1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEALS NO. 57, 58, 59, & 60 OF 2002 FIRST APPEAL NO. 57 OF 2002 1. Special Land Acquisition Officer (South Goa) Konkan Railway Corporation Limited, Amey Guest House, Davorlim Road, P.O. Navelim, Salcete Goa 403 707. 2. Chief Engineer, Konkan Railway Corporation Ltd., Rawnfond, Near Margao Railway Station, Margao, Goa. ......... Appellants. V/s Ashok G. Naik, House NO.100, Talaulim Road, Navelim, Salcete – Goa. ......... Respondent. FIRST APPEAL NO. 58 OF 2002 1. Special Land Acquisition Officer (South Goa) Konkan Railway Corporation Limited, Amey Guest House, Davorlim Road, P.O. Navelim, Salcete Goa 403 707. 2. Chief Engineer, Konkan Railway Corporation Ltd., Rawnfond, Near Margao Railway Station, Margao, Goa. ......... Appellants. V/s Sitabai G. Naik, (deceased), 2 represented by her legal representative Ashok G. Naik, House NO.100, Talaulim Road, Navelim, Salcete – Goa. ......... Respondents. FIRST APPEAL NO. 59 OF 2002 1. Special Land Acquisition Officer (South Goa) Konkan Railway Corporation Limited, Amey Guest House, Davorlim Road, P.O. Navelim, Salcete Goa 403 707. 2. Chief Engineer, Konkan Railway Corporation Ltd., Rawnfond, Near Margao Railway Station, Margao, Goa. ......... Appellants. V/s Sitabai G. Naik, (deceased), represented by her legal representative Ashok G. Naik, House NO.100, Talaulim Road, Navelim, Salcete – Goa. ......... Respondents. FIRST APPEAL NO. 60 OF 2002 1. Special Land Acquisition Officer (South Goa) Konkan Railway Corporation Limited, Amey Guest House, Davorlim Road, P.O. Navelim, Salcete Goa 403 707. 2. Chief Engineer, Konkan Railway Corporation Ltd., Rawnfond, Near Margao Railway Station, Margao, Goa. ......... Appellants. 3 V/s Ashok G. Naik, House NO.100, Talaulim Road, Navelim, Salcete – Goa. ......... Respondent. Mr. E. Afonso, Advocate for the appellants. Mr. R. G. Ramani, Advocate for the respondents. CORAM : D.G. KARNIK, J. DATE : 22nd October, 2010 ORAL JUDGMENT : (1) Konkan Railway Corporation is the appellant in these four appeals. The respondents in each of the appeals are the owners (tenant purchasers) of the lands which are adjacent to each other. The lands of the respondents were acquired for the Konkan Railway under a common notification dated 14th June, 1991 issued under Section 4 of the Land Acquisition Act, 1894 (for short “the Act”). Hence, all the appeals are heard and disposed of by this common judgment. (2) In the light of the view that I am taking in the present case that a remand is necessary, it is not necessary to state all the facts, in 4 detail, but only a brief resume of them would suffice. (3) The respondents in the appeals were in possession of the lands as tenants on the Tillers Day i.e. 14th October, 1976 prescribed under the Goa, Daman and Diu Agricultural Tenancy Act, 1964 (for short, “the Agricultural Tenancy Act”). The lands vested in them under the provisions of the Agricultural Tenancy Act and they became the owners. By a notification dated 14th June, 1991 their lands were acquired for the purpose of Konkan Railway. The Land Acquisition Officer published an award on 1st August, 1994 awarding compensation at the rate of Rs.6.75 per sq. metre. Dis-satisfied with the amount of compensation, the respondents filed separate applications to the Collector under Section 18 of the Act. The Collector, accordingly, referred the matters to the Reference Court for determining the appropriate amount of compensation. By a common judgment and award dated 9th August, 2001, in Land Acquisition Case No.335/1995 and Land Acquisition Case No.349/1995 from which First Appeals No.57/2002 and 58/2002 arise, decided the references . By another judgment and award on the same day i.e. 9th August, 2001 the Reference Court decided Land Acquisition Case No.308/1995 and 5 Land Acquisition Case No.309/1995 from which First Appeals No.59/2002 and 60/2002 arise. (3) It was the contention of the claimants (respondents herein) before the Reference Court that their lands had non-agricultural potential. The learned Reference Court accepted the case of the claimants that their lands had a non-agricultural potential and determined the amount of compensation on the basis that the lands of the respondents had non-agricultural potential. (4) Mr. Afonso, learned Counsel appearing for the appellants, submitted that the Reference Court erred in determining the market value of the lands on the basis that the lands had a non-agricultural potential. He invited my attention to the provisions of the Goa Land Use (Regulation) Act, 1991 (for short “the Land Use Act”). Section 2 of the Land Use Act says that 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 the Goa, Daman and Diu Agricultural Tenancy Act, 1964 (for short 6 “Agricultural Tenancy Act”) shall be used or allowed to be used for any purpose other than agriculture. Since the respondents had purchased the land under the Agricultural Tenancy Act, they were not entitled to use the land for any purpose other than agricultural. He further submits that