... 1 ... IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO.39 OF 2003 1. The State of Goa, through the Spl. Land Acquisition Officer, Gogol, Margao, Goa. 2. The Executive Engineer, Works Division XIV, I.D. Gogal, Margao, Goa. ... Appellants v e r s u s Smt. Menina Fernandes, r/o Ratwaddo, Navelim, Salcete, Goa. ... Respondent Mr. S. R. Rivonkar, Government Advocate for the Appellants. Mrs. A. Agni, Advocate for the respondent. ... 2 ... CORAM: A. P. LAVANDE, J. JUDGMENT RESERVED: 14.11.2008. JUDGMENT PRONOUNCED: 28.11.2008. JUDGMENT: By this appeal, the appellant takes exception to award dated 30.08.2002 passed by the Additional District Judge, South Goa, Margao in Land Acquisition Case No.88/1996 partly allowing the reference under section 18 of the Land Acquisition Act ('The Act' for short). 2. Vide Notification issued under Section 4 of the Land Acquisition Act published in the Official Gazette dated 27.07.1992, land admeasuring 1350 sq.mtrs. of the respondent was acquired for construction of water course of S.I.P. in Navelim ... 3 ... village of Salcete Taluka. The Land Acquisition Officer awarded compensation at the rate of Rs.4.50 per sq.mtr. Being dissatisfied, the applicant sought reference and claimed Rs.600/- per sq.mtr. The Reference Court awarded compensation at the rate of 125/- per sq.mtr. with statutory benefits under the Act. 3. In Land Acquisition Case No.88/1996, the respondent examined Vrinda Shirodkar, power of attorney holder of the respondent as Aw.1 and produced the power of attorney at Exh.Aw.1/A, Certificate of the Communidade of Margao at Exh.Aw.1/B, Form I&XIV at Exh.Aw.1/C, survey plan at Aw.1/D, award in Land Acquisition Case No.80/1988 at Aw.1/E, Aw.1/ Filomena Fernadnes and Aw.3/Constancio Menezes, Agricultural Valuer who produced his report at Exh.Aw.3/A. The appellants examined one witness, ... 4 ... Satish Kudchadkar as Rw.1. 4. The Reference Court placed reliance upon the award at Exh.Aw.1/E in Land Acquisition Case No.88/1988 which was in respect of a paddy field of one Sadanand Borkar which was acquired vide Notification issued under Section 4 of the Act published in the Official Gazette dated 12.09.1985. By the said Notification, the land, that is, the paddy field of Sadanand Borkar was acquired. The Reference Court by Judgment and award dated 29.1.1992 had enhanced the compensation to Rs.75/- per sq.mtr. in respect of the said land. The Reference Court held that the said award was in respect of comparable land since the acquired land was also a paddy field and thereafter by increasing the price by 10% every year arrived at the figure of Rs.128/- per sq.mtr. ... 5 ... 5. Mr. Rivonkar, learned Government Advocate submitted that the evidence on record clearly establishes that the acquired land was tenanted agricultural land and as such on the date of Section 4 Notification had no building potential. In support of this submission, Mr. Rivonkar placed reliance upon Division Bench judgment of this Court dated 09.02.2005 in First Appeal No.221 of 2003 in Smt. Janaki N. Morajkar v. Spl. Land Acquisition Officer and anr. According to Mr. Rivonkar in view of the ratio laid down in Janaki Morajkar's case (supra) by Division Bench of this Court that tenanded agricultural land cannot be valued on the basis of building potential, in view of Section 2 of the Goa Land Use (Regulation) Act, 1991 which had come into force w.e.f. 02.11.1990, the acquired land could not have been valued on the basis of building potential and therefore, the impugned award ... 6 ... is liable to be set aside. According to Mr. Rivonkar, in Land Acquisition Case No.80/1988 the Reference Court enhanced the compensation in respect of the paddy field belonging to Sadanand Borkar on the basis of building potential and as such, the said award could not have been relied upon by the Reference Court for fixing the market rate of the acquired land in the present case. In any event, Mr. Rivonkar submitted that the Reference Court could not have granted 10% rise every year, more particularly having regard to the fact that the land was agricultural and was tenanted. According to Mr. Rivonkar, the Reference Court ought to have rejected the reference in as much as the respondent had not led any cogent evidence to establish that the compensation granted by the Land Acquisition Officer was inadequate. Without prejudice to the aforesaid submission, Mr. Rivonkar submitted that ... 