1 HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.108 OF 2005 Communidade of Quitol, Through its Attorney, Quitol, Betul-Goa. .... Appellant V/s 1. The President, Fabrica of Betul Church, Betul, Quepem, Goa. 2. Vinodkumar S. Gonsalia, P.O. Box no.162, Barozan, Margao. 3. Francisco Caitano Simoes, Quitol, Betul-Goa. .... Respondents Mr. P. Talaulikar, Advocate for the Appellant. Mr. J.E. Coelho Pereira, Senior advocate with Mr. S. Karpe, Advocate for Respondent No.1. Mr. H.D. Naik, Advocate for Respondent No.2. CORAM : F.M. REIS, J. DATE : 1st JULY, 2011 JUDGMENT : The above appeal challenges the judgment and award dated 1/12/2004, passed by the learned Additional District Judge, South Goa at Margao in Land Acquisition Case No.75/1993. 2. Pursuant to proceedings under the Land Acquisition Act, 1894, 2 the Government acquired land for setting up an Institute of Safety and Environment Management for Petroleum Industries of India at Betul in the Village of Quitol of Quepem Taluka. An award was passed by the Land Acquisition Officer under Section 11 of the said Act on 17/06/1992. In view of the rival claim put forward by the parties herein to an area of 1,08,025 square metres from the property surveyed under no.82/1 of Quitol village, a reference was made to the learned District Judge under Section 30 of the said Act for deciding the apportionment of the compensation awarded. By judgment and award dated 1/12/2004, the learned Reference Court disposed of the said reference proceedings by directing that the party no.2/respondent no.1, herein is entitled to receive compensation in respect of an area of 21,725 square metres from the acquired portion of the land and that the remaining compensation in respect of the remaining portion of the property was directed to be paid to the party no.3/respondent no.2, herein. Being aggrieved by the said judgment and award passed by the Reference Court, the party no.1/appellant, herein preferred by the present appeal. 3. Shri P. Talaulikar, the learned Counsel appearing for the appellants has assailed the impugned judgment and pointed out that the Reference Court has not at all appreciated the evidence on record to come to the conclusion that the appellant was not entitled to any 3 compensation awarded by the Land Acquisition Officer. The learned Counsel has taken me through the pleadings of the parties and pointed out that it was the case of the respondent no.2 that beyond the area of 21,725 square metres claimed by them the remaining portion of the property belonged to the appellant. The learned Counsel has further submitted that the Reference Court has failed to consider that having accepted the claim of respondent no.1 herein, the remaining compensation in respect of the land acquired ought to have been awarded in favour of the appellant. The learned Counsel has further submitted that the appellant has produced matriz record as well as oral evidence to establish that the remaining acquired portion of the property belonged to the appellant. The learned Counsel has submitted that though it was the claim put forward by the appellant that the total area which was the subject matter of the acquisition admeasuring an area of 1,08,025 was belonging to the appellant, nevertheless, the appellant does not challenge the findings as far as the claim of the respondent no.1 is concerned, in view of the evidence on record. The learned Counsel, as such, submitted that the appeal preferred by them is restricted to the remaining portion of the property beyond an area of 21,725 square metres as claimed by respondent no.1. The learned Counsel took me through the impugned judgment and pointed out that though the learned Judge has observed that respondent no.2 has produced his documents of 4 title, namely the Sale Deed as well as an order of demarcation which was passed by the Revenue Authority prior to his purchase, nevertheless, there is no exercise carried on by the Reference Court to consider as to whether the boundaries as disclosed in the said documents correspond to the acquired portion of the land. The learned Counsel has taken me through the impugned judgment and pointed out that once the claim of the respondent no.1 is accepted, the question of awarding any compensation to the respondent no.2 would not arise. The learned Counsel has taken me through the evidence of respondent no.2 and pointed out that the respondent no.2 was unable to identify this property nor establish that the acquired portion belonged to him. The learned Counsel has further submitted that the survey records which have been duly promulgated stand in the name of appellant as well as respondent no.2, and as such, the question of drawing any presumption in favour of respondent no.2 alone would not arise. The learned Counsel further submitted that the subject matter of the award dated 18/08/2003 was in respect of small portion of land admeasuring an