1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.669 OF 2008 1. Santan Fernandes 2. Bella Rodrigues 3. George Fernandes 4. Rita Fernandes 5. Laurina Fernandes 6. Delfina Fernandes 7. Lina Fernandes 8. Nataline Quadros 9. Maria Fernandes 10. Marceilino F.T. Fernandes 11. Serafin Inacina Fernandes 12. Margarete Fernandes 13. Luiz Mario Fernandes 14. Herculan Fernandes 15. Estela Fernandes 16. Clara Correia All R/o Fatrade, Verca Salcete, Goa. ..... Petitioners V/s. 1. THE STATE OF GOA, through the Chief Secretary, 2 having office at Secretariat, Porvorim, Goa. 2. The UNDER SECRETARY (REVENUE), Revenue Department, Government of Goa, having office at Secretariat, Porvorim, Goa. ..... Respondents. Mr.M.S.Sonak with Mr.Nikhil Vaze, Advocates, for the petitioners. Mr.S.S.Kantak, Advocate General with Ms.S.Mordekar, Addl. Government Advocates, for the respondents. CORAM : - P.B.MAJMUDAR & U.D.SALVI, JJ. Date of Reserving the Judgment : 25th February, 2009. Date of Pronouncement of the Judgment : 13th March, 2009. JUDGMENT : (PER P.B.MAJMUDAR, J. ) 1. By filing this petition under Article 226 of the Constitution of India, the petitioners have challenged the land acquisition proceedings initiated by the State of Goa, through its Land Acquisition Officer, for acquiring the lands for the purpose of development of Government Village School Playground at Fatrade, Varca Salcete, Goa. 2. The petitioners are the owners/tenants of agricultural land bearing Survey No.107 with different sub divisions. They are carrying on agricultural operations in the aforesaid lands. According to the petitioners, they are cultivating paddy fields in the aforesaid lands. It is the case of the 3 petitioners that the said paddy fields are the only means of their livelihood and their respective families. 3. The Government of Goa earlier issued a notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the 'Act') on 04-05-2006, which was published in the Official Gazette on 10-05- 2006 for the purpose of acquiring the land in question. The said notification was issued for the purpose of acquiring the land bearing Survey No.107 and various sub-divisions for the purpose of establishing Government Village School Playground. The petitioners submitted their objections under Section 5A of the Act, by way of representation dated 26-05-2006. The said representations are annexed at Annexure (C) in the compilation of documents. In the representations, it was submitted by the petitioners that they are cultivating the paddy fields since the time of their ancestors. It is averred in the representations that the agricultural produce obtained from the paddy fields, serves as an only means of their livelihood and in case the land is acquired for the purpose of construction of playground, they will be deprived of their livelihood. It is pointed out in the representation that filling of the land will affect the natural drainage pattern, subsequently affecting the ecosystem, upsetting the balance of nature, habitat of various fishes, frogs and beneficial organisms. In the representation, it is also pointed out that the only Government School in the Village i.e. the Government Primary School, is closed since 14 years for paucity of students and there is no question of 4 acquiring the land for the purpose of development of the playground for the aforesaid public school. In the representation, it was also averred that as per the Government policy, agricultural activity is required to be protected and saved. 4. The said notification was challenged by the petitioners by way of Writ Petition No.525 of 2006 before this Court. The said writ petition was dismissed on the ground that it was pre-matured as it was filed at the stage of issuance of notification under Section 4 of the Act. However, since the notification under Section 6 was not issued within the prescribed time, the said proceedings lapsed. The Government of Goa thereafter, issued fresh notification under Section 4 of the Act, on 11-02-2008, which was published in the official Gazette on 15-02-2008. By the said notification, the lands at Survey No.107 and its various sub-divisions are sought to be acquired for the purpose of Government Village Playground at Fatrade, Varca Salcete, Goa. 5. The petitioners submitted their objections in connection with the said notification under Section 5A of the Act, on 08-03-2008, objecting the proposed acquisition of the land. The Land Acquisition Officer accordingly recorded the statements of the petitioners and thereafter, submitted his report to the State Government, recommending the acquisition of the land in question. Thereafter, a notification under Section 6 of the Act, was issued on 11-08-2008 which was published in the daily newspaper 'Times of India' dated 15-08-2008. The petitioners have therefore, approached this 5 Court by way of this Writ Petition challenging the aforesaid land acquisition proceedings on various grounds. 6. Mr.Sonak, the learned counsel for the petitioners, vehemently submitted that the lands of the petitioners are sought to be acquired for the purpose of establishing Government Village School Playground at Fatrade, but there was only one Government Primary School in the said Village, which is closed since last 14 years and in that view of the matter, it can never be said that the land is really required to be acquired for the public purpose and there is no public purpose involved for acquiring the land for Government Primary School which is closed since last 14 years. The learned counsel for the petitioners further submitted that the Land Acquisition Officer is assigned with a duty which is in the nature of quasi- judicial duty. While considering the objections under Section 5A of the Act, the Land Acquisition Officer has not properly considered the objections raised by the petitioners, even though the petitioners have pointed out that the primary school is not functioning since last 14 years. The learned counsel for the petitioners submitted that the Land Acquisition Officer has not considered the said aspect in his report submitted to the Government. He further submitted that the Land Acquisition Officer has not considered the submission of the petitioners that there are many other lands available in the vicinity of Fatrade, Varca Salcete, Goa, which are fallow lands and the same can be acquired for the said purpose. It is submitted that the Land 6 Acquisition Officer has also not considered the fact that the other fallow sites are available in the close proximity. It is also submitted that the land acquisition officer has not considered the fact that there are other sites available and that the land of Varca Sports club wherein there is a playground, could have also been acquired as the said land is better situated for the alleged purpose. 