1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.491/2007 Shri Babai Pundalik Naik, s/o. Late Pundalik Naik, of 44 years of age, married, service and r/o. 665, Dhadem, Sanvordem, Goa. ........ Petitioner. Versus 1. Deputy Collector & S.D.O., Land Acquisition Officer, South Goa Sub-Division, Quepem, Goa. 2. The Collector of South Goa District, with office at Collectorate, Margao, Goa. 3. The Executive Engineer, W.D. XVIII (Roads), Ponda, Goa. 4. The State of Goa, Revenue Department, through its Chief Secretary, Secretariat, Porvorim, Goa. .......... Respondents. Mr. P. P. Singh, Advocate for the petitioner. Mr. S. R. Rivonkar, Government Advocate for the respondents. CORAM :- S.B. DESHMUKH & U. D. SALVI, JJ. DATE :- 3 rd August, 2009 . 2 ORAL JUDGMENT : (Per S.B. DESHMUKH, J.) Heard learned Counsel for the respective parties. Rule, returnable forthwith. Government Advocate waives notice for the respondents. The matter is heard finally by consent. 2. By this petition, the petitioner seeks writ of mandamus and /or direction quashing and setting aside the entire land acquisition proceedings in respect of the land under Survey No. 80/2. 3. With the assistance of the learned Counsel for the parties, we have noticed the publication of preliminary notification under sub- section (1) of Section 4 of Land Acquisition Act, 1894 (hereinafter referred to as “Act 1894”), alleged notice under Section 5-A of the Act 1894 dated 7.2.2007 and issuance of the Notification of declaration that land is required for public purpose under Section 6 of the Act 1894. Indisputably, this declaration is made under Section 6 of the Act 1894 on 11.6.2007. 4. Learned Counsel for the petitioner is brief in his 3 submissions. According to him, due and proper opportunity of personal hearing under Section 5A of the Act 1894, had not been given to the petitioner by the Special Land Acquisition Officer (SLAO). He submits that in view of the publication of the Notification under sub-Section (1) of Section 4, objection, in writing, was raised by him. However, in the absence of personal hearing under Section 5A, publication of the declaration under Section 6, in the case on hand, is illegal. Per contra, the learned Government Advocate submits that the Notification under sub-Section (1) of Section 4, has been duly published. Notice of the hearing under Section 5A was served to the petitioner. The petitioner participated in the joint inspection of the acquired land. His objection was considered, report was submitted to the competent authority and the competent authority has, accordingly, published the Notification under Section 6 of the Act 1894. The entire procedure which is required to be gone into under the provisions of the Act 1894 has been complied with. The learned Government Advocate has pointed out the date of filing of the petition and submitted that after passing of the Award and especially after having given due opportunity to the petitioner, this Court may not interfere under Articles 226 and 227 of the Constitution of India. 4 5. The only issue before us, therefore, is within narrow compass and that is, as to whether hearing of objection under Section 5A of the Act 1894 was offered by the SLAO ? Before adverting to the material on record for this purpose, we are inclined to reproduce Section 5A of the Act 1894, herein below : “ 5A. Hearing of objections.- (1) Any person interested in any land which has been notified under section 4, sub-section (1), as being needed or likely to be needed for a public purpose or for a company may, [within thirty days from the date of the publication of the notification], object to the acquisition of the land or of any land in the locality, as the case may be. (2) Every objection under sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard [in person or by any person authorised by him in this behalf] or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, [either make a report in respect of the land which has been notified under section 4, sub-section (1), or make different reports in respect of different parcels of such land, to the 5 appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government]. The decision of the [appropriate Government] on the objections shall be final. (3) For the purpose of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the lands were acquired under this Act.]” Thus, it is manifest from sub-section (1) of Section 5A that any person interested in the land which has been notified under Section 4, sub- section (1) is being needed or likely to be needed for the public purpose or for company, may, within 30 days from the date of publication of the notification, object to the acquisition of the land or of any land in the locality, as the case may be. Sub-section (2) further provides that on receipt of such objection, as contemplated under sub-section (1), which shall be made or raised by the person interested, to the Collector and, in writing, it is obligatory on the part of the Collector to give the objector an opportunity of being heard. Here, under sub-section (2) of Section 5A, the word “shall” is employed i.e. the Collector shall. Thus, it is a mandate of sub-section (2) of Section 5A, directing the 6 Collector/SLAO to give objector an opportunity of being heard. Further, it is important, in our view, that sub-section (2) of Section 5A also provides that such opportunity of being heard to the objector (interested person) may either, in person, or by any person authorised by him in this behalf or by pleader. Thus, the objector/interested person may be afforded personal hearing or such personal hearing shall be afforded to any person authorised by the objector/interested person, in this behalf, or such hearing shall be given to a Pleader of such objector/interested