1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.323 OF 2006 1. Shri Ramdas Thanu Dessai, aged 45 years, son of late Shri Thanu Dessai, r/o Dodiyal-Xelvona, Curchorem-Goa. 2. Mrs. Suchita Babal Dessai, aged 50 years, wife of Shri Babal Gopinath Dessai, r/o Gavwada-Xelvona, Curchorem-Goa. 3. Smt. Fulu Vasu Mapari, aged 68 years, widow of late Shri Vasu Mapari, r/o Gavwada-Xelvona, Curchorem-Goa. 4. Mrs. Vishranti Datta Dessai, aged 55 years, wife of Shri Datta Dessai , r/o Maher- Xelvona, Curchorem-Goa. 5. Shri Yeshwant Kushali Dessai, aged 54 years, son of late Shri Kushali Dessai, r/o Voilowada-Xelvona, Curchorem-Goa. 6. Shri Ramakant Surya Dessai, aged 48 years, son of late Shri Surya Dessai, r/o Dodiyal-Xelvona, Curchorem-Goa. 7. Shri Gajanan R. Dessai, son of Kesser Ragu Dessai, aged 68 years, r/o Xelvona, Curchorem-Goa. 2 8. Shri Vithoba S. Dessai, son of Surya V. Dessai, aged 63 years, r/o Xelvona, Curchorem-Goa. 9. Shri Sukash B. Dessai, son of late Babon S. Dessai, aged 44 years, r/o Xelvona, Curchorem-Goa. 10. Shri Jaiwant G. Naik, son of late Shanu G. Naik, aged 75 years, r/o Xelvona, Curchorem-Goa. 11. Shri Govind D. Dessai, son of late Dattu B. Dessai, aged 56 years, r/o Xelvona, Curchorem-Goa. 12. Taramati H. Dessai, wife of late Harichandra Dessai, aged 72 years, r/o Xelvona, Curchorem-Goa. 13. Shri Ankush B. Dessai, son of late Bhazru Dessai, aged 72 years, r/o Xelvona, Curchorem-Goa. 14. Shri Pandurang S. Dessai, son of Sitaram G. Dessai, aged 65 years, r/o Xelvona, Curchorem-Goa. 15. Shri Pandurang H. Dessai, s/o late Hari Laxman Dessai, aged 72 years, r/o Xelvona, Curchorem-Goa. 16. Shri Ramchandra C. Dessai, s/o late Chandru Dessai, aged 40 years, r/o Xelvona, Curchorem-Goa. 17. Shri Shiva K. Dessai, 3 s/o late Kusta B. Dessai, aged 57 years, r/o Xelvona, Curchorem-Goa. 18. Shri Vinayak P. Dessai, s/o late Puttu S. Dessai, aged 65 years, r/o Xelvona, Curchorem-Goa. 19. Smt. Rukmani S. Dessai, wife of Sadashiv S. Dessai, aged 72 years, r/o Xelvona, Curchorem-Goa. 20. Shri Devu Chandru Dessai, s/o late Chandru Dessai, aged 55 years, r/o Xelvona, Curchorem-Goa. 21. Shri Shankar S. Dessai, s/o late Surya S. Dessai, aged 45 years, r/o Xelvona, Curchorem-Goa. 22. Smt. Ganga G. Dessai, daughter-in-law of Bhiva G. Dessai, aged 62 years, r/o Xelvona, Curchorem-Goa. 23. Shri Dinakar Y. Dessai, s/o late Yeshwant K. Dessai, aged 60 years, r/o Xelvona, Curchorem-Goa. 24. Shri Ratnakar Y. Dessai, s/o late Yeshwant Dessai, aged 65 years, r/o Xelvona, Curchorem-Goa. 25. Shri Shashikant Y. Dessai, s/o late Yeshwant Dessai, aged 56 years, r/o Xelvona, Curchorem-Goa. 26. Shri Nynashwar B. Dessai, s/o late Bhazru S. Dessai, 4 aged 53 years, r/o Xelvona, Curchorem-Goa. 27. Shri Joao D. Fernandes, s/o late Domingo Fernandes, aged 62 years, r/o Xelvona, Curchorem-Goa. 28. Antoneta L. Rodrigues, daughter-in-law of Piedade Doming Rodrigues, aged 45 years, r/o Xelvona, Curchorem-Goa. 29. Shri Narayan K. Dessai, s/o late Kusta A. Dessai, aged 40 years, r/o Xelvona, Curchorem-Goa. 30. Durga G. Dessai, daughter-in-law of Tama G.Dessai, aged 52 years, r/o Xelvona, Curchorem-Goa. 31. Shri Nagu G. Naik, s/o Gopinath N. Naik, aged 70 years, r/o Xelvona, Curchorem-Goa. 32. Smt. Anjani M. Dessai, wife of late Manguesh B. Dessai, aged 72 years, r/o Xelvona, Curchorem-Goa. 33. Shri Satu S. Dessai, s/o late Shivram S. Dessai, aged 45 years, r/o Xelvona, Curchorem-Goa. 34. Shri Ulhas V. Mapari, s/o late Vassu Mapari, aged 51 years, r/o Xelvona, Curchorem-Goa. 35. Shri Mohan V. Mapari, s/o late Vassu Mapari, 5 aged 50 years, r/o Xelvona, Curchorem-Goa. 36. Shri Chandru U. Desai, s/o late Uttam C. Dessai, aged 61 years, r/o Xelvona, Curchorem-Goa. 37. Shri Shrikant T. Naik, s/o late Tilu B. Naik, aged 56 years, r/o Xelvona, Curchorem-Goa. 38. Shri Kushali P. Naik, s/o Pissolo Naik, aged 75 years, r/o Xelvona, Curchorem-Goa. 39. Shri John B. D'Costa, s/o late Bostieo D'Costa, aged 