1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NOS. 730 AND 624 OF 2008 WRIT PETITION NO.730 OF 2008 1. Jose Almeida Marchon Building, 1st Floor, Near Municipal Building Margao,Goa 2. Francisco Almeida 3. Manuel Almeida both r/oFlat B. F. 1 Chapel View Apartments Borda, Margao,Goa 4. Fatima Almeida 5. Alister Almeida 6. Alison Almeida r/o.H.No.202 Opp. St.Joaquim Chapel, Borda, Margao,Goa ... Petitioners. Versus 1. State of Goa, through the Chief Secretary, with office at the Secretariat, Porvorim, Goa. 2. Under Secretary (Revenue) Government of Goa with office at the Secretariat Porvorim, Goa. 3. The Special Land Acquisition 2 Officer Salaulim Irrigation Project Gogol, Margao, Goa. ... Respondents. Mr. M. B. D'Costa, Senior Advocate with Mr. J. A. Lobo, Advocate for the petitioners. Mr. S. S. Kantak, Advocate General with Mr. A. Kamat, Additional Government Advocate for the respondents. WITH WRIT PETITION NO.624 OF 2008 1. Shri Laxmikant D. Naik Karmali, Major, Residing near St. Joaquim Chapel, Borda, P.O. Fatorda, Magao,Goa -403 602. 2. Shri Bhaskar D. Naik Karmali Major, r/o Curchorem Goa, 403 706. ... Petitioners. Versus 1. State of Goa, through its Chief Secretary, Government of Goa, Secretariat, Alto Porvorim, Bardez, Goa 403 521. 2. The Executive Engineer, Works Division VI(R) PWD, Fatorda, Margao Goa- 403 602. 3. The Special Land Acquisition Officer Salaulim Irrigation Project Gogol, Margao, Goa – 403 601. ... Respondents. Mr. P. A. Kholkar, Advocate for the petitioners. 3 Mr. S. S. Kantak, Advocate General with Mr. A. Kamat, Additional Government Advocate for the respondents. CORAM :- B. P. DHARMADHIKARI & SMT. R. S. DALVI, JJ. DATE OF RESERVING THE ORDER : 13 TH April, 2009 . DATE OF PRONOUNCING THE ORDER : 24 TH April, 2009. ORDER : 1. These writ petitions are filed for declaration that the acquisition proceedings initiated by the notification No.23/36/2004-RDE dated 13.12.2004 issued under Section 4(1) of the Land Acquisition Act 1894 (the said Act) have lapsed and accordingly, award made on 15.11.2007 is void. The writ petitions are also for the declaration that the acquisition proceedings are illegal and that the Award dated 01.10.2007 is void. 2. The petitioners have essentially challenged the Awards dated 01.10.2007 and 15.11.2007 acquiring their lands. The lands described in the aforesaid writ petitions sought to be acquired, were for widening the road from old survey office to T.V.S. showroom in Margao city. It stretches over 1 Km. in length. 4 3. The preliminary notification under Section 4 of the Act was issued on 13.12.2004 and published in the official gazette dated 16.12.2004. That was for acquisition of 27990 square metres of land for widening the road extending 22 metres. 4. On 19.09.2005, by notification issued under Section 6 of the Act published on 13.10.2005 on the board of Mamlatdar of Salcete, the lands sought to be acquired, were reduced to 19331 square metres. Thereafter on 04.10.2006, the acquisitions of the lands were sought to be withdrawn from notification by withdrawal of acquisition under Section 48 of the Act. The said notification was published in the official gazette on 19.10.2006. Under the said notification, some areas were dropped from the notification and accordingly, the acquisition of the land came to be effected for decreased portion of lands specified in the schedule to that notification. In that notification, the area shown was the area required for widening of the road. The balance area came to be dropped from acquisition. 5. On 01.10.2007, the award came to be passed 5 acquiring the only small portion of the land as shown in the schedule 2 to the notification issued under Section 48. 6. On 18.10.2007, the Special Land Acquisition Officer (the S.L.A.O.) informed the Collector, South Goa that a final award of the land acquisition for widening the road from old survey office to T.V.S. showroom of the length of 1 Km. in Margao city, was passed. The copy of the final award was enclosed. 7. On 18.10.2007, the S.L.A.O. also wrote to the Executive Engineer, P.W.D., Fatorda, Margao enclosing a copy of the award and called upon him to place the award amount at the disposal of her office to effect payment to interested parties and hand over the possession to the department. 8. On 15.11.2007, a second award came to be passed and a separate corrigendum came to be issued by which the Award dated 01.10.2007, was to be read and understood as the award shown to be dated 15.11.2007. The Award dated 15.11.2007 sets out the notification issued under Section 4 as well as 6 of the Act and the withdrawal of 6 notification and the consequent dropping of certain areas mentioned in the notification under Section 48 of the Act. It specifies that the total area which remained to be acquired, was only 2797 square metres, which is considered as the true area of the land as under acquisition. 