7. It is also submitted that the Land Acquisition Officer has failed to consider that initially proceedings were dropped and yet fresh proceedings have now been initiated and which have been initiated at the instance of Mr.Churchil Alemao, who is the elected member of the Legislative Assembly and a Cabinet Minister. The learned Advocate for the petitioners further stated that the land in question is sought to be acquired only at the instance of Mr.Churchil Alemao, as he wants to settle personal grievance against the petitioners as the petitioners have not helped him in the last elections. Mr.Sonak, the learned Advocate for the petitioners submitted that the Land Acquisition Officer has not considered the fact that there is already one playground available which belongs to Varca Sports club. It is submitted that the said objection has been overruled only on the ground that it is a private ground. Mr.Sonak, the learned counsel for the petitioners vehemently submitted that even if a private ground is of a sports club, the same could have been acquired for the alleged purpose. It is also submitted that the application of mind should be at two stages, one is at the stage of Land 7 Acquisition Officer and second at the stage of State Government. Mr.Sonak strongly contended that the affidavit-in-reply should not have been filed by Under Secretary and it should have been filed by the Secretary. He further submitted that the State Government has not independently applied its mind in the land acquisition proceedings. It is submitted that if the act of the Government is dehors the provisions of law, then the judicial scrutiny is still available. On the aforesaid grounds, the Notifications under Section 4 and 6 of the Act, have been challenged by the petitioners in this petition. 8. The learned counsel for the petitioner had also relied upon various judgments to substantiate his say that the Land Acquisition Officer is required to consider the objections raised by the petitioners in an appropriate manner. It is submitted that the Land Acquisition Officer has carried out site inspection in the absence of the petitioners. It is submitted that the matter may be remanded back to the Special Land Acquisition Officer for considering the objections of the petitioners de novo. Mr.Sonak, the learned counsel for the petitioners further submitted that the purpose for the acquisition is to be considered as mentioned in the notifications under Section 4 & 6 of the Act and no other purpose can be shown subsequently in the affidavit-in-reply. It is submitted that the purpose for acquisition of the land should be a public purpose in terms of Section 4 & 6 of the Act. 9. The learned Advocate General appearing for the respondents, on the other hand, submitted that whatever objections which have been 8 submitted by the petitioners have been considered by the Special Land Acquisition Officer. The learned Advocate General further submitted that the petitioners could not point out any other land even in their objections under Section 5A of the Act. It is submitted that which land is suitable for the purpose of Government Village playground is the function of the State Government and the SLAO after considering the facts and circumstances of the case and after considering the location, has ultimately found that the land in question is more suitable for the purpose and this Court cannot interfere with the aforesaid selection process conducted by the SLAO in a petition under Article 226 of the Constitution of India. The learned Advocate General further pointed out that as per the policy decision taken by the Government, playgrounds are required to be established in every village. It is submitted that every village is required to have Government School and ultimately, the facility and benefit of playing games like Football, is available for the entire village, for the purpose of which the land is sought to be acquired. 10. It is further submitted by the learned Advocate General that the petitioners have not stated in their objections regarding any other fallow land and no particulars of such fallow land have been stated in the objections and the SLAO is required to consider those objections which are taken in the representation. He submitted that since earlier notification lapsed because of time limit, subsequent notification came to be issued and that itself shows that the public purpose continued. It is submitted that the allegations of 9 malafide are absolutely vague and without any substance and even a person against whom allegations are made, has not been joined as a party. It is submitted by the learned Advocate General that the Government has decided to expand the sports activity in the State of Goa and Football is one of the important sports, so far as State of Goa is concerned and for that purpose, if the land is sought to be acquired, it can be said that the same is for the public purpose and establishment of playground for the village children is also an important public purpose. The learned Advocate General submitted that simply because the petitioners are carrying on agricultural activity is no ground for challenging the land acquisition proceedings, as ultimately the petitioners would be given appropriate compensation as per law, pursuant to the acquisition of their lands. It is submitted by the learned Advocate General that under the Business Rules, under Secretary is empowered to file reply and accordingly the same has been filed. He further submitted that the decision has not been taken by the Under Secretary and it was taken by the State Government, and on the basis of the available record, reply has been filed by the Under Secretary. It is further submitted by the learned Advocate General that the suitability of the land is to be considered by SLAO and this Court cannot interfere with the selection process in a petition under Article 226 of the Constitution of India. 