:1: IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 25 OF 2007 WITH FIRST APPEAL NO. 262 OF 2007 WITH CROSS OBJECTION NO. 3 OF 2008 FIRST APPEAL NO. 25 OF 2007 Gopal Ondu Gauns Palem Siridao Tiswadi Goa. ... Appellant V e r s u s 1. Deputy Collector (L.A.) & Land Acquisition Officer Panaji Goa. 2. Managing Director, Goa Housing Board, Alto-Betim, Porvorim, Bardez Goa. ... Respondents Mr. S. D. Lotlikar, Senior Advocate with Mr. H. Kankonkar, Advocate for the Appellant. Mr. G. Shirodkar, Government Advocate for the Respondent No.1. Mr. H. D. Naik, Advocate for Respondent No.2. WITH FIRST APPEAL NO. 262 OF 2007 WITH CROSS OBJECTION NO. 3 OF 2008 1. Managing Director, Goa Housing Board, Alto, Betim, Porvorim, Bardez Goa. :2: 2. Deputy Collector (L.A.) Land Acquisition Officer, Panaji Goa. ... Appellants V e r s u s 1. 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, Panaji 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 : 21ST OCTOBER, 2010. JUDGMENT PRONOUNCED ON : 29TH OCTOBER, 2010. JUDGMENT ( Per F. M. Reis, J ) Both the above appeals are taken up together as they are in respect of the same award passed by the Land Acquisition Officer as both pertain to a reference under Section 18 of the Land Acquisition Act, 1894 ( hereinafter referred to as the said Act ) claiming enhancement of compensation from the amount offered by the Land Acquisition Officer by award dated 18th February, 2003. The appellants in First Appeal No. 262/2007 are the acquiring body. The respondent is the owner of the land acquired. The :3: appellant in First Appeal No.25/2007 is claiming to be the tenant of the acquired land. Facts in First Appeal No. 262/2007 2. The above appeal challenges the judgment and award passed by the Reference Court dated 23rd April, 2007 in Land Acquisition Case No. 62/2003. The land belonging to the respondent was sought to be acquired pursuant to a notification under Section 4 of the said Act which was published in the Official Gazette dated 2nd June, 2000. The land which was acquired admeasuring an area of 65,850 square metres from the property surveyed under No.38/1 of Curca village. By an award passed by the Land Acquisition Officer under Section 11 of the said Act dated 18th February, 2003, a compensation at the rate of Rs.37/- per square metre was offered by the Land Acquisition Officer. Being dissatisfied with the said amount, the respondent no.1 sought a reference under Section 18 of the said Act for enhancement of compensation and claimed a sum of Rs.400/- per square metre for the land acquired. By judgment dated 23rd April, 2007, the Reference Court fixed the market value of the acquired land at the rate of Rs.190.50 per square metre. Being aggrieved by the said judgment, the appellant who are acquiring body have preferred the present appeal. The respondent after being duly served has filed the cross objections and claimed the market value of the acquired land at the rate of Rs.310/- per square metre. Facts in First Appeal No. 25 of 2007 3. The subject matter of the land acquired in the above appeal is the same as in the other appeal. But however the appellant herein claims to be :4: a tenant of land acquired. By Judgment dated 9th November, 2006 the Reference Court in Land Acquisition Case No. 61/2003 dismissed the said reference. Submissions and their considerations. 4. Shri H. D. Naik, learned Counsel appearing for the acquiring body has assailed the impugned judgment and submitted that the Reference Court has totally misdirected itself in fixing the market value of the land acquired at the rate of Rs.190.50. He further submitted that the sale instances produced by the respondent are not comparable with the land acquired. The learned Counsel further submitted that the land acquired was tenanted land and as such the question of granting any enhancement of compensation on the basis that the land had potentiality of being used for non-agricultural purpose would not arise at all. The learned Counsel further submitted that under the provisions of Goa Land Use ( Regulation ) Act, 1991, the land which was vested in the tenant cannot be used for construction purpose. The learned Counsel as such submitted that the impugned judgment passed by the Reference Court cannot be sustained. The learned Counsel further submitted that the dispute with regard to the tenancy is under adjudication in the reference under the provisions of Section 30 of the said Act and as such unless and until the issue of tenancy is finally decided in the said proceedings, the Reference Court was not justified to proceed with the reference filed by the respondent under Section 18 of the said Act. He as such submitted that the impugned judgment passed by the Reference Court deserves to be quashed and set aside. :5: 5. Shri S. D. Lotlikar, learned Senior Counsel appearing in First Appeal No.262/2007 has submitted that the appellant therein is a tenant of the acquired land and that there is evidence on record to substantiate the agricultural value of the acquired land. He further submitted that the Reference Court was not justified in discarding the sale instances produced by the appellant which are comparable to the land acquired. He however did not dispute that the tenancy of the appellant has been disputed by the owner/Communidade and adjudication to that effect is pending before the competent authority. 