Mr. Sazu R. S. Nadkarni v. Special Land Acquisition Officer and Anr.,

ORDER The respondent is awarded 75% compensation and the applicant 25% compensation. The amount of compensation was deposited by the Land Acquisition Officer, on 05.07.1973, in the Court and the same was deposited in the Treasure under challan. Necessary refund orders will be issued as per the proportions above, after the appeal period is over. Costs shall be paid by the applicant. Advocate's fee are fixed at Rs.500/-"

¶21It is thus seen that the claimant Piedade Fernandes (supra) in the above referred case of Government of Goa vs. Piedade Fernandes, who was an aforamento holder of the land was awarded 75% compensation and the Government was awarded 25% compensation. Thus, in view of the decision of the Supreme Court even the aforamento holders are entitled to compensation to the extent of their interest in the acquired lands.

¶22The question is, whether in the present case, the appellant can be said to be an aforamento holder. It is pertinent to note that the reference court in paragraph 10 of its judgment recognised the appellants' holding on aforamento basis. It is not in dispute that the Land Acquisition Officer by his award of 1973, granted compensation to the appellants in respect of the trees but did not grant compensation in respect of the land. Apart from this finding of the reference court, learned senior Advocate for the appellant relied upon documents brought on record before the reference court to establish his claim that he is an aforamento holder. One such document produced is a true translation of a Portuguese document in English dated 27.07.1917. The said document indicates that the property was purchased by Jose Caetano Dos Milagres Albuquerque, who was emphetheusis of the Government. Moreover, the evidence on record in the form of the examination of the appellant, would reveal that the property was registered in his name. The appellant's deposition is supported by land registration document along with the translation produced at exhibit Aw.1/B. It is further in evidence that the nature of the acquired land is the same as that of Shri Narendra Nadkarni. These materials are reasonably sufficient to indicate that the appellant was an aforamento holder. In Civil Appeal no. 2558 of 1989 in the case of Shri Piedade Fernandes (supra), Their Lordships observed that the terms "lessee under emphetheusis", means a perpetual lease in the landed estate granted to a tenant in perpetuity or for a long term of years, upon the reservation of an annual rent or canon, and upon the condition that the lessee should improve the property or otherwise.

¶23In the present case, there is no dispute that the appellant was in possession of the said land and even compensation for the trees standing on the said land was paid to the appellant. The appellant was duly cross examined. The claim made by the appellant has not been dislodged in any manner by the respondent in the cross examination. The respondent did not lead any evidence. I am therefore inclined to hold that the appellant was an aforamento holder of the land.

¶24Having held thus, the question now is whether the reference court was justified in coming to a conclusion that there could be no comparison between the land belonging to Shri Narendra Nadkarni only because Shri Narendra Nadkarni's land was a free hold land. Nadkarni was awarded compensation at the rate of ₹ 1/- per square metre since his land was a free hold land. It may be mentioned here that the Land Acquisition Officer had awarded 'Nadkarni' a compensation of ₹0.20 paise per square metre which was enhanced by the reference court in a reference under section 18 of the said Act. It was on the basis of such enhancement given to 'Nadkarni' that the appellant made an application under section 28-A(3) of the said Act. The reference court only proceeded on the footing that as the nature of the holding of the appellant is not free hold and therefore the award made in the case of Shri Narendra Nadkarni can be of no assistance to the appellant. The nature of holding of Shri Narendra Nadkarni being free hold, was awarded compensation at Rs.1/- per square metre. The appellant is entitled to compensation as an aforamento holder proportionately.

¶25In my opinion, the reference court not only misconstrued the observations of this court while remitting the matter, but the reference court was also in error in denying the benefit of section 28-A(3) of the said Act to the appellant. It is material to note that it is under the very same section 4 notification that Shri Narendra Nadkarni was awarded compensation of Rs. 1/- per square metre in respect of a land he was holding on a free hold basis. So far as the appellant is concerned, he was holding the land on a restrictive covenant i.e. the appellant's interest in the acquired land was that of an aforamento holder.

¶26It may be that the appellant is not entitled to compensation as a free hold land, but that does not mean that the appellant is not entitled to any compensation. The reference court should have considered the claim of the appellant as an aforamento holder. Having paid compensation to the appellant for the trees, it is apparent that the Government by necessary implication, had recognised the interest of the appellant in the said land. As discussed earlier, the materials on record and the evidence would go to show that the appellant was an aforamento holder in which case the compensation payable to the appellant will have to be determined in the proportion of the interest held by the appellant.