11. We have heard the learned counsel for the petitioners and the learned Advocate General for the respondents, at length. We have gone 10 through the petition, affidavit-in-reply as well as rejoinder. We have also gone through the various documents forming part of the petition. 12. It is required to be noted that initially notification under Section 4 was issued and the petitioners had already lodged their objections under Section 5A of the Act. But, since the notification under Section 6 was not issued within the time, the said notification lapsed and ultimately, a fresh notification under Section 4 was issued. The purpose for acquiring the land in question is mentioned in the said notification. It has been pointed out during the course of hearing by the learned Advocate General that there was a demand from the village people for acquiring the land for the purpose of establishing football ground. During the course of hearing, it was submitted that the Director of Sports and Youth Affairs is developing standard playgrounds in various villages in Goa for the purpose of establishing playing facilities for the students and the residents of the concerned villages. In the affidavit-in-reply, it has been averred by the Deputy Director of Sports and Youth Affairs that in order to develop the playgrounds in villages in the State of Goa, the Government has prepared a Scheme known as 'Development of Government Village School Playgrounds'. Though, it is captioned as “Government Village School Playground, but it is a composite scheme of the Government and under the said scheme, upon construction of the playground, any member of the public can use the same for developing his talents. 11 13. The proceedings were, accordingly, initiated by the Department of Sports and Youth Affairs, Government of Goa, to acquire the land in question for the said purpose. In the reply, it has been pointed out that under the said scheme, the Director of Sports and Youth Affairs, has undertaken construction of such village playgrounds in 31 villages in the State of Goa. Some of the playgrounds have been completed and some are under various stages of development. It is pointed out that in various such cases, land acquisition proceedings are in progress and lands of various villages have been acquired for the development of playgrounds. Details have also been given in the affidavit-in-reply at Annexure R-1. 14. In para No.8 of the reply, it has been averred that the Director of Sports and Youth Affairs, moved a proposal to the Collector of South Goa to develop a Government Village School Playground at Fatrade, Varca in Salcete Taluka, over the land admeasuring 17500 sq. mts. for the benefits of students, non-students and the youth of the locality. In the affidavit-in-reply, it has been stated that on account of non-availability of the standard playground, the youth of the village are being deprived to show their talents. It is submitted in the affidavit-in-reply that they are three government primary schools, three high schools within the vicinity of five kilometers of the proposed site and the students will stand to benefit and utilize the playgrounds for different sports activities, once it is developed by the Sports Department. 12 15. In para No.10 of the reply, it is pointed out that so far as the Government Playground at Orlim is concerned, it is situated at a distance of 2.5 kms. from the proposed site of acquisition. The said playground does not belong to Government, but belongs to Panchayat of said village. Relying upon the said affidavit, the learned Advocate General submitted that the acquisition is made under the Village School Playground Scheme and therefore it cannot be said that the same is not for public purpose. It is submitted that even if a primary school is closed or not functioning, it cannot be said that there is no need for playground under the Scheme for the village people as ultimately the said facility will be available to all the village people and ultimately it will be a playground of the Government, which can be used by all. 16. The Special Land Acquisition Officer has also filed affidavit- in-reply which is at Page 126 of the Compilation. In his affidavit, the Special Land Acquisition Officer has stated that the Town and Country Planning Department has also conveyed their NOC to acquire the land for the purpose of playground and the playground at another Village Orlim, cannot be said to be convenient so far as the village people of Fatrade is concerned. It is also stated in the reply that the Land Acquisition Officer has given an opportunity of personal hearing to the petitioners and their objections have been properly considered by him and he had taken site inspection and thereafter, submitted his report under Section 5A of the Act. 13 17. In our view, simply because in the notification under Section 4 & 6 of the Act, there is a reference about the acquisition of the land for Government school playground and though the Government school is not functioning in the area, it cannot be said that there is no public purpose as no such public school is functioning in the village. It is required to be noted that on the basis of the recommendations of the Sports Authority of State of Goa, the Director of Sports and Youth Affairs, ultimately decided to acquire the land in question for the