6. Shri A. R. Kantak, the learned Counsel appearing for the Communidade/Respondent has submitted that the Reference Court while deducting the development charges to fix the market value of the acquired land has erroneously fixed the market value at the rate of Rs.190.50 per square metre whereas the evidence produced by the Respondent establishing that the market value of the acquired land should have been Rs.310/- per square metre. The learned Counsel further submitted that the question of contending that the land acquired is tenanted does not arise at all as there is no tenant in respect of the acquired land. He further submitted that the appellant in First Appeal No. 25/2007 is not a tenant of the acquired land. He further pointed out that the claim of tenancy filed by the appellant in First Appeal No. 25/2007 have been disputed by the respondent and as such there is no question of fixing the market value of the land on the assumption that the Goa Land Use ( Regulation) Act, 1991 is applicable. He as such submitted that on the basis of the comparable sale instance produced by the respondent the market value :6: of the acquired land be fixed to Rs.310/- per square metre. 7. Having heard the learned Counsel appearing for the appellant and respondent and on perusal of records, the following point arise for our determination in the above appeals as under : POINT FOR DETERMINATION Whether the Reference Court was justified to adjudicate the compensation payable to the claimants without awaiting the decision on the issue of tenancy which is said to be referred before the competent forum ? 8. There is no dispute that the Respondent/Communidade are claiming to be the owner of the property surveyed under No.38/1 of Curca Village which is the subject matter of the land acquired. There is also no dispute that the appellant in First appeal No. 25/2007 is claiming to be a tenant of the acquired land. In the award passed under Section 11 of the said Act and in view of the dispute of tenancy raised with regard to the acquired land, the matter has been referred to the learned District Judge under Section 30 of the said Act. We have been informed that in the said proceedings, issue of tenancy has been referred to the learned Mamlatdar and the same is under adjudication. This Court has held that in cases in which lands are tenanted, the question of such land having any potentiality of being used for non- agricultural purpose would not arise at all in view of the provisions of Section 2 of the Goa Land Use ( Regulation) Act 1991. The said Act bars a person to :7: use the land which is vested in the tenant to use for non-agricultural purpose. In view of the said provision if issue of tenancy is decided in favour of the appellant in First Appeal No. 25/2007 the market value of the acquired land will have to be assessed on the basis of its agricultural value. As such unless and until the issue of tenancy is decided in accordance with the Goa, Daman and Diu Agricultural Tenancy Act, 1964, it is not appropriate for the Reference Court to proceed to decide the reference under Section 18 of the said Act for enhancement of compensation. The Reference Court while passing the impugned judgment has decided the reference on the basis that the land had potentiality of being used for non-agricultural purpose which would not be correct in case the land acquired is held to be tenanted. The learned Counsel appearing for the acquiring body is justified to contend that the Reference Court erred in assessing the compensation on the basis that the land acquired had potentiality of being used for non-agricultural purpose without awaiting the final outcome about the existence or otherwise of a tenant in the acquired land. Considering the above and without going into the merits of the rival claims about the market value of the acquired land, we find it appropriate that the impugned judgments in both the appeals are to be quashed and set aside and the matters be remanded to the Reference Court to await the final decision on the issue of tenancy which is stated to be under adjudication before the Mamlatdar. The point is answered accordingly. 9. In view of the above, we pass the following order : :8: O R D E R (a) The impugned judgments and awards dated 9th November, 2006 and 23rd April, 2007 are quashed and set aside and the references filed under Section 18 of the Land Acquisition Act being Land Acquisition Case No. 63/2003 and Land Acquisition Case No. 62/2003 are restored to the file of the Reference Court. (b) The matters are remanded to the Reference Court for deciding land references afresh. The proceedings shall be stayed until the final adjudication of the issue of tenancy which is stated to be pending before the learned Mamlatdar. On receipt of the final adjudication on such issue, the Reference Court shall decide the references afresh after hearing both the parties in accordance with law. (c) The appeals are disposed of with no orders as to costs. (d) All the contentions raised by the parties on merits are left open. (e) The parties are directed to appear before the Reference Court on 20th December, 2010 and abide by all the directions. D. G. KARNIK, J F.M. REIS, J at*