P.B. Majmudar, J.
1. By filing this petition under Article 226 of the Constitution of India, the petitioners have challenged the land acquisition proceedings initiated by the State of Goa, through its Land Acquisition Officer, for acquiring the lands for the purpose of development of Government Village School Playground at Fatrade, Varca Salcete, Goa.
2. The petitioners are the owners/tenants of agricultural land bearing Survey No. 107 with different sub divisions. They are carrying on agricultural operations in the aforesaid lands. According to the petitioners, they are cultivating paddy fields in the aforesaid lands. It is the case of the petitioners that the said paddy fields are the only means of their livelihood and their respective families.
3. The Government of Goa earlier issued a notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the 'Act') on 04-05-2006, which was published in the Official Gazette on 10-05- 2006 for the purpose of acquiring the land in question. The said notification was issued for the purpose of acquiring the land bearing Survey No. 107 and various sub-divisions for the purpose of establishing Government Village School Playground. The petitioners submitted their objections under Section 5A of the Act, by way of representation dated 26-05-2006. The said representations are annexed at Annexure (C) in the compilation of documents. In the representations, it was submitted by the petitioners that they are cultivating the paddy fields since the time of their ancestors. It is averred in the representations that the agricultural produce obtained from the paddy fields, serves as an only means of their livelihood and in case the land is acquired for the purpose of construction of playground, they will be deprived of their livelihood. It is pointed out in the representation that filling of the land will affect the natural drainage pattern, subsequently affecting the ecosystem, upsetting the balance of nature, habitat of various fishes, frogs and beneficial organisms. In the representation, it is also pointed out that the only Government School in the Village i.e. the Government Primary School, is closed since 14 years for paucity of students and there is no question of acquiring the land for the purpose of development of the playground for the aforesaid public school. In the representation, it was also averred that as per the Government policy, agricultural activity is required to be protected and saved.
4. The said notification was challenged by the petitioners by way of Writ Petition No. 525 of 2006 before this Court. The said writ petition was dismissed on the ground that it was pre-matured as it was filed at the stage of issuance of notification under Section 4 of the Act. However, since the notification under Section 6 was not issued within the prescribed time, the said proceedings lapsed. The Government of Goa thereafter, issued fresh notification under Section 4 of the Act, on 11-02-2008, which was published in the official Gazette on 15-02-2008. By the said notification, the lands at Survey No. 107 and its various sub-divisions are sought to be acquired for the purpose of Government Village Playground at Fatrade, Varca Salcete, Goa.
5. The petitioners submitted their objections in connection with the said notification under Section 5A of the Act, on 08-03-2008, objecting the proposed acquisition of the land. The Land Acquisition Officer accordingly recorded the statements of the petitioners and thereafter, submitted his report to the State Government, recommending the acquisition of the land in question. Thereafter, a notification under Section 6 of the Act, was issued on 11-08-2008 which was published in the daily newspaper 'Times of India' dated 15-08-2008. The petitioners have therefore, approached this Court by way of this Writ Petition challenging the aforesaid land acquisition proceedings on various grounds.
6. Mr. Sonak, the learned counsel for the petitioners, vehemently submitted that the lands of the petitioners are sought to be acquired for the purpose of establishing Government Village School Playground at Fatrade, but there was only one Government Primary School in the said Village, which is closed since last 14 years and in that view of the matter, it can never be said that the land is really required to be acquired for the public purpose and there is no public purpose involved for acquiring the land for Government Primary School which is closed since last 14 years. The learned counsel for the petitioners further submitted that the Land Acquisition Officer is assigned with a duty which is in the nature of quasijudicial duty. While considering the objections under Section 5A of the Act, the Land Acquisition Officer has not properly considered the objections raised by the petitioners, even though the petitioners have pointed out that the primary school is not functioning since last 14 years. The learned counsel for the petitioners submitted that the Land Acquisition Officer has not considered the said aspect in his report submitted to the Government. He further submitted that the Land Acquisition Officer has not considered the submission of the petitioners that there are many other lands available in the vicinity of Fatrade, Varca Salcete, Goa, which are fallow lands and the same can be acquired for the said purpose. It is submitted that the Land Acquisition Officer has also not considered the fact that the other fallow sites are available in the close proximity. It is also submitted that the land acquisition officer has not considered the fact that there are other sites available and that the land of Varca Sports club wherein there is a playground, could have also been acquired as the said land is better situated for the alleged purpose.
7. It is also submitted that the Land Acquisition Officer has failed to consider that initially proceedings were dropped and yet fresh proceedings have now been initiated and which have been initiated at the instance of Mr. Churchil Alemao, who is the elected member of the Legislative Assembly and a Cabinet Minister. The learned Advocate for the petitioners further stated that the land in question is sought to be acquired only at the instance of Mr. Churchil Alemao, as he wants to settle personal grievance against the petitioners as the petitioners have not helped him in the last elections. Mr. Sonak, the learned Advocate for the petitioners submitted that the Land Acquisition Officer has not considered the fact that there is already one playground available which belongs to Varca Sports club. It is submitted that the said objection has been overruled only on the ground that it is a private ground. Mr. Sonak, the learned counsel for the petitioners vehemently submitted that even if a private ground is of a sports club, the same could have been acquired for the alleged purpose. It is also submitted that the application of mind should be at two stages, one is at the stage of Land Acquisition Officer and second at the stage of State Government. Mr. Sonak strongly contended that the affidavit-in-reply should not have been filed by Under Secretary and it should have been filed by the Secretary. He further submitted that the State Government has not independently applied its mind in the land acquisition proceedings. It is submitted that if the act of the Government is dehors the provisions of law, then the judicial scrutiny is still available. On the aforesaid grounds, the Notifications under Section 4 and 6 of the Act, have been challenged by the petitioners in this petition.
