-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 22 OF 2007 Ravindra Raghuvir Gawas, Indian National, agriculturist, resident of Navelilm Village Of Bicholim Taluka …... Appellant V e r s u s 1. The Additional Deputy Collector, Mapusa Sub-Division, Mapusa. 2. Goa Industrial Development Corporation Plot 13a, EDC Complex, Patto Plaza, Panaji Goa. …... Respondents Mr. M. P. Almeida, Advocate for the Appellant. Mr. S. Vahidulla, Government Advocate for Respondent No.1. Mr. M. S. Sonak with Mr. J. Supekar, Advocate for Respondent No.2. CORAM : A. S. OKA F. M. REIS, JJ. Judgment Reserved on : 24 th June, 2010. Judgment Pronounced on : 7 th July, 2010. JUDGMENT (Per F. M. Reis, J.) The Appeal challenges the Judgment and Award passed by the learned Addl. District Judge, Mapusa, in Land Acquisition Case no. 84/2002 dated 19th August, 2006, whereby the reference under Section 18 of the Land Acquisition Act, 1894, (hereinafter referred to 'the said Act 1894'), for enhancement of compensation came to be rejected. 2. The Appellant is an agricultural tenant of a property belonging to the -2- Communidade of Navelim, Bicholim Taluka. By Notification dated 11.10.1993, an area of 4,78,833 square metres, being part of survey no. 177 was sought to be acquired for the Industrial Estate/Industrial Project at Amona and Navelim revenue Village of Bicholim Taluka. After complying with the formalities under the said Act 1894, the Land Acquisition Officer by an Award under Section 11 of the Land Acquisition Act, 1894, awarded a compensation at the rate of Rs.6/- per square metre. 3. Being dissatisfied with the said Award, a reference under Section 18 of the said Act, 1894, was filed by the Appellant for enhancement of compensation at the rate of Rs.50/- per square metre. 4. By the impugned Judgment and Award dated 19th August, 2006, the learned Addl. District Judge, rejected the reference filed by the Appellant. 5. Shri Almeida, the learned Counsel appearing for the Appellant, has assailed the impugned Judgment and Award and submitted that the Reference Court has completely erred in dismissing the reference filed by the Appellant. He further submitted that the Appellant has produced an Agreement dated 13th September, 1993, at Exhibit 24, executed by M/s. Sesa Kembla Coke Company Pvt. Ltd., wherein they had expressed their intention to set up an Industrial Project for manufacturing Coke at Amona, Navelim in Bicholim Taluka and, as such, sought an acquisition of the said land for the purpose of obtaining an allotment thereof and agreed to abide by the terms and conditions which the Respondent no.2 would impose. He further submitted that after the said acquisition, the said land was -3- allotted by the Respondent no.2 to the Company. He, therefore, submitted that as per the said Agreement, the total area sought to be acquired was admeasuring 14,82,600 square metres and the provisional estimate of the cost was fixed at Rs.74,13,000/- out of which, a sum of Rs.18,533,260/- was paid by the said Company to the Respondent no.2. He further submitted that as the said land was acquired for the benefit of the Company and the Goa, Daman and Diu Land Use Act, 1991 was not applicable to acquisitions effected under the Land Acquisition Act, the question of refusing enhancement of compensation for the Appellant does not arise at all. The learned Counsel further submitted that the Reference Court totally erred in refusing to enhance the compensation and, as such, on the basis of material on record, there was sufficient evidence for the Reference Court to enhance the compensation awarded to the Appellant. He further submitted that the Appellant has also produced a comparable Sale Deed at exhibit 12, dated 20th July, 1993, wherein the property which was subject matter of the said Sale Deed was in the vicinity of the acquired land and the price was Rs.40/- per square metre, which demonstrate that the value of the acquired land was much higher than the one awarded by the Land Acquisition Officer. He, as such, submitted that the Appeal deserves to be allowed and the compensation ought to have been fixed for the land acquired at the minimum rate of Rs.50/- per square metre. 6. On the other hand, Shri Sonak, learned Counsel appearing for the Respondent no.2, has submitted that there is no infirmity committed by the Reference Court while passing the impugned Judgment as the law is well settled in view of the provisions of the Goa, Daman and Diu Land Use Act, 1991, the question of using the land for the purpose of development does not arise at all in -4- view of total embargo therein. He further submitted that the Appellant was not entitled for any enhancement of compensation as the compensation awarded by the Land Acquisition Officer was just and proper considering that the Appellant was a tenant of the Communidade. He further submitted that the Agreement produced by the Appellant in connection with the acquisition has no bearing for the purpose of arriving at the compensation inasmuch as the contention that the embargo to utilize agricultural land vested under the Agricultural Tenancy Act, cannot be availed of by the Appellant, as such, ban is lifted only after the land is acquired under the Land Acquisition Act. He further submitted that, admittedly, the Appellant has not disputed the acquisition and, as such, the said contention has no merit. He further relied upon the Judgment passed by this Court in First Appeal no. 283/2002, dated 24th June, 2010, wherein no compensation to agricultural tenant was awarded on the basis of the Sale Deeds which were for construction purposes. He, as such, submitted that there is no merit in the present Appeal and, as such, the same deserves to be rejected. 7. Having heard the learned Counsel and on perusal of the record, the following point for determination arises in the present Appeal. POINT FOR DETERMINATION : 1. Whether the Reference Court has committed an error in rejecting the reference on the ground that the land acquired was a tenanted land which had vested under the provisions of the Agricultural Tenancy Act, 1964 ? 