7 ... the respondent herself claimed compensation on the basis of agricultural income by examining valuer Shri Constancio Menezes, Aw.3 and therefore, the Reference Court erred in fixing the compensation on the basis of building potential. In support of this submission, the learned counsel relied upon the following decisions: State of Haryana v. Gurcharan Singh and anr. reported in AIR 1996 Supreme Court 106, M.B. Gopala Krishna and ors. v. Special Deputy Collector, Land Acquisition reported in (1996) 3 Supreme Court Case 595 and Special Land Acquisition Oficer, Sagar v. K. S. Ramachandra Rao and ors. reported in AIR 1974 Karnataka 23. 6. Per contra, Mrs. Agni, learned counsel for the respondents submitted that no interference is called for with the impugned award in as much as the Reference Court has applied the correct principle ... 8 ... for fixing the market rate of the acquired land. According to Mrs. Agni, the Reference Court while fixing the market rate of the land, in Land Acquisition Case No.80/1986 had not valued the acquired land (paddy field) on the basis of the building potential and therefore the Reference Court did not err in relying upon the said award for the purpose of fixing the market rate of the acquired land. According to Mrs. Agni while fixing the market rate of agricultural land, the Reference Court is entitled to place reliance upon the award in respect of comparable land in preference to the fixation of market price on the basis of agricultural income by applying the principle of capitalisation. In support of this submission, Mrs. Agni placed reliance on Printers House Pvt. Ltd. v. Mst. Saiyadan (deceased) by Lrs and ors. reported in (1994)2 Supreme Court Cases 133 According to Mrs. ... 9 ... Agni the provisions of Goa Land Use (Regulation) Act 1991 has no bearing for fixing the market rate of the acquired land. Mrs. Agni placed reliance upon another Division Bench judgment of this Court dated 26.09.2008 in First Appeal No.216 of 2003 Mr. Rameshchandra Govind Pawaskar v. Dy. Collector and submitted that in the said judgment the Division Bench has placed reliance upon the judgment in Suresh Kumar V.T.I. Trust, Bhopal reported in AIR 1989 SC 1222 and has enhanced the compensation even in respect of agricultural tenanted land. The learned counsel further submitted that even in respect of agricultural land, increase of 10% per year has been upheld by the Apex Court. In support of this submission, she placed reliance upon the judgment of the Apex Court in Om Prakash (Dead) by Lrs. and ors. v. Union of India and anr. reported in (2004) 10 Supreme Court Cases 627. Learned counsel ... 10 ... further submitted that no interference is called for with the impugned award since the Reference Court has correctly fixed the market rate in respect of the acquired land. 7. I have considered the submissions made by the learned counsel for the parties, perused the record and the judgments relied upon. 8. In the light of the rival submissions, the following points arise for my determination: 1.Whether the Reference Court has erred in fixing the market rate of the acquired land at the rate of Rs.128/- per sq.mtr. and whether the same is excessive ? 2.Whether the acquired land being tenanted agricultural land could not ... 11 ... have been assessed on the basis of building potential for fixing its market rate ? 9. As stated above, the respondent has examined three witnesses including her duly constituted attorney Vrinda Shirodkar as Aw.1. Her evidence clearly discloses that the respondent was a tenant of the Communidade of Margao. There is no dispute that the property acquired was an agricultural land. The question, therefore, which arises for consideration is whether the acquired land could have been valued on the basis of building potential. In Janaki Morajkar's case (supra) the Division Bench of this Court to which, I was a party has held that the tenanted agricultural land cannot be valued on the basis of building potential in view of Goa Land Use Use (Regulation) Act, 1991. Section ... 12 ... 