8. The learned counsel for the petitioner had also relied upon various judgments to substantiate his say that the Land Acquisition Officer is required to consider the objections raised by the petitioners in an appropriate manner. It is submitted that the Land Acquisition Officer has carried out site inspection in the absence of the petitioners. It is submitted that the matter may be remanded back to the Special Land Acquisition Officer for considering the objections of the petitioners de novo. Mr. Sonak, the learned counsel for the petitioners further submitted that the purpose for the acquisition is to be considered as mentioned in the notifications under Section 4 & 6 of the Act and no other purpose can be shown subsequently in the affidavit-in-reply. It is submitted that the purpose for acquisition of the land should be a public purpose in terms of Section 4 & 6 of the Act.
9. The learned Advocate General appearing for the respondents, on the other hand, submitted that whatever objections which have been submitted by the petitioners have been considered by the Special Land Acquisition Officer. The learned Advocate General further submitted that the petitioners could not point out any other land even in their objections under Section 5A of the Act. It is submitted that which land is suitable for the purpose of Government Village playground is the function of the State Government and the SLAO after considering the facts and circumstances of the case and after considering the location, has ultimately found that the land in question is more suitable for the purpose and this Court cannot interfere with the aforesaid selection process conducted by the SLAO in a petition under Article 226 of the Constitution of India. The learned Advocate General further pointed out that as per the policy decision taken by the Government, playgrounds are required to be established in every village. It is submitted that every village is required to have Government School and ultimately, the facility and benefit of playing games like Football, is available for the entire village, for the purpose of which the land is sought to be acquired.
10. It is further submitted by the learned Advocate General that the petitioners have not stated in their objections regarding any other fallow land and no particulars of such fallow land have been stated in the objections and the SLAO is required to consider those objections which are taken in the representation. He submitted that since earlier notification lapsed because of time limit, subsequent notification came to be issued and that itself shows that the public purpose continued. It is submitted that the allegations of malafide are absolutely vague and without any substance and even a person against whom allegations are made, has not been joined as a party. It is submitted by the learned Advocate General that the Government has decided to expand the sports activity in the State of Goa and Football is one of the important sports, so far as State of Goa is concerned and for that purpose, if the land is sought to be acquired, it can be said that the same is for the public purpose and establishment of playground for the village children is also an important public purpose. The learned Advocate General submitted that simply because the petitioners are carrying on agricultural activity is no ground for challenging the land acquisition proceedings, as ultimately the petitioners would be given appropriate compensation as per law, pursuant to the acquisition of their lands. It is submitted by the learned Advocate General that under the Business Rules, under Secretary is empowered to file reply and accordingly the same has been filed. He further submitted that the decision has not been taken by the Under Secretary and it was taken by the State Government, and on the basis of the available record, reply has been filed by the Under Secretary. It is further submitted by the learned Advocate General that the suitability of the land is to be considered by SLAO and this Court cannot interfere with the selection process in a petition under Article 226 of the Constitution of India.
11. We have heard the learned counsel for the petitioners and the learned Advocate General for the respondents, at length. We have gone through the petition, affidavit-in-reply as well as rejoinder. We have also gone through the various documents forming part of the petition.
12. It is required to be noted that initially notification under Section 4 was issued and the petitioners had already lodged their objections under Section 5A of the Act. But, since the notification under Section 6 was not issued within the time, the said notification lapsed and ultimately, a fresh notification under Section 4 was issued. The purpose for acquiring the land in question is mentioned in the said notification. It has been pointed out during the course of hearing by the learned Advocate General that there was a demand from the village people for acquiring the land for the purpose of establishing football ground. During the course of hearing, it was submitted that the Director of Sports and Youth Affairs is developing standard playgrounds in various villages in Goa for the purpose of establishing playing facilities for the students and the residents of the concerned villages. In the affidavit-in-reply, it has been averred by the Deputy Director of Sports and Youth Affairs that in order to develop the playgrounds in villages in the State of Goa, the Government has prepared a Scheme known as 'Development of Government Village School Playgrounds'. Though, it is captioned as Government Village School Playground, but it is a composite scheme of the Government and under the said scheme, upon construction of the playground, any member of the public can use the same for developing his talents.
13. The proceedings were, accordingly, initiated by the Department of Sports and Youth Affairs, Government of Goa, to acquire the land in question for the said purpose. In the reply, it has been pointed out that under the said scheme, the Director of Sports and Youth Affairs, has undertaken construction of such village playgrounds in 31 villages in the State of Goa. Some of the playgrounds have been completed and some are under various stages of development. It is pointed out that in various such cases, land acquisition proceedings are in progress and lands of various villages have been acquired for the development of playgrounds. Details have also been given in the affidavit-in-reply at Annexure R-1.
14. In para No. 8 of the reply, it has been averred that the Director of Sports and Youth Affairs, moved a proposal to the Collector of South Goa to develop a Government Village School Playground at Fatrade, Varca in Salcete Taluka, over the land admeasuring 17500 sq. mts. for the benefits of students, non-students and the youth of the locality. In the affidavit-in-reply, it has been stated that on account of non-availability of the standard playground, the youth of the village are being deprived to show their talents. It is submitted in the affidavit-in-reply that they are three government primary schools, three high schools within the vicinity of five kilometers of the proposed site and the students will stand to benefit and utilize the playgrounds for different sports activities, once it is developed by the Sports Department.