since there is a prohibition on the use of the lands for non-agricultural purpose, the respondents' lands could not be said to have a non-agricultural potential. Consequently, submitted Mr. Afonso, the learned Reference Court erred in determining the market value of the acquired lands on the basis that the acquired lands had a non-agricultural potential. In support of his submissions, Mr. Afonoso referred to and relied upon a decision of a Division Bench of this Court in Smt. Janaki N. Morajkar vs. Spl. Land Acquisition Officer and another, decided on 9th February, 2005 (Coram : A.P. Lavande and N.A. Britto, JJ). He submitted that an appeal against the decision has been dismissed by the Supreme Court. He further submitted that in a series of subsequent decisions learned Single Judges of this Court have followed and applied the principle laid down by the Division Bench in the case of Smt. Janaki N. Morajkar vs. Spl. Land Acquisition Officer and another, (supra). 7 (5) In the case of Smt. Janaki N. Morajkar vs. Spl. Land Acquisition Officer and another (supra), the appellant was a tenant of an agricultural land and was declared purchaser of the land under the provisions of the Agricultural Tenancy Act. Her lands were acquired and she claimed the compensation on the basis that her lands had non- agricultural potential. Referring to Section 2 of the Land Use Act, the Division Bench held that since the appellant had purchased the land under the Agricultural Tenancy Act, she and anybody else was not entitled to use the land for any purpose other than agriculture and consequently held that the compensation must be awarded on the basis that the land could be used only for an agricultural purpose and without taking into consideration any non-agricultural potential. In view of the law laid down by the Division Bench, it must be held that the Reference Court erred in awarding compensation to the claimant- respondent on the basis that the respondents' lands had a non- agricultural potential. (6) Mr. Ramani, learned Counsel for the respondent submitted that the Reference Court has not decided what would be the appropriate amount of compensation if the lands were to be used only 8 for the purpose of agriculture. Such a compensation would have to be determined inter alia taking into consideration agricultural yield and/or agricultural income received by the respondents. Since the claimants were claiming compensation on the basis of non-agricultural potential, this aspect was not considered by the Reference Court at all. He further submitted that in fact the parties had not adduced the evidence for determination of the compensation on the basis of an agricultural yield and agricultural use. In the circumstances, Mr. Ramani prays that the matters may be remanded to the Reference Court for a fresh decision as to the quantum of compensation which the respondents would be entitled to on the basis that the lands could be used only for the purpose of agriculture. (7) Taking into consideration the fact that at the time when the Reference Court had determined the amount of compensation the law relating to the compensation payable for the lands purchased by tenants under the Agricultural Tenancy Act was not settled and the decision of this Court in Smt. Janaki N. Morajkar vs. Spl. Land Acquisition Officer and another, (supra) was rendered subsequently, the respondents could be said to have been misled in not adducing the 9 evidence relating to the manner of computation of compensation on the basis of the agricultural yield and agricultural use. I am of the view that an opportunity must be given to the respondents to adduce further evidence by remanding the matters to the Reference Court. (8) For these reasons, I pass the following order : The appeals are allowed. The impugned judgments and awards in each of the appeals are set aside. The matters are remanded to the District & Sessions Judge, South Goa, Margao for deciding the matters afresh in accordance with the law as laid down by this Court in Smt. Janaki N. Morajkar vs. Spl. Land Acquisition Officer and another, (supra). Smt. Janaki N. Morajkar vs. Spl. Land Acquisition Officer and another (supra). The Reference Court shall give an opportunity to the parties to adduce additional evidence and decide the matters afresh taking into consideration the additional evidence, if any, that may be adduced by the parties. Parties shall appear before the District Court, South Goa, Margao on 13th December, 2010 at 10 a.m. without any further notice. Counsel for the parties accept notices of the date which is hereby given. 10 The record and proceedings be sent by the Registry so as to reach the Court of District Judge, South Goa ,Margao before 13th December, 2010. The amount which has been deposited by the appellants in this Court be refunded to the appellants, subject to an undertaking to be filed by them that they would pay the compensation together with all statutory benefits forthwith in accordance with the decision of the Reference Court. D.G. KARNIK, J. ssm.