1 IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 239/2004. Dy. Conservator of Forest, North Goa Division, Ponda – Goa. … Appellant. V/s Jose Avellino Fernandes, r/o Near Police Station, Behind Church, Ponda, Goa. … Respondents. Ms. Susan Linhares, Addl. Government Advocate for the Appellant. Mr. Ajit Kantak, Advocate for the respondent. CORAM : F. M. REIS , J. DATE : 22 nd October 2010 . ORAL JUDGMENT The above appeal challenges the judgment and award dated 27.4.2004, passed by the learned IInd Ad-hoc Addl. District Judge, Panaji in LAC No. 225/1996. 2. The land belonging to the respondent surveyed under No. 136/8 and 136/9 situated at village Bethora, Ponda Taluka was 2 acquired by the Government. In view of the dispute raised by the appellant with regard to the entitlement of compensation, the same was referred for adjudication to the learned District Judge under Section 30 of the Land Acquisition Act, 1894(hereinafter referred to as the said Act). By judgment and award dated 27.4.2004, the Reference Court directed that the amount awarded be paid to the respondent alongwith interest accrued thereon. Being aggrieved by the said judgment, the appellants have preferred the present appeal. 3. The learned Addl. Government Advocate appearing for the appellant has submitted that the Reference Court has totally erred in coming to the conclusion that the compensation was payable to the respondent. She further submitted that the appellant has submitted the Cadastral plan which demonstrates that the acquired land was part of the forest belonging to the appellant. She further submitted that the Reference Court has merely passed the judgment on the basis of the survey records without considering that the land acquired was part of the forest existing in the vicinity of the acquired land. She further contended that once the Reference Court rightly came to the conclusion that the respondents have failed to explain the source of title the amount of compensation awarded ought to have been paid to 3 the appellant. She further submitted that the Reference Court has failed to scrutinize the evidence on record and as such came to the erroneous conclusion that the amount is to be paid to the respondent. She further submitted that the respondents are encroachers in government land and no right accrued to the respondent to claim the compensation awarded in respect of the land acquired, as it would be a premium to illegality. 4. On the other hand, Mr. A. Kantak, learned Counsel appearing for the respondent submitted that the appellant has failed to produce evidence on record to substantiate their claim that the land acquired was part of the forest. He further submitted that the survey records itself disclose that the acquired land was in possession of the respondent. He submitted that once possession is established the compensation awarded is to be paid to the respondent. The learned Counsel took me through the evidence recorded and pointed out that the appellant has failed to establish that the acquired land was part of the forest land. He further submitted that no infirmity is committed by the Reference Court while passing the impugned judgment and as such the appeal be dismissed. 4 5. Having heard the learned Counsel and on perusal of the record, the following point arises for my determination in the present Appeal: POINT FOR DETERMINATION 1. Whether the Reference Court was justified to direct the payment of the compensation to the respondent? 6. On perusal of the records, I find that the Reference Court had not at all considered the material on record while passing the impugned judgment directing that the amount is to be paid to the respondent. The Reference Court failed to consider the Cadastral plan produced by the appellant or its relevancy or otherwise of the said plan. The Reference Court ought to have scrutinized every piece of evidence adduced by the parties and decide who was entitled for compensation of the acquired land. I find no such appreciation of evidence has been done by the Reference Court while passing the impugned judgment. It is well settled that the entry of survey record by itself does not create title. The Reference Court has not exercised its jurisdiction in assessing the evidence on record and as such, I find 5 that the impugned judgment passed by the Reference Court cannot sustain and deserves to be quashed and set aside. The matter is to be remanded back to the Reference Court to decide the reference afresh. The learned Counsel for the appellant submitted that they want to produce additional documents to substantiate their claim. In case such an application is filed, the Reference Court shall consider the same after hearing both the parties in accordance with law. The point for determination is answer accordingly. 7. In view of the above, I pass the following: O R D E R i. The Judgment and Award dated 27.4.2004 in LAC No. 225/1996 is quashed and set aside. ii. The Reference in LAC No. 225/1996 is restored to the file of the Reference Court. iii. The Reference Court is directed to decide the reference afresh after hearing the parties in accordance with law. iv. The appeal stands disposed of accordingly, with no 6 orders as to costs.. 8. The parties are directed to appear before the Reference Court on 18.12.2010 at 10.00 a.m. F. M. REIS, J. MF/-