15. In para No. 10 of the reply, it is pointed out that so far as the Government Playground at Orlim is concerned, it is situated at a distance of 2.5 kms. from the proposed site of acquisition. The said playground does not belong to Government, but belongs to Panchayat of said village. Relying upon the said affidavit, the learned Advocate General submitted that the acquisition is made under the Village School Playground Scheme and therefore it cannot be said that the same is not for public purpose. It is submitted that even if a primary school is closed or not functioning, it cannot be said that there is no need for playground under the Scheme for the village people as ultimately the said facility will be available to all the village people and ultimately it will be a playground of the Government, which can be used by all.
16. The Special Land Acquisition Officer has also filed affidavitin- reply which is at Page 126 of the Compilation. In his affidavit, the Special Land Acquisition Officer has stated that the Town and Country Planning Department has also conveyed their NOC to acquire the land for the purpose of playground and the playground at another Village Orlim, cannot be said to be convenient so far as the village people of Fatrade is concerned. It is also stated in the reply that the Land Acquisition Officer has given an opportunity of personal hearing to the petitioners and their objections have been properly considered by him and he had taken site inspection and thereafter, submitted his report under Section 5A of the Act.
17. In our view, simply because in the notification under Section 4 & 6 of the Act, there is a reference about the acquisition of the land for Government school playground and though the Government school is not functioning in the area, it cannot be said that there is no public purpose as no such public school is functioning in the village. It is required to be noted that on the basis of the recommendations of the Sports Authority of State of Goa, the Director of Sports and Youth Affairs, ultimately decided to acquire the land in question for the purpose of Government Village Playground. It cannot be said that there is no public purpose involved in such acquisition. Simply because some private club might have some playground, it would not mean that there is no public purpose involved in acquiring the land in question. It is for the State Government to consider whether any additional ground is required to be acquired so that all the village people can take benefit by using the said playground. In our view, the Land Acquisition Officer has considered whatever objections raised before him and he is not expected to write a judgment like a Judicial Officer. It is not possible to take out one or two lines from the notifications for coming to the conclusion that the purpose mentioned in the notifications was not existed and there is no public purpose involved. Considering the affidavit-in-reply and the submissions of the learned Advocate General, we are of the opinion that on the basis of the recommendations of the Director of Sports, ultimately it was decided to acquire the land for establishing football ground under the said Scheme. Simply because name of the scheme is not mentioned in the notification, cannot be treated as a ground that there is no public purpose involved. We do not find any substance in the arguments of Mr. Sonak that there is no public purpose involved in acquiring the land in question.
18. So far as the argument Mr. Sonak, to the effect that the Land Acquisition Officer has not dealt with the objections under Section 5A of the Act is concerned, it is required to be noted that before the SLAO, no particulars were given about the availability and suitability of other fallow land. The petitioners were given personal hearing and their statements were recorded. It is true that the Land Acquisition Officer is having an important duty while dealing with the objections under Section 5A of the Act, but, it cannot be said that the Land Acquisition Officer has not carried out his obligations under the Act. In the present case, the Land acquisition Officer has submitted his report to the State Government only after considering the objections raised before him.
19. So far as the selection of the land is concerned, this Court cannot substitute the selection process undertaken by the State Government and the same is within the domain of Land Acquisition Officer and after considering the purpose, if a particular land is found to be most suitable, this Court would not interfere in the selection process in a petition under Article 226 of the Constitution of India, especially when the affidavit-in-reply clearly points out as to how the land in question is most suitable land as compared to other lands.
20. Mr. Sonak, the learned counsel for the petitioners, has also submitted that the land of Varca Sports Club could have been acquired as it is more suitable and simply because it is a private sports ground, it cannot be said the same cannot be acquired. Pertinently, it was only pointed out vide objections under Section 5A dated 8.3.2008 that there existed a modern village play ground of Varca Sports Club at Varca and, as such, there was no need of an additional play ground for the people of Fatrade. No utterance was made regarding its suitability for acquisition for the purposes the acquisition was proposed for. In the light of such objections, there was no obligation on the part of the Dy. Collector (LA), Margao, Goa to consider the issue of suitability of the Varca Playground for the purposes of the acquisition. In our view, it is for the authority to consider as to which land should be acquired or not. It cannot be disputed that so far as the sports ground of private club is concerned, all village people cannot take benefit of the same and ultimately, the authority has decided to acquire another land for the purpose of establishing additional playground. It cannot be said that there is no need to establish said playground and that there is no public purpose involved in the said acquisition proceedings.
21. The learned Advocate for the petitioners has relied upon a decision of the Supreme Court in the case of Shri Mandir Sita Ramji v. L.T. Governor of Delhi and Ors. : [1975]1SCR597 , wherein the Supreme Court has held that the duty of the Land Acquisition Officer to afford opportunity of being heard under Section 5A of the Act is mandatory. In the aforesaid judgment, it has been further held that Government may not choose to accept the recommendation of the Land Acquisition Officer, even when he makes one, it cannot be said that he need not make the recommendation at all but leave it to the Government to decide the matter. In the said judgment, the Land Acquisition Officer without any further hearing and without any conscious of his having called for report, submitted his report to the Government. No hearing was given and under the circumstances, notification under Section 6 was quashed.
22. In the instant case, the Land Acquisition Officer after hearing the petitioners and after considering their objections, submitted his report to the State Government and therefore, it cannot be said that the Land Acquisition Officer has not followed the procedure or it cannot be said that before submitting the report, the Land Acquisition Officer has not considered the objections of the petitioners.
