1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.219 OF 2005 Communidade of Quitol, Quitol Quepem-Goa, Through its Special Attorney Shri Subhash Dessai. …. Appellant V/s 1. Forest Department, Government of Goa, Through the Chief Conservator of Forests. 2. Vithoba Xivram Naique Dessai, R/o. Dabem, Morpirla, Quepem. 3. Communidade of Provincia de Bali, Bali Quepem, Through its Attorney. …. Respondents Mr. S.D. Padiyar, Advocate for the Appellant. Mr. M. Salkar, Government advocate for Respondent No.1. CORAM : F. M. REIS, J. DATE : 1st APRIL, 2011 JUDGMENT : The above appeal challenges the judgment and award dated 29/04/2005, passed by the learned Additional District Judge, South Goa at Margao in Land Acquisition Case No.9/1994. 2. Pursuant to a notification issued under Section 4 of the Land 2 Acquisition Act, 1894, herein after referred to as “the said Act”, dated 14/06/1984 and published in the Official Gazette on 12/07/1984, land was acquired for construction of the road in Village Panchayat of Fatorpa in Quepem Taluka. An award passed by the Land Acquisition Officer under Section 11 of the said Act dated 23/06/1987. As there was a dispute with regard to the receipt of compensation awarded in respect of a portion of the property admeasuring an area of 580 square metres comprising of a plot bearing Survey No.19(part) of village Morlpirla, the dispute was referred for adjudication before the Reference Court under Section 30 of the said Act. By judgment and award dated 29/04/2005, the Reference Court directed that the compensation awarded be returned to the Land Acquisition Officer as the reference was answered in the negative. 3. Shri S.D. Padiyar, the learned Counsel appearing for the appellant has assailed the impugned judgment and pointed out that according to the appellant the subject matter of the land acquired belongs to the appellant and the Government cannot be a party to any such reference proceedings. The learned Counsel further took me through the impugned judgment and pointed out that the Reference Court did not at all appreciate the evidence on record in 3 a proper perspective and erroneously came to the conclusion that the appellant had not established their title over the acquired land. The learned Counsel has further submitted that there is a civil suit pending between the appellant and the State Government being Special Civil Suit No.11/1997 filed by the appellant in respect of the land which is subject matter of the present acquisition. It is further his case that though the subject matter of the said suit is in respect of the property surveyed under no.64/1 of Morpirla village, nevertheless, it is the case of the appellant that the said survey number is part and parcel of the property which is known as “Citon” which is the same as claimed by the appellant in the present proceedings. It is further his contention that the subject matter of the land acquired in the present case along with the property surveyed under number 64/1 forms part and parcel of the same property. The learned Counsel further submitted that the respondent no.1/Government has filed counter claim in the said suit and by judgment and decree passed by the learned Trial Judge, the suit filed by the appellant as well as counter claim filed by the respondent no.1 came to be dismissed. He further pointed out that there is an appeal preferred by the appellant which is pending before the learned District Judge, though according to him, the respondent no.1 has not preferred any appeal against the order 4 rejecting the counter claim. The learned Counsel further submitted that considering that the dispute on title is being adjudicated in the said proceedings, the question of the Reference Court deciding the reference in the negative and directing that the amount of compensation awarded be returned to the Land Acquisition Officer would not arise. Shri Padiyar, as such, pointed out after going through the impugned judgment that the appeal deserves to be allowed and the impugned judgment and award be quashed and set aside. 4. On the other hand, Shri M. Salkar, the learned Government advocate appearing for respondent no.1 has disputed the contentions advanced by the learned Counsel appearing for the appellant. According to him, the appellant has failed to establish that they had any title or possession to the land which is the subject matter of the present acquisition. He took me through the evidence on record and pointed out that the appellant has failed to establish the title to the land or any ownership right therein, but however, the learned Government advocate did not dispute the fact that an appeal has been preferred by the appellant and the same is pending before the learned District Judge, which challenges the judgment passed in Special Civil Suit No.11/1997. The learned Counsel has 5 taken me through the evidence on record as well as the impugned judgment and pointed out that there is no merit in the above appeal and, as such, the same deserves to be rejected. 5. Having heard the learned Counsel and on perusal of the records, there is no dispute that a Special Civil Suit No.11/1997 wherein the appellant and the respondent no.1 are parties is pending adjudication before the Appellate Court. The learned Reference Court while passing the impugned judgment has held that none of the parties herein have established their claim to the acquired portion of the land. The learned Counsel appearing for the respondent no.1 did not dispute the fact that the claim of the appellant in the said suit is on the basis of the same title which is otherwise disputed by the respondent. Though the suit filed by the appellant has been dismissed, there is no dispute that an appeal has been preferred before the learned District Judge and the same is pending for consideration. The Reference Court while passing the impugned judgment has come to the conclusion that the land acquired belongs to the private parties, but however, held that on the basis of evidence on record it was not possible to ascertain as to who is the owner of the land acquired. Considering that the dispute between the appellant and respondent no.1 is stated to be pending 6 before the learned District Judge, in an appeal preferred by the appellant it would be appropriate that the Reference Court should proceed to decide the reference proceedings, after the appeal preferred by the appellant stands disposed of. The appeal which is pending before the learned District Judge is stated to be First Appeal No.177/2004. In the background of the fact that the Reference Court has come to the conclusion that the parties herein have failed to establish their title or ownership to the acquired portion of the land and the amount of compensation is ordered to be returned to the Land Acquisition Officer, it would be appropriate and in the interest of justice that the reference proceedings be decided after the said First Appeal is disposed of by the learned District Judge. No doubt, the Reference Court would have to independently decide the reference proceedings afresh and consider it any such judgment would be relevant for the purpose to decide the question of apportionment of compensation in the present case. 6. In the interest of justice, as such, I find that it would be appropriate that the impugned judgment and award passed by the learned Reference Court be quashed and set aside and the matter be remanded to the Reference Court to decide the reference proceedings afresh after hearing both the parties without being 7 influenced by any observations/findings herein in the light of the observation made herein above. 7. 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 29/04/2005 is quashed and set aside. (iii) Land Acquisition Case No.9/1994 is restored to the file of the Reference Court. (iv) The Reference Court is directed to decide the reference afresh after hearing both the parties in accordance with law. (v) The appeal stands disposed of accordingly with no order as to costs. (vi) Parties are directed to appear before the leaned Reference Court on 27/06/2011 at 10.00 a.m. F.M. REIS, J. NH/-