1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 146 OF 2007 1. Franky Monteiro, House No. 501, Devote, Loutolim, Salcete, Goa. 2. John Philip Pereira, House No.258, Mazil Vaddo, Nagoa, Salcete, Goa 3. Joaquim do Rosario Vasco da Gama, House No.68, Opp. Panchayat, Verna, Salcete, Goa. ........... Petitioners. Versus. 1. The State of Goa, by Chief Secretary, Secretariat, Panaji, Goa. 2. The Secretary (Revenue), Secretariat, Porvorim, Goa. 3. Goa Industrial Development Corporation Ltd., Patto Plaza, Panaji, Goa. 4. Goa Infrastructural Development Corporation Ltd., 7th Floor, EDC House, Dr. Atmaram Borkar Road, Panaji, Goa. 2 5. The Collector, South Goa District, Margao, Goa. 6. Shri Aleixo Sequeira, MLA Loutolim Constituency, 446, Raicho Ambo, Raia, Salcete, Goa. ............. Respondents. Mr. R. V. Kamat, Advocate for the Petitioners. Mr. S. S. Kantak, Advocate General with Mr. A. Kamat, Addl. Govt. Advocate for respondents No.1, 2 and 5. Mr. M. S. Sonak, and Mr. N. Vaze, Advocates for respondent No.3. Mr. A. N. S. Nadkarni, Senior Advocate with Mr. D. Lawande, and H. D. Naik, Advocates for respondent No. 4 Mr. C. A. Fereira, Mr. G. Teles and Mr. R. Almeida, Advocates for respondent No.6. CORAM : A.P. DEHSPANDE & N.A. BRITTO, J.J. DATE : 12th December, 2008 ORAL JUDGMENT : (Per DESHPANDE, J.) The petitioners have filed this petition in public interest as the petitioners were apprehending allotment of plots of land to about 400 persons, whose cases were recommended by respondent No.6. The 3 petitioners are components of the Communidades of Loutolim and Verna Villages. Respondent No.1-State Government had acquired about 35,88,134 sq. metres of land belonging to the Communidades of Verna and Loutolim Villages for the public purpose of expansion of industrial estate in the year 2001. Land forming subject-matter of this petition, admeasures 1,00,000 sq. metres from and out of the land acquired by the State Government for the above noted purpose from the Communidades of Verna and Loutolim Villages. It is undisputed that the subject land is included in an Industrial zone in the development plan of Goa. After the lands were acquired by the State Government under the provisions of the Land Acquisition Act, the possession thereof came to be handed over and the lands are placed at the disposal of respondent No.3 Goa Industrial Development Corporation on 8.3.2004. At a later point of time, respondent No.6 who happens to be a Member of Legislative Assembly (MLA) from the concerned area mooted a proposal by taking initiative for return of about 1 lac sq. metres of land by respondent No.3 and consequential use of the said land for providing houses to the weaker sections/workers. In the process, Village Panchayat of Verna had approached respondent No.3 for release of 50,000 sq. metres of land for the housing purpose and the 4 third respondent had agreed to hand over the land to the said Village Panchayat. Subsequent thereto, a further demand for an additional land of 50,000 sq. metres was made with a view to accommodate the weaker section of the population of Village Loutolim as well. Thus, two blocks of the land possessed by respondent No.3 on the periphery of the industrial estate has been agreed to be released/replaced by respondent No.3 at the disposal of the State Government. It is now a matter of record that the total land of 1,00,000 sq. metres from Villages Verna and Loutolim, 50,000 sq. metres from each village, is to be used by the State Government for providing small plots of land admeasuring 100 sq. metres each for the purpose of residence to the weaker section of population covered by Twenty Point Programme, which has been in existence and administered by the Central Government over a period of time. 2. As stated herein above, the petitioners being apprehensive of allotment of plots to the persons recommended by respondent No.6, though not eligible, filed this petition and an interim relief was sought restraining the respondents from allotting plots of land to anyone. Consequent upon the passing of the interim order, though the property 5 is almost fully developed, the plots have not been allotted. Denying the allegations made in the petition, an affidavit has been filed by the Collector stating therein categorically that only the persons who are eligible and qualified under the Twenty Point Programme alone would be alloted the land. A further assertion is made in the affidavit that no one from the list of persons recommended by respondent No.6 has been allotted the land. It has been reiterated in the affidavit that without making any deviation, the land would be allotted to the deserving eligible applicants. It is then stated that the applications are to be scrutinized by the Mamlatdar and the Talathi at the ground level with a view to make a fact finding about eligibility of the persons to claim plot of land under Twenty Point Programme. The apprehension of the petitioners that the plots of land would be alloted to the beneficiaries pursuant to the recommendation made by respondent No.6 does not hold good in view of the affidavit filed by the Collector, South Goa. It would be premature to consider at this stage any issue touching the allotment of the plots as the plots are as yet not allotted and the applications are at the stage of scrutiny by the Officers who are incharge of the implementation of Twenty Point Programme. 