¶27In the light of the decision of the Supreme Court in the case of Shri Piedade Fernandes (supra) and the consequent award of the reference court, the proportion of the compensation to which the appellant is entitled would be ₹ 0.75 paise per square metre being an 'aforamento holder'.

¶28Accordingly, the appeal succeeds. The appellant is held entitled to compensation at the rate of ₹ 0.75 paise per square metre.

¶29The compensation be determined on the aforesaid basis along with all statutory benefits as a result of such determination and interest at the rate of 9% per annum for the first year thereafter at the rate of 15% per annum till actual payment. Award accordingly.

¶30First Appeal is accordingly allowed in the afore terms. No costs.

M. S. KARNIK, J ANDREZA PEREIRA Date: 2023.07.20 18:15:01 +05'30'

Andreza IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 132 OF 2007 Mr. Sazu R. S. Nadkarni, Residing at House No. 848, Benawada, Sanguem, Goa. (Since deceased represented by legal representatives) A) Shri Raghoba Sazu S. Nadkarni, B) Smt. Kalpana Raghoba S. Nadkarni C) Shri Arun Sagu S. Nadkarni, D) Smt. Krupa Arun S. Nadkarni, E) Shri Prashant Sagun Nadkarni F) Smt. Neela Prashant S. Nadkarni All residents of 'Chandraprabha', behind Water Supply Division, 9, Murida, Fatorda- Goa. … Appellant Versus (1) Special Land Acquisition Officer, Salaulim Irrigation Project, Gogal, Margao, Goa. (2) The Executive Engineer Works Division X, Irrigation Department Pajimol, Sanguem- Goa. …Respondents Mr. S. D. Lotlikar, Senior Advocate with Ms. Sailee Kenny and Mr. T. Sequeira, Advocates for the Appellant. Mr. Pravin Faldessai, Additional Government Advocate for the Respondents. _______________________ CORAM: M. S. KARNIK, J DATED: 5th JULY 2023 _______________________ ORAL JUDGMENT 1. Heard learned Senior Advocate Shri Lotlikar for the appellant and Shri Faldessai, learned counsel appearing for the respondents. 2. The reference under section 28-A (3) of the Land Acquisition Act, 1894, (herein after referred to as the 'said Act' for short) before the District and Sessions Judge, South Goa, Margao, was numbered Land Acquisition Case No.7/1997. The appellant had submitted an application on 07.05.1996 to the Special Land Acquisition Officer of the Selaulim Irrigation Project seeking a reference section 28-A(3) of the said Act. 3. By a notification no. RD/LQN/176/1971 dated 17.11.1971, under section 4 of the said Act, published in the Government Gazette dated 02.12.1971, several pieces of land at Curpem of Sanguem Taluka were acquired for the purpose of Selaulim Irrigation Project, including the plot no. 137 (part 2) of 16.950 square metres at Village Xelpem. The award dated 24.03.1975 was passed under section 11 of the Act. 4. In terms of provisions of section 28-A, an application was made to the Special Land Acquisition Officer by the Appellant for re- determination of the compensation awarded to him. By the impugned award dated 22.01.1996, his application was partly allowed with regard to the portions of his property. 5. According to the appellant, he is entitled for compensation of Rs.1/- per square metre for the land acquired as the same was the rate which was given by the District Judge while passing the final order dated 12.10.1990. 6. The trial Court framed the following issues with the findings as under : ISSUES FINDINGS 1. Whether the applicant proves that he is entitled to the compensation at the rate of Re.1/- per sq.mt. for the acquired land admeasuring 16,950 sq.mts. Not proved 2. What relief ? What order ? As per the Award 7. By the impugned judgment and award dated 28.02.2003, the reference court rejected the reference. 8. In an earlier round of litigation, the award of the reference Court was challenged by the appellants before this Court being First Appeal no. 133 of 2003. This court by the judgment and order dated 06.10.2006, remanded the matter to the reference court for fresh decision in view of the observations made therein. 9. The reference court pursuant to the remand, framed the following issues, rendering the findings as under : ISSUES FINDINGS 1. Whether the applicant proves that he is entitled to the compensation at the rate of Re.1/- per sq.mt. for the acquired land admeasuring 36,700 sq.mts. In the negative 2. What relief ? What order ? As per Award below 10. The reference court by the judgment and award dated 16.03.2007, which is subject matter of challenge in this appeal, rejected the reference under section 28-A(3) of the said Act. 11. Shri Lotlikar, learned Senior Advocate, submitted that the reference court completely misconstrued the observations dated 06.10.2006 of this Court in First Appeal No. 133 of 2003. Shri Lotlikar submitted that there was no dispute about the appellants possession over the acquir