-1- IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 46 OF 2010 WITH WRIT PETITION NO. 75 OF 2010 WRIT PETITION NO.46 OF 2010 Mr. Olavo Antonio do Perpetuo Socorro Alemao, alias Olvao Alemao, major of age, Resident of Bairro, Chaul, Betalbatim, Salcete – Goa. …... Petitioner V e r s u s 1. State of Goa, through the Secretary (Revenue), with his Office at Secretariat Complex, Porvorim, Bardez – Goa. 2. Land Acquisition Officer, P.W.D. (Cell), Altinho, Panaji – Goa. 3. Special Land Acquisition Office, Department of Tourism, Patto, Panaji – Goa. …... Respondents Mr. S. D. Lotlikar, Senior Advocate with Mr. Harish Kanonkar, Advocate for the Petitioner. Mr. S. S. Kantak, Advocate General with Mr. Preetam Talaulikar, Additional Government Advocate for the Respondents. WITH WRIT PETITION NO. 75 OF 2010 Mrs. Maria Platilda Afonso e Dias, major of age, Wife of Venacio A.Y.T. Dias -2- alias Ivo Dias, Resident of House No.13, Tondwado, Betalbatim, Salcete – Goa. …... Petitioner V e r s u s 1. State of Goa, through the Secretary (Revenue), with his Office at Secretariat Complex, Porvorim, Bardez – Goa. 2. Land Acquisition Officer, P.W.D. (Cell), Altinho, Panaji – Goa. 3. Special Land Acquisition Office, Department of Tourism, Patto, Panaji – Goa. …... Respondents Mr. S. D. Lotlikar, Senior Advocate with Mr. Harish Kanonkar, Advocate for the Petitioner. Mr. S. S. Kantak, Advocate General with Mr. Preetam Talaulikar, Additional Government Advocate for the Respondents. Coram :- A. S. OKA F. M. REIS, JJ. Judgment Reserved on : 19 th July, 2010. Judgment Pronounced on : 18 th August, 2010. JUDGMENT : (Per F. M. Reis, J.) Rule. By consent, heard forthwith. Learned Addl. Government Advocate for the Respondents, waives notice. 2. Both the above Writ Petitions are taken up together for final disposal -3- as both seek a relief that the Notification bearing no. 23/48/2005-RD dated 3rd March, 2006, issued under Section 4 of the Land Acquisition Act, Corrigendum bearing no. 23/48/2005-RD dated 31st October, 2006, Notification bearing no. 23/48/2005-RD dated 22nd October, 2007, issued under Section 6 of the Land Acquisition Act, 1894 and the Award made on 11th December, 2008, by the said Land Acquisition Officer, be declared null and void. 3. Briefly, the facts with regard to the Writ Petition no. 46/2010 are as follows : By a Notification dated 3rd March, 2006, issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the said Act') published in Official Gazette dated 16th March, 2006, the Respondent no.1 declared that the land as specified in the Schedule thereto was likely to be needed for a public purpose of construction of road at Tondwado, Bhimwado, Ranwado and Gonsua, within the limits of the Village Panchayat of Betalbatim. The said Notification dated 3rd March, 2006 was published in local newspapers as well as by a public notice by the Mamlatdar of Salcete in the locality on 13th April, 2006. Among the lands which were intended to be acquired, the land of the Petitioner surveyed under no. 98 sub- division 2(part) of Betalbatim Village, was also included. It is the contention of the said Petitioner that the road intended to be constructed was not a single road but covered different stretches of roads of Betalbatim and Majorda. The portion of the land of the Petitioners which was sought to be acquired was for the construction of the road leading from Betalbatim beach to the existing public road and was located in Tondwado. The corrigendum dated 31st October, 2006, was issued to rectify the name of the Villages as Gonsua, instead of Betalbatim in respect of Survey no.15/1. -4- 4. The Petitioners raised objections to the proposed acquisition by filing his letter dated 24th March, 2006, on the ground that it would lead to an unwarranted destruction of the well developed property of the Petitioners. The Petitioners also suggested the realignments of the said road. It is further his contention that the Petitioner did not receive any notice from the Land Acquisition Officer in the matter of hearing his objections. The notice issued to the Petitioner was returned with an endorsement that the Petitioner was abroad. Though the Petitioner is in fact settled in Australia, it is his contention that he regularly comes to Goa every year and stays at the address given by the Petitioners in his letter dated 24th March, 2006. It is further his contention that his uncle by name Luis Rebello, was residing in the same house at the same address and is a constituted attorney of the Petitioner. The said notice