1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITIONS NO.511 & 542 OF 2007. WRIT PETITION NO.511 OF 2007 1. M/s. Bandekar Brothers Private Limited, a private limited company incorporated and constituted under Companies Act, 1956, having its registered office at Survarna Bandekar Bldg., Swatantra Path, Vasco-da-Gama, Goa through its authorised Managing Director, Shri Suvarn Rajaram Bandekar, son of late Rajaram Narayan Bandekar, major, married, Indian National, resident of Raj Tara, F.L. Gomes Road, Vasco-da-Gama, Goa. 2. Vassantram Metha and Company Private Limited, a Primate Limited company incorporated and constituted under Companies Act, 1956, having its registered office at Survarna Bandekar Bldg., Swatantra Path, Vasco-da-Gama, Goa through its authorised Managing Director, Shri Suvarn Rajaram Bandekar, son of late Rajaram Narayan Bandekar, 2 major, married, Indian National, resident of Raj Tara, F.L. Gomes Road, Vasco-da-Gama, Goa. ......... Petitioners. V/s. 1. State of Goa, through its Secretary (Revenue), Office of the Revenue Secretary, Government of Goa, Goa Secretariat, Alto Porvorim, Goa. 2. Director of Mines and Geology, Government of Goa, Office of Mines and Geology, 2nd Floor, Udyog Bhawan, Near Azad Bhawan, Panaji, Goa. 3. Captain of Ports, Government of Goa, Office of the Captain of Ports, Near Panjim Jetty, Panaji, Goa. 4. Dy. Collector (Rev), Collectorate, North Goa District, Panaji, Goa. 5. M/s. Alcon Cement Company Private Limited, a Private Limited Company, constituted and incorporated under Indian Companies Act, 1956, having its Registered Office at First Floor, 3 Sukerkar Mansion, M.G. Road, Panaji, Goa – 403 001. 6. M/s. Couto Metals And Mining Company Private Limited, a private limited company, constituted and incorporated under the Indian Companies Act, 1956, having its Registered Office at First Floor, Sukerkar Mansion, M.G. Road, Panaji, Goa – 403 001. ......... Respondents. Mr. S.G. Dessai, Senior Advocate with Mr.Shivan Dessai, Advocate for the petitioners. Mr. S. S. Kantak, Advocate General with Ms. Gauri Bhonsule, Addl. Govt. Advocate for respondents No.1 to 4. Mr. S. D. Lotlikar, Senior Advocate with Ms. Sourabhi Vaidya, Advocate for respondents no.5 and 6. WRIT PETITION NO.542 OF 2007 1. Shri Rama Bhiva Parab, r/o. Cottombi, Post Pale, Bicholim, Goa 403 105 2. Shri Jaga Shiva Parab, r/o. H.No.90, Cottombi, Post Pale, Bicholim, Goa 403 105. 4 3. Temple of Shri Deo Chandreshwar, through its Managing Committee represented by Shri Gunulo Ramnath Parab, r/o. H.No.16/2, Cottombi, Post Pale, Bicholim Goa 403 105. 4. Shri Mahadeo Kashinath Parab, House No.2, Cotombi, Post Pale, Goa 403 105. 5. Shri Gunulo Ramnath Parab, r/o. H.No.16/2, Cottombi, Post Pale, Bicholim Goa 403 105. ......... Petitioners. V/s. 1. State of Goa, through its Chief Secretary Government of Goa, having office at Secretariat, Alto Porvorim, Goa 403 501. 2. Director of Mines and Geology, Government of Goa, having office at 2nd Floor, Udyog Bhawan, Panaji, Goa 403 001. 3. Dy. Collector (Revenue), Collectorate Building, Panaji, Goa 403 001. 5 4. M/s. Alcon Cement Company Private Limited, a Company incorporated under Indian Companies Act, having Registered Office at Sukerkar Mansion, M.G. Road, Panaji, Goa – 403 001. ......... Respondents. Mr. A.D. Bhobe, Advocate for the petitioners. Mr. S. S. Kantak, Advocate General with Mr. A. Kamat, Addl. Govt. Advocate for respondents No.1 to 3. Mr. S. D. Lotlikar, Senior Advocate with Ms. Sourabhi Vaidya, Advocate for respondent No.4. CORAM : B.P. DHARMADHIKARI & U.D. SALVI, JJ. Date of reserving the Judgment : 2nd July, 2009. Date of pronouncing the Judgment : 14th July, 2009. J U D G M E N T : (Per B.P. DHARMADHIKARI, J.) 1. By this writ petition filed under Article 226 of the Constitution of India, the petitioners-landowners question acquisition 6 of their lands for the purposes of construction of a road leading to jetty of respondents No.5 and 6, which are private limited companies engaged in mining business. Both the petitioners in Writ Petition No.511/2007 are private limited companies, engaged in mining. The petitioners in Writ Petition No.542/2007, except petitioner No.3, are individuals whose lands are also being acquired for the same purpose. Petitioner No.2 therein is a temple of Shree Dev Chandrashwar, through its Managing Committee. The petitions have been directed to be disposed of at the stage of admission itself as per Order dated 15.1.2008. It appears that Writ Petition No.542/2007 was admitted on 1.7.2008 and interim relief granted on 10.12.2007 was continued. It is admitted position that said Order dated 10.12.2007 is identical in both the writ petitions and the respondents were permitted to proceed further with acquisition proceedings and are restrained only from taking possession, but Award has been allowed to be made without prejudice to the rights and contentions of the petitioners. Accordingly, the State Government has proceeded further with acquisition and has declared the Award. It is apparent that the award fails, if the writ petitions are allowed. 