:1: IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 261 OF 2007 WITH CROSS OBJECTION NO. 2 OF 2008 1. Managing Director, Goa Housing Board, Alto Betim, Porvorim, Bardez Goa. 2. Deputy Collector ( L.A.) Land Acquisition Officer, Panaji Goa. ... Appellants V e r s u s Communidade of Curca, Through their Attorney having office at Curca and represented by Mr. Antonio Manuel Elizabeth Da Costa, At. Rego, Bagh, Alto St. Cruz, Goa. To be served through Administrator of Communidade of North Zone, above Singbal Book house, Church Square, Panjim Goa. ... Respondents Mr. H. D. Naik, Advocate for the Appellants. Mr. A. R. Kantak, Advocate for the Respondents. CORAM : D. G. KARNIK, & F.M. REIS, JJ. JUDGMENT RESERVED ON : 25 th OCTOBER, 2010. JUDGMENT PRONOUNCED ON : 29 th OCTOBER, 2010. JUDGMENT ( Per F. M. Reis, J ) The above Appeal challenges the judgment and award passed :2: in Land Acquisition Case No. 60 of 2003 dated 23rd April, 2007. By a notification dated 12th October, 2000 the Appellant sought to acquire the land surveyed under survey No. 24/1 of Curca Village admeasuring an area of 71,440 square metres. By an award dated 18th February, 2003 the Land Acquisition Officer offered compensation at the rate of Rs.37/- per square metre. Being dissatisfied with the said amount, the Respondent sought a reference under Section 18 of the Land Acquisition Act, 1894 ( hereinafter referred to as the said Act ) for enhancement of compensation and claimed an amount of Rs.400/- per square metre. By judgment and award dated 23rd April, 2007 the Reference Court awarded the compensation at the rate of Rs.190.50 per square metre. 2. Being aggrieved by the said judgment, the Appellants have preferred the present appeal. The Respondent after being duly served has filed the cross objections seeking enhancement of the compensation determined in the said judgment. 3. The learned Counsel Shri H. D. Naik appearing for the Appellant has assailed the impugned judgment and submitted that the Reference Court has totally misdirected itself in fixing the market value of the acquired land. The learned Counsel further submitted that the land acquired was not suitable for construction purposes. The learned Counsel further submitted that the sale deeds produced by the Respondents are not :3: comparable with the land acquired as they have different features and are meant for construction purposes which is not the case with the land acquired. The learned Counsel further submitted that the Reference Court has fixed the compensation on the basis that the land acquired had construction potentialities but according to him the land acquired was tenanted and had no such potentialities. The learned Counsel further submitted that though the Respondents dispute the existence of the tenancy in the acquired land, Laximan Gawas and other have claimed the tenancy right in respect of the acquired land and had filed an application for enhancement of compensation which came to be rejected. The learned Counsel has also produced the declaration of tenancy by the Mamlatdar of Tiswadi to that effect. The learned Counsel further submitted that once such land is tenanted and the same stands vested on such tenant the restrictions under Goa Land Use ( Regulation ) Act, 1991 would come to play and as such land acquired could not be used for any construction purpose. The learned Counsel further submitted that the question as to whether the person is a tenant or not has to be adjudicated before the competent forum and the Reference Court was not justified to decide on such aspect. The learned Counsel further submitted that unless and until the order of the Mamlatdar stands the question of the Reference Court fixing the compensation on the basis that the land acquired had potentialities of being used for non-agricultural purpose would not arise at all. He as such submitted that the impugned judgment and award deserves :4: to be quashed and set aside. 