U.D. Salvi, J.
1. Heard the learned Counsel for the parties. Rule, returnable forthwith, by consent taken up for final hearing.
2. Challenge to the propriety and legality of the notifications dated 18.04.2008 and 22.01.2009 issued under Sections 4 and 6 respectively of the Land Acquisition Act, 1894 for construction of Bridge across the river Sal along with approach road at Varca passing through Survey No. 45/3 at Village Varca, Salcete, Goa arises by way of the present petition.
3. The initial challenge to the notification under Section 4 read with Section 17(4) dated 18.04.2008 of the Land Acquisition Act, 1894, hereinafter referred to as the said Act, issued by the respondent No. 1 State of Goa upon invoking special powers ordinarily used in cases of urgency under the said Act, fructified with liberty to the petitioner George L. Fernandes, resident of Varca, Salcete, Goa, to raise objections to the proposed acquisition under Section 5A of the said Act vide order dated 13.08.2008 passed by this Bench in Writ Petition No. 488/2008.
4. According to the petitioner, the construction of a Bridge across river Sal for which his portion of the land bearing Survey No. 45/3 of village Varca is being proposed for acquisition, is not at all necessary as four such Bridges (i) Orlim Bridge situate at one kilometre distance from the proposed Telaulim Varca Bridge, (ii) Benaulim Bridge, (iii) Khareband Bridge and Mungol Bridge all three within the span of 8 kilometres distance from the said Bridge, exist to facilitate crossing of river Sal; and the present land acquisition proceedings are politically motivated and actuated by malice to wreck vengeance against the supporters of rival political group opposing the respondent No. 4, Churchill Alemao, minister for P.W.D. in the elections one of the supporter being the petitioner George Fernandes herein. This fact the petitioner contends, can be revealed from the undue haste of the respondent No. 1 State to go through the process of acquisition, and moreso through invitation of tenders before the process of law for declaring the intended acquisition under Section 6 of the said Act getting concluded in the manner described hereunder :
Sr. Dates EventsNo.1) 06.11.2007 Grant of Administrative approval to theproposed construction of Bridge andexpenditure sanctioned therefor to thetune of Rs.3,00,65,000/- specifying thatno tenders shall be invited unless theland is acquired.2) 29.02.2008 Tender notice making reference to theestimated costs of Rs.4,92,45,607/- wasissued prior to the issuance of thenotification under Section 4 of the SaidAct.3) 19.08.2008 Tender notice for the said work issuedby Public Works Department4) 04.02.2009 Tender notice for the said work at theestimated costs of Rs.10,15,12,952/-
5. The petitioner further contends that the respondent No. 1 State and its officers were predetermined and did not consider his objections to the acquisition initially raised through his communication dated 30.05.2008 and again through the writ petition No. 488/2008 and communication dated 10.09.2008 pursuant to the order dated 13.08.2008, particularly as per the guidelines given in Goa, Daman and Diu Land Acquisition Rules, 1972. All this has been done, the petitioner contends, to line the pockets of the favoured construction contractors and to rob him of his only source of livelihood as a result of severance of his dance floor due to the present acquisition.
6. According to the petitioner, some 15 years back alignment for the proposed Bridge across river Sal was perpendicular to the river Sal at a different location thereby not affecting his lands from the acquisition; and the respondent No. 4, minister in order to ensure that the property of the petitioner was acquired and his business ruined had caused the change in the said alignment by causing diversion at a distance of about 50 metres from the bank of the said river. The petitioner further states that the construction of the said Bridge as per the old alignment would not only save his property from acquisition entailing destruction of houses and compound wall but also reduce the costs of construction of Bridge and make it more financially and technically better proposition.
