Judgment:
B.P. Dharmadhikari, J.
1. Heard Advocate Sardessai for the petitioner, learned Advocate General for the respondents No. 1 and 2 and Mr. Kholkar for respondent No. 3. Rule. By consent heard forthwith.
2. By this petition filed under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the notification dated 19.2.2008 under Section 4 and dated 10.7.2008 under Section 6 of the Land Acquisition Act, 1894 along with the report dated 20.6.08 under Section 5A thereof. It is not in dispute that he is a tenant of entire land surveyed under Survey No. 171/3(part) which is sought to be acquired by publishing notification under Section 4 of the Act, 1894 ('Act' for short) for construction and parking area of commercial building complex at Cuncolim Bazar in Village Cuncolim of Salcete Taluka. His grievance is that he did not receive any opportunity in an inquiry under Section 5A of the Act. When the matter was listed first before this Court on 1.9.2008, in view of the said grievance, this Court, prima facie, found that his objections with regard to acquisition of the property and location of other lands or suitability thereof, were not considered. The Advocate General present in the Court was, therefore, requested to make a statement whether the respondents could consider such objections even at that stage. This Court has recorded that in all fairness, the Advocate General stated that the petitioner could still raise objections which would be considered and a fresh report would be submitted at the conclusion of hearing, if the petitioner co-operates and remains present for hearing. The petitioner accepted to remain present and co-operate on the date and time to be fixed by this Court. This Court directed him to remain present before respondent No. 1 on 8.9.08 and directed conclusion of hearing and consideration of all objections within two weeks from that date. Matter was adjourned to 29.9.08. Respondent No. 1, accordingly, conducted the hearing and submitted report to this Court on 29.9.08. Thereafter, upon oral request made by the petitioner, Cuncolim Municipal Council was added as party respondent No. 3 after leave to amend the petition was granted. The pleadings were completed and we have heard respective parties, on merits, on 22.4.2009.
3. In the affidavit filed on 29.9.08, respondent No. 1 has stated that adjacent lands pointed out by the petitioners are also being acquired for construction of playground, swimming pool, Ravindra Bhavan, etc. Along with the affidavit, he has filed the report prepared, after considering the objections of the petitioner and also after visiting the spot. Respondent No. 3 also filed its affidavit, pointing out that adjacent lands were being acquired for other public utility projects. Respondent No. 2-State has also, through its Under Secretary, filed similar reply affidavit on record. Additional affidavit has then been filed by respondent No. 3 in support of its earlier stand.
4. We have heard Advocate Sardessai for the petitioner; learned Advocate General with Mr. A. Kamat, Additional Govt. Advocate for respondents No. 1 and 2 and Mr. P. A. Kholkar for respondent No. 3, Municipal Council in this background.
5. Learned Advocate General has raised a preliminary objection and has contended that this Court directed the Government to consider the objections raised by the petitioner and those objections have accordingly been considered. He contended that the petition, therefore, has become infructuous and needs to be dismissed as the subsequent report dated 22.9.08 approves the need and acquisition.
6. Advocate Sardessai has contended that the land used for agriculture by the petitioner, as tenant, is the only green patch available in the area and it is surrounded by barren lands on all its sides. He states that the area of barren land is more than 1,00,000 sq. metres, while the area of land of the petitioner is only 8825 sq. metres. He argues that total need of land for various purposes, as stated by the respondents, is not more than 27,000 sq. metres and, hence, much more area is available there for acquisition. He contends that barren land is hardly at a distance of 250 metres from the land of the petitioner and hence, it is more suitable and ideal for acquisition. He has invited our attention to the sketch, as also photographs placed on record in support of his contention. In this background, he has invited our attention to the order sheets to show how the matter was adjourned on 19.5.08, without giving any next date of hearing and suddenly on 10.6.08 matter was fixed for inspection on 20.6.08. He states that on 19.5.08 it has been recorded that on 9.5.08 the matter was fixed for hearing and objector filed an application mentioning that his Advocate was out of station and would be back in the second week of June only. He also gave names of 19 witnesses and the necessary instructions/orders were sought from the Deputy Collector (LA) by the office. He points out that on 10.6.08, after site inspection, Section 5A report along with a letter of Collector was prepared and placed for consideration. According to him, the petitioner, therefore, was not given reasonable opportunity to produce his witnesses in the matter.