8. From the records it is evident that there is no dispute that the -5- Appellant is a tenant of the land acquired. In the affidavit in evidence, the Appellant himself has deposed at Para 6, that his father was the agricultural tenant of the Communidade amongst others properties, the one surveyed under no. 177, which is subject matter of the present acquisition and, in view of the provisions of the Fifth Amendment to Agricultural Tenancy Act, his father Ravindra Raghuvuir Gawans, had become the deemed purchaser of the said area. The said evidence discloses that the land had vested in the Appellant under the provisions of Section 18 of the Goa Daman & Diu Agricultural Tenancy Act, 1964, (hereinafter referred to as 'the Act of 1964'). Under Section 2 of the Goa Land Use (Regulations) Act, 1991, (hereinafter referred to as 'the Act of 1961'), no land which is vested in a tenant under the provisions of the said Act of 1964, shall be used for any purpose other than agriculture. The learned Counsel appearing for the Appellant was attempting to base his submission in the exemption carved out under the provisions of Section 3 of the Act of 1991. Section 3 of the said Act of 1991 reads as 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).” 9. We find that what is provided in Section 3 is that if a land is vested in a tenant under the said Act of 1964 and is acquired under the said Act of 1894 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 Section 2 will not prevent non-agricultural user of the said land by the State or by the acquiring body after its -6- acquisition under the said Act of 1894. Section 3 only permits the State to use agricultural tenanted land for any purpose other than agriculture if the land is acquired under the said Act of 1894 for such purpose. 10. When comparable method is adopted to determine the market value of the acquired land, the test is what a willing genuine and bonafide buyer will offer as price for the acquired land as on the date of publication of a notification under Section 4 of the said Act of 1894. 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 view of Section 2 of the said Act of 1991, as no use except agricultural use will be ever permitted. Therefore, we reject the submission based on Section 3 of the said Act of 1991. As such, for the purpose of determining the market value of the acquired land, a sale instance of a developed land or a sale instance of a land having potential for non-agricultural use will not be of any relevance. 11. The contention of learned Counsel Shri Almeida, appearing for the Appellant, to rely upon the Agreement dated 13th September, 1993 at exhibit 24, and Deeds of lease at Exhibit 25 colly, cannot be accepted. In any event, the price fixed as per the said Agreement is not much in excess to the one awarded by the Land Acquisition Officer and, considering the obligations imposed on the Respondent no.2 for the purpose of carrying out the acquisition and other terms as stated in said documents, we find that no reliance can be placed upon the said documents for the purpose of determining the compensation in the present acquisition. The documents at Exhibit 25 colly which are post notification, were -7- executed for different lands after complying with the terms and conditions of the Pre-requisite agreement. The Sale Deed at Exhibit 12 produced by the Appellant has no relevance for the purpose of arriving at the market value of land under the provisions of Section 4 of the said Act of 1894. The Sale Deed is in respect of portions of land which are meant for non-agricultural purposes and cannot be a base for determining the compensation under the said Act of 1894, considering the nature of the land acquired. 12. Rw.1, in his affidavit, has stated that the value of land in the vicinity of the land acquired was between Rs.2.47 per square meter to Rs. 4.97 per square metre. He has also produced two Sale Deeds which are at exhibit 21 and 22. The Sale Deed at exhibit 21, which is dated 22nd November, 1992, is pertaining to an area of 24257 square metres sold for a price of Rs.60,000/-. The Sale Deed is pertaining to agricultural land. The Sale Deed at exhibit 22 which is dated 2nd November, 1992, is in respect of an area of 26150 square metres at Village Navelim, sold for a total consideration of Rs.1,00,000/- of agricultural land. The said Sale Deeds, in fact, demonstrate that the value of agricultural land within the proximity of the notification under Section 4 of the Act of 1894, was not more than Rs.66/- as awarded by the Land Acquisition Officer. 13. The Learned Counsel appearing for the Appellant has fairly conceded that the Sale Deed produced by the Appellant is pertaining to the lands having the potentiality of being used for non-agricultural purpose. Aw.1, in his cross examination, has admitted that the area of the Sale Deed plot was 500 square metres and that the land was purchased for building a house. Besides, the Sale -8- Deeds at exhibit 35, 36, 37 and 38 are not comparable sale instances as all the plots therein were not tenanted as admitted by Aw.1 in his cross examination. The report of the Expert has also to be discarded as the value has been ascertained on the basis of Sale Deeds having non agricultural potentiality. As such, the said Sale Deeds cannot form a basis for determining the market value of land vested in a tenant under the provisions of the said Act, 1964. The Appellant has failed to produce any Sale Deed in respect of land meant for agricultural purpose as the land vested on a tenant can be used only for agricultural purpose. For determining the compensation of such lands, Sale Deeds in respect of agricultural lands meant to be used as such would form a basis for determining the market value of land as on the date of Section 4 Notification. 14. In the present case, Appellant has failed to produce any Sale Deed which was used only for agricultural activities or purchased for agricultural purpose which would assist the Appellant to seek any enhancement of compensation if at all they were entitled under the provisions of law. Having failed to do so, there is no material on record to enhance the compensation awarded by the Land Acquisition Officer. The Respondent no.2 has, on the other hand, produced Sale Deed of agricultural lands which disclose that the market value fixed by the Land Acquisition Officer is not inadequate. The learned Counsel for Respondent no. 2 has rightly relied upon the Judgment of this Court passed in First Appeal no. 283/2002. As such, we find that the Reference Court was justified in rejecting the reference filed by the Appellant. The point for determination is answered accordingly. -9- 15. In view of the above, there is no merit in the above Appeal and, as such, the same stands dismissed with no orders as to costs. A. S. OKA, J. F. M. REIS, J. arp/*