1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.187 OF 2005 Communidade of Cortalim Represented by its Attorney Shri Peter Carvalho, Cortalim, Goa. …. Appellant V/s 1. Shri Augustino Pereira, House No.125(A), Nuvem, Opp. Carmel College, Salcete, Goa. 2. Shankar P. Naik, House No.148, Novatta, Cortalim, Goa. 3. Santana Filip J. Vaz, 4. Caetano J. Vaz, 5. Mario J. Vaz, 6. Jose Custodio Camilo Vaz, All residents of House No.143, Novatta, Cortalim, Mormugao – Goa. …. Respondents Mr. S. S. Kantak with Mr. P. Talaulikar, Advocates for the Appellant. Mr. Guru Shirodkar, Advocate for Respondents Nos.1 & 2. CORAM : F.M. REIS, J. DATE : 25th FEBRUARY, 2011 JUDGMENT : The above appeal challenges the judgment and award dated 2 5/05/2005 passed by the learned Additional District Judge, South Goa, Margao in Land Acquisition Case No.239/95/III. 2. By a notification issued under Section 4 of the Land Acquisition Act, 1894, herein after referred to as “the said Act”, dated 25/06/1992, land was acquired by the Government for the construction of a new broad gauge line of Konkan Railway in Cortalim Village of Mormugao Taluka. By an award passed under Section 11 of the said Act dated 24/01/1995, a sum of Rs.14,379.77 was awarded for an area of 5125 square metres of the pond near Survey No.100/28, which was acquired. In view of the dispute between the parties, a reference was made under Section 30 of the said Act to the learned District Judge. By the impugned judgment and award dated 5/05/2005, the Reference Court has come to the conclusion that the party no.1/appellants herein be awarded compensation for 1423/5125 square metres and 50% of compensation of 3702/5125 square metres and that the party no.2, the respondent no.1, herein be awarded 50% of the compensation for 1917/5125 square metres and the party no.3, the respondent no.2, herein be awarded 50% of the compensation for 1785/5125 square metres. Being aggrieved by the said judgment and award, the appellants have preferred the present appeal. 3 3. Shri S.S. Kantak, the learned Counsel appearing for the appellant has argued on behalf of the appellant and Shri Guru Shirodkar, the learned Counsel has appeared on behalf of respondents nos.1 & 2. 4. The learned Counsel for the appellant has assailed the impugned judgment and submitted that there was no question of any compensation being awarded in favour of the respondents as according to him the respondents had no right at all or any interest in the acquired portion of the land. The learned Counsel further submitted that the Reference Court erroneously appreciated the evidence on record to come to the conclusion that the substantial portion of the compensation is to be paid in favour of the respondents nos.1 & 2. The learned Counsel further submitted that the entire compensation awarded by the Land Acquisition Officer ought to have been paid to the appellants. The learned Counsel took me through the impugned judgment and pointed out that the learned Judge has erroneously appreciated the evidence and has, as such, come to a wrong conclusion that part of the compensation is to be awarded in favour of the said respondents. 4 5. On the other hand, Shri Guru Shirodkar, the learned Counsel appearing for respondents nos.1 & 2 has supported the impugned judgment. The learned Counsel pointed out that the said respondents were possessory cultivators and tenants of the acquired land and, as such, they were entitled for the compensation as awarded by the Land Acquisition Officer. The learned Counsel pointed out that there is no dispute that the said respondents were in possession of the acquired land and, as such, the appellants have failed to explain in what capacity such possession was with the said respondents and, as such, the findings of the Reference Court cannot be faulted. The learned Counsel further submitted that in any event, considering the claim of the said respondents was on the basis of the tenancy, the Reference Court ought to have made a reference to the competent forum to decide the said aspect. 