1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.792 OF 2010 Mr. Babai Pundalik Naik …. Petitioner V/s The State of Goa & Ors. …. Respondents Mr. R. Menezes, Advocate for the Petitioner. Mr. A. Kakodkar, Additional Government Advocate for Respondents Nos.1 to 4. Mr. Tarzan D'Costa, Advocate for the intervenors. CORAM : S.C. DHARMADHIKARI & F.M. REIS, JJ. DATE : 24th MARCH, 2011 ORAL ORDER : By this petition, the petitioner challenges the notification under Section 4 and under Section 6 of the Land Acquisition Act, 1894. 2. The petitioner has stated that he is the owner of the property which is more particularly described in para 3 of the petition and at annexure P1. 3. The petitioner states that a notification dated 4/04/2006 was published in the Official Gazette and this notification was under 2 Section 4 of the Land Acquisition Act stating that the lands specified in the schedule were required for construction of a road from Smt. Lilavati T. Naik's House to spring at Dhadem, in Village Panchayat, in Sanvordem constituency. 4. He submitted that the proposed acquisition passes through the property touching the house of the petitioner and may cause damage to the house and required demolition of the cowshed. In such circumstances, he submitted objections, but the same were not considered and the report was made by the Land Acquisition Officer on 23/02/2007. 5. On 21/06/2007, a declaration under Section 6 of the Act was published and both, Section 4 and Section 6 notifications issued in the year 2006-2007 were challenged by filing a writ petition in this Court being Writ Petition No.419/2007. That writ petition came to be allowed by an order dated 3/08/2009. The petitioner was permitted to file fresh objections and the Authorities were directed to consider them. Accordingly, the petitioner filed objections and appeared before the Authority, but his various suggestions to realign the road have not been considered. Requirement of number of houses which would be benefited by the proposed road is not as 3 stipulated and as required by the circular dated 7/04/2003. Those have been ignored and a declaration under Section 6 of the Land Acquisition Act was issued and that is what is impugned in the present petition. 6. It has been firstly contended that the Land Acquisition Officer has ignored circular dated 7/04/2003. That circular specifically states that the number of households to be benefitted from the road to be provided to them, should be such as would fall within the purview of the circular namely, minimum number of houses having been stipulated in the circular itself. That circular was binding on the Authorities. Further, it is pointed out that the number of houses mentioned by the Special Land Acquisition Officer in his report is incorrect. The names of the persons indicated against the number of houses would show that the names are common and what the Land Acquisition Officer does is he counts the houses and makes them equivalent to household. In other words, the same person may have more than one house, but that, by itself, does not mean that the requisite number has been reached. In these circumstances and when realignment of the road was possible, the petitioner's objections have not been considered and this vitiates the entire acquisition proceedings. 4 7. On the other hand, on behalf of the State, it is pointed out that the petition itself proceeds on the basis that the acquisition is for a public purpose. The petitioner states in the petition itself that he is not opposed to the construction of road, but opposes only its present alignment. Further, that aspect has been considered by the Land Acquisition Officer and he was fully aware of the circular. However, the number of houses as indicated is based on the record maintained by public Authorities and Officials. Further, the realignment of the road as sought by the petitioner, is not possible because the road would become inaccessible at some stretches on account of steepness. In such circumstances, the very purpose for which the land is being acquired, will not be achieved. 8. For all these reasons, it is submitted that the petition be dismissed. 9. Having perused the petition and the annexures, so also all the affidavits on record, we are satisfied that in the peculiar facts of this case, this is not a fit case to interfere with the acquisition once again. The circular dated 7/04/2003 issued by the Government of Goa, Revenue Department contains instructions regarding 5 procedure of acquisition of lands. While processing the proposals, the Authorities have to be careful that acquisitions proposed will serve the public purpose. They must be genuine. However, when such proposals are genuine and bona fide, for acquisition in cases of roads/access, the number of beneficiaries should be the minimum as prescribed in clause (1), sub-clause (iv) of the circular. It is not necessary to go into any larger issue as to the nature of the circular, or the instructions contained therein and whether they partake the character of any rule or regulation or remains a guide- line, because in the facts of this case, we are satisfied that the acquisition is for a public purpose. The purpose as set out in the notification falls within the purview of Section 3(f) of the Land Acquisition Act, 1894. Further, we are satisfied from the perusal of the records that the Authorities did consider the request made by the petitioner. They have found that the alternate alignment suggested is technically not feasible. There are reasons given as to why the said alignment is not feasible. The topography has been referred to and what the inspection revealed is that there would be a steep line and the vehicles may not be able to take it on all occasions. In these circumstances, as the alternate alignment is on the hilly terrain and the hill will have to be cut for construction of the road, the alternate proposal suggested by the petitioner was not 6 found to be acceptable. 10. There are no allegations of malafides made. Further, what has been pointed out is that the minimum number of houses that are benefited is 23. The proposed road will serve 23 houses. Reference is made to the circular at para 13(c) of the affidavit filed by the respondent no.4 and on perusal of the same we are satisfied that the objections have been scrutinized in the light of this circular. Merely because the objections have not been upheld that by itself and without anything more cannot be considered as violation of the circular. Therefore we are of the view that it will not be possible for us to now go into the exercise which has been undertaken at the stage of Section 5-A of the Land Acquisition Act, more so, when the record indicates that the suggestions and proposals given by the petitioner have also been duly considered. 11. In the light of the above discussion, there is no merit in this writ petition and it fails and is accordingly dismissed. 12. The reliance placed by the petitioner on the judgment of the learned Single Judge of the Gujarat High Court reported in AIR 1976 Gujarat 84 in the case of Maganbhai Vanarshibhai Patel V/ 7 s. The State of Gujarat & Ors. is misplaced. There the learned Single Judge has faulted the acquisition proceedings for violation of the circular or policy guide lines because the residential houses were affected. Further, once there was a policy decision not to acquire lands on which structure has been erected for residential purpose or on which construction activities were going on, then, merely because the acquiring body is Housing Board the Court did not permit pick and choose policy. Therefore, the findings and conclusions at para 5 are based on the factual basis emerging in that case. Such is not the position before us and, therefore, this decision is of no assistance to the petitioner. 13. The Writ Petition is therefore dismissed but without any order as to costs. S.C. DHARMADHIKARI, J. F.M. REIS, J. NH/-