1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 262 OF 2000 Shri Damaian C. Menezes, resident of Malar, Tiswadi, Goa. Presently resident of “L-54, Housing Board Colony, Porvorim, Bardez, Goa. …. Appellant V/s The Special Land Acquisition, Officer, Kokan Railway Corporation Ltd., North Division, Panaji, with his office at 'Souza Towers', Opp. Municipal Garden, Panaji, Goa. …. Respondent Mr. G. Teles, Advocate for the Appellant. Mr. E. Afonso, Advocate for the Respondent. CORAM : N.A. BRITTO, J. DATE :20 th APRIL, 2010 ORAL JUDGMENT : Heard. 2. This appeal is filed by the original applicant, whose reference came to be rejected by judgment/award dated 20/06/2000, of the learned reference Court, Panaji. 3. The Government of Goa had acquired 2550 square meters of applicant's land from Survey No.190/3 in Malar Village by notification issued under Section 4 of the Land Acquisition Act, 1894, published on Gazette dated 24/10/1991 for the purpose of Konkan Railway project 2 and the Land Acquisition Officer had paid to the applicant compensation at the rate of Rs.14.40 per square meter. 4. As against that the applicant sought enhancement at the rate of Rs.40/- per square meter and in support of the reference examined 4 witnesses and relied upon two sale deeds which were produced at Exhibit 14 and 15. The respondents examined their engineer. The first sale deed was in respect of a plot of land admeasuring 350 square meters sold by one Simon D’Souza to AW2/Rosy Noronha, situated at a distance of about a kilometer from the applicant's paddy field. It was sold at the rate of Rs.250/- per square meter. It was of garden land and as admitted by the applicant himself, it was not paddy field like his. The second sale deed was in respect of a land sold by one Dr. Edgar Silveira in the year 1985 at the rate of Rs.100/- per square meter and this property was also a garden land. 5. Admittedly, the applicant's land was khazan land of which the applicant was a tenant of the Communidade. The learned reference Court observed that considering that the applicant was a tenant, his right was restricted under the Agricultural Tenancy Act, 1964, as a tenant could not alienate, transfer, encumber or in any manner deal with the land otherwise meant for agriculture, and, relying upon the decision of this Court in the case of State of Goa V/s. Pedro Antonio Pereira & 3 Ors. (1996 (2) GLT 346) came to the conclusion that agricultural lands had no potential for building purpose and even otherwise the evidence on record did not support the claim of the applicant for enhancement. The learned reference Court noted that admittedly, the applicant's land was acquired by virtue of a notification issued under Section 4 of the Land Acquisition Act, 1894 published on Gazette dated 24/10/1991 and with reference to it the learned reference Court noted that one sale instance was of the year 1996 which was in respect of a developed plot fit for construction of a house and, therefore, the applicant could not draw any comparison between the land of the sale deed and the acquired land. 6. Shri G. Teles, the learned Counsel on behalf of the applicant submits that there is no basis to support the submission that applicant's land being agricultural in nature could not be used for development. The learned Counsel submits that in terms of proviso to Section 18 K of the Goa, Daman & Diu Agricultural Tenancy Act, 1964, a tenant was entitled to make improvements on such land. The learned Counsel further submits that improvement in terms of Section 2 (9)(d) of the said Act means any work which adds to the value of the land and which permits the applicants to erect buildings on the land reasonably required for the convenient or profitable use of such land for agricultural purpose. Learned Counsel on behalf of the applicant has placed reliance on a 4 decision of this Court in Mr. Rameshchandra Govind Pawaskar V/s. Deputy Collector (L.A.) & Another (unreported decision dated 26/09/2008 in First Appeal No.216/2003 wherein the Court observed as follows: 22. What we find from a reading of the impugned judgment is that had this not been the basis, then, the learned Judge could have rested her conclusions only on the applicability of the Land Use Act. There was no need to scruitinise each of the documents and sale deeds or consider the rival contentions in minute details. That the learned Additional District Judge has done so is apparent from a reading of paragraphs 9 to 13 of the judgment. In para 13, the learned Judge holds that perusal of all the four sale deeds indicate that the sale instances were in respect of developed plots, which are suitable for construction. She makes comparison with the acquired land and holds that it has no construction potentiality at all. One of the reasons why she says that land cannot be compared with sale instance land is also on account of applicability of the Land Use Act. It is not only because of the Land Use Act that she holds that land under acquisition has no construction potentiality. Therefore, the Division Bench Judgment relied upon by Shri Ferreira has no application to these facts. The decision is thus distinguishable on facts. In that case, no evidence of the present nature is led. 7. On the other hand, Shri E. Afonso, the learned Counsel appearing on behalf of the respondent submits that if the applicant was entitled to carry any improvements in terms of the provisions of the Tenancy Act, those were for the purpose of agriculture and not for the purpose of carrying out any other development or construction activities in the property. Learned Counsel further submits that the judgment in case of Mr. Rameshchandra Govind Pawaskar V/s. Deputy Collector (L.A.) & Another (supra) is in appeal before the Apex Court and further submits 5 that the applicant's land, being tenanted agricultural land could have been used only for agricultural purposes and for no other purpose