9. The notice of the award under Section 12 came to be issued upon the petitioners on 15.07.2008. The petitioners received the notice on 25.07.2008. The petitioners applied for certified copies. The petitioners were issued certified copies of the award dated 15.11.2007. 10. On 25.08.2008, the petitioners wrote a letter to the respondents that the award had lapsed. On 27.08.2008, the respondents' replied to the petitioners' letter dated 25.08.2008 explaining the reduction of the area to be acquired under the fresh notification dated 04.10.2006 published in the office of the Mamlatdar on 07.11.2006. The letter also mentioned about the award passed on 1.10.2007. The corrigendum issued on 15.11.2007 under which rectification of the award came to be made on 15.11.2007. 11. The petitioners applied for reference under 7 Section 18 of the Act before the relevant District Court. The S.L.A.O.'s statement under Section 19 of the Act, was filed on 12.09.2008. The application is stated to be pending. 12. Since the award is challenged mainly on the ground that it has lapsed since it was not passed within 2 years of the notification under Section 6 being published in the Mamlatdar's office on 13.10.2005, the aforesaid chronology is required to be considered to determine whether the award has become void by lapse of time. 13. The award was required to be made within two years from 13.10.2005. The first award has been passed on 1.10.2007. The date of the award shows that it is passed within the statutory period of 2 years. The petitioners have contended that they have inspected the records of the respondents and have not found the said award in the file. The respondents' two letters dated 18.10.2007 show that it was filed in the office of the Collector as well as brought to the notice of the Executive Engineer, P.W.D. for payment of the compensation and for taking possession of the land. It will have to be seen whether the first award was indeed passed on 1.10.2007. That award was passed after the part 8 of the land sought to be acquired was withdrawn under a separate notification issued under Section 48 of the Act, in which some areas came to be dropped. It is contended by the petitioners that the notification under Section 48 withdrawing a part of the notification earlier issued under Section 6 of Act is shown in the schedule, which shows the modification of the award. The notification is not happily worded. It shows a declaration under Section 48(1) of the Act withdrawing the land described in the schedule appended dropped for the purpose of acquisition and states that the government notification issued under Section 6 shall be deemed to be modified to that extent. It also calls upon the presence of interested parties in the lands, to lodge claims under Section 48(2) of the Act for damages suffered by them in consequence of the said withdrawal. It also shows that the plan of the land was available for inspection. The schedule shows the relevant P.T.Sheet Number/ Chalta numbers, the persons believed to be interested and the area in square metres required for 12 metres wide road. Hence, though the notification shows the lands withdrawn from acquisition described in the schedule, the schedule itself shows the lands required for acquisition. The remainder of the lands came to be withdrawn from acquisition. That was 9 because the road which was sought to be widened to 22 metres was later sought to be widened to 12 metres. The total area sought to be acquired, was, therefore, 2797 as specified in the schedule. 14. Consequently, it is seen that in preliminary notification under Section 4 of the Act, an area of 27990 square metres was required for widening the road to 22 metres. In the notification issued under Section 6 of the Act, the extent of acquisition was reduced to 19331 square metres. Upon withdrawal of acquisition for a part of that land, the notification under Section 48 issued, shows that the withdrawal of the acquisition as described in the schedule, which schedule mentions the lands to be acquired and not to be withdrawn, i.e. to the extent of only 2797 square metres, since the withdrawal of the road to be extended was only 12 metres as against the earlier contemplated road of the width of 22 metres. All these notifications have been issued and published within the two year's statutory time period. The lands which were ultimately sought to be acquired, were shown