1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.654//2008. Zantye and Company Pvt. Ltd., Having Office at H.No.71, Narsinhava Prasad, Father Agnelo Raod, Panaji, Goa through Managing Director, Shri Shantaram Narayan Zatye, major of age, married, Indian National, r/o. H.No.71, Narsinhava Prasad, Fr. Agnelo Road, Panaji, Goa. .......... Petitioner. V/s. 1. State of Goa, through Revenue Secretary, Government of Goa, Secretariat, Porvorim, Bardez, Goa. 2. Special Land Acquisition Officer, Office of Special Land Acquisition Officer (N), Goa Tillari Irrigation Corporation, Near Tivim Industrial Estate, Colvale Road, Karaswada, Bardez, Goa. 3. Office of Executive Engineer, Works Div. VI, GTIDC, Sarwana, Bicholim, Goa. ......... Respondents. 2 Mr.Shivan Dessai, Advocate for the petitioners. Mr. S. S. Kantak, Advocate General with Ms. Gauri Bhonsule, Addl. Govt. Advocate for the respondents. CORAM : B.P. DHARMADHIKARI & U.D. SALVI, JJ. Date of reserving the Order : 22nd June, 2009. Date of pronouncing the Judgment : 10th July, 2009. O R D E R : (Per B.P. DHARMADHIKARI, J.) 1. The matter pertains to land acquisition and in view of the fact that award is already passed and possession is taken, as per our orders dated 4.5.2009, we have heard the petition finally at the stage of admission. The petitioner is a private limited company, incorporated under the Companies Act, 1956 and it has challenged acquisition of part of its land for construction of Sanquelim distributory L.B.M.C. of T.I.P. from Ch.4.60 kms. to Ch. 7.36 kms. in Sarvan Village of Bicholim Taluka. Notification under Section 4 of the Land Acquisition Act, read with Section 17(1) thereof came to be published on 3 22.11.2007 and, thereafter, the petitioner submitted a representation to respondent No.3 Executive Engineer on 17.12.2007. He also submitted a reminder on 8.2.2008. Notification under Section 6 came to be published on 21.8.2008 and, thereafter, the present petition has been filed on 23.10.2008. It has been thereafter amended as per orders of this Court dated 6.4.2009 to incorporate the fact of subsequent declaration of award and taking of possession. 2. In this background, we have heard Advocate Dessai for the petitioner and learned Advocate General for the respondents. 3. Advocate Dessai basically raised three contentions. He points out that the irrigation project is very old project of the year 1979 and as such, invoking urgency clause in the year 2007 to acquire petitioner's land is totally unjustified and arbitrary. He has relied upon certain judgments for this purpose and he has also stated that publication of Section 6 Notification after more than 8 months of Section 4 Notification is itself an indication of the fact that there is no urgency in the matter. He has further stated that Section 5-A opportunity to land owner is a constitutional right, akin to fundamental 4 right, and the same cannot be taken away lightly. It is his contention that Section 5-A casts constitutional obligation and the objections raised by the petitioner are required to be considered objectively not only by the Land Acquisition Officer, but also by the State Government. He argues that a single line representation submitted by the petitioner on 17.12.2007 or on 8.2.2008 cannot be treated as his objection under Section 5-A and reply of the respondents on these lines is misconceived. He states that the petitioner would have filed appropriate objections and would have been entitled to an opportunity to substantiate the same had he been made aware that the same are being considered as Section 5-A objection. He contends that subsequent efforts of the respondents to fill in lacunae is contrary to settled law and cannot be sustained. He has further argued that financial implications considered by the respondents in the matter are unilateral and the loss of iron ore to the nation and loss of foreign exchange which the nation would have earned because of it, are totally lost sight of. He contends that the canal passes through the mine, dissecting it into two portions and, thus prejudicially and adversely affecting the mining activity of the petitioner. He invites attention to the fact that in 1976 the proposed alignment was different and the canal then passed 5 away from the western boundary of the petitioner's mine, but just touching the middle protruding portion on the western part, but again outside it. He points out that this 1976 alignment has been later on changed and canal has been made to pass through the mining lease. He argues that no reasons are given to justify this deviation from preliminary alignment worked out in 1976 and, in any case, for construction of such canal the urgency clause could not have been resorted to. According to him, the entire acquisition thus shows no application of mind and is liable to be quashed and set aside. 