was not served on the Petitioner or his constituted attorney who was available for service nor was such notice pasted on the outer door. It is further his case that accordingly, his objections were not considered by the Land Acquisition Officer. Vide Notification dated 22nd October, 2007, the Respondent no.1 declared under Section 6 of the said Act that the land specified in the Schedule annexed thereto was required for the public purpose. The total area intended to be acquired came to be reduced whereby initially an area of 3000 square metres was intended to be acquired while thereafter an area of 1854 square metres was declared to be required for the said purpose. It is further his contention that the alignment of the road as intended to be acquired, was not the same. It is further his contention that on 25th May, 2009, the office of the Respondent no.3 issued a notice under Section 12(2) of the said Act to the effect that the Award was made on 11th December, 2008. It is further his contention that the alignment of road was being effected at the -5- instance of Shri Agnel Barros, who is an Engineer attached to the Sub-Division II, Works Division VI, Public Works Department, Fatorda, and that he was intending to develop his property surveyed under no. 99/5 and he abused his position to bring about the said intended acquisition. He further contended that he was in Goa in December, 2008, and left for Australia in January, 2009 and he again came to Goa in November, 2009 and left in second week of January, 2010, and he was not aware about the passing of the Award dated 11th December, 2008 and taking over the possession of the road on 15th June, 2009 while he was away in Australia. He further contended that by a letter dated 23rd December, 2009, he brought to the notice of the Respondents the fraud committed by said Agnel Barros in the matter of the said acquisition. He further contended that there was no order under Section 7 of the said Act for acquisition of the property. He further contended that the said Notification under Section 4 as well as under Section 6 of the said Act along with the Award dated 11th December, 2008, is liable to be quashed and set aside on the ground that the acquisition is not for public purpose and that the Notification under Section 4 is vague and confusing. He further contended that the Section 6 Notification was published on 22nd October, 2007 and that the Notification is null and void. As the last date of publication of the Notification under Section 4 of the Act, is 13th April, 2006 and the Notification under Section 6 was not issued before the expiry of one year from the last date of such publication. As the said Notification is beyond the period of one year as contemplated of the said Act, the entire acquisition proceedings has lapsed. He further contended that the report of the Land Acquisition Officer is vitiated for not complying with the mandatory provisions of the Act under Section 5-A of the said Act as no hearing was given to the Petitioner. It is further his contention that as there was no order of acquisition under -6- Section 7 of the said Act, the Award passed by the Land Acquisition Officer has no legal effects. 5. In the affidavit in reply filed by Shri Pandarinath Naik, it is sought to be contended that Notification under Section 4 was dated 3rd March, 2006 and under Section 6 was dated 22nd November, 2007. The objections were raised by the Petitioner under Section 5-A and thereafter the Notification under Section 6 was published. Notices under Sections 9 and 10 were issued on 27th May, 2008 and and Award is dated 11th December, 2008 and the Petition is filed on 8th January, 2008, though possession has also been taken and the land vests in the Government. The Petitioner has also filed a reference under Section 18 of the Land Acquisition Act for enhancement of compensation and, as such, it is not open for the Petitioners to file the present Petition to challenge the Notification under Sections 4 and 6 of the said Act. He has further stated that the public purpose is for the construction of the road at Tonwaddo, Bhimwaddo, Ranwaddo and Gonsua of Betalbatim Village. He has further stated that the acquisition in respect of survey numbers 100, 99/4, 99/11 and part 99/5 came to be dropped since the road for acquisition was passing through paddy fields. The acquisition is to provide motorable access to various wards. It is further their contention that in view of the objections of the Petitioners, the area initially intended to be