in the plan which was also made available for inspection. The first award itself came to be passed on 1.10.2007. The letter of 10 the S.L.A.O is the circumstantial evidence to show the passing of the award on that date. 15. It is only after the statutory period of two years' expired, and after the first award came to be passed that the separate corrigendum came to be issued on 15.11.2007 showing the second award of that date. The corrigendum also makes a reference to the award passed on 1.10.2007. It seeks to correct/ rectify/ modify the award dated 1.10.2007 as shown in the award dated 15.11.2007. This modification sets out precisely the area of the land sought to be initially acquired under the preliminary notifications issued under Section 4 of the Act, the notification under Section 6 of the Act and the notification upon withdrawal of acquisition of the same part of the land leaving the remaining 2797 square metres only as the land to be ultimately acquired. 16. It has to be seen whether the award dated 15.11.2007 was the only award passed upon the notification dated 19.09.2005 and 13.10.2005. The petitioners have contended that the notice under Section 12(2) dated 15.07.2008 does not mention the date of the award. When the petitioners applied for certified copy of the award, upon 11 receiving the notice after passing of the award, the petitioners were given the copy of the award dated 15.11.2007 and not of the award dated 1.10.2007. The S.L.A.O.'s application in the District Court dated 12.09.2008 also shows the award dated 15.11.2007 and not 1.10.2007. The petitioners have made statement that inspection of the file did not show the award dated 1.10.2007. 17. The petitioners have further contended that Section 17 was made applicable though there was no urgency in acquiring the land. Consequently, the respondents directed that the provisions of Section 5A of the Act, would not be applicable under Section 17(4) of the Act in case the lands of the petitioners were acquired. The petitioners contend that accordingly, they could not object to the acquisition of the land or to be heard in that behalf under Section 5A and yet, the payment of 80 % of the compensation under Section 17(3)(A) has also not been made to the petitioners. 18. The respondents have contended that the award was passed within two years from 13.10.2005. It is only upon a corrigendum issued under Section 13A of the Act for 12 clerical errors that further award came to be passed on 15.11.2007 and only some corrections came to be made in the award dated 01.10.2007. The reading of the two awards show that extent of the land ultimately acquired is only 2797 square metres in both the orders. Both the orders refer to the same notices being issued as well as the lands being acquired. Both the orders show the acquisition being dropped in terms of the revised schedule. In both the orders, the schedule shows that the lands ultimately acquired. The two areas are not materially different as contended by the petitioners. Once the second order is passed that is the ultimate final order and hence that alone would be referred to and relied upon by the respondents in the application for reference before the District Court and that alone would be given to the petitioners or any other parties as the certified copy of the final order. The fact that the petitioners did not see it in the file, is not conclusive evidence of the fact that an award was not passed in view of the award being filed in the office of the Collector soon after it was passed. 19. Our attention has been drawn to the Division Bench Judgment of this Court in the case of Navnath Biradkar V. State of Maharashtra 2008 (5) AIR Bomb H.C. 13 Reports 250 – 254 in which also the first Award was passed within two years of the publication of the notification under Section 6 of the Act and upon correction a second award came to be passed after the statutory 2 year period and later upon the representation of the petitioners the third award came to be passed later. The award was held not vitiated. 20. We may mention that the statutory period contemplated under Section 11A of the Act is the period of time given to the Acquiring Authority to Act upon the Notification. Once that is done and its decision is given, which is by the Authority signing the Award, the provision stands complied. Clerical or arithmetical errors may be corrected at any time later. After such corrections are made the corrected order alone can be given or considered. Even after some lands are withdrawn, only the remaining lands which are ultimately acquired can alone be shown in the Award. Such exercise, either upon correction or upon representations, cannot be taken to be the procedure of acquisition itself. Hence, that aspect cannot be taken to be included in the statutory period granted to the Authority to declare its Award. 