Since there cannot be any contradictory computation of compensation to be granted for the same land in different proceedings, it would be necessary to allow this appeal and remand even this proceedings for disposal by the learned District Judge afresh in the light of observations in the foregoing paragraphs. Needless to mention that the learned Judges of the District Court should bear in mind that whenever there are several proceedings in respect of same chunk of land or land in same vicinity acquired under the same notification, all of them ought to be dealt with together and disposed of preferably by a common judgment in order to avoid recording conflicting findings.
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Bombay High Court
Vishnu Narayana Naik (Since ... vs Deputy Collector (Revenue) And ... on 16 June, 2008
Bench: S Bobde, R Chavan
Citation;2008 (5) MH L J586
1. This appeal by tenants in respect of 18415 square metres of land out of S. No. 132/1 of village Penha de Franca is directed against judgment of the learned IInd Addl. District Judge, Panaji rejecting their reference for enhancement of compensation upon acquisition of this land.
2. It is not in dispute that appellants are tenants in respect of this land, which was acquired by respondent No. 1 for respondent No. 3 in proceedings initiated by notification under Section 4 published on 17.5.1990. The Land Acquisition Officer awarded compensation @ Rs. 125/- per square metre against higher claims by claimants- landlords & tenants. Aggrieved thereby they sought references, which were sent by the Collector to the District Court.
3. A learned Judge of the District Court partly allowed reference by landlords awarding compensation @ Rs. 150/- per square metre for 15465 square metres of land, retaining compensation @ Rs. 125/- per square metre for remaining 9000 square metres land, holding that it was valley land, incapable of being put to use for construction. On respondent No. 3's appeal bearing No. 68/98 to this Court, by judgment dated 09.06.2008, the matter was remanded back to the District Court.
4. Another learned Judge of District Court by his impugned judgment rejected appellant tenants' reference holding inter alia that tenants could not have put the land to any use other than cultivation, since on the day notification under Section 4 of Land Acquisition Act was issued, the land was subject to restrictions under the Goa Land use (Regulation) Act. He also held that evidence tendered did not justify any enhancement, since it was not in respect of comparable sale instances. Aggrieved thereby tenants have preferred this appeal.
5. We have heard the learned Senior Counsel Shri Da Costa for the appellants and learned Counsel Shri Nadkarni for respondent No. 3 - acquiring body. The learned Senior Counsel for Appellants submitted at the outset that remand of F.A. No. 68/98 was to enable parties therein to tender proper evidence, since, on behalf of acquiring body it was stated that the learned District Judge had granted partial enhancement without there being evidence of comparable sale instances. Such was not the present case and hence a remand in this case was not warranted. The learned Counsel for acquiring body contested this contention. One of the pieces of evidence tendered by appellants was the award of District Judge in Land Acquisition Reference No. 54/94 which has been set aside by us while allowing F.A. No. 68/98 and remanding the matter back. As far as this piece of evidence is concerned the learned Counsel for respondent acquiring body is right.
6. As regards award of Land Acquisition Officer in respect of some other land filed at Exh.39, the learned Counsel for acquiring body rightly submitted that without evidence of a witness to state that land covered by the said award was similar to land which is subject matter of this appeal, the award does not help the claimants. But, his further contention based on observations inChimanlal Hargovinddas v. Special Land Acquisition Officer, Poona and Anr.
that award Exh. 39 was required to be "proved" by examining a witness cannot be accepted. The relevant observations therein are to the following effect :
Para.4 (2) - So also the Award of the Land Acquisition Officer is not to be treated as a judgment of the trial Court open or exposed to challenge before the Court hearing the Reference. It is merely an offer made by the Land Acquisition Officer and the material utilised by him for making his valuation cannot be utilised by the Court unless produced and proved before it. It is not the function of the court to sit in appeal against the Award, approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition Officer, as if it were an appellate Court.
These observations do not deal with and prescribe a particular mode of proof. An award is undoubtedly an offer, but it is also a public document, which under Section 79 of Evidence Act can be proved by production of a certified copy. Further the observations about production and proof relate to material utilised by Land Acquisition Officer in making award and not the award itself, about which there can be no two opinions.
7. The claimants had tendered evidence in form of three sale deeds, Exh.47 to 49, in respect of smaller developed plots. According to the learned Counsel for acquiring body these sale deeds cannot be termed as comparable instances of sale, since the acquired land is a large chunk and hence, the learned District Judge was justified in rejecting the same. There can be no doubt that sale of a small plot of developed land could not be compared with a large chunk of land to be acquired. All the same, Courts cannot lose right of the fact that it would be very difficult to find an exact equivalent which could be compared.
8. In matters of fixation of compensation of land upon acquisition, there is always some element of speculation and, therefore absence of exact comparable land need not deter the Courts from relying on such instances of sale as are cited before them. In fact in one of the decisions relied by Shri Nadkarni, learned Counsel for the respondent in the case of M. B. Gopala Krishna and Ors. v. special Deputy Collector, Land Acquisition reported in (1996) 3 SCC, 594, the Apex Court indicated that pegging down the prices is permissible. Shri Nadkarni further placed his reliance in the case of The State of Goa Through Dy. Collector and S.D.O. v. The President of Our Lady of Piety Church reported in 2005 Vol. 107 (2) Bom. L. R. 137 in which this Court held that if there is dissimilarity in regard to locality, shape, site or nature of the land, it is open to the Court to proportionately reduce the compensation depending upon the disadvantage attached with acquired land.