4. Learned Advocate General points out that the notification invoking urgency clause published on 22.11.2007 is sought to be challenged belatedly by filing the present petition on 23.10.2008 and hence the petition is liable to be dismissed. He invites attention to the fact that the name of petitioner did not figure in revenue record in Form I or in XIV and there was no mining activity going on since 1956. He invites attention to reply affidavit and states that as the award is already passed and possession is already taken, the present petition, at the instance of such a petitioner, needs to be dismissed. He further invites attention to the fact that preliminary alignment was at the time of initial 6 project study and the project started in the State of Maharashtra and after travelling for about 40 kms. in the State of Maharashtra has entered the State of Goa. This is a joint project for which funds have been released by the Central Government and the project was made time-bound. The irrigation project is essential for irrigating agricultural lands and for supplying drinking water. He further states that as the work progresses, fresh surveys are required to be undertaken and have been undertaken to study the topography, command area, and benefit area. He invites attention to map to show the proposed alignments considered by the Department and states that the alignment through the mine of the petitioner is most beneficial and in public interest. 5. He further contends that in so far as further development is concerned, major part of the said project, as also first and second phases are already over. The petitioner never contended that urgency clause has been malafidely invoked and he only suggested that the canal should be diverted so as not to affect his property. It is stated that considering the nature of project and its purpose, urgency clause was invoked and acquisition has been carried out accordingly in the entire 7 North Goa District. Because of the progress of work and study required to be undertaken from time to time on account of topography of the region, the Department also looked into other 3 alternate alignments after receipt of suggestion from the petitioner, but found them not feasible. In such circumstances, time taken in publishing notification under Section 6 of the Act cannot, by itself, be taken into account to hold that there was no urgency in the matter. Our attention has been invited to reply affidavit filed by the respondents on record and also to various Judgments of the Hon'ble Apex Court and also of this Court to urge that in such circumstances, this Court should not interfere in the matter. 6. The facts above clearly show that the Notification under Section 4, read with Section 17(1) of the Act published on 22.11.2007 clearly spells out the urgency and the public purpose. The petitioner then filed his objection on 17.12.2007 and then reminder on 8.2.2008. He did not question the need or the public purpose. Even before us no arguments about the need or public purpose have been advanced. He was satisfied by suggesting that the canal should be diverted and his mine should not be affected. He did not suggest any alternate alignment 8 also. Thus, at that point of time, the petitioner did not question invocation of urgency clause and did not come up with a case that their right under Section 5-A of the Act is being arbitrarily or malafidely taken away. It is to be noted that notification under Section 6 has been published on 21.8.2008 and 2 months thereafter i.e. on 23.10.2008 the present petition has been filed. In the petition, for the first time, grievance of deprivation of opportunity under Section 5-A of the Act or then of impropriety of resorting to Section 17 has been alleged. It is, therefore, obvious that the petitioner did not opt to raise such challenge in reasonable time after Section 4/17 notification and allowed the proceedings to go further. Contention of Advocate Dessai that decision to acquire became apparent only after Section 6 notification cannot be accepted because urgency clause was already invoked and if the petitioner wanted opportunity under Section 5-A, he ought to have made grievance before notification under Section 6 was published. We, therefore, find that the petitioner deliberately permitted the land acquisition proceedings to proceed further and thereafter has filed the present writ petition to set back the clock and to reverse the entire process. The Government has come up with specific case that mines stopped functioning after 1956. The petitioner has placed on record a 9 communication dated 21.8.2007 sent by Government of India, Ministry of Environment and Forests which mentions that mining operations were suspended after 1956 and a proposal for revival was submitted by the petitioner on 28.5.2007. Another annexure filed by the petitioner from Ministry of Mines dated 28.6.2008 approves his mining plan submitted under Rule 24(A) of MCR, 1960. 7. The petitioner's design also became apparent because right from 1956 till the date of publication of Section 6 notification no mining activity has been carried out in the said land. Even before us the petitioner has not contended that it has been using that mine. On the contrary, the record shows that in 2007, for the first time, it approached the Central Ministry for revival of its mine and for permission to carry out business therein. It is also to be noted that its name never appeared even in Form I & XIV and as such, its name was not recorded either as lessee or occupier of the said land. 8. In view of both these facts which have come on record, the conduct of the petitioner needs to be looked into. Notification under Section 4, as published, clearly discloses the purpose for which land 10 was acquired and also invocation of urgency clause and hence, non- applicability of Section 5A thereof. Inspite of this, the petitioner never contended that invocation of urgency clause was unwarranted. Even in its reminder filed about 3 months after initial representation, there is no such objection. The contention has been raised for the first time while filing this writ petition on 23.10.2008. The case law cited needs to be looked into in this background. 