acquired was 3000 square metres which came to be reduced to 1854 square metres. It is further his contention that the possession stand taken by the Government on 15th June, 2009, and the reference under Section 18 of the Land Acquisition Act, has been preferred by the Petitioner on 27th July, 2009. -7- 6. The brief facts in Writ Petition no. 75/2010 are substantially the same as those stated by the Petitioner in the earlier Writ Petition no. 46/2010. The land of the Petitioner intended to be acquired is survey no. 121 sub-division (2) (part) falls within the Ward Ranwado of Betalbatim Village. In sum and substance the challenge to the acquisition is essentially that the Notification under Section 6 is time barred. That notice under Section 4 is termed vague and that there is no order under Section 7 of the Act for inter alia acquisition of the land. 7. The Respondents also filed an affidavit of Shri Pandarinath Naik in Writ Petition no. 75/2010. The Respondents have raised a preliminary objection to the effect that the Notification under Section 6 was issued on 22nd November, 2007 and that notice under Sections 9 and 10 were issued by the Mamlatdar on 27th May, 2008 and that Award was made on 11th December, 2008. The Petition having been filed on 6th January, 2010, after the possession of the land had also been taken, it is not open to the Petitioner to file a Petitioner after such long period especially after passing of the Award and, consequently, the same deserves to be rejected on the ground of delay and latches. 8. The Respondents have also stated that the Notification under Section 4 of the Act, was for different stretch of road in various wards of Village Betalbatim to provide a motorable access. The allegation with regard to fraud have been denied. He has also stated that the requirements of Section 5-A of the Act are duly complied with as the nephew of the Petitioner was heard in the course of personal hearing. It is further his contention that an area of 705 square metres instead of 815 square metres was intended to be acquired in respect of the land of the -8- Petitioners. The Respondents also denied that no Order under Section 7 of the Act was made. 9. Shri S. D. Lotlikar, the learned Senior Counsel appearing for both the Petitioners, has submitted that there is no dispute that the Notification under Section 6 of the Act was made beyond the period of one year and, as such, the same is time barred. He further submitted that as the said Notification under Section 6 of the Act is vitiated, the further proceedings on the basis of such null and void Notification cannot have any legal effects. He further pointed out that no notice for an inquiry as contemplated under Section 5-A of the Act, was conducted by the Land Acquisition Officer and in view of the failure of granting personal hearing, the Notification under Section 6 would stand vitiated. He further pointed out that the Petitioner is permanently residing in Australia and had an attorney who was available at his residence who was not even notified about any such hearing of the inquiry by the Land Acquisition Officer. He further submitted that the Notification under Section 4 of the Act is totally vague as there are no particulars furnished by the Land Acquisition Officer in order that the Petitioners would ascertain the alignment of the road. He further pointed out that the whole exercise of the acquisition smacks of malafides and the same deserves to be quashed and set aside. He further submitted that merely because a reference under Section 18 of the Act has been filed by the Petitioners, it cannot in any way affect the rights of the Petitioners to challenge a patently illegal Notification as there is no estoppel against law. He further submitted that the Petitioner who had come to Goa, on two different occasions at the relevant time, was not aware about the passing of the Award or that possession was taken pursuant thereto. He, accordingly prayed, that both the -9- Petitions deserve to be allowed. He further pointed out that the law is well settled that the severance of the land which is subject matter of the Notification is permissible and the Notifications can be quashed only to the extent of the lands of the respective Petitioners. 