1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 92 of 2011 M/S Real Estate Agencies ... Petitioner V e r s u s State of Goa Thr. Chief Secretary and 7 Ors. ... Respondents Mr. R. Pai with Mr. A Pai and Mr. S. Taleigaonkar, Advocates for the Petitioner. Mr. A. Kakodkar, Additional Govt. Advocate for Respondent Nos. 1, 2 and 3. Mr. A.F. Diniz, Advocate for Respondent No. 4. Mr. R. Rao, Advocate for Respondent Nos. 5, 6 and 7. Coram: S.C. DHARMADHIKARI & F.M. REIS, JJ. Date: 24 th March, 2011. P.C.:- The Petitioner is a duly registered partnership firm and claims Rights in the immovable property by virtue of a 2 Registered Agreement executed in the year 1966 (6th April, 1966). 2. The Petitioner's case is that the subject plot is sub-divided into sub-plots and sub-plots were sold to several property owners. One of the plots being Plot No. C-18, under a registered indenture dated 31-05-1967, was sold to the predecessor in title of Mr. Evaristo Fernandes who claims to be the President of La Marvel Residents Welfare Association (for short “the Association”). He purchased this plot under a registered Deed of Sale dated 14-11-1988. It is the case of the Petitioner that the sub-divided plots, except the land being Chalta No. 1 (P) PT sheet No. 118 of City Survey, Panaji, remained unsold. Details of the plot are shown in the Record of Rights. It is the case of the Petitioner that the plot contains abandoned quarries. The plot Members of Respondent no. 8 constructed individual structures on their respective sub-divided plots and the said plot always remained the property of the Petitioner. 3 3. It is the case of the Petitioner that the Petitioner was before this Court for seeking directions to Respondent No. 4 to take immediate steps, so as to commence acquisition proceedings for the purpose of putting up a landfill site for disposal of non bio-degradable waste. It is the case of the Petitioner that since acquisition proceeding was initiated, Writ Petition being Writ Petition No. 3/2005 came to be filed before this Court and Division Bench of this Court directed that immediate steps be taken for putting up such a landfill site. 4. It is then contended that a Notification under Section 4 of the Land Acquisition Act, 1894 was published. The name of the Petitioner is shown as a person interested. This Notification was objected by the residents of the Colony and particularly Respondent no. 8. But, despite such objection, the first Respondent published a Declaration under Section 6 of the Land Acquisition Act, 1894. Thereafter, notice under Section 9 came to be issued and finally an Award 4 was made by the Collector/Land Acquisition Officer dated 22-06-2010. 5. It is the case of the Petitioner that the implementation of the Award was held up by Respondent no. 8 claiming that the open space belongs to them. They filed a petition being Writ Petition No. 569/2010 for quashing the Award and/or releasing the amount either to the Petitioner or to Respondent no. 6. There was also a plea raised as to the title of the Petitioner. This Writ Petition was placed before a Division Bench of this Court and following order was passed: “Heard the learned Counsel appearing for the Petitioner. We have heard the learned Additional Government Advocate appearing for Respondent Nos. 1 to 3 and the learned Counsel appearing for the Respondent No. 4. The learned Additional Government Advocate has tendered for the perusal of the Court a letter dated 21st July, 2010 submitted by the Petitioner to the 4th Respondent. 5 2. The learned Counsel appearing for the Petitioner states that the Petitioner will submit a detailed representation to the 4th Respondent in terms of the suggestions made in the said communication dated 21st July, 2010. If such a representation is made, notwithstanding the pendency of this Petition, we direct that the 4th Respondent shall consider the same in accordance with law. Issue notice to the Respondent Nos. 5 to 8, returnable on 6th September, 2010. Private service is also permitted. 3. We direct that till next date, the disbursement of the compensation payable under the Award shall not be made.” 6. Subsequently, the Writ Petition was placed before another Division Bench of this Court on 6th September, 2010 and relying upon a copy of the letter dated 3rd September, 2010 written by Respondent no. 4 to Respondent no. 8, the 6 Petitioner in that petition i.e. Respondent no. 8 in this petition withdrew the Writ Petition. 