9. Hindustan Petroleum Corpn. Ltd. vs. Darius Shapur Chenai and ors. Reported at (2005)7 SCC 627 is the Judgment relied upon by the petitioner to point out significance of opportunity under Section 5-A and its paragraphs 15 and 16 have been relied upon to show how while approving the proposal for land acquisition State Government is also expected to apply its mind objectively. The Judgment states that the said right to object is akin to fundamental right. There cannot be any doubt with the proposition which the learned Counsel for the petitioner seeks to contend. However, here the petitioner did not raise any such grievance at the earliest possible opportunity and after Section 6 notification, has chosen to point out the denial of Section 5A opportunity when that denial was never questioned earlier. In Narayan 11 Govind Gavate and ors., vs. State of Maharashtra and ors., reported at (1977) 1 SCC 133, the Hon'ble Apex Court has considered the extent of judicial review when Section 17 is invoked. In paragraph 40 it has been observed that public purpose of acquisition for industrial and residential purposes does not call for invocation of any such urgency clause and for acquisition without holding even a summary inquiry under Section 5A. In paragraph 41, the Hon'ble Apex Court noticed that the Commissioner concerned applied his mind mechanically by using the uniform and set recital of a formula and did not attempt to find out whether the said land was waste or arable and whether the acquisition was urgently needed. It is also noticed that the notification under the Land Acquisition Act did not give any inkling about it. In the present facts, there is no such contention or challenge and as already observed above, notification under Section 4, read with Section 17 was not challenged at any time till issuance of Section 6 notification. In State of Punjab and anr., vs. Gurdial Singh and ors., reported at (1980) 2 SCC 471, the Hon'ble Apex Court in paragraph 15 found that there were two groups and because of village politics, the MLA obliged his cousin and least suitable lands abandoned in favour of respondents 1 to 21 were again proposed though the selection was quashed earlier 12 by High Court as malafide. Acquisition proposed was to crush his rival, according to “poll dharma”. Invocation of urgency clause has been looked into in this background by Hon'ble Apex Court. There are absolutely no pleadings of any malafides before us. Om Prakash and anr., vs. State of U.P. and ors., reported at (1998) 6 SCC 1, in paragraph 13 again notices that though acquisition for planned development there was no material before the appropriate Government for dispensing with inquiry under Section 5-A on the touchstone of any urgency as found by the appropriate Government, the counter affidavit filed by the State authorities in para 24 denied the allegations made in paras 25 and 26 of the writ petition and stated that the urgency was made out only for depriving the petitioners of their right to file objections under Section 5-A. In the teeth of this challenge, the Hon'ble Apex Court noticed that the process, so far as acquisition was concerned, the respondents were taking their own time and notification under Section 4, read with Section 17((4) was issued on 5.1.1991, but came to be published in the newspaper on 30.3.1991, while notification under Section was made on 7.1.1992. Thus, this delay of more than 9 months has been found to be improper in the wake of challenge and reply thereto. In Union of India and ors. vs. Krishan 13 Lal Arneja and ors., reported at AIR 2004 SC 3582, the premises were already requisitioned by Union of India and were in its occupation. The Union of India was also aware of the time limit within which it was required to vacate as said requisition could not have survived for more than 2 years. Inspite of this, between 1985 to 1987 no steps were taken during that period of two years though decision to acquire them or derequisition them could have been taken. Acquisition proceedings normally could have been completed in usual course, without depriving the owner of its right under Section 5-A in this time. The recourse to urgency clause was found invalid in these circumstances. In Union of India and ors. vs. Mukesh Hans, etc. etc., reported at AIR 2004 SC 4307, the Hon'ble Apex Court has noticed that Section 17(4) itself permits Government to direct that provisions of Section 5-A shall not apply and therefore, in every case of urgency ipso facto opportunity under section 5-A does not stand denied and mere existence of an urgency or unforeseen emergency under Section 17(1) or Section 17(2) cannot, by itself, be sufficient for dispensing with Section 5-A inquiry. The Hon'ble Apex Court has noticed that opportunity under Section 5-A is very valuable right and the property owner needs to be given opportunity of persuading the authorities concerned for not 14 acquiring his property. The land was being acquired for an organisation which used to celebrate a festival and the said organisation in 1987 felt need of 4000 sq. yards of land and made a representation dated 19.10.1987. Notification under Section 4(1), read with Section 17(1) was then published on 30.6.1988. The above observations have been made by the Hon'ble Apex Court in this background. 