23. The learned counsel for the petitioners have placed further reliance on a decision of the Supreme Court in the case of Municipal Corporation of Greater Bombay v. Industrial Development Investment Co. Pvt. Ltd. and Ors. : AIR1997SC482 . The said decision is rendered by the Division Bench of two Judges. A dissenting view is expressed by another Judge by holding that the proposal under Section 126(1) of the Maharashtra Regional and Town Planning Act, 1966 is for acquisition of land for a specified public purpose, if the planning authority wants to acquire the land subsequently, for any other public purpose earmarked in the modified scheme, then such a purpose must be specifically indicated in the plan meaning thereby that the land must be shown to be reserved for that purpose and that the planning authority would be required to issue a fresh proposal under Section 126(1) of the Act.
24. However, in the instant case, as pointed out earlier, public purpose has already been mentioned in the notifications and public purpose cannot be given any restrictive meaning as ultimately, the land was sought to be acquired for the purpose of playground. It cannot be said that the petitioners are misguided in any manner as ultimately, the petitioners have already submitted their detailed objections under Section 5-A of the Act. It is not a case that because of wording in the notifications under Section 4 & 6 of the Act, the petitioners are misguided and that they have not lodged any objections. It cannot be said that the petitioners are prejudiced in any manner in view of particular words in the notification under Section 4 of the Act.
25. The learned counsel for the petitioners again relied upon a decision of the Supreme Court in the case of Jnanedaya Yogam and Anr. v. K.K. Pankajakshy and Ors. : AIR1999SC3891 . In the said case, the question was regarding availability of alternate route for the purpose of providing passage to the Pallivetta procession originating from Shri Jagannath Temple, Tellicherry. The owner of the land challenged the said notification on the ground that the procession did not have any fixed route. The learned Single Judge allowed the writ petition on the ground that the acquisition was not for public purpose. It was also found that dispensing with the objections under Section 5-A of the Act, would not be applicable. An appeal against the said judgment was dismissed by the Division Bench and the matter was carried further in the Supreme Court. The relevant observations of the Supreme Court in the aforesaid judgment are as under:
12. It is difficult to appreciate this extreme contention. On the other hand, learned Senior counsel for the appellants was right when he contended that the reasoning adopted by the Division Bench of the High Court in the impugned judgment for applicability of Section 40(1)(b) of the Act, that the work concerned should be like a hospital, public reading room or library, would result in unduly limiting the wide scope of Section 40(1)(b). It cannot be doubted that if the premises of the Temple are landlocked, and a passage is to be carved out from the surrounding land so that devotees representing a class of public can approach the place of religious worship may be even once every year, acquisition of appropriate surrounding land for that purpose can squarely be covered by Section 40(1)(b) as such a permanent carving out of passage by levelling the acquired land can legitimately be treated to be construction of work directly useful to the public. With respect, the Division Bench has too narrowly construed the terminology employed by the legislature in Section 40(1)(b). It must therefore, be held that if an approach road to the Temple or the place where religious ceremonies are to be performed is to be laid on a permanent basis for perennial use of the members of the public, being devotees, even if to be utilized every year on a single occasion for approaching the place of religious worship, then acquisition of such land would be for construction of some work which is likely to prove directly useful to the public, as the members of the public being devotees, can walk over the said constructed approached road for all times to come for going to the religious place concerned.
13. Learned counsel for Respondent 1 vehemently contended that acquisition for having the passage for enabling the elephant and the procession to go towards the southern side for reaching the destination, cannot be considered to be for construction of any work for the Company, including the Society, in the present case as laying of passage is not construction of any work. It is not possible to agree with this Contention.
19. We may now proceed to consider the legality of the impugned acquisition. In our view, on the peculiar facts of this case, the basic requirements of Section 40 Sub-section (1)(b) of the Act, are not met at all. The reason is obvious. The site plan placed before us by both sides, and on which there is no dispute, shows that the main road over which the procession has to proceed on the spot is on the northern side. Respondent 1's disputed land is situated on the southern side of the main road. There is a fence put up by the respondent over her land and leaving the compound land the respondent has put up a residential house in one corner of her land and there is a row of shops built up by her facing the main road towards the north just touching the main road on the northern side. The last shop touching the main road is constructed on the disputed land which is sought to be acquired. The destination of the procession is on further southern side of the respondent's land. For reaching that destination where the procession has to end and the idol has to be taken down from the elephant's back for carrying out the religious ceremony, the procession has necessarily to go through the open land adjoining the respondent's compound land. The respondent's learned counsel, on instructions, made it clear that the respondent will have no objection in allowing the procession along with the elephant to go through the open land in her compound for approaching the southern side and for reaching the destination. For that purpose, instead of cutting across her last shop in the row, the procession can divert its route by five to ten feet on further right hand side while going towards the sough and can go through her compound land for reaching the destination. This little diversion of the road may save her shop without in any way hindering the procession from reaching the destination. In our view, the said stand of the respondent is quite fair. In fact, such an alternative route could have been suggested before the acquiring authorities. However, as the procedure of Section 5-A of the Act was dispensed with, the acquiring authorities not no opportunity to consider the alternative route suggested by her. It is obvious that such an alternative route would have satisfied the requirements underlying the acquisition proceedings for ensuring a convenient passage for the procession along with the elephant. Such procession could have easily utilized such alternative route without disturbing and cutting across the respondent's existing shop on the spot. When we put this to the learned Senior Counsel for the appellants, he stated that on principle there may not have been any objection on this aspect but for the fact that astrologers consulted by the appellant temple have advised that the route of the procession cannot be changed and it is only the old route which is a sanctified route. Now it is easy to visualise that this stand of the appellant clearly shows that the so-called need for having the passage for the movement of the elephant and the procession only through the acquired land after demolishing Respondent 1's shop is not a genuine need of the Temple or for that matter of the members of the public, who are devotees and who would join in the procession every year. It is merely the sentimental approach of the Temple authorities, solely depending upon the astrologers information which was made the sole basis for supporting the acquisition in question. It is easy to visualise that different astrologers' opinions can be contradictory even on the given facts. That can certainly not be treated to be a genuine need for the public when a suitable passage for movement of the elephant and the procession can be easily obtained on the spot without disturbing or demolishing the shop. A little diversion of the route cannot therefore, be held to be an impermissible possibility nor can the insistence by the astrologers not to divert the route by cutting across the intervening shop of the respondent so as to justify acquisition proceedings under Section 49(1)(b) of the Act. On the facts of the present case, therefore, there is no escape from the conclusion that the so-called need for having a passage only through the land on which the respondents structure stands was not a genuine and felt need for construction of the road for the use of the public.