14 21. This aspect can be understood even from another perspective. So soon as an award is made and procedure contemplated under the Act is followed, a party may bring to the notice of the Authority an error or may otherwise represent how some part of the land need not be acquired. The Acquiring Authority may consider such legitimate error and correct it or a bonafide representation and act upon it. The Award could be modified for the benefit of such party. If that exercise is also taken to be included in the statutory period granted to the Authority, the Authority may refuse to correct genuine errors or hear bonafide representations. This would not enure for the benefit of the public. Hence, the date of the first Award, once passed validates the acquisition for all times, whether or not errors therein are later corrected by corrigendum or otherwise. In this case, a valid Award came to be passed on 1.10.2007 by which all the parties are bound, subject to the corrections in the corrigendum. 22. it is further argued on behalf of the petitioners that the Award was not even served upon the petitioners under Section 12 of the Act soon after 1.10.2007 if it was passed then. It was served as late as on 25.7.2008 well after 15 the corrigendum was issued and the second award was passed. It is argued that in fact this shows that no award was passed in October 2007. It is true that first award is not shown to have been served soon after it was passed, as reflected from the circumstantial evidence set out above. In the case of Kaliyappan V. State of Kerala reported in 1989(1) SCC 113-120, it has been held that 'To make the award' in this section means sign the award. Hence, it is held that the Collector can make the award till the expiry of the last date of the period of two years irrespective of the date on which the notice of the award is served upon the persons interested in the land. Hence, the contention that the award must be taken to have been passed only on 15.11.2007 or at the time of its service upon the petitioners in July 2008 cannot be accepted. 23. What is important to note is that the petitioners have not alleged malafides. The seminal case of the petitioners is that the acquisition proceedings have lapsed on and from 12.10.2007 being two years from the date of publication of the notification dated 19.09.2005 under Section 6 of the Act. The lands which are acquired, are of number of parties for the public purpose of widening the 16 road. All these lands are considered. The small portion of land is acquired. The petitioners' lands have to yield to public good. 24. Our attention is drawn to the Supreme Court judgment in the case of Ramniklal Bhutta V. State of Maharashtra reported in AIR 1997 SC 1236 in which it is held that where no malafides are shown or seen stay of acquisition cannot be lightly granted by the Courts since our country has launched on an ambitious programme of all round economic advancement to make our economy competitive which would require the necessary infrastructure which can be obtained only upon acquisition of the lands upon payment of the requisite compensation. The Courts are, therefore, enjoined to keep larger public interest in the mind and not merely see a technical legal point but to subserve public purpose, which is likely to be frustrated if the acquisitions are stayed. The observations of the Supreme Court in the penultimate para of the judgment call for ways of affording appropriate relief and redressing a wrong to balance competing interests. This case calls for the construction of the aspect of passing the award upon using the aforesaid chronology and the circumstantial evidence 17 that supports it. Once it is seen that the award has been passed, and there is no reason not to accept the respondents' case of such passing of the award upon letters issued thereupon, and once it is seen that the two awards are in respect of the same lands, the extent of the lands, and considering the same notifications passed before the passing of both the awards, it is not possible to accept that the first award dated 1.10.2007 was not passed. 25. The extent of compensation payable is already challenged before the competent forum. The petitioners would also be entitled to interest upon the compensation payable statutorily. The award cannot be faulted on the grounds as raised. Both the petitions are dismissed. B. P. DHARMADHIKARI,J. SMT. R. S. DALVI, J. SMA