54 years, r/o Xelvona, Curchorem-Goa. 40. Shri Madhu G. Naik, s/o Gopinath N. Naik, aged 57 years, r/o Xelvona, Curchorem-Goa. 41. Durguem B. Naik, Daughter of Bitu Naik, aged 72 years, r/o Xelvona, Curchorem-Goa. 42. Shri Gokul H. Naik, wife of Shri Hanu Naik, aged 74 years, r/o Xelvona, Curchorem-Goa. 43. Smt. Droupadi P. Dessai, wife of Pandu S. Dessai, aged 72 years, r/o Xelvona, Curchorem-Goa. 44. Shri Subrai H. Naik, s/o Hadu Naik, aged 58 years, r/o Xelvona, 6 Curchorem-Goa. 45. Shri Antonio Rodrigues, s/o late Piedade Rodrigues, aged 54 years, r/o Xelvona, Curchorem-Goa. 46. Shri Shekar D. Dessai, s/o Damu S. Dessai, aged 57 years, r/o Xelvona, Curchorem-Goa. 47. Shri Malthino D. Fernandes, s/o Doming Fernandes, aged 68 years, r/o Xelvona, Curchorem-Goa. 48. Shri Ladu G. Naik, s/o Gargoro Naik, aged 72 years, r/o Xelvona, Curchorem-Goa. 49. Smt. Gokul K. Mapari, wife of Krishna G. Mapari, aged 72 years, r/o Xelvona, Curchorem-Goa. 50. Shri Laxman G. Mapari, s/o Keasor G. Mapari, aged 63 years, r/o Xelvona, Curchorem-Goa. 51. Shri Ram G. Mapari, s/o Kesar G. Mapari, aged 63 years, r/o Xelvona, Curchorem-Goa. 52. Shri Vithal Hari Dessai, s/o Hari Dessai, aged 66 years, r/o Xelvona, Curchorem-Goa. 53. Shri Bhanu Pandari Dessari, s/o late Pandari B. Dessai, aged 45 years, r/o Xelvona, Curchorem-Goa. 7 54. Shri Mohan S. Dessai, s/o late Surya V. Dessai, aged 58 years, r/o Xelvona, Curchorem-Goa. 55. Shri Sudhakar L. Dessai, s/o late Lakmu Dessai, aged 40 years, r/o Xelvona, Curchorem-Goa. 56. Shri Mohan K. Dessai, s/o late Kir Dessai, aged 45 years, r/o Xelvona, Curchorem-Goa. 57. Shri Mahadev F. Dessai, s/o late Fati M. Dessai, aged 38 years, r/o Xelvona, Curchorem-Goa. 58. Shri Sanjay G. Dessai, s/o late Ghanashyam Dessai, aged 32 years, r/o Xelvona, Curchorem-Goa. .... Petitioners – Versus - 1. State of Goa, through its Chief Secretary, having office at Secretariat, Porvorim, Bardez-Goa. 2. The Deputy Chief Engineer (Construction), South Western Railways, having Divisional Office at Electrical Branch, Hubli (Karnataka). 3. Village Panchayat of Shelvona- Assolda, Curchorem-Goa. 4. Shelvona Riverside Railway Terminal Ltd., a Company incorporated under the Companies Act, 1956 (Act 1 8 of 1956) having its office at A/7, Bansai-Plaza, 2nd Floor, Bansai, Curchorem-Goa. 5. Union of India, through its General Manager, South Western Railways, having Divisional Office at Electrical Branch, Hubli (Karnataka). 6. The Goa Foundation, a registered Society, through its Secretary, Dr. Claude Alvares, above Mapusa-Goa. 7. Shri Maruti Krishna Mapari, s/o Krishna Mapari, 40 years, ex-Panch of Assolda Xelvona Village Panchayat, r/o Gaonwado, Xelvona, Quepem – Goa. 8. Smt. Sangharshe Babusso Naik, wife of Babusso Naik, 35 years, housewife, ex panch of Assolda Xelvona Village Panchayat, r/o Mayer, Xelvona, Quepem Goa. .... Respondents Sr. M.S. Sonak, Advocate for the Petitioners. Sri S.S. Kantak, Advocate General with Ms R. Chodankar, Addl. Government Advocate for the Respondent No.1. Sri J. Vaz, Central Government Standing Counsel for the Respondent Nos.2 & 5. Sarvasri A.N.S. Nadkarni with H.D. Naik, Advocates for the Respondent No.3 Sri Sudesh Usgaonkar, Advocate for the Respondent No.4. Ms Norma Alvares, Advocate for the Respondent No.6. Sarvasri S.G. Desai, Senior Advocate with Shivan Desai, Advocate for the Respondent Nos.7 & 8. 9 CORAM: SRI R.M.S. KHANDEPARKAR & SRI R.S. MOHITE, JJ. DATED: 13TH AUGUST, 2008 JUDGMENT (Per Sri R.M.S. Khandeparkar, J.): 1. The petitioners challenge the acquisition proceedings initiated by issuance of notification under Section 4 of the Land Acquisition Act, 1894, hereinafter called as “the said Act”, dated 24-1- 2006 along with the declaration under Section 6 dated 20-12-2006 on various grounds including the ground that the said notification and the declaration are bad in law since the acquisition is proposed by the State of Goa which is not the appropriate Government to acquire the land for the purpose of Union of India considering the provisions of law comprised under Sections 4 and 6 read with Section 3(ee) of the said Act. On the other hand, the notification and the declaration are sought to be defended on the ground that the acquisition is not exclusively for the purpose of the Union and, therefore, the appropriate Government is the State Government. 