area of 525 square metres only and, as such, it would not affect the claim of the appellant with regard to the acquired portion of the land which admittedly was not the subject matter of the said acquisition. The learned Counsel has further pointed out that the learned Judge has totally misdirected itself in passing the impugned judgment and refusing the payment of 5 compensation to the appellant when there was overwhelming evidence on record including the evidence of the expert examined by the respondent no.1, who had clearly stated that the remaining portion of the property acquired beyond the area claimed by the respondent no.1 belonged to the Communidade/appellant herein. The learned Counsel, as such, submitted that the appeal deserves to be allowed and the compensation awarded to the respondent no.2 is to be paid to the appellant herein. 4. On the other hand, Shri Coelho Pereira, the learned Senior Counsel appearing for the respondent no.1 has supported the impugned judgment. Considering the submissions of the learned Counsel appearing for the appellant to the effect that the appellant is not challenging the findings of the Reference Court with regard to the compensation awarded to the respondent no.1, he pointed out that no interference is called for as far as the impugned judgment is concerned directing that the compensation in respect of an area of 21,725 square metres is to be paid to the respondent no.1. The learned Senior Counsel further submitted that as far as the remaining portion of the acquired portion of the land is concerned the respondent no.1 has no claim and the same is to be adjudicated between the appellant and respondent no.2. 6 5. Shri H.D. Naik, the learned Counsel appearing for respondent no.2 has supported the impugned judgment. The learned Counsel has pointed out that the respondent no.2 has not challenged the findings of the Reference Court awarding the compensation to the respondent no.1, and, as such, as far as the claim of the respondent no.1 is concerned, the respondent no.2 has no grievance in the payment of the compensation as directed by the impugned judgment. The learned Counsel further joined issue with the appellant as far as the remaining portion of the land is concerned and pointed out that the said portion of the acquired land belongs to respondent no.2. The learned Counsel has taken me through the evidence on record as well as the impugned judgment and pointed out that the respondent no.2 has produced the Sale Deed as well as the Deed of Rectification besides the document of demarcation which conclusively establishes that the remaining portion of the acquired land belongs to respondent no.2. The learned Counsel further submitted that in the proceedings for demarcation, the representative of the appellant was present, and as such, the question of now disputing the claim of respondent no.2 would not arise. The learned Counsel has further pointed out that on the basis of overwhelming evidence on record produced by the respondent no.2 the question of awarding any compensation to the appellants would not arise. The learned Counsel has taken me through the evidence of the appellant as well as the 7 material produced by them and pointed out that the appellant has failed to adduce any evidence to establish their claim of their title in respect of the remaining portion of the land is concerned, and as such, no interference is called for in the impugned judgment. 6. Having heard the learned Counsel and on perusal of record, the following points for determination arise in the present appeal: POINTS FOR DETERMINATION: (i) Whether the Reference Court was justified to award compensation in respect of an area of 21,725 square metres from the acquired land in favour of respondent no.1. (ii) Whether the Reference Court was justified to come to the conclusion that the compensation in respect of the remaining portion of the acquired land is to be paid to the respondent no.2. 7. Dealing with the first point for determination, in view of the contention of the learned Counsel appearing for the appellant, the challenge to the finding whereby the amount of compensation was awarded to the respondent no.1 does not survive. Shri Naik, learned Counsel appearing for respondent no.2 has fairly conceded that respondent no.2 has not challenged such finding before this Court and that the respondent no.2 has no grievance to such findings. As such, no 8 interference is called for in the impugned judgment as far as the grant of compensation in respect of an area of 21,725 square metres in favour of the respondent no.1 is concerned. The first point for determination is answered accordingly. 