purpose of Government Village Playground. It cannot be said that there is no public purpose involved in such acquisition. Simply because some private club might have some playground, it would not mean that there is no public purpose involved in acquiring the land in question. It is for the State Government to consider whether any additional ground is required to be acquired so that all the village people can take benefit by using the said playground. In our view, the Land Acquisition Officer has considered whatever objections raised before him and he is not expected to write a judgment like a Judicial Officer. It is not possible to take out one or two lines from the notifications for coming to the conclusion that the purpose mentioned in the notifications was not existed and there is no public purpose involved. Considering the affidavit-in-reply and the submissions of the learned Advocate General, we are of the opinion that on the basis of the recommendations of the Director of Sports, ultimately it was decided to acquire the land for establishing football ground under the said 14 Scheme. Simply because name of the scheme is not mentioned in the notification, cannot be treated as a ground that there is no public purpose involved. We do not find any substance in the arguments of Mr.Sonak that there is no public purpose involved in acquiring the land in question. 18. So far as the argument Mr.Sonak, to the effect that the Land Acquisition Officer has not dealt with the objections under Section 5-A of the Act is concerned, it is required to be noted that before the SLAO, no particulars were given about the availability and suitability of other fallow land. The petitioners were given personal hearing and their statements were recorded. It is true that the Land Acquisition Officer is having an important duty while dealing with the objections under Section 5-A of the Act, but, it cannot be said that the Land Acquisition Officer has not carried out his obligations under the Act. In the present case, the Land acquisition Officer has submitted his report to the State Government only after considering the objections raised before him. 19. So far as the selection of the land is concerned, this Court cannot substitute the selection process undertaken by the State Government and the same is within the domain of Land Acquisition Officer and after considering the purpose, if a particular land is found to be most suitable, this Court would not interfere in the selection process in a petition under Article 226 of the Constitution of India, especially when the affidavit-in-reply clearly points out as to how the land in question is most suitable land as compared to 15 other lands. 20. Mr.Sonak, the learned counsel for the petitioners, has also submitted that the land of Varca Sports Club could have been acquired as it is more suitable and simply because it is a private sports ground, it cannot be said the same cannot be acquired. Pertinently, it was only pointed out vide objections under Section 5A dated 8.3.2008 that there existed a modern village play ground of Varca Sports Club at Varca and, as such, there was no need of an additional play ground for the people of Fatrade. No utterance was made regarding its suitability for acquisition for the purposes the acquisition was proposed for. In the light of such objections, there was no obligation on the part of the Dy. Collector (LA), Margao, Goa to consider the issue of suitability of the Varca Playground for the purposes of the acquisition. In our view, it is for the authority to consider as to which land should be acquired or not. It cannot be disputed that so far as the sports ground of private club is concerned, all village people cannot take benefit of the same and ultimately, the authority has decided to acquire another land for the purpose of establishing additional playground. It cannot be said that there is no need to establish said playground and that there is no public purpose involved in the said acquisition proceedings. 21. The learned Advocate for the petitioners has relied upon a decision of the Supreme Court in the case of Shri Mandir Sita Ramji V/s. 16 LT.Governor of Delhi & Ors., (1975) 4 SCC 298 , wherein the Supreme Court has held that the duty of the Land Acquisition Officer to afford opportunity of being heard under Section 5A of the Act is mandatory. In the aforesaid judgment, it has been further held that Government may not choose to accept the recommendation of the Land Acquisition Officer, even when he makes one, it cannot be said that he need not make the recommendation at all but leave it to the Government to decide the matter. In the said judgment, the Land Acquisition Officer without any further hearing and without any conscious of his having called for report, submitted his report to the Government. No hearing was given and under the circumstances, notification under Section 6 was quashed. 22. In the instant case, the Land Acquisition Officer after hearing the petitioners and after considering their objections, submitted his report to the State Government and therefore, it cannot be said that the Land Acquisition Officer has not followed the procedure or it cannot be said that before submitting the report, the Land Acquisition Officer has not considered the objections of the petitioners. 23. The learned counsel for the petitioners have placed further reliance on a decision of the Supreme Court in the case of Municipal Corporation of Greater Bombay V/s. Industrial Development Investment Co. Pvt. Ltd., & Ors., (1996) 11 SCC 501. The said decision is rendered by the Division Bench of two Judges. A dissenting view is expressed by another 17 Judge by holding that the proposal under Section 126(1) of the Maharashtra Regional and Town Planning Act, 1966 is for acquisition of land for a specified public purpose, if the planning authority wants to acquire the land subsequently, for any other public purpose earmarked in the modified scheme, then such a purpose must be specifically indicated in