 16th August, 2010 at 2.30 p.m. A. S. OKA, J. F. M. REIS, J. arp/*