2. The facts which are not in dispute are that the notification and the declaration under Section 4 and Section 6 respectively clearly provide that the land specified in the Schedule to the notification is 10 needed for public purpose, viz. land acquisition for construction of railway line and cargo handling terminal at Shelvona and Xic-Shelvona Villages of Quepem Taluka for South Western Railway. The declaration further discloses that the Government of Goa is of the opinion that the acquisition is urgently necessary. Obviously, therefore, the notification and the declaration on the face of the record disclose that the proceedings have been initiated by the State Government in its capacity as the appropriate Government within the meaning of the said expression under Section 3(ee) of the said Act. It is also not in dispute that the said acquisition of land is for South Western Railways in order to construct a railway line and cargo handling terminal. In fact, Sri Agnelo T. D'Souza, Senior Technical Assistant in the Diretorate of Mines, Government of Goa, who has filed the affidavit in reply on behalf of the respondent No.1 i.e., the State of Goa has stated in his affidavit that the land is being acquired by the State Government at the request of the railways and the cost would be paid by the railways. Further, the affidavit filed on behalf of the respondent Nos.2 and 5 by Sri A. Saibaba, Deputy Chief Engineer (Construction), South Western Railways, in his affidavit has clearly stated that the respondent Nos.2 and 5 i.e., the said Deputy Chief Engineer and the Union of India respectively have deposited Rs.1.13 crores with the respondent No.1 on 6-1-2006 for the said acquisition, the respondent Nos.2 and 5 would build “loop railway line” in an area of approximately 20 hectares at the 11 cost and expenses of the respondent Nos.2 and 5, the land being acquired is for the respondent Nos.2 and 5 and not for the respondent No.4. The affidavit further clarifies that in the railway budget a provision has been made for Rs.13.0759 crores pursuant to the approval of the Parliament. 3. The above stated undisputed facts leave no room for the doubt that the land is being acquired for the Union of India and at the cost of the Union of India. The fact that the railways are owned by the Union of India is also not in dispute. Besides, the said point being well- settled by the decision of the Apex Court in the matter of The State of Kerala v. The General Manager, Southern Railway, Madras, reported in (1976) 4 SCC 265. 4. The Section 4(1) of the said Act provides that whenever it appears to the appropriate Government that the land in any locality is needed or is likely to be needed for any public purpose or for a company, a notification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the locality. The provision also clarifies last of the dates of such publication and the giving of such public notice shall be 12 the date of publication of the notification under Section 4. The provision, therefore, clearly specifies that the acquisition proceedings under the said Act can commence in relation to any particular land when the same appears to the Government to be needed or likely to be needed for public purpose. The term “appropriate Government” is defined in Section 3(ee) to mean in relation to acquisition of land for the purposes of the Union, the Central Government, and, in relation to acquisition of land for any other purposes, the State Government. This definition in no uncertain terms specifies that when the acquisition of land is for the purpose of Union, the appropriate Government who is to initiate the action for acquisition by issuing the notification in that regard has necessarily to be the Central Government. 