6 3. The moot question that is raised by the petitioner in this petition is as to whether the land possessed by the Goa Industrial Development Corporation could be utilized for any purpose other than the purpose sought to be achieved by the Goa, Daman and Div Industrial Development Act, 1965 (“the Act” for short). The learned Counsel for the petitioners has invited our attention to the preamble of the Act to bring home the purpose and object sought to be achieved by the Act. It is revealed from the preamble that the Act has been enacted for making special provision for securing the orderly establishment in industrial areas and industrial estates of industries and to assist generally in the organisation thereof and for that purpose to establish an Industrial Development Corporation. Thus, the object sought to be achieved by the Act is orderly establishment of industries in the industrial areas and industrial estates in the region. Respondent No. 3 is a Corporation own and controlled by the State Government as has been defined in the Land Acquisition Act. It is not in dispute that it is an instrumentality of the State, rather it is so urged by the petitioners in the petition. 7 4. Under the scheme of the Act, the Corporation has been vested with powers to acquire and hold properties by virtue of Section 14 of the Act. Section 27 provides for acquisition of land for the Corporation and declares it to be a public purpose. The State Government has been vested with powers to issue necessary directions to the Corporation for the purpose of carrying out the objects of the Act and the Corporation is bound by the directions, be it general or special, issued by the State Government from time to time for the said purpose, is what is provided in Section 16. Relevant Sections for the purpose of resolving the controversy involved in the petition are Sections 28 and 29 of the Act. Section 28, reads thus : “ 28. Disposal of land by the Corporation. – (1) Subject to any directions given by the State Government under this Act, the Corporation may dispose of – (a) any land acquired by the State Government and transferred to it, without undertaking or carrying out any development thereon; or (b) any such land after undertaking or carrying out such development as it thinks fit, to such persons in such 8 manner and subject to such terms and conditions as it considers expedient for securing the purposes of this Act. (2) the powers of the Corporation with respect to the disposal of land under sub-section (1) shall be so exercised as to secure so far as practicable, that – (a) where the Corporation proposes to dispose of by sale any such land without any development having been undertaken or carried out thereon, the Corporation shall offer the land in the first instance to the person from whom it was acquired, if they desire to purchase it, subject to such requirements as to its development and use as the Corporation may think fit to impose; (b) persons who are residing or carrying on business or other activities on any such land shall, if they desire to obtain accommodation on land belonging to the Corporation and are willing to comply with any requirements of the Corporation as to its development and use, have as opportunity to obtain thereon accommodation suitable to their reasonable requirements on terms settled 9 with due regard to the price at which any such land has been acquired from them. (3) Nothing in this Act shall be construed as enabling the Corporation without the approval of the State Government to dispose of land by way of gift, mortgage or charge, but subject as aforesaid any reference in this Act to the disposal of land shall be construed as a reference to the disposal thereof in any manner, whether by way of sale, exchange or lease or by the creation of any easement, right or privilege or otherwise.” Section 28 vests Corporation with the power to dispose of land and the manner of disposal is regulated by the said section. This, of course, is subject to the directions of the State Government to be issued under the Act. A perusal of Section 28 reveals that the Corporation may dispose of the land acquired by the State and transfer to it, without carrying out any development thereon, so also any land wherein the Corporation has carried out some development and then proposes to dispose of the same. Sub-section (1) deals with disposal of land which has been acquired by the State Government and transferred to the Corporation 10 without carrying out any development or after carrying out development. Sub-section (2) authorizes the Corporation to dispose of land, subject to preference and norms laid down in sub-section (2). However, there is no absolute right in favour of the persons covered by sub-section (2), as the Corporation is obliged to adhere to the norms as far as practicable. Power of the Corporation under Section 28 of the Act is not unfettered, but the same is subject to the limitations prescribed in sub-section (3). 5. At this stage, it will not be out of place to reiterate that the petitioners are not the persons whose lands have been acquired, but the petitioners are only the components of the Communidades of the two Villages whose lands came to be acquired by the Government and placed at the disposal of respondent No.3. Even, otherwise, the present petition has been filed in public interest and, thus, the learned Counsel for the petitioners has not pressed the claim of the petitioners touching sub-section (2)(a) of Section 28 of the Act. 6. Section 29 of the Act, reads as under : “ 29. Government lands. – (1) For the furtherance 11 of the objects of this Act, the State Government may, upon such conditions as may be agreed upon between that Government and the Corporation, place at the disposal of the Corporation any lands vested in the Government. (2) After any such land has been developed by, or under the control and supervision of the Corporation, it shall be dealt with by the Corporation in accordance with the regulation made, and directions given by the State Government in this behalf. (3) If any land placed at the disposal of the Corporation under sub-section (1) is required at any time thereafter by the State Government, the Corporation shall replace it at the disposal of the State Government upon such terms and conditions as may be mutually agreed upon.” Section 29 lays down that the State Government may place at the disposal of the Corporation any land vested in the Government in furtherance of the objects of the Act. Sub-Section (3) then provides that if any land placed at the disposal of the Corporation under sub- section (1) is required at any time thereafter by the State Government, the Corporation shall replace it at the disposal of the State Government 12 upon such terms and conditions as may be mutually agreed upon. Sub- section (3) of Section 29 leaves no room of doubt that the Corporation is under a statutory obligation to replace the land at the disposal of the State Government if the State Government requires the same at any time after the land has been placed at the disposal of respondent No.3. 