7. Advocate Sardessai relies upon a Judgment of Division Bench of this Court in the case of Ajitsingh v. The State of Maharashtra and Ors. reported at : AIR1972Bom177 to show that there cannot be any inquiry under Section 5A after Section 6 Notification. He points out that in the present case, Section 6 Notification came to be published on 10.7.08 and the inquiry as ordered by this Court is thereafter, and hence, it cannot be treated as an inquiry under Section 5A. To drive home the purpose and scope of opportunity under Section 5A, the learned Counsel relies upon a Judgment of the Hon'ble Apex Court in the case of Hindustan Petroleum Corpn., Ltd. v. Darius Shapur Chenai and Ors. reported at : AIR2005SC3520 . According to him, as the opportunity in this inquiry has not been given to the petitioner, the subsequent report dated 22.9.08 prepared in pursuance of the orders of this Court dated 1.9.08 has got no legal sanctity. Attention is invited to objections dated 17.3.08 filed before respondent No. 1. He pointed out that in it the petitioner has disclosed his status as tenant in occupation of agricultural land and availability of large barren area and uncultivable lands in the vicinity. It is pointed out that if the said land is acquired, the Department would be required to pay less compensation and the Municipal Council was unnecessarily interested in acquiring the land though alternate land was available. In the light of this objection, the report dated 20.6.08 submitted under Section 5A is also pointed out to show that availability of large barren land in the vicinity has not been considered at all by the Deputy Collector (LA). Statement on oath, by way of an affidavit, made by respondent No. 1 that the petitioner did not aver about availability of better alternate site is commended upon as incorrect and it is pointed out that the report of valuer was already filed before respondent No. 1 prior to 20.6.2008. Attention is invited to statement of the objector, recorded by respondent No. 1 in which the petitioner/objector disclosed that he would be examining Shri K.P. Bhangui and other villagers to prove that his land was agricultural and to show that the acquisition was undertaken only to harass him and his family for political reasons. The report of valuation submitted by the said valuer is also pointed out with fact that copy of said valuation report has been obtained from the records of Land Acquisition Officer under Right to Information Act. It is stated that the said report prepared by the expert shows how the land with the petitioner is not suitable for acquisition and how the surrounding portion of uncultivated lands are more suitable for public purpose. Advocate Sardessai contends that in view of this material already on record, the petitioner ought to have been given opportunity under Section 5A of the Act before publishing Notification under Section 6 of the Act.
8. Learned Advocate General has, in addition to the preliminary objection already mentioned above, stated that after the said order was passed by this Court, the petitioner enjoyed the benefit of interim stay and also participated in the inquiry and led the evidence to substantiate his contention. He, therefore, cannot be permitted to go back on said order and contend that the petition needs to be decided by ignoring it. It is further argued that the objections filed by the petitioner reveal that he was relying upon report of valuer only to show the cost of land at Rs. 95.00 lakhs or to show that it was being used for agricultural purpose. The Land Acquisition Officer found that as agricultural user of land was not in dispute, it was not necessary to examine any expert or valuer and hence, report dated 20.6.08 came to be prepared. It is further contended that there was no grievance about alternate barren land available in the vicinity and no details in relation to it were given in the objection as filed by the petitioner on 17.3.08. Even the statement of the objector recorded on 7.4.08 is shown to this Court in support of the contention that no such grievance about availability of uncultivated barren land was made in it. The said expert Shri Bangui has not been examined even though this Court granted opportunity after 1.9.08 and hence, no prejudice is caused to the petitioner in the matter. Our attention has been invited to an unreported Judgment dated 13.3.2009, delivered by Division Bench here in case of Santan Fernandes and Ors. v. State of Goa and Anr. Writ Petition No. 669/08, more particularly paragraph 10 and paragraph 18 to show that since particulars of other alternate land available for have not been furnished by the petitioner, the Land Acquisition Officer is not supposed to look into said aspect. It is contended that there are no malafides and hence, the petition deserves to be dismissed.