6. After hearing the learned Counsel for sometime and on perusal of the records, it appears that the contention of the respondents nos.1 & 2 in their written statement is that they are in possession of the acquired land and that they are cultivating the said land as the same was a paddy field. Such claim was put up on the basis of some documents which are claimed to have been issued by the appellant herein. The written statement of the 5 respondent no.1 states that the land has been acquired from lot no.152 belonging to the appellant and it was in the possession of late Vincente Pereira, who is the father of respondent no.1. It was further contended in their written statement that in respect of an area of 1917 square metres which was in their possession, the compensation is to be paid to him. In the written statement of the respondent no.2, he has stated that one of the ponds admeasuring an area of 5500 square metres was acquired pursuant to the said notification and that the same is in fact the paddy field and has been cultivated by three persons namely the heirs of late Parvati Shankar Naik, who is respondent no.2, herein and also by the heirs of late Vincente Pereira, who is respondent no.1, herein and also by the heirs of late Joaquim Vaz. It is further their case that they are cultivating lot no.153 second last which forms part of the acquired portion admeasuring 1785 square metres and, as such, they are entitled for the compensation. From the pleadings of the said respondents, it appears that their claim to the land acquired is on the basis of their cultivating possession or as tenants of the acquired land. 7. Shri Guru Shirodkar, the learned Counsel appearing for the respondents nos. 1 & 2 has pointed out that in view of the fact that 6 the claim of the respondents nos.1 & 2 was on the ground that they were the tenants of the acquired land and considering that the said issue is sought to be disputed by the appellant, such dispute should not be adjudicated by the Reference Court as the matter ought to have been referred to the learned Mamlatdar who has exclusive jurisdiction to decide the said issue. The Division Bench of this Court in the judgment in First Appeal No.310 of 2006 in the case of Communidade of Mapusa V/s. Special Land Acquisition Officer & Anr. has held that : “4. After having perused the impugned judgments, we find that issue of tenancy arose at least in respect of some of the lands subject matter of the land acquisition references. The issue of tenancy could have been decided only by the Mamlatdar in view of the provisions of Section 7 read with Section 58 of the said Act of 1964. Moreover, the jurisdiction of the other Courts to decide the issue of tenancy is specifically ousted in view of sub-section (1) of Section 58 of the said Act of 964. In the case of Madhumati Atchut Parab (supra), the Apex Court held that the Mamlatdar exercising powers under Section 7 of the said Act, 1964 has jurisdiction to grant a negative declaration that a particular person is not a tenant.......” Considering the said judgment of this Court, there can be no doubt that the issue with regard to tenancy could not be decided by the Reference Court and such dispute ought to have been referred to the learned Mamlatdar for appropriate adjudication. 7 8. Considering the pleadings of the parties, I find that the Reference Court was not justified to decide the said reference without getting the issue decided by the competent authority. Such issue will have to be determined by the learned Mamlatdar after the same is referred to such authority. 9. As far as the dispute raised by respondents nos. 3 to 6 is concerned, the same has been finally decided by the Reference Court by the impugned judgment and, the said respondents have not challenged the impugned judgment passed by the Reference Court. The impugned judgment as far as the claim of respondents nos.3 to 6 is concerned, stands finally adjudicated by the judgment passed by the Reference Court. 10. In such circumstances, I find that the Reference Court was precluded from proceeding to decide the dispute without referring the issue with regard to the claim of respondents nos.1 & 2 of tenancy to the learned Mamalatdar. The Reference Court is directed to frame an issue as to whether the respondents nos.1 & 2 prove that they are in cultivating possession and/or tenants of the acquired portion of the land. Both the learned Counsel do not dispute that such issue is to be decided before the learned 8 Mamlatdar. 11. In view of the above, I pass the following order: O R D E R (i) The appeal is partly allowed. (ii) The impugned judgment and award dated 5/05/2005 is quashed and set aside. (iii) Land Acquisition Case No.239/95/III is restored to the file of the Reference Court, as far as the dispute between the appellant and respondents nos.1 & 2 is concerned. (iv) The Reference Court shall frame the said issue referred to herein above at para 8 and refer such issue to the concerned Mamlatdar for appropriate adjudication, in accordance with law. (v) Until the said issue is decided, the above reference proceedings shall stand stayed and the same shall be decided afresh after receipt of the findings by the learned Mamlatdar. (vi) The appeal stands disposed of accordingly with no order s to costs. (vii) The parties are directed to appear before the Reference Court on 28/03/2011 at 10.00 a.m. and abide by its further directions. F.M. REIS, J. NH/-