2 of the said Act provides that the notwithstanding anything contained in the Goa, Daman and Diu Town and Country Planning Act, 1974 or in any plan or scheme made thereunder, or in the Goa Land Revenue Code, 1968, no land which is vested in a tenant under the provisions of Goa, Daman and Diu Agricultural Tenancy Act, 1964 shall be used to allowed to be used for any purpose other than agriculture. In the said judgment, the Division bench of this Court held that Section 2 of the Act would squarely apply since the land acquired in the case was tenanted agricultural land. In the said judgment, this Court upheld the award passed by the Reference Court rejecting the reference. In my considered opinion, the ratio laid down in Janaki Morajkar's case (supra) is squarely applicable in the present case. Moreover, it is to be noted that Special Leave Petition filed against the said ... 13 ... judgment passed by this Court was dismissed by the Apex Court. The judgment in Rameshchandra Govind Pawaskar's case (supra) delivered on 26.09.2008 in First Appeal No.216 of 2003 does not advance the case of the respondent. The said judgment has not over ruled the ratio laid down in Janaki Morajkar's case (supra) which has attained finality in view of the fact that Special Leave Petition against the said judgment was dismissed by the Apex Court. I am therefore, of the opinion, that the acquired land could not have been valued on the basis of building potential. 10. Mrs. Agni, learned counsel for the respondent submitted that the Reference Court was justified in placing reliance upon the award Exh.Aw.1/D passed in Land Acquisition Case No.80/1988 since the land acquired in the said said ... 14 ... and the land involved in the present case are close to each other and are of similar nature and in that case the Reference Court had awarded compensation not on the basis of building potential. I am unable to accept the submission made by Mrs. Agni. Paragraphs 10 and 11 of the said award clearly disclose that the paddy filed portion of the land acquired in the said case was also valued on the basis of building potential. In any case, in the said case, the acquisition was prior to coming into force the Goa Land Use (Regulation) Act and therefore, after coming into force of the said Act, the value of the acquired land has to be determined in the light of the provisions of the said Act. Therefore, the approach of the Reference Court in fixing the market value of the acquired land on the basis of building potential cannot be sustained. ... 15 ... 11. As stated above, the acquired land was admittedly an agricultural land. Although the said land could not have been valued on the basis of building potential, in view of the ratio laid down by the Division Bench of this Court, such a property can definitely be valued on the basis of yield. The defendant has examined Constancio Menezes, a valuer, as Aw.3, who deposed about the nature and location of the land and after considering the agricultural income from the acquired land, came to the conclusion that the net income of both kharif and rabi crops comes to Rs.4,785/- and thereafter capitalising the net income by twelve and half times fixed the compensation at the rate of Rs.45/- per sq.mtr. In the cross examination of the said witness nothing tangible has been brought on record to discredit him and as such there is absolutely no reason to disbelieve his version which is ... 16 ... supported by the report submitted by him. I am therefore, of the considered opinion that the respondent is entitled to the rate fixed by the valuer. Therefore, in my opinion, the respondent is entitled to compensation at the rate of Rs.45/- per sq.mtr. 12. In view of the finding recorded that the respondent is entitled to compensation at the rate of Rs.45/- per sq.mtr. on the basis of the yield, I am of the opinion that it is not necessary for me to deal with other submissions made and the authorities cited by the learned counsel appearing for the rival parties. 13. For the reasons aforesaid, the appeal is partly allowed. The respondent is held entitled to compensation at the rate of Rs.45/- per sq.mtr. in ... 17 ... respect of the acquired land. Needless to mention, the respondent is also entitled to all the statutory benefits under the Act. 14. The appeal is disposed of in the above terms with no order as to costs. A. P. LAVANDE, J. lh/.