Communidade of Loutulim represented by its attorney, Mr. Joaquim Gracias vs Alberto Fernandes

A.P. Lavande, J.—Heard Mr. Kamat, learned Counsel for the appellant and Ms. Linhares, learned Counsel appointed under Legal Aid Scheme.

By this appeal, the appellant takes exception to the judgment and order dated 17th March, 2003 passed by the District Judge, South Goa, Margao in Land Acquisition Case No. 81/1997 by which the entire compensation has been ordered to be paid to the respondent.

Vide notification issued u/s 4 of the Land Acquisition Act (''The Act'' for short), the Government of Goa acquired an area of 50 square meters from survey No. 279/3 of village Loutulim for construction of Verna-Rassaim road. The appellant was admittedly the owner of the said land. The respondent claimed to be the tenant of the said land. Since there was dispute as to the person to whom the compensation of Rs. 829/- in terms of Award was payable, the Land Acquisition Officer (''The LAO'') made a reference u/s 30 of the Act.

In Land Acquisition Case No. 81/1997, the appellant was the applicant and the respondent was the respondent. Since the issue of tenancy arose on account of claim made by the respondent, the Reference Court by order dated 19th September, 1998 referred the issue of tenancy to the Mamlatdar. Since the issue was referred to the Mamlatdar, the proceedings were kept sine die for some time. Thereafter, the applicant made an application dated 20th August, 1999 for recalling of the order dated 19th September, 1998 by placing reliance upon the judgment of this Court in the case of Sukdo Ladko Naik v. Navso Bombdo Gawde 1999(2) GLT 214. The Reference Court vide order dated 6th May, 2000, after placing reliance upon the said judgment, allowed the application and recalled the order of reference. Thereafter, the applicant did not lead any evidence in support of its claim. The respondent examined two witnesses and the matter was fixed for argument. The respondent filed an application. Arguments were heard and the matter was fixed for judgment. At this stage, the respondent filed an application dated 1st November, 2002 along with original purchase certificate, whereby the respondent was declared to be deemed purchaser of the area of survey No. 279/2 and 279/3 of Loutulim village. The applicant filed reply dated 21st February, 2003 raising various objection to the production of documents. However, the Reference Court passed the impugned judgment and award and placing reliance upon the purchase certificate ordered that the entire compensation be paid to the respondent.

Mr. Kamat, learned Counsel for the appellant submitted that the Reference Court ought not to have relied upon the purchase certificate since the same was not relied upon by the respondent and further no opportunity was given to the applicant to contest the claim of the respondent. In support of his submissions, he relied upon the judgment of the Apex Court in the case of Shalimar Chemical Works Ltd. Vs. Surendra Oil and Dal Mills (Refineries) and Others, .

Per contra, Ms. Linhares, learned Counsel for the respondent submitted that since the purchase certificate has been already issued in respect of entire survey numbers 279/2 and 279/3 and the acquired land is only 50 square meters, no case has been made out for interference with the impugned judgment and award. Ms. Linhares further submitted that the appellant has not challenged the purchase certificate till date and as such, the same being conclusive, the respondent is entitled to the compensation awarded by the LAO.

Mr. Kamat, learned Counsel for the appellant was not in a position to point out as to whether the appellant has challenged the purchase certificate by resorting to appropriate provisions.

In view of the finding given and the submissions made, the following points arises for determination:

Whether the Reference Court was justified in awarding the compensation in respect of the acquired land to the respondent?

I have carefully considered the rival submissions and perused the record and the judgment relied upon.

It is an admitted position that initially the Reference Court referred the issue to the Mamlatdar since the respondent claimed to be tenant of the applicant in respect of the acquired land. Thereafter, the same order was recalled by placing reliance upon the judgment of this Court in the case of Sukdo Naik (supra). In my opinion, the Reference Court has clearly erred in recalling the reference in as much as the ratio of the judgment in the case of Sukdo Naik (supra) was not applicable. In the case of Sukdo Naik (supra), this Court was dealing with the case in which an application seeking declaration of past tenancy was filed in the year 1985. Indisputably, Section 7 of the Agricultural Tenancy Act was amended in the year 1991 by which jurisdiction to decide whether person was the tenant was also conferred on the Mamlatdar. In the present case, reference was made in the year 1997 u/s 30 of the Act. This being the position, in terms of Section 7 of the Agricultural Tenancy Act, the Mamlatdar had exclusive jurisdiction to decide the issue of tenancy.

Be that as it may, the fact remains that the respondent produced original certificate of purchase before the Reference Court. In the case of Communidade of Colvale and Ors. v. Benjamin Pereira 2005(2) GLR 431, the Division Bench of this Court to which I was a party, has held that if a certificate of purchase is given by a competent authority under the Act, it could safely be presumed that it was given to person, who was tenant in respect of the property, who is deemed to have been purchaser. In view of the said ratio, the necessary sequitur is that by virtue of purchase certificate, the respondent has become deemed purchaser of the property bearing survey No. 279/3 and 279/2 of Loutulim village.

In so far as argument of Mr. Kamat that no opportunity was given to the appellant to rebut the purchase certificate produced by the respondent is concerned, I am of the considered opinion that in view of the ratio laid down in the case of Benjamin Pereira (supra), no purpose would be served by remanding the matter to the Reference Court to give an opportunity to the appellant. Moreover, Mr. Kamat has not been able to challenge the statement made by Ms. Linhares that the certificate of purchase issued in favour of the appellant has not been so far challenged by the appellant. Obviously, therefore, the purchase certificate has attained finality.

In view of the above discussion, I am of the considered opinion that the judgment and award passed by the Reference Court cannot be faulted. In the result, therefore, the appeal is dismissed with no order as to costs. Fees payable to Advocate Ms. Linhares, who is appointed under Legal Aid Scheme is quantified at Rs. 1000/-.