9. Advocate Kholkar, on behalf of Cuncolim Municipal Council has invited our attention to maps placed on record along with the affidavit to show how the adjacent land is being acquired for certain other public purposes and how the land of the petitioner is suitable for the purpose for which it is sought to be acquired. Learned Advocate General, as also learned Counsel for respondent No. 3 Municipal Council have relied upon the report submitted by the Dy. Collector (LA) on 22.9.08 to substantiate their contention about suitability of the land of the petitioner for acquisition.
10. The question whether hearing granted to the petitioner in terms of orders of this Court dated 1.9.2008 can be considered as an opportunity to him under Section 5A of the Act and whether subsequent report prepared in pursuance thereof on 22.9.08 needs to be considered again by Government in terms of the said section, arise for determination in this writ petition.
11. The objection raised by the petitioner on 17.3.2008 was in the process of consideration by respondent No. 1 and as is apparent from the order sheets, after 19.5.2008, no date of hearing was communicated to the petitioner. On 19.5.08, the petitioner submitted list of 19 witnesses and it appears that thereafter, no date was given to him. The Deputy Collector (LA) has, then taken up the case on 10.6.08 when he received certain reports/plans and, thereafter, fixed the matter for site inspection on 20.6.08. On 20.6.08, after site inspection, he submitted the report. The order dated 1.9.08, passed by this Court, needs to be looked into in this background. This Court then requested the learned Advocate General to consider the objections raised by the petitioner and the Advocate General very fairly accepted to consider the same. The petitioner, in pursuance of this order, appeared before the Dy. Collector (LA) and it is not his grievance that he was not given proper opportunity or hearing by the said officer thereafter. Thus, after giving full opportunity to the petitioner, the Dy. Collector (LA) has submitted his report on 22.9.08 before this Court.
12. In his objections dated 17.3.08, the petitioner has, in para 2, stated that he was tenant of the land sought to be acquired; that there was a dwelling house and two wells meant for irrigation and domestic use, in it. He has also given the number of coconut trees, mango trees and other fruit bearing trees standing in the said land and has referred to the report of valuation prepared by the valuer Chartered Engineer to claim that its value was Rs. 95,00,000/-. In para 4, he has stated that large area of barren and uncultivated land was available in the vicinity. In para 7, he has expressed his inability to understand why Cuncolim Municipal Council was not interested in acquiring the land available in the vicinity, though other land was better situated for public purpose. The report submitted by the valuer has been produced by the petitioner on record and it is not in dispute that in the said report the valuer gave certificate that land under Survey No. 171/3 was of cultivable type and need to be filled, as it was low lying. He has also mentioned the other lands inspected by him and has certified that those lands were also of cultivable type and low lying. However, he has stated that the said land was barren and uncultivated and also adjacent to the National Highway-17 and, therefore, more suitable for public purpose. It is to be noted that after 1.9.08, the petitioner examined three witnesses, but he has chosen not to tender the said valuer for recording his evidence. This certified report of the valuer has, thus, not been brought on record of the Land Acquisition Officer.
13. The unreported Judgment of the Division Bench of this Court in Santan Fernandes and Ors. v. Stae of Goa and Anr., (supra), relied upon by the learned Advocate General holds in para 18 that when no particulars were given about availability or suitability of fallow land, the Land Acquisition Officer cannot be said to have not carried out his obligation under Section 5A of the Act by not dealing with such objections. Here it is to be noticed that though the petitioner got opportunity because of orders of this Court, he has not led any evidence in this respect.