7. It is revealed that personal hearing was given to the petitioner upon his objections tendered following the order dated 13.08.2008 by the respondent No. 2, the Deputy Collector and L.A.O., South Goa District, Margao, Goa and following thereto the report dated 1.12.2008 under Section 5(A) of the said Act recommending the acquisition of the land for construction of approach road to the said Bridge linking Telaulim-Varca village was forwarded to the Government. After this report, the petitioner consulted Mr. Shridhar Kamat, Consulting Civil Engineer and Valuer regarding technical aspects of the proposed Bridge and obtained from him a report dated 18.12.2008 favouring old alignment of the Bridge. This report dated 18.12.2008 (shown dated 20.12.2008) was forwarded with the relevant objections to the respondent No. 2, L.A.O. by the petitioner for further consideration of the said technical aspects. The L.A.O. thereupon obtained technical opinion dated 5.1.2009 of the Executive Engineer in that regard. The petitioner thereupon pointed out to the respondent No. 2, L.A.O. vide communication dated 10.1.2009 that the technical department had not controverted the technical opinion of his expert Mr. Shridhar Kamat regarding better financial and technical viability of the construction of the Bridge in perpendicular fashion across the river Sal and further requested the respondent No. 2, L.A.O. to recommend to the respondent No. 1 State to construct Bridge in right angle alignment in supersession of earlier recommendation. It is further revealed that the respondent No. 2, L.A.O. had issued addendum dated 16.01.2009 to Section 5(A) report in respect of the objections raised by the petitioner on the basis of the report of Consulting Civil Engineer and Valuer. This again, according to the petitioner, was without objective consideration of the issues involved particularly the objections raised by the petitioner to the said acquisition of land. In the meanwhile, the record reveals, the Revenue Minister had considered Section 5(A) report dated 1.12.2008 on 15.1.2009, and thereafter, the respondent No. 1 State had issued the impugned notification dated 22.1.2009 under Section 6 of the said Act.
8. The petitioner further contends that it was mandatory that the respondent No. 2, L.A.O. to have obtained the orders under Section 7 of the said Act from the respondent No. 1, State before issuing notices under Sections 9 and 10 of the said Act on 13.2.2009 and having not done so, the respondent No. 2 has no authority or jurisdiction to proceed with the land acquisition proceedings pursuant to the impugned declaration. Moreover, there has been, according to the petitioner, non-application of mind by the State Government in issuing the impugned notification.
9. The respondents joined the issue with their affidavits-in-replies sworn by Mr. Anil Ringane, Executive Engineer, Division VI (Road), South, P.W.D. dated 16.04.2009, Mr. Dashrath Redkar, Under Secretary (revenue) Government of Goa dated 21.4.2009 and Mr. Churchill Alemao, the respondent No. 4 dated 4.5.2009. They denied the allegations made by the petitioner particularly in respect of malafides and non-application of mind by the State and its officers in going through the process of land acquisition in the present case. It has been the case of the respondent State that the existing Bridges have become old and the proposed Bridge for which need arose some 15 years back, is necessary to cater to the increased volume of the traffic, which is likely to increase in future and as such, the construction of the proposed Bridge is essential for the present needs as well as for providing sufficient infrastructure for the future. It has been further pointed out by the respondent No. 1 State that the proposed Bridge joining Telaulim and Varca is likely to reduce travel time between two points and relieve the traffic bottleneck; and the proposal of construction of the present Bridge is both financially and technically viable with least damage to the ecology and does not involve destruction of a single household. The relevant papers showing the movement of file including the report dated 1.12.2008 under Section 5(A) of the said Act through the bureaucratic chain of the officers to the Revenue Minister were placed before the Court.
