1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITIONS NO. 30/2008, 03/2009 & 353/2009 WRIT PETITION NO. 30 OF 2008 Shamsundar Vassudeo Kamat, S/o. Vassudeo Vishwanath Kamat, Major of age, Indian National, R/o House No.15, Sao Pedro, Ribandar, Goa. ....... Petitioner v e r s u s 1. The State of Goa, through The Chief Secretary, having his office at Secretariat, Porvorim, Goa. 2. The Land Acquisition Officer, Deputy Collector and S.D.O. Sub Division, Panaji, Goa. 3. The Corporation of the City of Panaji, through its Chief Officer, having his office at Panaji, Goa. 4. Goa State Pollution Control Board, Dempo Towers, 1st Floor, EDC Plaza, Patto, Panaji Goa 403 001. ....... Respondents Mr. R. G. Ramani, Advocate for the petitioner. Mr. S. S. Kantak, Advocate General with Mr. A. Kamat, Addl. Govt. Advocate for respondents No.1 and 2. 2 Mr. A. F. Diniz, Advocate for respondent No.3. Mr. S. N. Joshi, Advocate for respondent No.4. WRIT PETITION NO. 3 OF 2009 1. PRITHVI CONSULTANTS (P) LIMITED, a Company incorporated under the Companies Act, 1956 (Act) 1 of 1956), having its registered office at 407, Shiv Towers, Patto Plaza, Panaji-Goa. 2. RANI INFRASTRUCTURE DEVELOPMENT LIMITED (formerly Rani Constructions (P) Limited, a Company incorporated under the Companies Act, 1956 (Act) 1 of 1956), having its registered office at 407, Shiv Towers, Patto, Plaza, Panaji-Goa. 3. RANI HOUSING DEVELOPMENT (P) LIMITED, a Company incorporated under the Companies Act, 1956 (Act 1 of 1956), having its registered office at 407, Shiv Towers, Fourth Floor, Patto Plaza, Panaji-Goa. ....... Petitioners v e r s u s 1. State of Goa, through its Chief Secretary, having Office at Secretariat, Porvorim, Bardez-Goa. 2. The Land Acquisition Officer/Deputy Collector (Revenue), 3 Government of Goa, having office at Collectorate of North Goa District, Panaji, Goa. 3. The Corporation of the City of Panaji, through its Commissioner, having office at Panaji-Goa. 4. The Goa State Pollution Control Board, through its Member Secretary, having office at Dempo Towers, Patto Plaza, Panaji-Goa. ....... Respondents Mr. J. P. Mulgaonkar, Advocate for the petitioners. Mr. S. S. Kantak, Advocate General with Mr. A. Kamat, Addl. Govt. Advocate for respondents No.1 and 2. Mr. A. F. Diniz, Advocate for respondent No.3. Mr. S. N. Joshi, Advocate for respondent No.4. WRIT PETITION NOP. 353 OF 2009 1. Mr. Jose Filipe Pegado Braganza, Major, Indian National, Resident of H. No. 130, Angod, Mapusa, Bardez, Goa. 2. Mrs. Melba Lima Britto, Major, Indian National, Resident of Camotim Vaddo, Candolim, Bardez, Goa. ........ Petitioners v e r s u s 4 1. The State of Goa, Through its Chief Secretary, Secretariat, Porvorim, Goa. 2. The Land Acquisition Officer/ Deputy Collector, Revenue, Government of Goa, North Goa, Panaji, Goa. 3. The Corporation of the City of Panaji Through its Commissioner, Panaji, Goa. 4. The Goa State Pollution Control Board, Through its Member Secretary, Patto, Panaji, Goa. ....... Respondents Mr. Nigel da Csota Frias, Advocate for the petitioners. Mr. S. S. Kantak, Advocate General with Mr. A. Kamat, Addl. Govt. Advocate for respondents No.1 and 2. Mr. A. F. Diniz, Advocate for respondent No.3. Mr. S. N. Joshi, Advocate for respondent No.4. CORAM :- NARESH H. PATIL & N.A. BRITTO, JJ. Date of reserving the Judgment : 7th January, 2010. Date of pronouncing the Judgment : 15th January, 2010. 5 J U D G M E N T (Per NARESH H. PATIL, J.) Heard learned Counsel for the respective parties. Rule, returnable forthwith by consent. 2. All these writ petitions raise identical questions and issues. The challenge to the notification under which acquisition proceedings commenced, is also one and the same and hence, they are being finally disposed of by a common judgment. 3. The petitioner in Writ Petition No.30/2008 seeks a writ of certiorari for quashing and setting aside Notification No.22/6/2006- RD dated 7.3.06 issued by the respondents under Section 4 of the Land Acquisition Act, 1894 (“Act of 1894” for short) and the Notification dated 1.11.06, issued under Section 6 of the Act of 1894 and consequently the Award dated 13.11.08, made by the Deputy Collector (Revenue) under Section 11 of the Act of 1894 for the acquisition of land for a purported public purpose i.e. Integrated Sanitary Landfill and Solid Waste Management Site for the Corporation of the City of Panaji (CCP) and for other consequential reliefs. 