7 2. The fact that lands belong to petitioners is not in dispute and filing of objections under Section 5-A by them is also not in dispute. The petitioners contend that because of political procedure and malafides, Section 5-A inquiry was completed with undue haste and it was only a farce. Their second contention is that the acquisition is for company and not for public purpose and in any case malafide one. Lastly, it is contended that the notification under Section 4, therefore, itself needs to be quashed and set aside. In view of this line of arguments, it is not necessary for this Court to go into the details of lands held by the petitioners and it can only be mentioned that those lands are also shown in the sketch map produced at page 61 along with Writ Petition No. 511/07. As objections are identical, the writ petitions were then heard together. 3. We have heard Senior Advocate Shri S. G. Dessai with Shri Shivan Dessai for the petitioners in Writ Petition No.511/07, Advocate Shri Bhobe for the petitioners in Writ Petition No.542/07, learned Advocate General for respondents No. 1 to 4 and Senior Advocate Shri S. D. Lotlikar for respondents 5 and 6 Private Companies. 8 4. After inviting attention to map at page 61, the petitioners state that the jetty for respondents No. 5 and 6 was not in existence when Notification under Section 4 of the Land Acquisition Act was published and notified and that notification gave impression as if the jetty existed. Thus, the acquisition proposed for construction of road was in fact for non-existent need or purpose. Out attention was also invited to Section 3(f) thereof to show that the acquisition for company cannot be an acquisition for public purpose. It is stated that the Captain of Ports had granted licence for construction of jetty on 21.7.2004 and it was valid for one year. The said jetty was never constructed and on 2.8.2006, again application for grant of NOC was moved by respondents No.5 and 6 to the Captain of Ports. After said application, on 4.8.06 respondents No.5 and 6 made request vide letter dated 4.8.06 for acquiring lands of petitioners and said request was made to the Director of Mines and Geology as, according to petitioners, the then Minister for Mines and Geology was having business partnership with respondent No.5. It is stated that the said request letter does not disclose any public purpose at all and acquisition sought was for only private purposes and to increase profits of those respondents. One Shri 9 Raajiv Yaduvanshi was Secretary of the said Department and he accepted the note by showing as if the Government was under obligation to provide for access road to the respondents. The said note was then sent to the Revenue Department, where again said Shri Yaduvanshi was the Secretary and under his supervision, ultimately proposal for obtaining cabinet approval was prepared and processed. He prepared that joint note and the cabinet approved that joint note on 10.11.2006. Thereafter, notification under Section 4 came to be published on 9.3.2007, specifying the purpose of acquisition as construction of access road, leading to the loading/unloading jetty at Cotombi Village in Bicholim Taluka. It is stated that as per Circular dated 7.4.2003 issued by the State Government, this purpose was not the public purpose and though an Officer in the vicinity of the said land was required to be appointed as Land Acquisition Officer, the Deputy Collector at Panaji was designated for the said purpose. The petitioners filed their objections on 9.4.2007, in great detail, and pointed out that there was no public purpose. After this, vide communication dated 15.5.2007, the petitioners were directed to file their objections and petitioners, accordingly, on 14.6.2007 filed the same. On 9.4.2007 they also complained that time given to them to file objections was very 10 short as they had earlier sought time till 30.6.2007. On 15.6.2007, the Land Acquisition Officer issued another notice and fixed the objections for hearing on 22.6.2007. The petitioners got this notice on 20.6.2007 and then petitioners sought adjournment on the ground that the concerned officer was on outdoor duty and another person representing petitioner No.2 was operated for cataract. They sought time after 3rd July, 2007. The Deputy Collector fixed the matter on 27.6.2007. In view of this, on 25.6.2007, the petitioners moved another application and reiterated their grievance and requested for fixing the matter after 3rd July, 2007 and to confirm the