10. The learned Advocate Sonak for the petitioner submitted on the basis of the provisions in Goa, Daman and Diu Land Acquisition Rules 1972 that the L.A.O. was under obligation to decide all such specific objections such as (i) the notified purpose is not genuinely or properly a public purpose (ii) the land notified is not suitable for the notified purpose (iii) the land is not so well suited as other land (iv) the area proposed is excessive (v) the objector has been selected maliciously or vexatiously (vi) the proposed question will destruct or impair the amenities of historic, artistic monuments and space of public resort or will take away important public rights of way or other convenience.... After having given the objector an opportunity of being heard, he argued that the L.A.O. did not objectively consider the points raised by the petitioner in his objection particularly the issue of genuine public purpose, malice or vexatious selection of the petitioner's land for acquisition,escalation of prices, consequences of proposed construction of Bridge on environment, draining of public exchequer, alternative available and the technical report regarding the financial and technical viability of the proposal. He further submitted profusely quoting from the judgment of the Division Bench of this High Court reported in 2009 (1) ALL MR 799 Harakchand Mistrimal Solanki Verus Collector,Pune and others that it was mandatory for the L.A.O. to have obtained orders for acquisition from the respondent No. 1 State under Section 7 of the Act before embarking upon the issuance of notices under Sections 9 and 10 of the said Act in the present case. The Scheme of the said Act has been thoroughly analysed and it is clearly revealed in the said judgment that the provision under Section 7 of the said Act makes it mandatory for the Collector to take order of the acquisition of the land as contemplated under the said provision as the said provision is substantive requirement of the said Act bridging the stage of declaration of intention to acquire under Section 6 of the said Act and the subsequent steps to be taken for acquisition under the said Act.
11. The learned Advocate General Kantak without entering into the controversy regarding the scope of Section 7 of the said Act was quick to make a statement that the notices issued under Sections 9 and 10 in respect of present acquisition would be withdrawn and the provisions of Section 7 of the said Act would be followed.
12. The learned Advocate Sonak for the petitioner further submitted that the decision making process following hearing of objections under Sections 5(A) of the said Act is not formality and requires application of mind by the appropriate Government as the right to make objections available to the petitioner is akin to fundamental rights. He further submitted, placing reliance on the judgment in the case of Hindustan Petroleum Corporation Ltd v. Darius Shapur Chennai and Ors. reported in : AIR2005SC3520 that the said act being expropriatory legislation, it should be strictly construed and given effect to accordingly. According to him, the issue of financial burden on the public exchequer in the said acquisition proceedings was relevant one and there was no application of mind on the part of the L.A.O. or the State to the said issue. To advance his argument in that regard, he placed reliance on the judgment reported in 1989(2) GLT 27, Sesa Goa Ltd. v. The State of Goa and 2 Ors....
13. Perusal of the objections dated 10.9.2008 at annexure J to the petition, reveals that it is a mere reiteration of the contentions and grounds set out in the writ petition No. 488 of 2008 with a request to give personal hearing in the matter for further elaboration of the objections raised. The record further reveals that the statement of the petitioner George Luis Fernandes was recorded by the respondent No. 2,the Deputy Collector (L.A.O), Margao, Goa on 21.10.2008. The statement of the petitioner dated 21.10.2008 reveals the grounds of objection specifically as under :
a) Previous plan of construction of the Bridge some 15 years back was perpendicular to river Sal and did not affect the public at large by causing destruction of houses or compound walls; whereas construction of the proposed Bridge in angular fashion is to cause destruction of houses and compound walls at increased costs of construction and at the expense of Government money as payment to the persons as and by way of land acquisition compensation.
b) The family of the petitioner comprising of four children and aged father is dependent on the income earned from operation of bar and restaurant and dance floor. No further evidence was tendered by the petitioner in respect of the objections raised by him.
14. The report under Section 5(A) dated 1.12.2008 reveals that the objections were referred to the Acquiring Department, P.W.D. for their comments and site inspection as made. It further reveals that the observations were made by the Deputy Collector (L.A.O.) in following terms : .from the property of Shri George L. Fernandes 3 coconut trees and cashewnut trees would have to be axed. There exists some mangroves which alongside river Sal, which would have to be partly destroyed in the event the Bridge is constructed, but in my opinion, it would not have devastating effect as made to appear.... I have also visited the proposed land to be acquired from Telaulim side. There exists some water bodies but none of the same would be destroyed or damaged, as the existing road which is not tarred and which is already acquired as partly sought to be acquired further to increase the width. Upon construction of the so called Bridge from Telaulim to Varca it gets immediately connected to village road which is having a width of 4 meters excluding the side drains. The importance of the Bridge would be felt only upon its construction as it would enhance the network of road communication and with the passage of time increasing the number of vehicles would find their way over the said Bridge, which would reduce travel time as well as reduce the congestion on the existing road.... My observations and analysis reveal that the acquisition of land for approach road from the property of the objector Shri George L. Fernandes would not hamper his business activity to such extent which would affect his livelihood.... Care needs to betaken by the Acquiring Department in seeing to it that if in future additional land is sought for widening of village road, than the same should be acquired from the other properties without affecting the land of Shri George L. Fernandis, which can obviously done. In doing so the livelihood of the objector Shri George L. Fernandes would be protected.