26. It is required to be noted that in the aforesaid case, procedure under Section 5A was dispensed with and the acquiring body had no opportunity to consider the alternate route suggested by the owner of the property. So far as the facts of the present case are concerned, it is not in dispute that after considering the objections and after giving hearing to the petitioners, ultimately the Land Acquisition Officer submitted his report to the State Government and ultimately, the Government decided to acquire the land holding that the land in question is suitable for the said purpose.
27. Mr. Sonak, the learned counsel for the petitioners placed reliance on a decision of the Supreme Court in the case of Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai and Ors. : AIR2005SC3520 , wherein it is held that right to make objections is akin to a fundamental right. Hearing objections must be effective one and not a mere formality. There must be proper application of mind as regards consideration of relevant factors and rejection of irrelevant ones.
28. Relying on the aforesaid judgment, it is submitted that this Court can interfere with the decision making process if it is found to be erroneous. He further submitted that when the Land Acquisition Officer has not dealt with each and every objections, the Court may send the matter back to him for fresh decision.
29. The learned Advocate for the petitioners relied upon a decision of the Supreme Court in the case of Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke and Chemicals Ltd. and Ors. : AIR2007SC2458 , wherein it has been held that the right to property while ceasing to be a fundamental right would however, be given express recognition as a legal right, provisions being made that no person shall be deprived of his property save in accordance with law. The right to property is now considered to be not only a constitutional right but also a human right.
30. In our view, it cannot be said that the petitioners are deprived of their properties as ultimately as per the provisions of the Act, they are to be paid appropriate compensation.
31. Reference is also made to the decision of the Gujarat High Court in the case of Patel Gandalal Somnath and Ors. v. State of Gujarat and Ors. AIR 1963 Guj 50, wherein it has been held that the inquiry under Section 5A is an administrative and not a quasi judicial inquiry. It is held that the inquiry is provided in order to serve a two-fold purpose. It is intended to instruct the mind of the Government so that the Government would be in a position to decide whether any particular land is needed for a public purpose or for a company. It is also meant to act as a safeguard against any ill-informed action on the part of the government. Since it is left to the subjective satisfaction of the Government to decide whether any particular land is needed for a public purpose or for a company, the law has provided the safeguard of an inquiry so that there may be proper and adequate material before the Government, before the Government can arrive at a satisfaction one way or the other. The other purpose by which the inquiry is intended to serve is to give an opportunity to persons interested in the land to put forward their point of view supported by such material as they like showing that the land is not needed for a public purpose or for a company and that the proposal for acquisition initiated by the Government by issue of the notification under Section 4 should not culminate into any definite proceedings for acquisition of the land but should be dropped. These two purposes which an inquiry under Section 5A is intended to serve are complementary as well as supplementary to each other.
32. In our view, since appropriate inquiry under Section 5-A of the Act, has been carried out, no fault can be found with the inquiry undertaken by the SLAO under Section 5-A of the Act and therefore, it cannot be said that inquiry under Section 5A of the Act, is vitiated in any manner.
33. The learned Advocate for the petitioners has also relied upon a decision of the Karnataka High Court in the case of Gadigeppa Mahadevappa Chikkumbi v. State of Karnataka and Ors. AIR 1990 Kar 2; wherein it has been held that acquisition of entire agricultural land of an agriculturalist violates rights to adequate means of livelihood and right to pursue his avocation. It is required to be noted that the learned counsel for the petitioners could not point out whether any policy is taken by the State Government that agricultural land should not be acquired under the Land Acquisition Act and therefore, it cannot be said that the State Government cannot acquire agricultural land for the said purpose.
34. It was nextly submitted by Mr. Sonak, the learned counsel for the petitioners that the inspection of the site was carried out without informing the petitioners. In this behalf, he has relied upon a decision rendered by this Court in the case of Smt. Sulochana Dadaji v. Commissioner, Nagpur Division, Nagpur and Ors. : AIR1968Bom88 . In the aforesaid case, initially, inquiry was made by the Land Acquisition Officer as per the facts stated in Para No. 8 & 9 of the said judgment. It was found that the subsequent inquiry carried out by the Collector was without jurisdiction and bad in law. In the instant case, the SLAO carried out the site inspection for the purpose of finding out the exact area and location of the land before submitting his report. In fact it is the duty of the Collector to have such site inspection of the land before submitting his report.
