- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 247 OF 2004 & CROSS OBJECTION NO. 14 OF 2005. The Addl. Dy. Collector and Land Acquisition Officer, Mapusa Sub Division, Mapusa Goa. ........ Appellant. Versus 1 Shri Shyam Bhanudas Naik, 2 Smt. Revati Shyam Naik, Both r/o Gavali-Moula, Goa Velha. ........ Respondents. Ms. S. Linhares, Additional Government Advocate for the Appellant. Mr. Sudin Usgaonkar, Advocate for the Respondents. Coram:-F. M. REIS, J. Date:- 18th November, 2010. ORAL JUDGMENT The above appeal challenges Judgment and Award dated 30.6.2004 passed by the learned Additional District Judge, Panaji, in Land Acquisition case no. 51/2002. 2. By notification dated 9.1.1995 issued under section 4 of - 2 - the Land Acquisition Act, 1894 ( hereinafter referred to as “the said Act') land belonging to the respondents was acquired for the construction of 33/1 K.V. Sub station at Aldona, Nachinola Bardez Goa. The total land acquired admeasured 10,000/-square metres and compensation paid to the respondents was Rs.1,18,400/-. 3. Being dissatisfied with the said amount the respondents preferred a reference under section 18 of the said Act for enhancement of compensation and claimed an amount of Rs.300/- per square metre for the land acquired and also an amount of Rs.1,50,000/- towards severance charges. 4. By the Judgment and award dated 30.6.2004, the Reference Court fixed the market value of the land acquired at the rate of Rs.30/- per square metre and rejected the said claim of severance charges. 5. Being aggrieved by the said Judgment and award, the Appellant has preferred the present appeal. After being served the respondents filed cross objection and claimed higher amount of compensation for the land acquired and claimed a sum of Rs.70/- per square metre for the land acquired besides said amount of - 3 - Rs.1,50,000/- towards severance charges. 6. The learned Additional Government Advocate Ms. S. Linhares, 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 as there was no dispute that the land acquired was a tenanted land. She further points out that the Reference Court has sought to rely upon the sale instance produced by the respondents of the year 1993 which is a developed plot which cannot be compared with the land acquired. She further submitted that the respondents was an agricultural tenant and as such in view of the provisions of the Goa Land Use (Regulation), Act, 1991 land vested in tenants could not be used for any other purpose. Learned Counsel further submitted that besides the sale instance of developed plot no sale deed with regards to agricultural land has been produced by the respondents and as such the question of fixing the market value on the basis of such sale instance would not arise. Learned Counsel as such submitted that the impugned Judgment deserves to be quashed and set aside. 7. Shri S. Usgaonkar, learned Counsel appearing for the - 4 - respondents has fairly conceded that the respondents has not produced any sale instance with regards to agricultural land. He however points out that the land acquired has potentiality of being used for construction purpose and as such the respondents were entitled for much higher compensation than the one awarded by the impugned Judgment. Learned Counsel further submitted that the land acquired would fetch a market value at the rate of Rs.70/- per square metre and as such the impugned judgment deserves to be modified to that extent. Learned Counsel further submitted that the respondents were also entitled for severance charges. Learned Counsel as such submitted that the cross objection filed by the respondents deserve to be allowed and the appeal preferred by the appellant deserves to be dismissed. 8. Having heard the learned Counsel and on perusal of the records, the following point for determination arise in the present appeal:- POINT FOR DETERMINATION Whether the Reference Court was justified to fix the market value of the land acquired at the rate of Rs.30/- per square metre? 9. In support of their claim for enhancement of - 5 - compensation, the Respondents have examined Smt. Champavati Naik as AW1. She has stated that an area of 10,000 square metres was acquired from the property surveyed under no.60(part) for the construction of a sub-station at Aldona. She has further stated that the land acquired would fetch a sum of Rs.300/- per square metre as it was located within the settlement zone. She has further stated that the land is located within a distance of 4 kms from Mapusa city and there is a higher secondary school at a distance of 1 km from the acquired land. She has further stated that the infrastructure facilities are available in the vicinity of the acquired land. In support of her claim she has produced a sale instance wherein the price was Rs.150/- per square metre which is dated 25.8.1993 at Exh. AW1/A. In her cross examination she has admitted that the acquired land originally belonged to Communidade of Nachinola. She has further admitted that she was holding the land as a tenant. She has further admitted that the land acquired was hilly and having plantation of cashew and other forest trees. The next witness examined by the respondents is Shri Suryakant Naik as AW2, who has stated that he stays at a distance of 1 km from the acquired land. He has further stated that that the price prevailing in the locality was Rs.300/- per square metre. In his cross examination he has admitted that the Communidade is the owner of - 6 - the acquired land and that the respondents are cultivating the land. The next witness examined is Shri Mahadev Tuenkar, as AW3 who has stated that he is a civil engineer and he inspected the acquired land and according to him the acquired land would fetch a minimum sum of Rs.200/- per square metre. In cross examination he has stated that for the first time he visited the acquired land in May, 2004. He has further stated that he had verified the fact that the acquired land was tenanted land. He has further stated that he cannot say anything to the suggestion that the acquired land was agricultural land and that the respondents were doing cultivation in the said land. The Reference Court on the basis of sale instance at Exh. AW1/A has come to the conclusion that the compensation offered by the Land Acquisition Officer was not adequate and fixed the compensation at the rate of Rs.30/- per square metre, besides statutory benefits. 