10. The Judgment of Division Bench of this Court at Panaji, Goa in Shri Pravinkumar Gosalia vs. State of Goa and ors., reported at [2009(1) Goa L.R. 233], relied upon by the learned Advocate General considers the contention of a leaseholder that his land could not have been used for public purpose as mining operation was going on and land could not have been acquired without termination of lease. Although these contentions are not raised by the petitioner before us, but then there the Division Bench has observed that the petitioner was having only leasehold rights and was entitled to claim compensation in accordance with law for acquisition. The contention of the said petitioner that on account of mining activity he was also discharging a public function has been negated. In Chameli Singh and ors. etc. vs. 15 State of U.P. and anr., reported at AIR 1996 SC 1051, the Hon'ble Apex Court has, in paragraph 3, mentioned it to be a settled law that the opinion of urgency formed by the appropriate Government to take immediate possession is subjective satisfaction based on the material before it and that opinion is entitled to great weight unless vitiated by malafides or colourable exercise of power. The petitioner has not alleged any malafides or even colourable exercise of power. He has challenged invocation of urgency, belatedly and Government has, on affidavit, explained that because of receipt of his representation and development of the work, the Government also looked into the possible alternates and in view of requirements of topography and to maximise the benefit area ultimately alignment of canal through the petitioner's land was maintained. The delay or the time taken by the Government in looking into these aspects cannot be used to negate the urgency prevailing at the time of issuance of notifications and in para 14 of the above report, Hon'ble Apex Court has held that such delays or lethargy on the part of the officers cannot render exercise of power to invoke urgency clause invalid. In para 16, Hon'ble Apex Court has also mentioned that delay by itself accelerates the urgency and in the present matter also considering the nature of project and further 16 developments it is clear that the urgency shown initially was not only justified, but also stands accelerated. In State of U.P. vs. Smt. Pista Devi and ors. etc. etc., reported at AIR 1986 SC 2025, Hon'ble Apex Court has held in the circumstances before it, that post-notification delay of one year was not sufficient to hold invocation of urgency clause unwarranted. A Division Bench of this Court in Chiman Narayan Taras and ors.etc. vs. State of Maharashtra and others, reported at AIR 2000 Bombay 100 while considering the plea of malafides found that where the petitioner failed to make out a case of colourable exercise of power or any malafides, the selection of land of the petitioner for Mumbai – Pune Express Highway was upheld and subsequent developments like completion of work, the possibilities of setting back work of express highway to disturb the schedule have been looked into and the public purpose has been given paramount importance. In the facts before us, the public purpose and subsequent developments like completion of project and completion of acquisition of land of the petitioner for its remaining part need to be looked into. In Ramniklal N. Bhutta v. State of Maharashtra, reported at AIR 1997 SC 1236, in para 10, Hon'ble Apex Court has reiterated that High Courts have to keep in mind larger public interest in such cases. 17 11. Thus, in the present facts, we find that the petitioner did not approach this Court at the earliest, permitted developments to continue and after issuance of Section 6 notification, woke up and approached this Court. There is no denial of the fact that as per earlier plan length of L.B.C. main canal was 48 kms. and after detailed survey it has been reduced to about 37 kms. The entire length of Sanquelim branch canal which takes off at 1.8 kms. of L.B.C. is about 13.8 kms. and it has been completed and water is also being released for irrigation purposes upto 7 kms. since 2008. Further work in this respect has been allotted to various agencies for speedy completion and the work of Sanquelim distributory upto 7.36 kms. including the place where mining lease of the petitioner is situated is thus going on. It is disclosed that command area of 2315 hectors is to be benefited and 50 % of this command area in Bicholim Taluka lies after mining area of the petitioner. This reduction in total length of main canal is due to the factors like the contours, levels based on topo-sheets, habitation areas etc. The respondents have also placed on affidavit the cost of three alternative alignments which are in excess of 14.00 crores, while the cost of alignment through mining area of the petitioner is about 2.94 crores. 18 All these facts are not in dispute. The project is a joint project of Governments of Maharashtra and Goa and considering its nature, the project was slated for completion between 2010 to 2011. Though the petitioner has contended that while working out valuation, loss of mining ore to the nation has not been taken into account and has placed on record its calculations to show loss suffered on that account by pointing out loss of foreign exchange etc. It cannot be forgotten that the benefit and service of irrigation and drinking water cannot be computed in terms of money. It also needs to be noted that the petitioner did not bother about national wealth remaining unexplored in his possession for almost 53 years. 12. In the above circumstances, it is more than clear that the challenge in the present petition is misconceived and the petition needs to be dismissed. The same is accordingly dismissed, with no order as to costs. B.P. DHARMADHIKARI, J. U.D. SALVI, J. ssm.