35. Mr. Sonak, the learned counsel for the petitioners has placed reliance on a decision of the Bombay High Court in the case of Sukumar M. Khot and Ors. v. State of Maharashtra and Ors. : 2006(4)BomCR337 , wherein the Division Bench of this Court has emphasised importance of inquiry under Section 5-A. It has been found that the inquiry of the Collector is a vital input that enables Government to take a decision. In the said case, objection was taken by the land owner that the sugar factory has already sufficient land for the purpose of which acquisition is sought to be made and the report of the Collector shows an endorsement above his signatures which means it is not a report of Collector and there is no material in support or a recommendation of Collector as required under Section 5A of the Act. It was found that the records submitted by the Collector are nothing but what was there on record before Government had issued notification under Section 4 of the Act. Considering the said facts, it was found that the provision of Section 5A was not complied with.
36. The learned Advocate for the petitioners has placed a reliance on the judgment of this Court in the case of Harakchand Misirimal Solanki v. The Collector, Collector Office, Land Acquisition Branch, Pune and Ors. 2009(1) All MR 799. A Division Bench of this Court has held that 'before starting any acquisition proceedings for acquiring land for the establishment of a Forest Garden, certain aspects were required to be considered by the authority regarding whether there was any need at all to establish a Forest Garden; whether it is possible to establish such Forest Garden; whether it is necessary to acquire land; whether the financial condition of the Corporation permits such expenditure.
37. It has been held in the aforesaid judgment that compliance of Section 5-A of the Act is mandatory to satisfy the principles of natural justice and there should be proper application of mind. As we have already discussed earlier, it cannot be said that the Land Acquisition Officer has not followed the appropriate procedure and the procedure adopted by him is vitiated in any manner.
38. The learned Advocate for the petitioners has relied upon a decision rendered by this Court, to which one of us (P.B. Majmudar, J.) was a party in Writ Petition No. 300 of 2008. In the aforesaid case, inquiry under Section 5A was dispensed with. After considering the facts and circumstances of the case, it was found that there is no justification to dispense with inquiry under Section 5A. Hence, the ratio of the said decision cannot be made applicable to the facts and circumstances of the present case.
39. The learned Advocate General to substantiate his contention, placed reliance on a decision of the Supreme Court in the case of Smt. Somawanti and Ors. v. State of Punjab and Ors. : [1963]2SCR774 , wherein it was held that declaration made under Section 6 of the Act, is conclusive evidence that the land is needed for public purpose. It was further held that if the purpose for which the land is being acquired by the State is within the legislative competence of the State the declaration of the Government will be final subject, however to one exception. That exception is that if there is a colourable exercise of power the declaration will be open to challenge at the instance of the aggrieved party.
40. The learned Advocate General relied upon a decision of the Supreme Court in the case of Chameli Singh and Ors. v. State of U.P. and Anr. : AIR1996SC1051 , wherein it has been held in para 17 that, 'In every acquisition by its very compulsory nature for public purpose, the owner may be deprived of the land, the means of his livelihood. The State exercises its power of eminent domain for public purpose and acquires the land. So long as the exercise of the power is for public purpose, the individual's right of an owner must yield place to the large public purpose. For compulsory nature of acquisition, Sub-section (2) of Section 23 provides payment of solatium to the owner who declines to voluntarily part with the possession of land. Acquisition in accordance with the procedure is a valid exercise of the power. It would not therefore, amount to deprivation of right to livelihood. Section 23(1) provides compensation for the acquired land at the prices prevailing as on the date of publishing Section 4(1) Notification'.
41. Nextly the learned Advocate General has relied upon a decision of the Supreme Court in the case of Delhi Administration v. Gurdip Singh Uban and Ors. AIR 2000 SC 3737, wherein it has been held that persons not filing objections cannot be permitted to contend that inquiry under Section 5A is vitiated. Nor they can be permitted to seek quashing of Section 6 declaration on that ground.
42. The learned Advocate General has submitted that in the instant case, the petitioners have already lodged their objections, but over and above objections taken earlier, the additional points have been raised in the petition regarding the availability of other fallow land, etc. He further submitted that since those points were not taken in the objections before the SLAO, no fault can be found with the report submitted by the Collector under Section 5-A of the Act, and additional point taken in the petition cannot be taken into consideration.
43. In the case of Delhi Administration (Supra), it has been held that
50. In our view, the above observations of the Division Bench do not lay down the law correctly and in fact run counter to earlier decision of this Court in Ganga Bishnu v. Cal. Pinjrapole Society : [1968]2SCR117 , the words used were that the 'Governor is satisfied that the land is need for a public purpose'. It was argued that the said words did not ex facie show satisfaction of the Government which was a condition precedent. It was argued that the Amendment by Act 38/1923 omitted the words 'appears' and used the words 'satisfied' instead. Even so, this court held that the law before the amendment and thereafter was the same. It was held that Section 6 specified the manner in which the declaration should be made and if it was so made, it was conclusive. It was held that it was not necessary that the notification should even refer to the 'satisfaction'. If the satisfaction was challenged, it would be sufficient if such satisfaction is proved by producing the record on the basis of which the Section 6 declaration was issued. Therefore, the argument that Section 6 declaration must contain reasons or refer to the objections for every particular land is not correct. Again in Ratilal Shakarbhai v. State of Gujarat : AIR1970SC984 , the plea that the Government had not applied its mind was rejected by this Court in the following circumstances. The Court observed (Para 9) of AIR:
Before issuing that notification (i.e. Section 6), there was in inquiry under Section 5A. The Government had issued that notification after examining the report submitted by the concerned officer, there is no material on record from which we can reasonably come to the conclusion that the Government had acted blindly in issuing that notification.51. No reasons or other facts need be mentioned in the Section 6 declaration on its face. If the satisfaction is challenged in the Court, the Government can show that record upon which the Government acted and justify the satisfaction expressed in the Section 6 declaration.