next date at least one week in advance. However, their request was not considered and the Land Acquisition Officer submitted his report under Section 5-A to the State Government on the same day itself. Learned Counsel for the petitioners, therefore, contends that this was with undue haste and because of political pressure of the then Minster for Mines and Geology who is currently the Chief Minister of the State. In this background, our attention has been invited to an unreported Judgment of the Hon’ble Apex Court in case of Uma Nath Pandey and ors., vs. State of U.P. and anr. (Criminal Appeal No. 471/2009) to explain the scope of principles of natural justice and also Hindustan Petroleum 11 Corpn. Ltd. Vs. Darius Shapur Chenai and ors., reported at (2005) 7 SCC 627 to point out how that opportunity under Section 5-A has been judicially construed by the Hon’ble Apex Court. Our attention is also invited to the Goa, Daman and Diu Land Acquisition Rules, 1972 ( referred to hereafter as “Goa Acquisition Rules, 1972”), particularly Rule 4 to show that how the Land Acquisition Officer is supposed to apply his mind and how that rule is breached in the present circumstances. It is further stated that malafides and undue haste are also apparent from the fact that Trading and Mineral Licence issued to respondents under Rule 3 of the Goa (Prevention of Illegal Mining, Transportation and Storage of Minerals) Rules, 2004 was sought to be renewed by moving an application on 2.8.2006. 5. In this background, our attention is invited to provisions of Section 41 of the Town and Country Planning Act to show that it permits acquisition of land reserved in town planning and lands of petitioners were not reserved for any purpose. It is stated that as land was being acquired for private purpose, provisions of Chapter VII of the Land Acquisition Act were only relevant and those provisions along with the Rules framed under Section 55 of the State Government have 12 not been satisfied in the present circumstances. Attention is also invited to provisions of Land Acquisition (Companies) Rules 1963 stating that the matter was never placed before the Land Acquisition Committee. It is further stated that what is sought to be acquired in fact does not connect any public road to the jetty, but it is situated in the middle of petitioners’ property and earlier part which connects the said portion with public road is in fact a private road belonging to and constructed by the petitioners. As the said private road is not sought to be acquired, the proposal for acquisition itself shows non-application of mind and is liable to be set aside. In this background, note prepared by the Mining Department and the Revenue Department is criticized by stating that it proceeds under the presumption that the road connects the public road to the proposed jetty and also under impression that the Government is duty bound to provide such access to the respondents. It is contended that in the meanwhile those respondents have made alternate arrangement and have another road as access to their jetty and the same is under their use. Pleadings of the petitioners about undue haste or violation of principles of natural justice have not been traversed and it is further stated that the Mining Minister became the Chief Minister on 2.6.2007 and thereafter on 4.6.2007, the petitioners have written to him 13 and pointed out that their private road has been erroneously treated as public road. 6. Recommendations or report of the Land Acquisition Officer under Section 5-A is referred in detail to show that it mechanically reproduces some of the grounds, but then really does not evaluate the same and without considering the merits or demerits, leaves everything to the appropriate Government. It is contended that such a strange approach is adopted by the Land Acquisition Officer only because of pressure upon him. The State Government, thereafter, called for some survey reports, but those survey reports were called behind the back of the petitioners and, hence, there was no inquiry as contemplated by the Hon’ble Apex Court in Hindustan Petroleum Corpn. Ltd. Vs. Darius Shapur Chenai and ors., (supra). It is urged that the petitioners are in fact being victimized because of pressure from respondents No.5 and 6. Advocate Bhobe has adopted the arguments of Senior Advocate Dessai and stated that the site of petitioners was inspected behind their back in great hurry without any notice to them. He states that though report or recommendations were made by the Land Acquisition Officer (LAO) on 27.6.2007 itself, the site inspection report has been forwarded on 14 9.7.2007. Senior Advocate Dessai has relied upon Srinivasa Cooperative House Building Society Ltd., vs. Madam Gurumurthy Sastry and ors., reported at (1994) 4 SCC 675; State of Punjab and anr. Vs. Gurdial Singh and ors., reported at (1980) 2 SCC 471; General Government Servants Cooperative Housing Society Ltd., Agra vs. Sh. Wahab Uddin and ors., reported at (1981) 2 SCC 352; State of Gujarat and anr. Vs. Patel Chaturbhai Narsibhai and ors. Reported at (1975) 1 SCC 583 and Devinder Singh and ors., vs. State of Punjab and ors., reported at (2008) 1 SCC 728 in support of his contentions. 