15. Against this backdrop, the learned Advocate General for the respondents submitted that the construction of Bridge across river Sal was not the new idea but was conceived some 15 years back in order to cater to the public need and this fact was acknowledged by the petitioner. He further submitted with reference to the following judgments (i) Smt. Somawanti and Ors. v. State of Punjab reported in AIR 1963 SC 15, (ii) Ratilal Shankarbhai and Ors. v. State of Gujarat reported in : AIR1970SC984 (iii) State of Punjab v. Gurudial Singh and Ors. reported in : [1980]1SCR1071 that it is the State which is a sole Judge of need to acquire a particular land for public purpose and discretion in selection of land vested in the Government and the Courts cannot interfere in such selection unless it is a colourable exercise of the power by the State or the choice is made with oblique ends. He further pointed out that absolutely there was nothing placed either before the L.A.O. or before this Bench to substantiate the malafides on the part of the State. Relying on the judgment reported in : [1981]1SCR573 , the Land Acquisition Collector and Anr. v. Durga Pada Mukharjee and Ors.... He submitted that it is incumbent upon the petitioner asserting malafides and the colourable exercise of powers to substantiate such claim with concrete material, particularly in the light of the complete denial of such allegations by the respondent No. 4, minister of P.W.D.
16. Except bare allegations of political motivation and malafides in exercise of powers by the State we find nothing concrete either in the statement made by the petitioner before the L.A.O. or in the assertions made before this Bench concerning such allegations. Interestingly, the comments of his Lordship the Hon'ble Mr. Justice V.R. Krishna Iyer in Gurudial Singh's case (supra) provides completely dissected view of the anatomy of malafides in the acquisition proceedings in the following words :
The question then, is what is malafides in jurisprudence to power. Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power some times called colourable exercise or fraud on power and often times overlaps motives, passions and satisfactions -is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of power is for fulfillment of a legitimate object the actuation or catalysation by malice is not legicidal.
17. Nowhere, it is even apparent that the construction of proposed Bridge over river Sal is not a public necessity and, therefore, there exists no public purpose. On the other hand, it is shown that the L.A.O. did consider the issue of loss that may be occasioned on account of the present acquisition to the petitioner, and further spared the substantial area of land of the petitioner from acquisition. This can be seen from the observations made and the substantial difference in quantum of land admeasuring 785 square metres proposed for acquisition vide notification under Section 4 of the Act and the quantum of land admeasuring 267 square metres declared to be intended for acquisition under Section 6 of the Act.
18. The record further reveals that no technical data concerning the financial and technical viability of the proposed Bridge vis-a-vis the construction of bridge as per the old plan was placed before the L.A.O at the time of the hearing of the objections under Section 5(A) of the said Act and the technical report of Shridhar Kamat concerning said aspects came to be placed before the L.A.O. after completion of the enquiry under Section 5(A) of the said Act. The learned Advocate Sonak argued that with giving of addendum to the report under Section 5(A) of the Land Acquisition Act, 1894 shows that the L.A.O. had extended the time for tendering the objections to the Section 4 notification and, therefore, the L.A.O. ought to have considered such objections in the light of the expert's report dated 18.12.2008 of Mr. Shridhar Kamat, Consulting Civil Engineer and Valuer. Having not done so, he argued, the impugned notifications were bad in law.