44. The learned Advocate General has relied upon a decision of the Supreme Court in the case of Pratibha Nema v. State of M.P. and Ors. : AIR2003SC3140 . In para Nos. 34 to 36, it has been observed that:
34. The vagueness of notified public purpose is the next ground of attack against the notifications issued under Section 4(1) and 6. According to the learned counsel for the appellant, the expression 'establishment of diamond park' is vague and unintelligible and therefore, deprives the landholders and the general public of the valuable right to object to the acquisition on relevant grounds. It is further contended that the elaboration of the public purpose in the notice of inquiry issued under Section 5-A by the Land Acquisition Officer does not cure the vital defect in the Notification under Section 4(1) which is an essential pre-requisite for all further action under the Act. Hence, it is contended that the notification under Section 4 together with the subsequent proceedings become null and void. The sheet-anchor of this argument rests on the decision of this Court in Madhya Pradesh Housing Board v. Md. Shafi : [1992]1SCR657 . There, the public purpose was described as 'residential' without even giving definite indication of the exact location of the lands sought to be acquired. What is more, in the declaration under Section 6(1), the public purpose was stated differently as 'housing scheme of Housing Board'. This Court, inter alia, held that the impugned notification was vitiated on account of being vague. The Court observed:
Apart from the defect in the impugned notification, as noticed above, we find that even the 'public purpose' which has been mentioned in the schedule to the notification as 'residential' is hopelessly vague and conveys no idea about the purpose of acquisition rendering the notification as invalid in law. There is no indication as to what type of residential accommodation was proposed or for whom or any other details. The State cannot acquire the land of a citizen for building some residence for another, unless the same is in public interest or for the benefit of the public or an identifiable Section thereof. In the absence of the details about the alleged public purpose for which the land was sought to be acquired, no one could comprehend as to why the land was being acquired and therefore, was prevented from taking any further steps in the matter.
The Court relied on the observation in Munshi Singh v. Union of India : [1973]1SCR973 to the effect that the public purpose needs to be particularized to satisfy the requirements of law.
35. We do not think that the ratio of the decision in M.P. Housing Board's case would come to the rescue of the appellants. Though the State Government could have discreetly avoided to use sophisticated industrial jargon, we do not think that the specified public purpose is so vague and indefinite that the public will not be in a position to understand its nature and purpose. That such terminology has gained currency is evident from the fact that the same expression was used in the Industrial Policy document. It may not be out of place to mention that in the recent times, the terminology such as Industrial Park, Information Technology Park is widely in circulation. Moreover, against the column 'authorized officer under Section 4(2) (close to the column public purpose), the designation of Manager, District Industries Center, Indore, is specified. This is a pointer to the fact that the land was being acquired for industrial purpose. We are therefore, of the view that in the instant case, the alleged vagueness is not of such a decree as to defy sense and understanding.
36. In Aflatoon v. Lt. Governor of Delhi : [1975]1SCR802 the public purpose mentioned in the notification under Section 4 was 'planned development of Delhi'. The challenge on the ground of vagueness of the notification was repelled on several grounds. The approach of the Court and the crucial consideration to be kept in view in dealing with this question was highlighted by Mathew, J. Speaking for the Constitution Bench in the following words:.According to the Section (Section 4) therefore, it is only necessary to state in the Notification that the land is needed for a public purpose. The wording of Section 5-A would make it further clear that all that is necessary to be specified in a notification under Section 4 is that the land is needed for a public purpose. One reason for specification of the particular public purpose in the notification is to enable the person whose land is sought to be acquired to file objection under Section 5A. Unless a person is told about the specific purpose of the acquisition, it may not be possible for him to file a meaningful objection against the acquisition under Section 5A....
We think that the question whether the purpose specified in a notification under Section 4 is sufficient to enable an objection to be filed under Section 5A would depend upon the facts and circumstances of each case. Absence of prejudice was highlighted in para 10 thus :
That apart, the appellants did not contended before the High Court that as per the particulars of the public purpose were not specified in the notification issued under Section 4 they were prejudiced in that they could not effectively exercise their right under Section 5A.
45. Relying upon the aforesaid observations, the learned Advocate General submitted that the land was sought to be acquired for establishing playground for the village and as per the scheme every village should have such playground and therefore, it cannot be said that the acquisition proceedings have been vitiated in any manner because of the same.
46. As regards the allegations about the malafide is concerned, it is too vague to be given any weightage. The person against whom allegations are made, has not been joined as a party in the present writ petition. If the village people ultimately submitted any representation through their leader or M.L.A. or M.P. of their area, and on the basis of the said representation, if any recommendation is made by the said M.L.A. or M.P., it cannot be said that the said recommendation is made with any ulterior motive. 47. The learned Advocate General relied upon a Division Bench Judgment of this Court in Writ Petition No. 74 of 2005 dated 27-09-2005, wherein it has been observed in para Nos. 4, 5 and 9 as under:
4. That the subject land is being acquired for Government Village School Playground at Macazana, Salcete Taluka, is not in dispute. The said village has a population of about 2000. It is also true that there are very few students studying in the Government village school. The question that is required to be considered by us is whether the acquisition of the subject land is not in accordance with law and suffers from any legal infirmity.
5. As a matter of fact there are no allegations of malafides or that the acquisition of the subject land is being done in colourable exercise of power vested in the State Government. The thrust of the argument is that there are only two students in the Government Village school and that the other playgrounds are available in the area and therefore, the subject land is not required for the playground.