5. As already seen above, once it is not in dispute that the acquisition is for the South Western Railways for the purpose of construction of railway line and cargo handling terminal at Shelvona, and the entire acquisition cost would be borne by the respondent Nos.2 and 5, it obviously means that the acquisition is for the Union and, therefore, such acquisition has to be by the Central Government who is the appropriate Government for initiating such action. 6. It is, however, the contention on behalf of the respondent Nos. 1 and 4 that it is the State Government who has taken the decision to 13 acquire the land at Shelvona in order to alleviate the sufferings of its citizens residing in the affected area. The setting up of railway line and cargo handling terminal at Shelvona is in order to shift the activity from Sanvordem Town to Shelvona which will provide for a healthy life to the residents of the affected area. It is the contention on behalf of the said respondents that the ore, which is extracted in the State of Karnataka, is exported via Goa and for that purpose the ore is brought from Karnataka in railway wagons and is unloaded at Sanvordem railway station. It is then reloaded in the trucks and transported by road at the river loading point where it is loaded in barges and transported to Mormugao for export. The activities of unloading of ore from the railway wagons into the stack-yard, reloading the same into trucks and transporting via road passing through Sanvordem Town results in severe dust pollution in the area. It is on account of generation of hazardous dust, it results in respiratory problems and other diseases to the residents in the locality and, therefore, bearing in mind the order of this Court in Writ Petition No.123 of 1999, the State Government took a decision that the ore entering Goa from Karnataka should be directly unloaded at Shelvona which is close to the river point and for that purpose it is necessary to construct railway terminal at Shelvona and hence the acquisition of land in question was proposed. Considering the same, according to the respondent Nos.1 and 4, the acquisition cannot be said to be exclusively for the purpose of Union but it is for the benefit 14 of the citizens in the affected area and it is the obligation of the State to take all necessary steps for a healthy life to its citizens and hence the acquisition being also for the other purpose, it would fall in the category of acquisition for “any other purposes”, as specified in Section 3(ee) of the said Act. 7. In our considered opinion, it is difficult to accept the contention sought to be raised on behalf of the respondent Nos.1 and 4. The Section 4 of the said Act clearly requires the appropriate Government to take initiative for commencement of acquisition proceedings and Section 3(ee) specifies as to who would be the appropriate Government bearing in mind the purpose for which the acquisition of land is contemplated. In the case in hand, as already seen above, the acquisition of land specified in the Schedule annexed to the notification is for the purpose of construction of railway line and cargo handling terminal for South Western Railway. The arguments on behalf of the respondent Nos.1 and 4 relates to the benefits which may arise to the local residents out of construction of such railway line and the terminal and not to the purpose for which the land is sought to be acquired. The resultant benefits which the residents of the affected area in Goa may enjoy is not the purpose for which a particular land is sought to be acquired. If the argument on behalf of the respondent Nos.1 and 4 is to be accepted, then even the land which is used for laying the railway 15 line and which undisputedly belong to the Union of India would fall in the category of any other purpose. That is not the legislative intent behind defining the term “appropriate Government” under Section 3(ee). 