6 4. In substance, the contention of the petitioner is that there exists a property known as “BONATO” surveyed under 20/2 of Village Bainguinim, Taluka Tiswadi, which is referred to as “the said property”. The said property originally belonged to Mr. Vassudeo Vishwanath Kamat, father of the petitioner who, according to the petitioner, was the sole owner of the said property. The State, issued a Notification under Section 4 of the Act of 1894 dated 7.3.06. The petitioner learnt that vide letter dated 24.8.05, respondent No.3 – CCP applied to respondent No.4-the Goa State Pollution Control Board for authorisation for setting up a Solid Waste Management Site in the said property. Accordingly, Notification under Section 6 was issued on 2.11.06 and the impugned Award was made by the Dy. Collector on 13.11.06 under Section 11 of the Act of 1894. 5. Mr. Ramani, learned Counsel appearing for the petitioner, has mainly challenged the acquisition proceedings and consequent declaration of Award. It is the contention of the petitioner that the Deputy Collector and LAO, North Goa District, Panaji, in exercise of powers under Section 5A of the Act of 1894, invited objections in respect of the proposed acquisition of land. The petitioner, by 7 communication dated 23.6.06, lodged his objections. The petitioner stated in the said communication that the notice under Section 5A, addressed to the late father of the petitioner, by the Dy. Collector (Rev), was against the Notification issued by the Ministry of Environment and Forests, New Delhi dated 25.9.2000 and the Rules framed thereunder. It was also stated that the Dy. Collector failed to comply with the requirements as required under the said Notification, as published in the Gazette of Government of India and a copy of the said Gazette was annexed thereto for ready reference. The learned Counsel for the petitioner submitted that the Dy. Collector has not considered the objections raised by the petitioner at all. In the submission of the Counsel, by communication dated 1/11/06, the Dy. Collector (Revenue) addressed to the Under Secretary (Revenue), Revenue Department, Secretariat, Porvorim, Goa simply observed in the concluding paragraph that the land under acquisition is situated at Village Baiguinim in Tiswadi Taluka and the said land is suitable for the purpose for which it is being acquired. The Dy. Collector did not express any opinion as to whether the land is required to be acquired or is suitable for the acquisition purpose or any public purpose is involved in the acquisition of the land. In the submission of the Counsel, there is total non- 8 application of mind by the Dy. Collector. In the proceedings of the present writ petition, the petitioner raised several other grounds in support of the contention that the impugned notification and the acquisition proceedings are required to be quashed and set aside. In substance, the petitioner has raised a ground before this Court that the CCP has no authority to acquire land beyond its territorial jurisdiction. The Municipal Solid Wastes (Management and Handling) Rules, 2000 (for short “MSW Rules 2000”) were not followed. The petitioner contends that the local residents cannot be put to prejudice and face consequences of garbage from other place being dumped in their village in such a close proximity to residential areas, exposing them to all sorts of risk, besides having negative impact on the environment. It is contended that the garbage disposal site is in close proximity to the water pipe line which supplies water to entire city of Panjim, putting the entire city of Panjim to health risks and in violation of rights of citizens under Article 21 of the Constitution of India. The said site is in close proximity to habitation clusters, as also monuments that have been conferred with the status of world heritage structures, and location in an area of cultural, historic and religious importance. The proposed acquisition of the petitioner's land for dumping garbage is in violation 9 of Article 300A of the Constitution of India as, according to the petitioner, it amounts to an expropriation of the petitioner's land for that purpose, and that besides being impermissible in the manner in which it is sought to be done, is not envisaged and/or contemplated under the Act. The petitioner submits that the land which is being acquired is in excess of the requirement of the CCP. Neither consent of the Village Panchayat concerned for setting up site for garbage disposal is obtained, nor any sanction from the Goa State Pollution Control Board for such purpose is sought by the respondents. 6. Learned Counsel appearing for the petitioner submitted that the provisions of Section 7 of the Act of 1894, which are mandatory in nature, are not followed. Hence, the entire acquisition proceeding is vitiated. 