9. Having considered the entire material available before us, we find that it was the Village Panchayat who mooted the proposal for development of playground under the Village School playground scheme in Village Macazana. The said land was identified as proper for development of the playground. It is true that the petitioners submitted that their objections pursuant to the notification issued under Section 4 of the Act, but the said objections were not found meritorious. In his report made under Section 5-A the Deputy Collector observed that the existing three playgrounds were not proper. One is quite small, the other has no access and the third has no feasibility for improvement. The Deputy Collector in his report observed that by development of the proposed playground the official tournaments can be held. We find no infirmity in the report of the Deputy Collector. The students in the Government Village School may not be large, but if a full fledged playground is prepared and developed in the village for holding official tournaments and sports activities, it cannot be said that the subject lands was not needed for public purpose.
48. Relying upon the aforesaid judgment rendered by this Court, the learned Advocate General pointed out that even though there were two students in the school, this Court has ultimately approved the acquisitions proceedings and has held that the acquisition is for public purpose.
49. The learned Advocate General relied upon the notification of the State Government which is in connection with the procedure prescribed for deciding objections, which prescribes hearing of objections under Section 5A. It is submitted that the procedure has been followed as per the said notifications. The learned Advocate General further contended that there was written representations by various people of this very town and on the basis of which, the Director of Sports and Youth Affairs sent a proposal for acquiring the land for the purpose of establishment of football playground and the same can be said to be for public purpose. In our view, once it is held that the land in question is sought to be acquired for public purpose, and when the SLAO has given an opportunity to the petitioners for submitting their objections and subsequently submitted his report, it cannot be said that the land acquisition proceedings are vitiated in any manner. We are of the view that the selection of the land is absolutely within the realm of the authority concerned and this Court is not required to be interfered with the said selection procession, unless there is an allegation of malafide or that the acquisition of the subject land is being made in colourable exercise of power on the part of the acquiring body.
50. At this stage, a reference is required to be made to the ruling of the Supreme Court in the case Sooraram Pratap Reddy and Ors. v. District Collector, Ranga Reddy District and Ors. : (2008)9SCC552 , wherein it has been held in para Nos. 119 to 122 as under:
119. In our judgment, in deciding whether acquisition is for 'public purpose' or not, prima facie, the Government is the best judge. Normally, in such matters, a writ court will not interfere by substituting its judgment for the judgment of the Government.
120. In Hamabai's case, the Judicial Committee of Privy Council stated: (I.A. P. 47):.all that remains is to determine whether the purpose here is a purpose in which the general interest of the community is concerned. Prima facie the Government are good judges of that. They are not absolute judges. They cannot say 'sic volo sic jubeo'. But at least a court would not easily hold them to be wrong.
121. This Court in R.S. Nanji, reiterated the principle laid down by the Privy Council. The Constitution Bench observed: (AIR P.297, Para 11)
11. ...Prima facie the Government is the best judge as to whether public purpose is served by issuing a requisition order, but it is not the sole judge. The Courts have the jurisdiction and it is their duty to determine the matter whenever a question is raised whether a requisition order is or is not for a public purpose.
122. In Somawanti, this Court interpreted Sub-section (3) of Section 6 of the Act and held that the declaration made under Section 6 of the Act is conclusive evidence that the land is needed for public purpose. It was contended that the declaration can be made by the Government arbitrarily and if such declaration is irrational, unreasonable, mala fide or dehors, the Act, it should be open to a Court to decide the question. Dealing with the submission, the majority stated: (Somawanti case AIR P. 164 para 36).
36. ...Now whether in a particular case the purpose for which the land is needed is a public purpose or not is for the State Government to be satisfied about. If the purpose for which the land is being acquired by the State is within the legislative competence of the State the declaration of the Government will be final subject, however, to one exception. That exception is that if there is a colourable exercise of power the declaration will be open to challenge at the instance of the aggrieved party. The power committee to the Government by the Act is a limited power in the sense that it can be exercised only where there is a public purpose, leaving aside for a moment the purpose of a company. If it appears that what the Government is satisfied about is not a public purpose but a private purpose or no purpose at all the action of the Government would be colourable as not being relatable to the power conferred upon it by the Act and its declaration will be a nullity.
The Majority concluded: (Somawanti case AIR pp.165-66, para 40)
40. Though we are of the opinion that the Courts are not entitled to go behind the declaration of the Government to the effect that a particular purpose for which the land is being acquired is a public purpose we must emphasis that the declaration of the Government must be relatable to a public purpose as distinct from a purely private purpose. If the purpose for which the acquisition is being made is not relatable to public purpose then a question may well arise whether in making the declaration there has been, on the part of the Government a fraud on the power conferred upon it by the Act. In other words, the question would then arise whether that declaration was merely a colourable exercise of the power conferred by the Act, and therefore, the declaration is open to challenge at the instance of the aggrieved party. To such a declaration the protection of Section 6(3) will not extend. For the question whether a particular action was the result of a fraud or not is always justifiable, provisions such as Section 6(3) notwithstanding.
51. Taking into consideration the matter from all angles, in our view, it cannot be said that the land acquisition proceedings initiated in the present case are vitiated in any manner, when the Government has decided to acquire the land for the purpose of establishment of football ground for the village people. It cannot therefore, be said that the said acquisition is not for public purpose. We do not find any infirmity in the proceedings undertaken by the Land Acquisition Officer for the purpose of acquiring the land in question. Considering the facts and circumstances of the case, and considering the reply on behalf of the respondents, we do not find that any irregularity is committed by the Government in the matter of acquiring the land in question. We, therefore, do not find any substance in this petition. The petition is, accordingly, dismissed with no order as to costs. Interim relief, if any, stands vacated.