8. As far as the second point for determination is concerned, the evidence discloses that the respondent no.2 is claiming a right to the property on the basis of a Sale Deed dated 3/09/1969 and deed of rectification as well as the document of demarcation. On perusal of the boundaries as mentioned by the respondent no.2 in his affidavit in evidence it is the claim of the said respondent that the acquired portion of the land forms part and parcel of the property known as Polvorem bounded on the east with the land known as Tolopo or Pedereia of Arali. It is further stated that the said property is described in the Land Registration Office under No.4372 at page 93 of Book B-14 in the office of the Land Registration at Quepem, besides being inscribed in the Taluka Revenue Office under Matriz No.7. Admittedly, the document of land registration has not been produced by the respondent no.2. Apart from that the document of demarcation Exhibit 50 does not have any plan attached thereto to ascertain as to whether the property which was subject matter of the said demarcation includes the portion of the acquired property. The respondent no.2 has also not examined any 9 expert nor produced any evidence on record to establish that the boundaries as shown in the Sale Deed and the Land Registration Document would also include the property which was subject matter of the acquisition in the present case. Having failed to do so, the learned Reference Court is not justified to come to the conclusion that the acquired portion of the land was part and parcel of the property belonging to the respondent no.2 which he had purchased pursuant to the Sale Deed at Exhibit 48. 9. Considering the said evidence on record and having accepted the claim of the respondent no.1, the Reference Court ought to have considered as to whether on the basis of the claim of the respondent no.1, the claim put forward by the respondent no.2 can be accepted. No doubt, the appellant has not produced any cogent evidence to establish their claim, but however, considering the material produced by the parties on record, the Reference Court ought to have appreciated such evidence and ascertain as to whether the claim of the appellant deserves to be accepted, or not. 10. On the basis of the material on record, I find there was no sufficient evidence adduced by the appellant as well as respondent no.2 to establish that the area acquired beyond the said area of 21,725 square 10 metres belongs to the respondent no.2. In fact, considering that vast portion of the property is the subject matter of the present acquisition which is disputed by the appellant and respondent no.2, I find it appropriate in the interest of justice to direct the Reference Court to decide the claim of the appellant and respondent no.2 with regard to the said remaining portion of the land afresh in accordance with law. Considering that the claim of the respondent no.1 is accepted and there is no grievance raised by any of the other parties with that regard the only point for determination for the Reference Court to decide in the circumstances of the case would be as follows: Whether compensation in respect of the said remaining portion of the land admeasuring and area of 86,300 square metres from the property under survey no.82/1 situated at Quitol is to be paid to the appellant or the respondent no.2. 11. The Reference Court, as such, will have to decide the said point for determination afresh after hearing both the parties without being influenced in any manner with any of the findings given in the impugned judgment with that regard. The second point for determination is answered accordingly. 12. In view of the above, I pass the following order: 11 O R D E R (i) The appeal is partly allowed. (ii) The impugned judgment and award dated 1/12/2004 is modified and the claim of compensation by respondent no.1 to an area of 21,725 square metres from the acquired portion of the land stands confirmed. (iii) The dispute regarding the claim of the appellant and respondent no.2 with regard to the remaining portion of the area admeasruing 86,300 square metres is remanded to the Reference Court to decide the aforesaid point for determination, in the light of the observations made herein above and after hearing both the parties in accordance with law. All contentions of the parties with that regard are left open. (iv) In case the appellant and/or respondent no.2 desire to adduce any further evidence. liberty is given to them to file an appropriate application and the same shall be decided by the Reference Court on its own merits in accordance with law. (v) The compensation with regard to the said area of 21,725 square metres awarded by the Reference Court is directed to be paid to the respondent no.1 with accrued interest thereon. The remaining amount shall stand deposited with the Reference Court in fixed deposit of any nationalised Bank and be subject to the adjudication referred to herein above. (vi) The appeal stands disposed of accordingly with no order as to costs. (vii) The parties are directed to appear before the Reference Court on 22/08/2011 at 10.00 a.m. F.M. REIS.J. NH/-