JUDGMENT

R.V.RAVEENDRAN, J.

Leave granted.

CA Nos. 8540 and 8541 of 2011 [@ SLP(c) Nos.149 and 9591 of 2009]

2. These two appeals arise out of the judgment dated 26.9.2008 in FA No.216/2003, the first by the Goa Housing Board and the second by the land owner. As the ranks of the parties differ, the Goa Housing Board (appellant in the first matter and second respondent in the second matter) for whose benefit the acquisition was made will be referred to as the `Board' or the appellant. Rameshchandra Govind Pawaskar (first respondent in the first matter and appellant in the second matter) whose land was acquired will be referred to as the `respondent'. The Land Acquisition Officer (second respondent in the first matter and first respondent in the second matter) will be referred to as `the LAO'.

3. By an order dated 31.1.1977 passed by the Mamlatdar, Bardez, the respondent was declared as the tenant of Survey No.102/1, Colvale village, Bardez, Goa measuring 374,000 sq. mts. under the Goa, Daman and Diu Agricultural Tenancy Act, 1964 (`Tenancy Act' for short). On payment of the purchase price of Rs.59,980 determined under sections 18C and 18D of the Tenancy Act, a purchase certificate dated 6.5.1993 was issued to him under section 18H of the Tenancy Act confirming that he was deemed to be the purchaser of the said land under the provisions of the Tenancy Act, subject to the condition that the said land shall not be transferred without the previous sanction of the Mamlatdar under section 18K of the Tenancy Act. An extent of 358730 sq.m. of land in the said Survey No.102/1 belonging to the respondent was acquired in pursuance of the preliminary notification dated 9.6.1994 (gazetted on 16.6.1994) corrected by corrigendum dated 26.9.1994 (gazetted on 27.9.1994).

4. The LAO made an award dated 28.2.2003 determining the compensation payable as Rs.18 per sq.m. The respondent sought reference to the civil court for claiming a higher compensation. The Reference court by its judgment and award dated 28.2.2003 declared the compensation awarded at Rs.18 per sq.m. to be proper and reasonable and affirmed the award of the LAO. Feeling aggrieved, the respondent filed an appeal before the High Court seeking increase in compensation.

5. Before the High Court, the Board contended that having regard to the provisions of the Goa Land Use (Regulation) Act, 1991 (`Land Use Act' for short), a tenant in whom the land had vested under the Tenancy Act could not use it or allow it to be used for any purpose other than agriculture; and therefore the valuation of such land could not be with reference to its potential for use for non-agricultural building purposes, but should be only as agricultural land. In support of its contention, the Board relied upon a decision of a division bench of the High Court in Janaki N. Morajkar vs. Special Land Acquisition Officer (First Appeal No.221/2003 decided on 9.2.2005). It was therefore submitted that the market value of agricultural land determined by the reference court at Rs.18/- per sq.m. affirming the determination by the LAO was correct and there was no need to increase the compensation.

6. The High Court found that in regard to the adjoining land (Survey No.102/1A of Colvale) acquired under the same notification, compensation was awarded at the rate of Rs.136.50 per sq.m. As the land in Survey No.102/1 belonging to the landholder was much larger, the High Court deducted Rs.36.50 per sq.m. and awarded Rs.100 per sq.m. as the compensation. Though the High Court noticed the contention of the Board with reference to the prohibition under the Land Use Act, and the decision in Janaki N. Morajkar, it did not choose to follow the said decision. Nor did it hold that the decision in Janaki N. Morajkar was wrongly decided or inapplicable. The High Court avoided the issue by observing that it was not necessary to go into the larger controversy as to whether Janaki N.Morajkar was rightly decided.

7. The High Court held that the Boa