1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.90 OF 2006 with CROSS – OBJECTION NO.3 OF 2007 1. The Deputy Collector (L.A.) & Land Acquisition Officer, Panaji. 2. The Chief Officer, Panaji Municipal Counsel, Panaji. …. Appellants V/s Communidade of Curca, Office of Curca, Tiswadi, Goa. …. Respondent Ms. Susan Linhares, Additional Government Advocate for the Appellants. Mr. A.R. Kantak, Advocate for the Respondent. with CROSS – OBJECTION NO.3 OF 2007 Communidade of Curca, Office of Curca, Tiswadi, Goa. …. Cross Objectioner V/s 1. The Deputy Collector (L.A.) & Land Acquisition Officer, Panaji. 2. The Chief Officer, Panaji Municipal Counsel, Panaji. …. Respondents Mr. A.R. Kantak, Advocate for the Cross-objectioner. Ms. Susan Linhares, Additional Government Advocate for the Respondents. 2 CORAM : F.M. REIS, J. DATE : 9th MARCH, 2011 JUDGMENT : The above appeal challenges the judgment and award passed in Land Acquisition Case No.71/1999 dated 23/12/2005 by the learned Additional District Judge at Panaji. 2. By a notification issued under Section 4 of the Land Acquisition Act, herein after referred to as “the said Act”, land was sought to be acquired for disposal of garbage having an area of 2240 square metres belonging to the respondents. The Land Acquisition Officer offered the compensation of Rs.8/- per square metre for the land acquired. Dissatisfied with the said amount, the respondents sought a reference under Section 18 of the said Act and claimed enhancement of compensation to the tune of Rs.300/- per square metre. By judgment and award dated 23/12/2005, the Reference Court has partly allowed the said reference and fixed the compensation at the rate of Rs.60/- per square metre for the land acquired, besides statutory benefits. 3. After being served with the notice of the above appeal, the respondents filed their cross-objections and claimed compensation 3 for the land acquired at the rate of Rs.150/- per square metre. 4. I have heard the learned Additional Government Advocate Ms. Susan Linhares appearing for the appellants and Shri A.R. Kantak, the learned Counsel appearing for the respondent. After hearing the learned Counsel for sometime, and on perusal of the impugned judgment, I find that the learned Judge whilst determining the market value of the acquired land at the rate of Rs.60/- per square metre has not addressed itself to the material put forward by the respondent claiming for enhancement of compensation. There are no adequate reasons given by the Reference Court while passing the impugned judgment as to whether the sale deeds produced by the respondent are comparable with the land acquired or not. Apart from that Shri Kantak, the learned Counsel appearing for the respondent in support of his cross-objections has also pointed out that he has also sought compensation on account of severance charges and the issue to that effect was not framed by the Reference Court, though the evidence has been adduced by the respondents. The Reference Court, as such, will have to frame an issue after hearing both the parties on the said aspect and decide as to whether such issue is to be framed. Shri Kantak, fairly conceded that there is also a reference under 4 Section 30 of the said Act which is pending adjudication before the Reference Court and the issue with regard to the tenancy put forward by one of the parties is referred to the competent authority. The issue has not yet been finally decided and, as such, the said reference under Section 30 has not been disposed of. The fact as to whether the acquired land was tenanted or not would have a material bearing for the purpose of fixing the market value of the acquired land. In cases in which the land is tenanted it is well settled that such land has no potential of being used for non agricultural purpose. Hence, the question of fixing the market value on the basis of comparable sale instances would not arise. In cases in which the land is tenanted, the sale instance of a developed plot would not be comparable with the land acquired. As such, it would be appropriate that the Reference Court should not proceed to determine the market value of the land acquired unless and until the issue of tenancy put forward by one of the parties is decided by the competent authority. The Division Bench of this Court in First Appeal No.310/2006 by judgment dated 5/07/2010 has taken a similar view to stay the reference under Section 18 of the said Act until the issue is decided by the competent forum. 5. As such, in view of the above, I find that the impugned 5 judgment and award cannot be sustained and deserves to be quashed and set aside. The matter deserves to be remanded to the Reference Court to decide the reference afresh in the light of the observations made herein above. The Reference Court shall have to proceed to stay the reference proceedings until the issue of tenancy is finally disposed of in Land Acquisition Case No.92/1994. 6. In view of the above, I pass the following order: O R D E R (i) The appeal and cross-objections are partly allowed. (ii) The impugned judgment and award dated 23/12/2005 is quashed and set aside. (iii) Land Acquisition Case No.71/1999 is restored to the file of the Reference Court. (iv) The Reference Court shall stay the proceedings until the issue of tenancy is finally decided in the reference under Section 30 of the said Act in Land Acquisition Case No.92/1994. (v) After such issue is finally decided, the Reference Court shall proceed to decide the above reference afresh after giving both the parties an opportunity to lead further evidence and of being heard, in accordance with law. (vi) The appeal and the cross-objections stand disposed of accordingly with no order as to costs. (vii) The parties are directed to appear before the 6 Reference Court on 18/04/2011 at 10.00 a.m. F.M. REIS, J. NH/-