14. Perusal of the report dated 20.6.2008, prepared by the Land Acquisition Officer notices that during the site inspection, acquiring body, i.e. the Municipal Council pointed out that the property sought to be acquired is situated exactly opposite Cucolim Kadamba Bus Stand and market area was approximately 300 metres away. The Land Acquisition Officer has also noted that the land was partly garden type and partly agricultural with some coconut tress and other fruit bearing trees, a well and one structure. An incomplete structure upto plinth level is also mentioned in this report. It is also recorded that owner of land, namely Sociadade Agricola dos Gauncaras de Cuncolim e Veroda Cuncolim gave no objection for acquiring the land. The Land Acquisition Officer also found that the land was agricultural in nature and there was objection that acquisition was politically motivated. However, he noticed that the objector himself was using his political influence for vindicating his personal interest and also sought intervention of the Hon'ble Chief Minister of Goa. He visited the market area and office of the Municipal Council and noticed that market area was overcrowded and at Municipal Council all spaces available could not have accommodated more than 10 vehicles. The acquisition of land would result in decreasing congestion for market area and the complex coming up there to accommodate all Government Offices in Cuncolim Municipal area under one roof would facilitate the general public. This report is already approved by the State Government.
15. The report dated 22.9.08 prepared subsequently, mentions about this report and its acceptance by the Government. While making reference to the present writ petition and the order dated 1.9.08 therein, it has been recorded that on 8.9.2008, the petitioner therein produced three witnesses who stated that the petitioner has been cultivating paddy field twice a year and growing cereals of various types. They stated that various fruit bearing threes existing and there was irrigation facility and the petitioner had no other source of income. They stated that the lands adjacent to Cuncolim Kadamba Bus Stand be acquired as the said lands were being kept fallow. The witnesses also urged that Cuncolim was small village and huge market complex raised by reclaiming agricultural land, was not essential. The acquiring body, namely Cuncolim Municipal Council pointed out that the acquisition proceedings were for construction and parking area of commercial building complex at Cuncolim Bazar with intention to accommodate all Government Offices scattered at different places, under one roof. The site was located after considering its proximity with the bus stand and in the interest of general public. Cuncolim is fast developing city, having modern facilities like modern bus stand, recreation hall, market complex, sports ground, etc., and the acquisition of land was with a view to cater infrastructural development needs for common use of citizens. The lay-out plan showing accommodation of various offices was also produced. It was also pointed out that the petitioner was not residing in the land sought to be acquired. The Land Acquisition Officer again visited site on 9.9.2008 along with the Chief Officer of Cuncolim Municipal Council, petitioner and his Advocate. He noticed that adjacent to said land vast land was kept fallow and land adjacent to Kudamba Bus Stand was also lying fallow. He paid visit to various Departments which were to be accommodated under one roof in the complex sought to be constructed on the proposed land. In the report, he has mentioned that Electricity Department, Telephone Department, Veterinary Department were housed in private buildings and situated at a distance of 200 to 250 metres from the proposed site. P.W.D., Water Supply Department was at a distance of 200 metres and in Government Building. Sub-Centre of Directorate of Health Services was found to be at a distance of 1.2 kms. in a private house and bus stand at a distance of 250 metres from the proposed land under acquisition. Cuncolim market and community hall were found to be under construction at a distance of 300 metres. The Chief Officer of Cuncolim Municipal Council stated that all shops and kiosks which were along side National Highway were to be rehabilitated at the said market and community hall on account of widening of the National Highway. Respondent No. 1 Dy. Collector (LA) also found that adjacent fallow lands were proposed to be acquired for various public purposes like construction of open air stage, landscaping, garden, parking area and widening NH-17. It is also noticed that the area adjacent to the land under acquisition was also desired to be acquired for construction of Ravindra Bhavan, Government ITI, Science Centre and widening of NH-17. Municipal Council reported that it had passed a resolution accordingly and administrative approval was given to its proposal by the Directorate of Municipal Administration on 17.6.08. It was also noticed that space available in the existing building of Municipal Council was insufficient as that building was designed for Village Panchayat which later on became Municipal Council. Respondent No. 1 has also noticed that population of village had increased sharply and was also bound to increase manifold in future. Housing of Government Offices under one room would definitely help the general public and National Highway needed widening. In fact, it is recorded that a stretch of road near the land under acquisition was very narrow and the District Magistrate vide Order dated 26.11.2007 was required to order removal of fencing partly because of many accidents at that spot in the past. All these findings recorded by the Dy. Collector (LA) in his report dated 22.9.08 are not even whispered to be incorrect or false.