7. However, the Petitioner addressed letter dated 06-09-2010 requesting Respondent no. 3 to proceed with the acquisition. It is the case of the Petitioner that the Members of Committee of Respondent no. 8 were asked by Respondent no. 4, to remain present for the panchanama of the open space, in question. The Petitioner's letter dated 11-09-2010 alleged fraud on the part of Respondent no. 4 and Respondent no. 8 to the present petition and called up the Corporation of the City of Panaji (for short “the Corporation”) to forthwith deposit the compensation due. It is alleged that Respondent no. 4, in collusion, with the Association have deprived the Petitioner's of their right in the property, without due process of law and therefore, have approached this Court. The Petitioner filed a Review Application in the said Writ Petition and the said Review Application was heard by Division Bench of this Court on 25th October, 2010 and the following order came to 7 be passed: “(1) The applicant herein who was the respondent No. 5 in the original Writ Petition No. 569/2010 seeks a review of our order dated 6th September, 2010. (2) When the original petition came up for hearing before us on 6th September, 2010, the petitioner through its Counsel tendered a copy of a letter dated 3rd September, 2010 and informed us that in view of the letter the petitioner's grievance was resolved and nothing survived in his petition. Accepting the statement, we disposed of the petition. (3) Mr. Pai, learned Counsel for the applicant herein (respondent No. 5 in the original writ petition) states that the order disposing of the petition affects the applicant's rights. The respondent No. 5 was present before the Court through its Counsel when we passed the order dated 6th September, 2010. No objection was raised by respondent No. 5 at that time 8 for disposal of the writ petition as also to the statement of the original writ petitioner. Consequently, in our view, the present application is misconceived. The applicant is free to adopt such steps for protecting/enforcing its rights, if there by any, in accordance with law. (4) With these observations, the application is disposed of.” 8. The Petitioner states that, the Petitioner filed the present Writ Petition to principally allege that the acquisition proceeding was indeed complete, therefore, the Petitioner must be paid compensation for deprivation of its immovable property. Hence, the present Writ Petition is filed claiming the following reliefs: “(a) this Hon'ble Court be pleased to declare that the decision of Respondent No. 4 in issuing the letter dated 3/9/10 at Exhibit “Q” hereto and the letter dated 06/09/2010 at Exhibit “T” hereto is illegal and not in accordance with law; 9 (b) further and/or in the alternative to Prayer (a) this Hon'ble Court be pleased to direct Respondent No. 3 and 4 to complete and conclude the acquisition proceedings in respect of Suit Plot being Chalta No. 1(P) P.T. Sheet No. 118 of City Survey, Panaji in terms of the Award dated 22/06/2010 in case No. XVI/6/DC(LA)/2008 in accordance with law and pay to the Petitioner due compensation payable there under.” 9. Learned Counsel Mr. Pai, on behalf of the Petitioner, submits that once the land acquisition proceeding has attained finality by making an Award and taking possession under Section 16, then nothing permits the Authority to withhold the compensation and in such circumstances, this Court should issue a writ of mandamus as prayed and direct the Authority to abide by their obligation in law and to release the sum due to the Petitioner. He placed reliance upon a Judgment of Division Bench of High Court of Patna in the case of Pannalal Maheshwari versus State of 10 Bihar and Others reported in AIR 1955Pat63,1954(2)BLJR506 and Judgment of Hon'ble Supreme Court in the case of Balwant Narayn Bhagde versus M.D. Bhagwat and Others reported in AIR 1975SC1767(1976)1SCC700,[1975]Supp SCR 250. 