7. The learned Counsel for the petitioner further referred to the provisions of the Goa, Daman and Diu Land Acquisition Rules, 1972 and Schedule III of the MSW Rules, 2000, notified by the Ministry of Environment and Forests, New Delhi on 25.9.2000. Schedule III of the said Rules is titled as “Specifications for Landfill 10 Sites”. Clause 8, under heading “Site Selection” provides that the landfill site shall be away from habitation clusters, forest areas, water bodies, monuments, National Parks, Wetlands and places of important cultural, historical or religious interest. Clause 9 provides that a buffer zone of no-development shall be maintained around landdfill site and shall be incorporated in the Town Planning Department's land-use plans. 8. In support of the contentions of the petitioner, reliance was placed on the following case law : a) In Charles F. Pais vs. State of Goa and others, [2004 Goa L.R. 389], Division of this Court in paragraph 6, has held thus : “ 7. Next we have to consider whether on the declaration under Section 6 being struck down whether the Award is liable to be set aside and possession restored. In our opinion, we need not set aside the entire Award as it will be clearly severable. Other applicants are not before this court and have not challenged the declaration under Section 6 nor the Award nor the taking possession of the land. Exhibit F as we have noted, clearly shows that the acquisition is on two 11 sides which is separated by a survey No.97/29. The Award, therefore, is clearly severable. In our opinion, therefore, the reliefs can be restricted only to the acquisition insofar as Survey Nos. 97/22 and 97/23 are concerned.” b) In Hindustan Petroleum Corpn. Ltd., v. Darius Shapur Chenai and ors. (AIR 2005 SC 3520), the Apex Court in para 18 observed thus : “ 18. Section 5-A of the Act is in two parts. Upon receipt of objections, the Collector is required to make such further enquiry as he may think necessary whereupon he must submit a report to the appropriate Government in respect of the land which is the subject matter 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. He is required to forward the records of the proceedings held by him together with the report. On receipt of such a Report together with the records of the case the Government is to render a decision thereupon. It is now well-settled in view of a catena of decisions that the declaration made under Section 6 of the Act need not contain any reason. 12 (See Kalumiya Karimmiya vs. The State of Gujarat and others (1977) 1 SCC 715 and Delhi Administration vs. Gurdip Singh Uban and others (2000) 7 SCC 296).” (c) In the case of Harakchand Misirimal Solanki vs. The Collector, Collector Office, Land Acquisition Branch, Pune and ors. (2009(1) ALL MR 799), the Division Bench, Bombay High Court, Principal Seat, at Mumbai considered the provisions of Section 7 of the Act of 1894 and observed in paragraph 65 as under : “ 65. In view of the aforesaid discussion, we hold : a) The requirement of the Collector “to take order for acquisition of the land” as contemplated by the provisions of Section 7 of the said Act is a substantive requirement of the said Act and is not just a procedural requirement. b) The aforesaid requirement is mandatory in nature and is not just directory. c) It is not open to the Collector to comply with such a requirement by way of ratification i.e. by obtaining a post facto sanction with retrospec- tive effect from the appropriate government or from the officer authorised by it in this behalf, or as the case may be, the Commissioner. 13 d) Such order for acquisition of land must be granted/issued with proper application of mind and by giving reasons in support thereof. e) The previous approval granted by the appropriate government or its authorized officer under the first proviso to Section 11(1) of the said Act does not amount to and cannot be considered as sufficient compliance with this requirement.” 9. The learned Counsel for the petitioner submitted that the petitioner has filed an application for reference under protest, but has not withdrawn the amount granted by the Land Acquisition Officer. 