9. Shri Nadkarni had cited these judgments in order to support his contention that a leasehold interest in land will fetch lesser compensation than freehold. Thus, it may not be permissible to say that simply because the sale deeds happens to be in support of small plots of developed land, they did not at all offer any measure for arriving at proper compensation for the land acquired with appropriate adjustment. Those sale instances could be relied on by the learned District Judge.
10. As regards the contention that the learned District Judge was in error in holding that the appellants tenants could not at all seek any enhancement in compensation because the land was not at all transferable in view of the embargo imposed under the Goa Land Use (Regulation) Act, the learned Senior Counsel Shri Da Costa for the appellants rightly pointed out the relevant date for computation of compensation in this case is 17.5.90, the date on which notification under Section 4 of the Land Acquisition Act was published. Goa Land Use (Regulation) Act was enacted first in the form of an ordinance, followed up by the Act, on 2.11.90. Therefore, on relevant date, the restrictions was not in force. Learned Counsel for the respondent acquiring body does not dispute that the learned District Judge should not have relied on the provisions of Goa Land Use (Regulation) Act which was not in force on the relevant date.
11. According to learned Senior Counsel for the appellants it is impermissible to hold that the acquired land does not have a non- agricultural potential. He submitted that in Economic Development Corporation of Goa v. Maria Gloria Fatima judgment in First Appeal No. 81 of 1987, this Court held that there was no total prohibition of agricultural land being converted into non-agricultural use, though there was an impediment in as much as such use was totally dependent on the permission being granted for such change of user by competent Authority. The learned Counsel for the respondent No. 3 submitted that this judgment had been reversed by the Apex Court. It does not appear to us that the judgment was reversed. The Apex Court had merely reduced the compensation granted from Rs. 80/- per square metre to 40/- per square metre.
12. In Gorakshwadi Samiti v. State reported in 2000 (2) Goa Law Times 81, which has been referred to by the learned District Judge, it has been observed that Goa Land Use (Regulation) Act had been enacted so that the land used for agriculture should not put to non- agricultural use. However, it has to be borne in mind that there is no total ban on conversion of agricultural land to non-agricultural use. Section 32 of the Goa Land Revenue Code permits even a tenant to apply for conversion of land to non-agricultural use. Once such permission is granted by the authorities, such land ceases to be amenable to the provisions of Agricultural Tenancy Act, since land, as defined under Clause 11 of Section 2 of the said Act, is "agricultural land." Once it ceases to have the character of agricultural land it will be beyond the rigours of the provisions of Agricultural Tenancy Act, and consequently the prohibition on assignment contained under Section 15 of the said Act, on which the learned Counsel for the acquiring body placed reliance, would also not be attracted.
13. Mr. Nadkarni, learned Counsel for acquiring body relied on the judgment of this Court in the case of Shri Ganapati Devasthan Saunsthan and Anr. v. The Collector, North Goa and Ors.reported in 2000 (4) ALL MR 846 to contend that conversion of agricultural land to non-agricultural use is prohibited and recourse could not be had to provisions of Section 32 of Land Revenue Code. We are afraid that this judgment does not help acquiring body in the present case. Therein the provisions of Section 32 of Land Revenue Code are held to have been eclipsed only by virtue of provisions of Section 2 of Goa Land Use (Regulation) Act. The permission questioned was granted on 22.3.96 (i.e. after Goa Land Use (Regulation) Act came into force) under Section 18K of Tenancy Act, and not under Section 32 of Land Revenue Code. Observations in paragraphs 8 to 10 of the judgment, on which learned Counsel placed reliance, have to be read in the context of these facts. Since in the case at hand the reference date is prior to commencement of Goa Land Use (Regulation) Act the decision is unhelpful. It is paradoxical that the acquiring body, for which land was acquired for being put to non-agricultural use, insists that a tenanted land could never be put to any use except agriculture. In effect what is contended is that claimants cannot claim benefit of non-agricultural potential of land which was specifically acquired for being put to nonagricultural use. If it was the policy of the State to preserve agricultural lands as they are, the State too could not initiate acquisition which would reduce area under cultivation. Housing is as important a priority for the State as farming and hence acquisition in areas abutting to cities for housing may be justified. And if housing project by a public body is justified, there can be no reason why private housing projects should be discriminated against.
14. In Ganapati Devasthan case this Court had not considered consequence of change of user under Section 32, namely that land ceased to be governed by provisions of Tenancy Act and restrictions therein.
15. To sum up, on the relevant date, the claimants could have applied under Section 32 of Land Revenue Code for conversion to nonagricultural use and, therefore, it could not be said that the District Judge could not at all have considered non-agricultural potential.
16. In this view of the matter, we hold that the learned District Judge has erred in holding that the land did not at all have non- agricultural potential. As already indicated, the appeal filed by the acquiring body challenging the enhancement granted to the landlords (F.A. No. 68/98) has been allowed and the matter has been remanded back to the District Court for determination of compensation. Since there cannot be any contradictory computation of compensation to be granted for the same land in different proceedings, it would be necessary to allow this appeal and remand even this proceedings for disposal by the learned District Judge afresh in the light of observations in the foregoing paragraphs. Needless to mention that the learned Judges of the District Court should bear in mind that whenever there are several proceedings in respect of same chunk of land or land in same vicinity acquired under the same notification, all of them ought to be dealt with together and disposed of preferably by a common judgment in order to avoid recording conflicting findings. The appeal is, therefore, allowed. The impugned judgment is set aside and the matter is remanded for decision afresh.
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