8. The appropriate Government under Section 4 read with Section 3(ee) is that Government which takes decision to acquire the land for its purpose. In the case in hand, once it is not in dispute that pursuant to the proposal by the State Government it was the decision of the Union and its Department of Railways to acquire a particular land for construction of the terminal to be constructed and maintained by the respondent Nos.2 and 5, it cannot, in the same breath, be said that the acquisition is also for any other purpose. The purpose of acquisition is clearly specified in the notification. Once a particular purpose is specified in the said notification, it cannot be sought to be stated by way of an affidavit that the real purpose is something different from the one disclosed in the notification nor such additional benefits which may accrue on account of acquisition of land to the residents of the locality could be said to be the purpose for which the land is sought to be acquired. 9. It is to be borne in mind that after issuance of notification under Section 4, the interested parties are entitled to object to such notification and in that regard the Collector is enjoined to hear the objections and 16 make a report to the appropriate Government and after considering such reports, the appropriate Government is required to take appropriate decision which should culminate in the form of declaration under Section 6. The Sections 4, 5, 5A and 6 specifically refers to the appropriate Government and its satisfaction for need to acquire the land. Once it is not in dispute that the proposed acquisition of land is for the purpose of railway terminal, to be built by the respondent Nos.2 and 5 at their own cost and to be maintained by them, and such terminal is to be used for the activities in relation to the railways i.e., for unloading of ore transported by the railways from Karnataka to Goa, it cannot be said that the land is sought to be acquired for any other purpose. It is to be held that the land is being sought to be acquired for the Union purpose. 10. In spite of the fact that the land is sought to be acquired for the Union, it is undisputed fact that the State Government claims to be the appropriate Government in respect of the acquisition proceedings in question. Obviously, it is without any authority to be the appropriate Government for the purpose of such acquisition. Therefore, the notification and the declaration are to be held as bad in law. 11. It is also sought to be contended on behalf of the respondent Nos.1 and 4 that pursuant to deletion of Entries 33 and 36 in the Union and the said List, respectively, in the Constitution of India and 17 introduction of the subject “Acquisition and requisitioning of property” in Entry 42 of the concurrent list thereof, the State Government is entitled to acquire properties for the purpose of the Union. The contention is devoid of substance. The Entries in the Lists of the VIIth Schedule to the Constitution of India are not source of power to make law but they identify the legislative heads and circumscribe legislative field. The law in that regard is well-settled by a number of decisions including the decision sought to be relied upon by the petitioners i.e., Vijay Kumar Sharma and others v. State of Karnataka and others, reported in (1990) 2 SCC 562. Besides, no executive decision is permitted to transgress the legislative mandate. 