10. On perusal of the impugned Judgment, I find that the Reference Court has lost sight to the fact that the respondents were tenants of the acquired land. Once it is admitted that the respondents were tenants of the acquired land, the question of fixing the market value of the land on the basis of developed sale instance would not arise at all. The Division Bench of this Court in a judgment passed in - 7 - First Appeal no. 12/2007 dated 10.6.2010 has held at paras 9, 10, 11 and 12 thus:- 9. We have given careful consideration to the submissions advanced. It is not in dispute that the appellant being the tenant is a deemed purchaser of the acquired land which is an agricultural land. The land vests in the appellant under the provisions of the Section 18 A of the Goa, Daman and Diu Agricultural Tenancy Act, 1964 (hereinafter referred to as “the said Act of 1964”). The section 2 of the said Act of 1991 provides that no land which is vested in a tenant under the provision of the said Act of 1964 shall be used or allowed to be used for any purpose other than agriculture. 10. The submission of the Learned Counsel appearing for the Appellant is based on Section 3 of the said Act of 1991 . Section 3 of the said Act of 1991 reads thus: “3. Exemption- The provision of this Act shall not apply to acquisition of any land vested in a tenant under the Goa, Daman and Diu Agricultural Tenancy Act, 1964 (Act 7 of 1964) by the State for a public purpose under the provisions of the Land Acquisition Act, 1894 (Central Act 1 of 1894). - 8 - 11. We find that what is provided in the Section 3 is that if a land vested in a tenant under the said Act of 1964 is acquired under the said Act by the State for a public purpose, the embargo of Section 2 will not come in the way of the State using the acquired land for any purpose other than agriculture. The implication of section 3 is that the prohibition imposed by the section 2 will not prevent non-agricultural user of the said land by the state or by the acquiring body after its acquisition under the said Act. As pointed out by the Learned Counsel appearing for the second respondent, in F.A no.223 of 2003, the same submission was canvassed before this Court. This Court for reasons recorded rejected the said submission. This Court observed that Section 3 only permits the State to use an agricultural tenanted land for any purpose other than agriculture if the land is acquired under the said Act for any such purpose. This Court relied upon Section 2 of the said Act of 1991 and rejected the submission based on Section 3. 12. When comparison method is adopted to determine the market value of the acquired - 9 - land, the test is what a willing genuine and bona fide buyer will offer as price for the acquired land on the date of publication of a notification under section 4 of the said Act. In view of section 2 of the said Act of 1991, a genuine buyer will offer a price which is payable only in respect of an agricultural land. He will not offer the price on the basis of the potential for non-agricultural use in as much as in view of section 2 of the said Act of 1991, no use except agricultural use will be ever permitted. Therefore, we reject the submission based on Section 3 of the said Act of 1991.Therefore, for the purposes of the determination of the market value of the acquired land, a sale instance of a developed land or a sale distance of a land having potential for non-agricultural use will not be relevant. 11. In view of the said Division Bench Judgment, I find that placing of reliance upon the sale instance of developed plot for the purpose of fixing the market value which is vested in a tenant would not arise at all. Shri Sudin Usgaonkar learned Counsel has fairly conceded that the respondents have failed to produce any sale deed with regards to agricultural land nor the respondents have produced - 10 - any such comparable sale instance. As such the Reference Court was not justified to fix the market value of the land acquired on the basis of the sale instance which is at Exh. AW1/A which was developed land. The land which was vested on a tenant cannot be used for any other purpose other than agriculture, consequently the question of fixing the market value of the land on the basis that the land potentiality of being used for construction purpose would not arise. There was no material on record produced by the respondents to justify any enhancement of compensation as offered by the Land Acquisition Officer. 12. With regards to the claim for severance charges, I find that there is no material on record produced by the respondents so as to justify any such claim. There is no evidence adduced to substantiate any such claim. In fact learned counsel appearing for the respondents has not pointed out any such evidence on record to justify any claim towards severance charges. 13. As such, I find that the Reference Court has totally misdirected itself in enhancing the compensation payable to the respondents for the land acquired. The point for determination is - 11 - answered according. 14. In view of above, I pass the following:- O R D E R i. The Appeal is allowed. ii. Impugned Judgment and award dated 30.6.2004 is quashed and set aside. iii. Cross objection filed by the respondents stands rejected. iv. Appeal and cross objection stand disposed of accordingly with no order as to costs. iv Registry is directed to disburse the amount deposited to the appellants with accrued interest thereon within three months from today. F. M. REIS, J. vn*