10. In support of his submissions, he relied upon the Judgments of the Apex Court reported in 2004 Goa L. T. 389, in the case of Charles F. Pais vs. State of Goa & Ors.,; (2002) 3 S.C.C. 533 in the case of Padma Sundara Rao (Dead) & Ors. vs. State of T. N. & Ors.,; (2009) 9 S. C.C. 92, in the case of Vijay Narayan Thatte & Ors. vs. State of Maharashtra & Ors.,; (2007) 3 S.C.C. 470, in the case of Ashok Kumar & Ors. vs. State of Haryana & anr. and (2005) 7 S.C.C. 627 in the case of Hindustan Petroleum Corpn. Ltd. vs. Darius Shapur Chenai & Ors. 11. On the other hand, the learned Advocate General, appearing for the Respondents has joined issue with the contention of learned Senior Counsel appearing for the Petitioners. He submitted that though there is no dispute that the Notification under Section 6 of the Act has been published beyond the time prescribed under the said Act, nevertheless, the Petitioners by their action are precluded from challenging the Notification at such belated stage. He pointed out that admittedly the Petitioner had an attorney in Goa during his absence in Australia and as such it was incumbent upon him to raise necessary objections to the Notification under Section 6 of the Act immediately when it came to be published. He further submitted that the law is well settled that after the possession is taken over, the High Court in exercise of the writ jurisdiction under Article 226 of the -10- Constitution of India, very seldom interferes in the acquisition of properties. He further pointed out that the Petitioner had filed a reference under Section 18 of the said Act for enhancement of compensation which itself precludes him from now challenging the Notifications under Sections 4 and 6 of the said Act. He further submitted that the Petitions deserve to be dismissed for delay and latches which has not been satisfactorily explained by the Petitioners. He further submitted that the Petitioners were duly served by the Land Acquisition Officer in the inquiry under Section 5-A of the said Act. 12. In support of his submission, he has relied upon the Judgment of the Apex Court reported in AIR 2007 S.C. 2625 in the case of Mohan & anr. vs. State of Maharashtra & Ors.; AIR 1997 S.C. 482 in the case of Municipal Corporation of Greater Bombay vs. The Industrial Development Investment Co. Pvt. Ltd. & Ors.; and AIR 2008 S.C. 1494, in the case of Swaika Properties Pvt. Ltd. & anr. vs. State of Rajasthan & Ors. 13. Having heard the learned Counsel for the parties and on perusal of the record, we find that there is no dispute that the said Notification under Section 6 of the said Act was clearly barred by clause –(ii) of the proviso to Section 6 of the Act, which reads as under : “6. Provided that no declaration in respect of any particular land covered by a notification under Section 4 sin-section (1),- (i) … (ii) published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the -11- date of the publication of the notification.” 14. On the plain reading of the proviso to Section 6 of the said Act, it provides that no declaration can be issued in respect of a particular land covered by a Notification under Section 4 sub-section (1) of the said Act after a period of one year from the date of publication of Section 4 Notification. As such, the Respondents were not entitled to issue the said Notification under Section 6 of the said Act beyond the period of one year as contemplated therein. The Apex Court in the said Judgment in the case of Vijay Narayan Thatte & Ors. vs. State of Maharashtra & Ors.,(supra), whilst dealing with the said provisions under Section 6 has held at paras 21, 22 and 24 as under : “21. In view of the above discussion, it is evident that the proviso to Section 6 of the Land Acquisition Act is totally mandatory and bears no exceptions. In fact, a Constitution Bench decision of this Court in Padma Sundara Rao v. State of T.N.5 is clearly in support of the submission of the learned counsel for the appellants that the proviso to Section 6 is mandatory, and hence the Notification under Section 6 dated 30- 10-2006 is time-barred. 22. In our opinion, when the language of the statute is plain and clear then the literal rule of interpretation has to be applied and there is ordinarily no scope for consideration of equity, public interest or seeking the intention of the legislature. It is only when the language of the statute is not clear or ambiguous or there is some conflict, etc. or the plain language leads to some absurdity that one can depart from the literal rule of -12- interpretation. A perusal of the proviso to Section 6 shows that the language of the proviso is clear. Hence the literal rule of interpretation must be applied to it. When there is a conflict between the law and equity it is the law which must prevail. As stated in the Latin maxim dura lex sed lex which means “the law is hard but it is the law”. 