19. It is true that the L.A.O. did not give thought to the technical aspect while giving initial report dated 1.12.2008 under Section 5(A) of the Land Acquisition Act, and the addendum dated 16.1.2009 to this report was forwarded to the Under Secretary on 19.1.2009 after the Revenue Minister had given thought to the initial report dated 1.12.2008 on 15.1.2009. The learned Advocate General Kantak for the State countered this aspect of the matter with the submission that it was incumbent upon the petitioner to have lodged specific objections with technical inputs within the time prescribed under law i.e. within 30 days of the notification under Section 4 of the said Act and having not done so, the L.A.O. was not under obligation to answer such objections based on technicalities, and entertaining of such objections after the prescribed period particularly after giving of the report under Section 5(A) of the said Act, was not within his powers as could be seen from the provisions of Goa, Daman and Diu Land Acquisition Rules 1972.
20. Goa, Daman and Diu Land Acquisition Rules 1972 prescribes procedure for hearing the objections under Section 5(A) of the said Act. Rule 4 Sub-rule 2 under the said rules requires for any objection to be admissible, the lodging of such specific objection within 30 days after the issuance of notification under Section 4 of the said Act or within such further period as may be fixed by the Collector. Sub-rule 4 of Rule 4 requires the Collector i.e. the L.A.O. to submit the case with his report and record of proceedings for the decision of the Government under Section 5(A) as far as practicable within 45 days and after expiry of the period prescribed for lodging objection or within 15 days after survey and investigation under Sub-section 2 of Section 4 is completed and report submitted to him, whichever is later. This clearly shows that once the report under Section 5(A) of the said Act is forwarded to the Government the enquiry or the investigation under Sub-section 2 of Section 4 comes to an end and the L.A.O. ceases to exercise powers under Sub-rule 2 of Rule 4 under the said Rules. In view of such provisions, the L.A.O. could not have extended time for hearing the objections after giving report dated 1.12.2008 under Section 5(A) of the said Act.
21. Inviting attention of this Bench to the judgment passed by Division Bench in Writ Petition No. 557/2007 Mrs. Henriqueta Maria Julieta v. State of Goa and Ors., the learned Advocate Sonak for the petition further made submissions that the act of the L.A.O. in entertaining technical elaboration to the objections taken by him through expert's report namely report dated 20.12.2008of Shridhar Kamat in fact amounted to waiver of the statutory mandate under Section 5(A) of the said Act regarding the time prescribed for placing the objections to the acquisition of the land. To complement these submissions, the learned Advocate Sonak for the petitioner drew parallel between the act of the State in waiving the rigor of notice under Section 80 of C.P.C. and the said act of entertaining objection after the report under Section 5(A) of the said Act and in that respect cited judgments reported in 2006(12) SCC 119 State of A.P. and Anr. v. Spinal Bulders, A.P. Likewise, he argued that a party could waive mandatory requirement or service of notice under Electricity (Supply) Act, 1948 as held in judgment reported in : AIR1999SC3289 Graphite India Ltd. and Anr. v. Durgapur Projects Ltd. and Anr. It is correct that a right can be waived by the party for whose benefit certain requirements or considerations had been provided by a Statute. However, this comes with a rider that there can be no waiver of fundamental right or any right to which the public interest is wedded. Very opening words of the Land Acquisition Act, 1894 an act to amend the law for acquisition of law for public purposes read in conjunction with time element incorporated in the provisions governing the process of land acquisition would clearly go to show that such time element has been incorporated with a view to achieve public interest by accomplishing the public purpose involved thereunder within the given time frame. Nobody, even the State may, therefore, have any liberty to tinker with such time frame by resorting to waiver of the statutory mandate.
22. Adverting to the issue of cost factor with particular reference to the ratio propounded in Sesa Goa Ltd.'s case (supra) the learned Advocate General Kantak for the State submitted that ratio in the said case would be misplaced if it is sought to be applied to the facts and circumstances in the present case. What is of importance, he submitted, is not the costs of project but the costs of the acquisition of land which is the subject matter of the present land acquisition. He further submitted placing reliance on the judgment reported in 1998 (IV) LLJ 256 Kantilal Jivraj Desani v. State of Maharashtra and Ors., that method or type of construction of the Bridges is not the issue for this Court to decide. Kantilal Jivraj Desani's case dealt with the matter wherein the acquisition of land for parking space and access thereto was contested on the point of some alternate proposal and the method or type of construction for parking complex and the Division bench had categorically held that;
the question as to which land is suitable for parking space and access thereto... and what should be the method or type of construction for a parking complex is not for this Court to decide. Merely because the petitioner may have some alternate proposal in respect of the proposed parking space and access thereto, in the absence of any malafides the acquisition cannot be said to be vitiated on any ground.