4. Per contra, Shri A. R. Kantak, the learned Counsel appearing for the Respondent has supported the impugned judgment as also assailed the impugned judgment and submitted that the market value of the acquired land is much higher than the one awarded by the Reference Court. He submitted that the said Laximan Gawas and others are not the tenants of the acquired land and in fact they have admitted that they have no such claim of tenancy by filing consent terms. He further submitted that the question of valuating the land on the basis that the acquired land had no potentialities of being used for the construction purpose does not arise at all as there was no tenant in the acquired land. The learned Counsel further submitted that the Respondents have produced the sale instances which also include the award passed in respect of the land in the vicinity of the acquired land which demonstrate that the market value of the acquired land is much higher than the compensation as fixed by the Reference Court in the impugned judgment. The learned Counsel further submitted that the land has to be valued on the basis that it had potentialities of being used for non-agricultural purpose and the compensation awarded has to be enhanced at the rate of Rs.310/- per square metre for the land acquired. On being questioned as to whether the competent forum has at all adjudicated the claim of tenancy over the acquired land, the learned Counsel appearing for the Respondents submitted that the Respondent would file an appropriate application :5: before the learned Mamlatdar for negative declaration, if so desired. 5. Having heard the learned Counsel appearing for the Appellant and the Respondent and on perusal of records, the following point arise for our determination in the present appeal :- POINT FOR DETERMINATION Whether the Reference Court was justify to fix the market value of the acquired land on the basis that the same had potentialities of being used for non-agricultural purpose and fixed the compensation at the rate of Rs.190.50 per square metre ? 6. After having perused the impugned judgment, we find that the issue of tenancy arose with regard to the land which was the subject matter of the acquisition. The Reference Court has rejected the said claim of tenancy while passing the impugned judgment. But however the issue of tenancy could have been decided only by the Mamlatdar in view of the provisions of Section 7 of the Goa, Daman and Diu Agricultural Tenancy Act, 1964 ( hereinafter referred to as the said Act of 1964 ). Moreover, the jurisdiction of the other Courts to decide the issue of tenancy is specifically ousted in view of sub-section (1) of Section 58 of the said Act of 1964. In the case of Madhumati Atchut Parab V/s Rajaram V. Parab & others ( 2009) 4 SCC 183, the Apex Court held that the Mamlatdar exercising the power under Section 7 of the said of 1964 has jurisdiction to grant a negative declaration that a particular person is not a tenant. The :6: learned Counsel appearing for the Respondent states that the application will be made seeking negative declaration within a period of eight weeks from today. By the impugned judgment, the Reference Court while deciding the claim for enhancement of the compensation under Section 18 of the said Act has assessed the compensation on the basis that the acquired land was not tenanted. Depending upon the outcome of the application seeking negative declaration under Section 7 of the said Act of 1964 the Reference Court will have to decide the question of issuing notice of the reference to the alleged tenants. As such we find that as the jurisdiction of the Reference Court to decide as to whether the acquired land was tenanted or not had to be decided by the Mamlatdar, the Reference Court was not justified to decide the said aspect. In the circumstances, in view of the statements made by the learned Counsel appearing for the Respondents that the application for negative declaration will be filed, we are setting aside the impugned judgment and remitting the reference to the Reference Court. 7. Hence we pass the following order :- O R D E R (a) The impugned judgment and award dated 23rd April, 2007 is quashed and set aside and the land acquisition reference being Land Acquisition Case No. 60/2003 under Section 18 of the said Act is restored to the file of the :7: Reference Court. (b) We accept the statements made by the learned Counsel appearing for the Respondents that the application claiming the negative declaration of tenancy under Section 7 of the Goa, Daman and Diu Agricultural Tenancy Act, 1964 shall be filed within a period of eight weeks from today. (c) The pending reference before the Reference Court will remain stayed till the final disposal of the said proceedings under Section 7 of the said Act of 1964. The Reference Court shall thereafter proceed to decide the reference afresh after hearing the parties in accordance with law. (d) The appeal is partly allowed in the above terms. (e) All the contentions of the parties on merits are kept open. (f) The parties are directed to appear before the Reference Court on 20th December, 2010 at 10.00 a.m. and abide by further directions. D. G. KARNIK, J F.M. REIS, J at*