7. Learned Advocate General has stated that the contentions that the road in use of the petitioners is private road is being used for the first time in the writ petition and there was no such objection at the stage of 5-A inquiry. By comparing the survey numbers belonging to the petitioners with the map at page 64, it is stated that survey Nos. 14, 37, 38, 13 and 14 do not belong to the petitioners and, therefore, part of road going through it cannot be a public road. It is stated that the petitioners deliberately did not file either their lease deeds or the sale deeds on record as it would have shown the boundaries of lands and existence of public road. In this connection, provisions of Section 110 15 of Goa Land Revenue Code in relation to boundary marks, Section 112 read with Section 115 about effect of settlement of boundaries are pointed out. Provisions of Section 14 are also pointed out to show that title vests in favour of the Government. Presumption flowing from Section 83 of the Evidence Act is also pressed into service. Section 65 of Goa Panchayatraj Act is also shown to urge that said road vests in Panchayat and acquisition in fact is for connecting existing public road with jetty and thus for extension of that public road. It is stated that allegations about malafides are totally misconceived, as neither the Hon’ble Minister nor Shri Yaduvanshi are parties to the present petitions and the issue was considered by cabinet ultimately which found it necessary to acquire the lands. The decision of cabinet in this respect cannot be challenged as malafide. It is further stated that some houses exist in that area and occupiers of those houses will be benefited by the public road if it is allowed to be extended upto jetty. Earning of foreign exchange by respondents No.5 and 6, improvement in infrastructure for companies and better avenues for them, as also generation of employment are stated to be public purposes sought to be achieved by the said acquisition. Division Bench Judgment in Motibhai Vithalbhai Patel and anr. Vs. The State of Gujarat and anr., 16 reported at AIR 1961 Gujarat 93 is pressed into service to show how the aspect of public purpose has been looked into though acquisition was there for a private company. Raja Anand Brahma Shah vs. The State of Uttar Pradesh and ors., reported at AIR 1967 SC 1081 and Sooraram Pratap Reddy and ors., vs. District Collector, Ranga Reddy District and ors., reported at (2008) 9 SCC 552 are pressed into service in this respect. 8. It is contended that the petitioners were given full opportunity and due chances by the LAO and they deliberately did not utilize it. When it was noticed that the petitioners were interested in prolonging the matter, the LAO closed the proceedings and submitted his report. It is contended that the petitioners by their conduct disentitled themselves to any further adjournment and as the adjournment was within the discretion of the LAO, in writ petition, this Court cannot interfere. Our attention has been invited to Rule 4(4) of Goa Acquisition Rules, 1972 to point out time limit for the LAO to submit his report. Delhi Administration vs. Gurdip Singh Uban and ors. etc., reported at AIR 2000 SC 3737 is pressed into service to show types of objections which the land owners can raise and attention is also 17 invited to Rule 4(2) of the Goa Acquisition Rules, 1972 in this respect. It is stated that the LAO has considered all relevant objections and thereafter has submitted his report. It is contended that though a better report in the matter could have been prepared, the LAO has honestly placed his report/recommendations before the State Government and the said document cannot be viewed in any other way as the LAO is not required to give reasons like a Judicial Officer. It is urged that even if the LAO has not given any findings on purpose of acquisition, said purpose is always justiciable and hence, no prejudice has been caused to the petitioners. It is contended that the petitions have been filed with apprehension that infrastructures will be used by others, but then as entire public is entitled to use the road, such apprehension is misconceived. Our attention has been invited to paras 16 and 17 of the writ petition to urge that there are no specific allegations of malafides and only inferences have been mentioned, without disclosing reasons for belief entertained by the petitioners. Lastly, without prejudice to all contentions mentioned above and in the alternative, learned Advocate General stated that if this Court finds any procedural lapse on the part of the LAO, the matter may be remanded to him to complete the inquiry, in accordance with law, at the earliest and the period for 18 which the stay was operating is liable to be excluded. 