16. Respondent No. 3 Municipal Council has filed an affidavit before this Court in support of the facts mentioned above and has also produced a sketch plan in respect of areas in and around the land sought to be acquired from the petitioner for administrative building complex. The affidavit and plan is also not in dispute.
17. No legal provision has been pointed out to us to support contention that the land under cultivation or in possession of a tenant cannot be acquired for public purpose. The need to acquire the land for public purpose has come on record and the petitioner also has indirectly accepted such need, but has argued that fallow land in the vicinity could have been acquired. The proposed utilization of the fallow land by the Municipal Council as mentioned above, shows that the said land is not available. In any case, the location of its administrative complex of the type mentioned above at a particular place, is the issue which rests solely in the domain of the Municipal Council. Though in his objections under Section 5A political motivations are vaguely pleaded by the petitioner, no evidence in that respect has been brought on record and no documents are produced before us. The very fact that the land to be acquired is just opposite Cuncolim Kadamba Bus Stand clearly shows its suitability for the purpose to which it is being put. The questions raised above needs to be viewed in this backdrop.
18. In the case of Hindustan Petroleum Corpn., Ltd. v. Darius Shapur Chenai and Ors.,(supra) the Honourble Apex Court has declared that right to make objections under Section 5A is akin to the fundamental right. Hearing given to a person must be an effective one and not a mere formality. Formation of opinion as regards public purpose, as also suitability thereof must be preceded by application of mind in relation to consideration of relevant factors and rejection of irrelevant ones. The Hon'ble Apex Court has mentioned that conclusiveness contained in Section 6 of the Act indisputedly is attached to a need as also to the purpose and ordinarily the jurisdiction of the Court to interfere with the same is limited. But, when an opportunity of being heard has been expressly conferred by a statute, the same must be scrupulously complied with. Sections 4, 5A and 6 of the Act must be read conjointly and such opportunity of being heard should be granted with a view to show that the purpose for which acquisition is sought to be made, is not a public purpose as also the suitability of land therefor. The Hon'ble Supreme Court has stated that Section 5A of the Act is in two parts and upon receipt of objections, the Collector/LAO is required to make such further inquiry as he may think necessary and submit a report to appropriate Government in respect of land which is subject-matte of Notification under Section 4(1) of the Act. The said report would also contain recommendations on the objections filed by the owner of the land. The Collector is required to forward the proceedings together with report and thereafter, the Government has to render a decision upon such report and record. As and when a person is aggrieved and questions the decision making process, the Court, in order to satisfy itself as to whether one or more grounds for judicial review exists, may call for records, which must be produced by the Government. When there is no compliance or substantial non-compliance with provision of Section 5A, Court cannot fold its hand and refuse to grant relief to the petitioner. When decision making process itself is in question, the power of judicial review can be exercised by the Court if the impugned order suffers from vices of illegality, irrationality, and procedural impropriety. The Hon'ble Apex Court has held that when a statutory authority exercises such an enormous power, the power must be exercised in fair and reasonable manner. As already referred above, the findings recorded in subsequent report dated 22.9.2008 as such have not been challenged by the petitioner before this Court as he submitted to orders of this Court dated 1.9.2008.