7. Having regard to the scheme running through Sections 27, 28 and 29, it is crystal clear that it is the prerogative of the State Government to seek replacement of the land to its disposal as and when the State Government requires the same. The moment requirement of the State Government to reclaim the land arises, from that time spring, corresponding obligation on the Corporation to replace the land at the disposal of the State Government, of course, subject to the terms and conditions to be mutually agreed upon. What is to be noted is that the lands which are transferred/placed at the disposal of respondent No.3 by the State Government in the year 2004 are the lands acquired by the State Government under the provisions of the Land Acquisition Act and the public purpose spelt out in the notification was the purpose sought to be achieved by the Industrial Development Act. It is a settled position of law that the land acquired for one public purpose can be 13 used by the State Government for another public purpose. There is no impediment in the way of the State Government from utilizing the land acquired for one public purpose for another public purpose. The submission made by the learned Counsel for the petitioners in the above factual and legal premise is that as the State Government has acquired the land for the industrial development, the same is not capable of being resumed by the State Government under Section 29 of the Act for being used for any other public purpose and in the present case for being utilized for providing houses to the weaker sections of the population within the parameters of Twenty Point Programme. 8. The learned Counsel for the petitioners has also submitted that the land has been notified as an industrial zone in the development plan of Goa and thus, there cannot be any resumption or replacement of the land at the disposal of the State Government for being used for settlement unless and until the zone is changed. 9. Lastly, it is contended that the lands referred to in Section 29 of the Act which could be replaced at the disposal of the State Government under sub-section (3) are only those Government lands 14 which are referred to in Section 14 of the Land Revenue Code and regulated by Rule 29(c) of the Land Disposal Rules. In other words, the submission made by the learned Counsel for the petitioners is that the land acquired by the State Government and placed at the disposal of the Corporation need to be excluded from the expression “Government lands” while interpreting Section 29 of the Act. He carries his submission further by contending that the acquired lands are dealt with under Section 28 of the Act and and hence are not regulated by Section 29. In our considered opinion, the submission made by the learned Counsel for the petitioners is devoid of any merit and substance for the reasons that we would proceed to record hereinafter. 10. The decision taken by the State Government or the action of the State Government, the legality of which is questioned by filing the petition, is preceded by a few events, to which we would like to make a mention. The Panchayat of Verna seems to have initiated a move to claim 50,000 sq. metres of land from respondent No.3- Corporation with a view to provide housing to the weaker section of the public. A letter was issued by the Village Panchayat to respondent No.3 on 13.4.05 and the purpose referred to therein was “housing 15 colony for workers from the said village”. Respondent No.3 Corporation passed a resolution agreeing to transfer in favour of the Village Panchayat of Verna 50,000 sq. metres of land for housing colony of workers. Sometime in March, 2006, respondent No.6 in the capacity of elected representative of the people (MLA) moves the Chief Minister for providing of 50,000 sq. metres of land to the Village Panchayat of Verna. The Chief Minister agreed to implement the project on identified plot of approximately 50,000 sq. metres which was in possession of the respondent No.3 for the purpose of providing housing. The learned Advocate General appearing for the State Government has made available for our perusal the original record in relation to the processing of the file, consequent upon which, two plots, each admeasuring 50,000 sq. metres have been placed by the State Government at the disposal of the Collector for implementing Twenty Point Programme. From the perusal of the original papers produced by the learned Advocate General, it is seen that initially Goa Industrial Development Corporation, vide its letter dated 7/2/2006 had agreed to transfer 50,000 sq. metres of Corporation Land to the Village Panchayat of Verna. However, accepting the suggestion made by respondent No.6, the proposal of handing over land to the Village Panchayat underwent 16 change and the State Government directed the said land to be taken possession of by the Collector with a view to implement the Twenty Point Programme. Thus, the State Government voiced its requirement