9. Senior Advocate Shri Lotlikar for respondents No.5 and 6 invited attention to request for acquisition and has contended that improvement in infrastructure is in accordance with the policy of the State Government and as it is public purpose which results in generation of more employment, earning of foreign exchange, acquisition under Chapter II of the Land Acquisition Act is permissible. He points out that the road proposed is public road and merely because the company will be using it, that does not mean that acquisition is not for public purpose. He further states that alternate arrangement made by respondents No.5 and 6 is on account of lease with a private company and the said lease is to operate for a limited number of years and the road provided is not suitable for moving the material which respondents No.5 and 6 wish to bring to their jetty. According to him, there are no malafides and Section 5-A report needs to be maintained, along with Section 6 notification, as also the award. 10. Learned Advocates for the petitioners, particularly Senior Advocate Shri Dessai, in reply, have contended that the road has 19 always been stated to be their own private road by the petitioners and survey map of Government does not mention it as a public road. It is further urged that the petitioners are ready and willing to produce their lease deeds and sale deeds to show boundaries of their respective plots of land. But then basic finding in this respect is required to be given by the LAO. It is further pointed out that there is no general policy of Industries Department of the State of Goa to provide infrastructures to industries like respondents No.5 and 6. All objections raised by the petitioners were under Rule 4(2)(i) and (v) of the Goa Acquisition Rules, 1972. In this background, it is stated that acquisition has to be under Chapter VII and not under Chapter II of the Land Acquisition Act and that the case of respondents No.5 and 6 that they are using the road shown as private road of the petitioners is being denied and attention is invited to a dotted lines shown in the sketch map at page 61 for the said purpose to show road in their use. 11. Learned Advocate General has stated that the objections raised by the petitioners were not falling under clauses as mentioned in Rule 4(2) of Goa Acquisition Rules, 1972. He has relied upon Delhi Administration vs. Gurdip Singh Uban and ors. etc., (supra) for the said 20 purpose. The said Judgment, particularly para 54 thereof shows that the land owner can contend (i) the purpose for which land is being acquired is not a public purpose; (ii) even if it is public purpose, it could be served better by another land already proposed or being proposed; (iii) special fact-situation in which he is placed, so as to show that his land needs to be omitted from acquisition. Hon'ble Supreme Court has stated that the objection of second type is personal to the land and the objection of third type is personal to the objector. Perusal of objections raised by the petitioners before the LAO shows that they were seeking some time because they were awaiting certain information from other Departments. They further pointed out that there was no loading or unloading jetty at Cotombi Village which required any such access. They also alleged that the purpose was private purpose and hence special procedure and provisions under the Land Acquisition Act needed to be followed. They further stated that the concerned owner/Director of respondents No.5 and 6 Mr. Anil Couto as well as Minister of Mines had earlier requested them for access and both of them were personally interested because it was a joint venture of both of them. They also pointed out that because of this only the Director of Mines and Geology was moved, though he 21 was in no way concerned with the acquisition. They further stated that they have been operating in the said area for last several years and they have developed access road from main road to river area, developing other infrastructures by incurring huge expenditure by acquiring properties for construction of roads, paying compensation, rehabilitating houses and carrying on welfare activities, etc. They further alleged that the construction of road was not for public in general and the permission to construct the jetty given to respondents No.5 and 6 had already expired. They have also pointed out interference