10. The petitioners in Writ Petition No.03/2009 contended that there is total non-compliance of the provisions of Section 5-A and that the mandatory requirements of Section 7 of the Act of 1894 are not complied with. The writ petition was, admittedly, filed after making of the Award. It is contended that the petitioners raised 11 objections. But, in strict sense of law, the Land Acquisition Officer did not consider their objections and there is no recommendation in the eye of law by the Dy. Collector regarding his view and opinion on the objections 14 raised by the petitioners. There is complete arbitrariness in the decision making process. According to the learned Counsel for the petitioners, in view of the facts of the case, the provisions of Articles 14 and 300A of the Constitution of India would operate. The Counsel further submitted that assuming that the Cabinet had taken decision in respect of compliance of the provisions of Section 7 of the Act of the Act of 1894, the same was not forwarded to the Land Acquisition Officer. There are laches on the part of the State machinery and, therefore, the entire acquisition proceedings initiated and culminated in declaration of Award are required to be held has null and void. The learned Counsel, in support of his submissions, placed reliance on the following case law : i) In Shri Mandir Sita Ramji vs. Lt. Governor of Delhi and ors., ( (1975) 4 SCC 298), the Apex Court in para 6, has observed thus : “ 6. The objection in substance was that the lands in question were attached to a religious institution and were therefore, immune from being acquired under the notification. That was how the Land Acquisition Collector understood the objection. The objection raised a mixed question 15 of law and fact and it was because of that that the Collector called for a report. To say, as the Division Bench has done, that the objection raised only a question of law and, therefore, the Collector could decline to make the recommendation and leave it to the appropriate Government to decide the question is neither here nor there, inasmuch as the High Court itself has stated that the question whether the land is attached to the religious institution would depend upon resolution of questions of fact. The Division Bench said : Thus it is the manner of the utilisation of land which will determine whether it was `attached to' or not in the present case. In as much as nothing has been shown that the land was utilised for the purpose of the temple or the institution or that its income was so utilised, it must be held that the mere contiguity of the land to the temple of Shri Hanuman or its ownership by Shree Sita Ram Bhandar Mandir Sita Ramji at Pilani would not make the land in question `attached to' any one of these. If this is so, it is difficult to understand why the objection raised only a question of law, which could be left to the decision of the appropriate Government without the recommendation by the 16 Collector. As we have said, the objection was that the lands belonged to the religious institution and would come within the purview of the exempted class of lands in the notification. In substance, this was an objection that the lands were attached to the religious institution. As the objections raised questions of fact, the Land Acquisition Collector should have enquired into them and should have made his recommendation as provided in Section 5A. The failure of the Land Acquisition Collector to inquire into the objection after giving the appellant an opportunity of being heard would show that he declined to exercise his jurisdiction under the section. As we said, the fact that the ultimate decision has to be made by the State Government did not relieve the Collector from his statutory duty to enquire into the objection and make the recommendation. We see no reason why the Division Bench should have departed from the procedure prescribed by the statute. The observance of the procedure laid down by the statute before depriving a person of his property is necessary to generate the feeling that rule of law prevails in this country. When a procedure is prescribed by the Legislature, it is not for the Court to substitute a different one 17 according to its notion of justice. When the Legislature has spoken, the judges cannot afford to be wiser.” ii) In Hindustan Petroleum Corpn. Ltd., v. Darius Shapur Chenai and ors. (supra), the Apex Court in paras 7, 11 and 17 observed thus : “ 7. It is not in dispute that Section 5-A of the Act confers a valuable right in favour of a person whose lands are sought to be acquired. Having regard to the provisions contained in Article 300A of the Constitution of India, the State in exercise of its power of `eminent domain' may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefor must be paid. 11. In State of Punjab and Another vs. Gurdial Singh and others [(1980) 2 SCC 471], it was held : “... Hearing him before depriving him is both reasonable and pre-emptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons...” This Court in Om Prakash and Another vs. 18 State of U.P. and others [(1998) 6 SCC 1] held, thus : “ 21. Our attention was also invited by Shri Shanti