12. When the statutory provisions comprised under Sections 4 and 6 read with Section 3(ee) of the said Act clearly provide that in cases of acquisition for the purpose of Union, the appropriate Government would be the Central Government, the exercise of executive power cannot be allowed to transgress the said statutory provisions comprised under the said Act. The petitioners are justified in contending that the executive power is always subservient to the legislative power. It is always subject to legislative provision and has to yield to the legislative power. Mere inclusion of the Entry No.42 in the concurrent list, which speaks of the principles on which compensation for the property acquired and requisitioned for the purpose of the Union 18 and the State or for any other public purpose is to be determined and the form and the manner in which such compensation is to be given, by that itself would not empower the executive to act in contravention of the provisions made in the Central legislation. It cannot be disputed that the said Act was enacted prior to the independence of India. However, the same was adapted in terms of the Adaptation Order of 1950 and, therefore, is a law made by the Parliament within the meaning of the said expression under the proviso to Article 162 of the Constitution of India. 13. It is also not in dispute that there is no delegation of power as contemplated under Article 258 of the Constitution of India by the Central Government. 14. This Court in Nandkumar s/o Madhukarrao Girme v. The Union of India and others, reported in 1989 (2) Bom.C.R. 641 had clearly held that the acquisition of land for approach lights for night landing of the aeroplanes at the Airport at Aurangabad was for the purpose of the Union of India and the appropriate Government for exercise of the power under Sections 4 and 6 of the said Act was the Union of India. It was was also held therein that the President of India, in terms of Article 258 of the Constitution of India, can delegate to the State Government the power to acquire land for the Union's purpose. As 19 already seen above, it is not the case of the State Government in the case in hand that there has been any such delegation of power by the President of India in terms of Article 258 of the Constitution of India in relation to acquisition in question. 15. The petitioners are justified in relying upon the decisions in the matters of Balak and others v. State of Uttar Pradesh and another, reported in AIR 1962 Allahabad 208, Angrup Thakar and others v. State of Punjab and another, reported in AIR 1968 Delhi 97 and Ghousia Begum v. The Union Territory of Pondicherry, reported in AIR 1975 Madras 345. In Balak's case (supra) the acquisition by the State of Uttar Pradesh for construction of staff quarters for enforcement of North Eastern Railway Headquarters Scheme was held to be ultra vires since the appropriate Government for such acquisition was the Union Government and not the State Government. In Angrup Thakar's case (supra) the acquisition by the State Government for the purpose of construction of building and doing research work on vegetables at the Indian Agriculture Research Institute was held to be for the purpose of the Union and, therefore, the acquisition could not have been initiated by the State Government. In Ghousia Begum's case (supra) the acquisition was for the construction of an auto-telephone exchange for the Posts and Telegraph Department and being so, for the purpose of the Union Government and hence the 20 acquisition could not have been initiated by the State Government. 16. In the matter of Sudhansu Sekhar Maity and others v. State of West Bengal and others, reported in AIR 1972 Calcutta 320, the acquisition was made at the expenses of the local authority and it was for setting up a subsidiary port for the benefit of the general public in the State and, therefore, it was held that the acquisition was not solely for the purpose of the Union. 17. In Messrs. Tinsukia Development Corporation Ltd. v. State of Assam and another, reported in AIR 1961 Assam 133, the acquisition was for construction of