in the light of the provisions of the Goa Land Use (Regulation) Act, 1991 which came in force w.e.f. 2/11/1990 and in this context learned Counsel has placed reliance on two judgments of this Court. The first judgment is in the case of Smt. Janaki N. Morajkar V/s. Special Land Acquisition Officer & Anr. (judgment dated 9/02/2005 in First Appeal No.221/2003) wherein a Division Bench of this Court (to which I was a party) held as follows; That being the position, we are unable to accept the submission of Mr. Kakodkar that in order to determine the compensation payable in respect of the acquired land, factors like adjoining development, future potential of the land have to be considered by the Court while determining the compensation. In view of the bar created under Section 2 of the Act building potential of the acquired land cannot be considered for determining the compensation. The second judgment is in the case of Confraria V/s. Deputy Collector (2009 (4) Bom C.R. 817), wherein this Court observed as follows; Keeping in mind the aforesaid aspects of the matter, it is required to be considered as to whether the Land Acquisition Officer has given the just compensation to the appellant by treating the land in question as an agricultural tenanted land. So far as the State of Goa is concerned, there is an Act called “Goa Land Use Act” and as per the provisions of the said Act, an agricultural tenanted land cannot be used for any other purpose and such a land has to be used only for the agricultural purpose. The user of such a land, therefore, cannot be changed and it has to be restricted only for agricultural purpose. The land, therefore, is a restricted land, on which no development permission can be granted. Considering this aspect, the compensation 6 was awarded at the rate of Rs.30/- per square metre by the Land Acquisition Officer. 8. Applicant's land was khazan land i.e. low lying situated near creeks or riverside. In my view, the applicant's land being agricultural tenanted land could not be used for any development other than for the purpose of agriculture and the provisions of the Tenancy Act cited by learned Counsel on behalf of the applicant of the Tenancy Act are in that regard. The judgment of this Court in Smt. Janaki N. Morajkar V/s. Special Land Acquisition Officer & Anr. (supra) was taken in appeal before the Apex Court in SLP No.13195/05 and was not interfered with by order dated 19/07/2005. The judgment of Pedro Antonio Pereira, on which reliance is placed by the learned Reference Court was again followed by this Court in First Appeal No.138/2003 by judgment dated 14/10/2008 in the case of Deputy Collector and Another V/s. Rajendra V. Deshprabhu (dead) through legal heirs, and now we have yet another judgment in the case of Confraria V/s. Deputy Collector (Supra). The said judgments need to be followed. They cannot be brushed aside on the specious plea that some of the provisions of Goa Land Use Act would be ultravires of articles 14 and 300A of the Constitution of India. The Goa Land Use Act is in force. There is a presumption of constitutional validity in its favour. 9. Although the applicant had led evidence on income method stating that he was getting a yield of about 10 quintals of paddy per 7 season, the applicant gave no evidence as to how much he was spending in a year to get the same and therefore the applicant would not be entitled for any enhancement on the basis of the income method. 10. The second issue framed by the Court was regarding the area of the acquired land. According to the applicant, Survey No.190/3 admeasured 3275 square meters. There is no dispute that in terms of notification under Section 4 of the Land Acquisition Act, the area acquired was 2550 square meters thus leaving a balance area of 725 square meters. The learned reference Court referred to the evidence of AW4/Kashinath Janu, and observed that the area lying balance after acquisition is 600 square meters and this would belie the plaintiff's claim that only an area of about 50 square meters was lying balance after the acquisition. The learned reference Court therefore did not accept the applicant's contention that the applicant was entitled for compensation to additional area of 675 square meters. In fact, there is no dispute that what has been acquired is 2550 square meters out of 3275 square meters of the land of the applicant surveyed under No. 190/3 in terms of the notification. However, according to the applicant, in loco, only 50 square meters had remained unoccupied. It was not spelt out by the applicant as to how the balance area of 725 square meters has been occupied by the Respondent. According to AW4/Kashinath Janu, the unoccupied area is 600 square meters. The evidence of the applicant 8 also shows that besides the railway track a village road is also passing through the plot which has been acquired and which is towards the west end of the track but parallel to the railway track. 11. Counsel on behalf of the applicant submits that by virtue of Section 18 of the Land Acquisition Act, the reference Court was also required to examine the measurement of the land which was acquired. It may be so. However, there is no dispute that the area acquired is 2550 square meters and it is not shown by the applicant as to how the balance area whether it is 725 or 600 or 50 square meters has been occupied by the respondents. In case any area has been encroached by the respondent after acquisition, the right remedy would be to order removal of encroachment. However, the applicant would not be entitled for compensation for the encroached area. In case any further area besides 2550 square meters has been occupied by the respondents, the applicant is entitled to take appropriate action in accordance with law. 12. With the above observations, I find that there is no merit in this appeal and, consequently, the same is hereby dismissed. N.A. BRITTO, J. NH/-