23. In this context,the learned Advocate General Kantak invited our attention to the report of M/s. Madhav Kamat and Associates, Consulting Engineers dated 13.3.2009, and further pointed out how thought was given to the technical aspects of constructing Bridge as proposed layout plan proposal I and other designs layout plans II and III all dated 14.11.2007, one of them being construction of Bridge in perpendicular fashion i.e. proposed plan III, and choice of the experts fell upon the design of the proposed Bridge -Plan I. He further pointed out from the report dated 28.11.2008 of the Executive Engineer VI and the plan appendix II annexed to the report dated 20.12.2008 of Shridhar Kamat, Consulting Civil Engineer and Valuer that the construction of the Bridge as proposed, does not bring in its wake displacement of single household and acquisition of large tract of land to connect Varca-Telaulim road as would be required if the Bridge was to be constructed in perpendicular fashion as per the old plan. Plan in Appendix II bears out truth of this submission. Only small tract of land is required to be acquired for connecting the proposed Bridge to the existing passage leading to Varca-Orlim Road. As regards environmental clearance, he pointed out the clearance given to the construction of proposed bridge by Goa Coastal Zone Management Authority vide letter dated 5.8.2008 annexed to the affidavit in reply of Mr. Anil Ringane.
24. In Sesa Goa Ltd.'s case (supra), the acquisition of house property for establishing the State Government's Guest House was in question. The objection to such acquisition was taken on the ground of large scale expenditure that would have been involved while adopting or renovating the property for the said public purpose of State Government's Guest House. The concerned Land Acquisition Officer proceeded to say that the costs of the acquisition of land and building may not be relevant and proper ground for dropping the acquisition proceedings. This say was further supported by the learned Advocate General for the State with the argument that the costs of the project is irrelevant. While dealing with this argument, this Bench held as under :
We are reluctant to accept this argument because it is not possible to say that the Government will acquire a particular property irrespective of the costs of the acquisition. The costs of the acquisition will necessary be one of the factors while considering whether one property is to be acquired instead of another.
25. A fact, however, can not be ignored that in Sesa Goa's case the project undertaken and the subject of acquisition were one and same and inseparable from one another. Such is not the case in the present matter. In the instant case, what is being debated is not the cost of the acquisition of land but the cost of the project, particularly cost of construction of the proposed Bridge. Seemingly, this debate may sound relevant but certainly it is not germane to the decision making process following the submission of the report by the Acquisition Officer to the Government.
26. Evidently, from the plan appendix II annexed to the report of M/s. Shridhar Kamat, Consulting Civil Engineer and Valuer, it is clear that much higher cost of the acquisition of large tract of land as compared to the small tract of land to establish connection with the Varca-Orlim road would be required to be incurred if the old proposal for construction of Bridge as proposed by the petitioner is accepted; and this issue is nowhere tabled or addressed to before any Forum either through any objection or otherwise shrewdly by the petitioner. Construction of a bridge connecting two villages is obviously a public purpose. Public need of one more bridge connecting village Telaulim to village Varca across river Sal was felt long back and the State is the best judge to answer the relevant issue. No malafides are found involved in it. Cost of the proposed bridge as discussed above is not relevant much less germane to the decision making process under the said Act. Objections raised by the petitioner have, therefore, been duly considered by the L.A.O. and the State.
27. In the result, no irregularities in the procedure for acquisition nor any case of malafide are seen by us to warrant judicial interference in the acquisition proceedings. The writ petition must, therefore, fail. The rule is discharged with no order as to costs.