23. … 24. I n our opinion, there can be no estoppel against a statute. Since the statute is very clear, the period of limitation provided in clause (ii) of the proviso to Section 6 of the Act has to be followed, and concessions of the counsel can have no effect. As already stated above, the proviso is mandatory in nature, and must operate with its full rigour vide Ashok Kumar v. State of Haryana(SCC para 17).” 15. In view of the said Judgment of the Apex Court, we find that as the time limit to publish the Notification under Section 6 of the Act is mandatory, the Respondents were not entitled to issue such Notification under Section 6 beyond the time prescribed therein. The Notification as such under Section 6 stands vitiated. In the Judgment of the Apex Court in the case of Ashok Kumar & Ors. vs. State of Haryana & anr. (supra), it has been held at para 17, thus : “17. We have noticed hereinbefore that the proviso appended to sub-section (1) of Section 6 is in the negative term. It is, therefore, mandatory in nature. Any declaration made after the expiry of one year from the date of the publication of the notification under sub- section (1) of Section 4 would be void and of no effect. An enabling provision has been made by reason of the -13- Explanation appended thereto, but the same was done only for the purpose of extending the period of limitation and not for any other purpose. The purport and object of the provisions of the Act and in particular the proviso which had been inserted by Act 68 of 1984 and which came into force w.e.f. 24-9-1984 must be given its full effect. The said provision was inserted for the benefit of the owners of land. Such a statutory benefit, thus, cannot be taken away by a purported construction of an order of a court which, in our opinion, is absolutely clear and explicit.” 16. The Notification under Section 4(1) was lastly published on 13th August, 2006 and the Notification under Section 6 was issued on 22nd October, 2007. As such, we find that the Notification under Section 6 of the said Act is null and void. Dealing with the submission of the learned Advocate General to the effect that the Petition deserves to be rejected on the ground of delay and latches merely on the ground that the Petitioner had filed a reference under Section 18 of the said Act for enhancement of compensation, we find that, that by itself does not disentitle the Petitioner to challenge the Notification which is null and void. The Apex Court in the Judgment referred to in the case Vijay Narayan Thatte & Ors. vs. State of Maharashtra & Ors.,(supra), has held that there can be no estoppel against the statute. Apart from that, there is no clinching evidence adduced by the Respondents to demonstrate that the Petitioners were aware about the passing of the Award in December, 2008. Once the law envisages a particular procedure in which the lands of the owners can be acquired, it is incumbent upon the Respondents to comply with such provisions strictly. As the proviso to Section 6 of the said Act clearly prohibits the issuance of Section 6 Notification beyond the -14- period of one year, the same can have no legal effects in case the same is issued beyond the time prescribed. Any action taken on the basis of such void Notification cannot be sustained and the same cannot be defeated on the ground of delay and latches in the facts and circumstances of the present case. 17. The Judgment of the Apex Court relied upon by the learned Advocate General in the case of Swaika Properties Pvt. Ltd. & anr. vs. State of Rajasthan & Ors. (supra), is not applicable to the facts of the present case. The facts therein are that the landowner was challenging the purpose of the acquisition itself and had filed a Petition before the Calcutta High Court which came to be dismissed for want of territorial jurisdiction. Thereafter, for nearly two years, no action was taken to challenge such acquisition before the appropriate High Court. In the background of these facts, the Apex Court held that after the Award was passed and the possession was taken, a party cannot invoke writ jurisdiction under Article 226 of the Constitution. That was not the case wherein the Notification under Section 6 was itself null and void and that the Petitioners were not personally notified under Sections 9 and 10 of the said Act as in the present case. The Judgment of the Apex Court relied upon in Mohan & anr. vs. State of Maharashtra