for 50,000 sq. metres of land from Verna which was with respondent No.3 for the purpose of providing houses under the Twenty Point Programme. The decision in that respect was taken on 23.3.06. A similar decision has also been taken by the Government in regard to 50,000 sq. metres of land from the Village Loutolim on 24.4.06. Pursuant to the decision reached by the Government to utilize the two separate blocks of 50,000 sq. metres from the Villages Verna and Loutolim, the Under Secretary, Government of Goa, intimated the respondent No.3 to hand over the said land to the Collector for being used for another public purpose viz. providing housing/accommodation to the landless rural labourers under Twenty Point Programme. The Collector, thereafter, was placed in possession of the lands in question by respondent No.3 pursuant to the two resolutions dated 19.4.06, bearing No.46/2006 and 51/06. The concerned plot of 50,000 sq. metres at Villages Verna and Loutolim are marked as utility plots No.U-5 and U-6. The Collector has, thereafter, handed over the plots to Goa Infrastructure Development Corporation Ltd./respondent No.4 17 which is a special purpose vehicle constituted for expeditious implementation of the scheme. It is the case of the respondents that by the time petitioners approached this Court by filing the present petition, respondent No.4 had, to a large extent, developed the properties by preparing lay out and by providing roads and other facilities and as of now, we are informed that the internal roads are laid and the plots are developed. The learned Counsel appearing for the respondents submit that no useful purpose would be served by allowing the present petition, as the Government has already incurred substantial amount of expenditure for the development of the said properties. 11. Reverting back to the questions raised in this petition, let us consider (1) Whether providing house sites to weaker sections of the society is a `public purpose' ? It cannot be doubted that providing house sites to accommodate weaker sections of the society who have no house of their own would be a public purpose. The Supreme Court has categorically so held in the case of Chameli Singh and ors. etc. vs. State of U.P. and anr., reported in AIR 1996 SC 1051, relying upon the Judgment in the case of State of Karnataka vs. Narasimhamurthy, reported in (1995) AIR SCW 3749, that right to 18 shelter is a fundamental right under Article 19(1) of the Constitution. To make the right meaningful to the poor, the State has to provide facilities and opportunity to build houses. Acquisition of the land to provide house sites to the poor houseless is a public purpose as it is the constitutional duty of the State to provide house sites to the poor. In this view of the matter, it can safely be concluded that providing house sites to the poor is a public purpose. (2) Whether a land acquired for a given public purpose can be used for another public purpose ? This, yet again, is a concluded issue. The Supreme Court in the case of Union of India vs. Jaswant Rai Kocchar and ors., reported in AIR 1996 SC 1352 has held thus : “Suffice it to state that it is a well-settled law that land sought to be acquired for public purpose may be used for another public purpose. Therefore, when the notification has mentioned that the land is sought to be acquired for housing scheme but it is sought to be used for District Centre, the public purpose does not cease to be public purpose and the nomenclature mentioned in the notification under section 4(1) as housing scheme cannot be construed to be a colourable one. The notification under section 4(1) could not have been quashed on the ground that the land is sought to be used for District Centre, namely, 19 for commercial purpose. It is obvious that the lands acquired for a public purpose should serve only the public purpose of providing facilities of commercial purpose, namely, District Centre as conceded by the learned counsel in fairness to be a public purpose. The notification under section 4(1) cannot be quashed on the ground of change of user. The High Court was wholly wrong in quashing the notification on the ground of change of user.” 12. The last objection is touching the ground that the lands, in question, fall in an industrial zone; whereas the house sites to be provided to the weaker sections would be covered by 'settlement' and, thereby, the land from one zone would be utilized for the purpose of another zone. This question is also covered by a Supreme Court Judgment rendered in a batch of appeals reported in (1999) 2 SCC 384 (Bhagat Singh vs. State of U.P. and another.) In the said case, the Supreme Court was considering as to whether a land proposed to be acquired by the Government for a particular purpose should be for the same purpose or use mentioned in the Master Plan or Zonal Plan for the said area. Repelling the submission that the acquisition of land would be invalid if the land proposed to be acquired for a purpose other than 20 one permitted by the Master Plan or the Zonal Plan, applicable to that locality, the Supreme Court has held thus : “Acquisition will be valid if it is for a public purpose even if it is not for the type of user permitted by the Master Plan or Zonal Plan in force at the time the acquisition is made. It will be for the beneficiary of the acquisition to move the competent authority under the Development Act and obtain the sanction of the said authority for suitable modification of the Master Plan so as to permit the use of the land for the public purpose for which the land is acquired. In fact, it may be difficult for the beneficiary of the acquisition to move the competent authority under the Development Act seeking permission to change of land use even before the land is acquired or before possession is