10. Having perused the petition, annexures thereto and reply of the Corporation, we are of the view that there is no merit in the above contentions. The Petitioner was a party to the Writ Petition which was filed by the Association. The Petitioner does not dispute this aspect. The Petitioner was fully aware of the reply of the Association in that Writ Petition. The Petitioner was also aware of the stand of the Corporation in which it was favourably inclined to accept the request of the Association. The Corporation relied upon letter dated 03-09-2010. Copy of the letter is also annexed to the instant Writ Petition. It is noticed that on the basis of the contents of this letter that the Association proceeded to withdraw the petition. The said letter states that the Corporation with 11 reference to letter dated 30-08-2010 and resolution dated 25-04-2010 of the General Body Meeting of the Association, conveyed its acceptance of the offers regarding use of open space for the purpose of land fill site for the Corporation and handing over back the open space, after it is filled for use of the colony residents. 11. Mr. Pai relied on the last para of this letter which reads thus: “Kindly arrange for the Executive Committee Members to be present at the site on 06th September 2010 at 11.00 a.m. so that we can record the Panchanama of delivery of the open space/quarry to the Corporation of the City of Panaji.” 12. He submits that pursuant to the Award under Section 11 of the Land Acquisition Act, 1894, Section 16 of the said Act would apply. Thereafter, there is no question of land acquisition proceeding being dropped or no action being initiated pursuant to the Award made under Section 11 thereof. 12 There is no substance in these contentions. Firstly, the Corporation has not taken possession of the land from the Petitioner. The Corporation was requested to use the open space for the purpose of land fill site and thereafter hand over the same back to the residents for recreational use. This offer of the Residents' Association is accepted by the Corporation. The Corporation stated in the letter that the Executive Committee Members should remain present so that panchanama can be recorded regarding delivery of possession of the open space. Secondly, in the affidavit filed by Mr. Elvis Gomes, Commissioner of the Corporation, he has relying upon this letter, stated that the Association have on their own volition and de hors the acquisition handed over to the Corporation the open space with the understanding that the open space will be developed into a garden, pursuant to the land fill and handed over to them. Accordingly, the Corporation has written to the Deputy Collector and Land Acquisition Officer that they do not wish to proceed under the 13 provisions of the Land Acquisition Act or to complete the acquisition and requested the Government to withdraw from the acquisition by exercising powers under Section 48 of the Act. Further, he has stated that how the open space does not belong to the Petitioner, but the Planning and Development Authority (Development Plan) Regulations, 2000, expressly confers on the owners of sub-divided plots and such persons who have purchased plots in the sub-division, the powers to hold, develop and maintain the open spaces, which in this case would have benefited the residents. It is stated that the Corporation has acted in public interest and to save public funds has accepted the proposal and there is no question of fraud and collusion between the Corporation and the Association. 13. Once such is the factual assertion on record, we cannot accept the contention of Mr. Pai that Section 16 of the Land Acquisition Act would come into play. In such circumstances, the remedy of the Petitioner is not to file the 14 instant Writ Petition but to move elsewhere and assert the title in the land and claim proper reliefs including damages from all and particularly the Association. 14. The Petitioner being party to the earlier Writ Petition and the Review Application was well conversant with the acts and the Corporation and they cannot be questioned in the third round of the litigation on selfsame pleas. In such circumstances, reliance by Mr. Pai on the decision of the High Court of Patna is misplaced. There, the possession was taken by the Government and the vesting was complete. Therefore, the mandamus to pay compensation was issued. Such is not the case here. In the Supreme Court decision, the issue was how possession was taken and whether that manner is recognised in law. Once again, such is not the question before us. 15. In view of the above discussion, the Writ Petition fails and it is dismissed. However, we have not expressed any 15 opinion on the rival contentions regarding title of the land and it would be open for all to raise them in appropriate proceedings. The dismissal of the Writ Petition is no bar in instituting such proceedings and raise the necessary pleas therein. S.C. DHARMADHIKARI, J. F. M. REIS, J. Ev