19. The learned Counsel for the petitioner has contended that opportunity availed of by the petitioner after 1.9.2008 cannot be equated with Section 5A opportunity. The Division Bench Judgment of this Court in the case of Ajitsingh v. The State of Maharashtra and ors. (supra) has been heavily relied upon for the said purpose. In paragraph 8, the Hon'ble Division Bench has found that when the petitioner land-owners did not receive notice and did not file objection under Section 5A and objections admissible under Section 5A were raised by him in response to notice under Section 9 of the Act, the opportunity at that stage could not have been treated as an opportunity under Section 5A. There the petitioner had purchased the land and his name was also mutated and still individual notice was not served upon him. The said notice was addressed to the original vendor who was also dead then and it was accepted by his son. With the result, individual notice was not served on the petitioner though his name was already mutated in the record of rights. Because the land was sought to be acquired, the petitioner land-owner learnt about acquisition only after publication of Section 6 and then he raised all objections to acquisition proceedings which he could have urged under Section 5A and he was heard. The Division Bench observed that correct stage at which objections under Section 5A are to be urged is before notification under Section 6 and the petitioner there had no opportunity to do so. Mere fact that the petitioner did urge those objections and was heard after the notification under Section 6 would not prevent the Notification under Section 6 from being declared invalid. The Division Bench then proceeded to consider the contention whether the Notification under Section 6 was held to be invalid, the notification under Section 4 stood exhausted. No such arguments are advanced before us. Perusal of para 4 of the report shows that the Government did not dispute before the High Court that objections under Section 5A could not in law have been urged at the stage when the petitioner appeared to answer the notice under Section 9 i.e. after Section 6 notification was issued. It was also not disputed that an opportunity to urge objections under Section 5A must precede the publication of notification under Section 6 and such objections cannot be urged after such notification is issued. It is apparent that the facts before the Division Bench were entirely different.
20. In the present circumstances, the petitioner approached this Court for quashing and setting aside of Notification under Sections 4 and 6 of the Act and also for quashing the report under Section 5A. The said report is dated 20.6.08. After hearing him, this Court by Order dated 1.9.08, gave the petitioner an opportunity to substantiate his objections and the relevant part of the said order reads as under:
3. After having perused the petition and annexures thereof, more particularly a sketch which the petitioner has annexed, prima facie, it appears that the petitioner's objections with regard to the acquisition of the subject property and location of other land in which also he has right, title and interest and which is in the vicinity and better suited for the public purpose, have not been considered and adverted to. In such circumstances, we requested the learned Advocate General to make a statement as to whether the respondents will consider the objections even at this stage and in all fairness, he stated that the petitioner can still raise objections which would be considered and a fresh report submitted at the conclusion of the hearing. However, he submits that the above exercise can be undertaken only if the petitioner co-operates and remains present for the hearing.
4. Shri Sardessai states that the petitioner will remain present at the hearing on the date and time fixed by this Court. The petitioner to remain present before respondent No. 1 on 8th September, 2008 and the hearing be concluded after consideration of all objections within two weeks from that date. The learned Advocate General to place the report on record. S.O. 29th September, 2008. Meanwhile, status quo as regards possession be maintained.
Thus, the Court noticed and the learned Advocate General accepted to consider the objection even after Section 6 Notification and to submit fresh report at the conclusion of hearing. Fresh report has been accordingly, submitted on 22.9.2008. We have briefly mentioned the contents of earlier report, as also the fresh report dated 22.9.08. It is apparent that though opportunity was given to the petitioner, the petitioner could not bring on record any material to substantiate his objections. The nature of objections raised also do not show that any prejudice is caused to the petitioner in the matter because of grant of opportunity to him by this Court vide its order dated 1.9.08. The arguments advanced clearly show that the petitioner was insisting upon only technical issues by ignoring the actual material available on record. No new material warranting fresh application of mind is brought on record. Fact remains that by acting in pursuance of the orders of this Court, the petitioner attempted to obtain a favourable Section 5A report.
21. In the circumstances, we do not find any merit in the request of the petitioner to place fresh report dated 22.9.08 for consideration before the Government in terms of Section 5A of the Act. We do not find any merit in the writ petition. The writ petition is, therefore, dismissed. Rule discharged. However, in the circumstances of the case, there shall be no order as to costs.