Bhushan, learned Senior Counsel for the appellants to a decision of a two-Judge Bench of this Court in the case of State of Punjab vs. Gurdial Singh wherein Krishna Iyer, J. dealing with the question of exercise of emergency powers under Section 17 of the Act observed in para 16 of the Report that save in real urgency where public interest did not brook even the minimum time needed to give a hearing, land acquisition authorities should not, having regard to Articles 14 and 19, burke an inquiry under Section 17 of the Act. Thus, according to the aforesaid decision of this Court, inquiry under Section 5-A is not merely statutory but also has a flavour of fundamental rights under Articles 14 and 19 of the Constitution though right to property has now no longer remained a fundamental right, at least observation regarding Article 14, vis-a-vis, Section 5-A of the Land Acquisition Act would remain apposite.” 17. Even a judicial review on facts in certain situations may be unavailable. In 19 Cholan Roadways Ltd., vs. G. Thirugnanasambandam [(2005)3 SCC 241] this Court observed : “ 34. ... It is now well settled that a quasi- judicial authority must pose unto itself a correct question so as to arrive at a correct finding of fact. A wrong question posed leads to a wrong answer. In this case, furthermore, the misdirection in law committed by the Industrial Tribunal was apparent insofar as it did not apply the principle of res ipsa loquitur which was relevant for the purpose of this case and, thus, failed to take into consideration a relevant factor and furthermore took into consideration an irrelevant fact not germane for determining the issue, namely, that the passengers of the bus were mandatorily required to be examined. The Industrial Tribunal further failed to apply the correct standard of proof in relation to a domestic enquiry, which is “preponderance of probability” and applied the standard of proof required for a criminal trial. A case for judicial review was, thus, clearly made out. 20 35. Errors of fact can also be a subject- matter of judicial review. (See E. vs. Secy. Of State of the Home Deptt.) Reference in this connection may also be made to an interesting article by Paul P. Craig. Q.C. Titled “Judicial Review. Appeal and Factual Error published in 2004 Public Law. P.788.” iii) In the case of Sukumar M. Khot and ors. vs. State of Maharashtra & ors., (2006(4) Bom. C.R. 337), the Division Bench, Principal Seat, at Mumbai in paras 12 and 13 has held as under : “ 12. The submission which has been urged on behalf of the petitioners is that there was a failure on the part of the respondent-State to comply with the mandatory provision of Section 5-A. 13. In order to appreciate the submission, it may be noted that under sub-section (1) of section 5-A, a person interested in any land which is notified under section 4 is entitled to object to the Acquisition of the land. The Collector is required by sub-section (2) to give the objector an opportunity of being heard. Thereafter, sub- section (2) mandates that the Collector shall “after hearing all such objections and after making such 21 further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under section 4, sub-section (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government.” (emphasis supplied). The decision of the appropriate Government on the objection is to be final.” 11. In Writ Petition No.353/2009, the petitioners have approached this Court after the possession of their land was taken by the Authorities. The petitioner filed their objections to the notice issued under Section 5-A of the Act of 1894. The petitioners raised objections which are akin to the one raised by the petitioners in Writ Petition No.30/2008. One of the objections is that the subject site is in close proximity of residential international school, Churches, historical monuments, and historical sites. The petitioners stated that the acquisition proceedings, if complete, would affect the tourism industry which yields huge returns for Goa and the Country, once the garbage disposal plant is set up there. Learned Counsel for the petitioners 22 submitted that there is total non-application of mind by the Land Acquisition Officer to the objections raised by the petitioners. There are no recommendations of the Officer concerned. The Officer has merely forwarded objections by noting the objections raised by the party by concluding that he is not satisfied with the objections raised. The learned Counsel placed reliance on the Judgment in the case of Harakchand Misirimal Solanki vs. The Collector, Collector Office, Land Acquisition Branch, Pune and ors. (supra), and