person. Further, it has been provided under sub- section (2) that the Collector shall, after hearing of such objections, and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under section 4, sub-section (1), or make different reports to the appropriate Government. Such reports may contain recommendations on the objections, together with the record of the proceedings held by the Collector for the decision of that appropriate Government. The decision of the appropriate Government, on the objections, shall be final in view of sub-section (2) of Section 5A. Sub-section (3) of Section 5A has clarified that for the purpose of this Section 5A, a person shall be deemed to be interested in land who would be entitled to claim an 7 interest in compensation if the lands were acquired under the Act 1894. In substance, it is the mandate of sub-section (2) of Section 5A to give opportunity to an objector/person interested of being heard himself or such person can be heard through a person authorised by such person in this behalf or such objector also can be heard through a pleader. After such hearing, the Collector has to make a report, containing his recommendations on the objection and such report, together with record of the proceedings held by him, shall be submitted to the decision of the appropriate State Government and such decision has been conferred with finality. With this mandate of Section 5A, now, we turn to material on record. 6. In the facts and circumstances of the case, in our opinion, the opportunity which is contemplated under Section 5A of the Act 1894, though has been shown to have been given, it cannot be said to be an adequate and/or fair opportunity having been given to the petitioner. Notification under Section 4, indisputably, is dated 13.4.2006. The record shows that the petitioner filed objection on May 29, 2006, addressed to the Dy. Collector and S.D.O. cum Land Acquisition Officer, Quepem, Goa (page 54). This representation 8 shows acknowledgment by Despatch Clerk, Office of the Dy. Collector and S.D.O. Quepem, Goa dated 29.6.06. Thereafter, a notice dated 7.2.2007 seems to have been addressed and served to the petitioner (page 56). By this notice, the petitioner was informed that inspection and inquiry in the said matter has been fixed on February 21, 2007 at 11.30 a.m. as provided under Section 5A of the Act 1894. On receipt of this notice, or on learning issuance of such notice, the petitioner addressed a communication dated February 21, 2007 (page 57). This communication is addressed to the Deputy Collector and S.D.O., Land Acquisition Officer, Quepem, Goa. In this communication, the petitioner has raised a grievance that the notice dated 7.2.2007 was served on him on 20.2.2007 at 7 p.m. It is further mentioned in this communication that the inspection and inquiry was slated on 21.2.07 at 11.30 a.m. Since notice under Section 5A of the Act 1894, according to the petitioner, was received by him on 20.2.07 at 7.00 p.m., he was not in a position to remain present before the authority, with duly authorised agent, at the site for inspection. A categorical statement further is made in this communication that the petitioner is desirous to engage an Advocate, as he was not conversant with law and procedure. Therefore, some time was requested by the petitioner for inspection and 9 inquiry under Section 5A of the Act 1894. 7. The learned Government Advocate invited our attention to the affidavit filed by one Mr. Vanancio Saude Frutado, Dy. Collector and S.D.O., Land Acquisition Officer, South Goa, Sub-Division, Quepem, Goa, respondent No.3. He pointed out from the affidavit that final award has been passed on 16/2/2009. Section 6 notification was published on 11.6.2007 and, therefore, challenge to Section 6 notification is not maintainable. In para 6, it has been mentioned that representation of the petitioner dated 20.5.2006 was received by him and it was forwarded for comments from the Executive Engineer, Works Division XVIII (Roads), P.W.D., Ponda. According to the report of the Assistant Engineer, Sub-Division III, by letter dated 6.10.2006, the alignment of the road suggested by the petitioner through his representation dated 20.2.2006 is not feasible. A copy of the said representation is annexed with this reply affidavit, filed by respondent No.3. In Para 7 of the reply affidavit, it has been contended that notice under Section 5A was issued to the affected parties and inspection and inquiry was held therein. The petitioner filed his objection before the Land Acquisition Officer and that department also 10 filed their comments. Joint inspection was conducted in the presence of the petitioner, as well as local residents, as also the representative of the acquiring department. It is further stated in para 7 that the predecessor in the office of the affiant prepared report under Section 5A on March 23, 2007 and forwarded the same to the Government. The said report is also placed on record (Annexure R-2 colly). Pointing out the reply affidavit, learned Government Advocate submits that Section 5A mandate has been complied with and ultimately, an award is also passed under Section 11 of the Act 1894. On receipt of grievance regarding apportionment of the amount of compensation, the said dispute has been referred to the reference Court under Section 30 of the Act 1894. All this material we have carefully considered. The fact remains that the petitioner was served with the notice under Section 5A dated 7.2.07 on 20.2.07 at 7 p.m. He was requesting for sometime. His request for time was not allowed. The officer concerned proceeded with the inspection and inquiry under Section 5A and carried out and completed the same on 21.2.2007. 8. We have considered the submissions of the learned Counsel for the parties. We have perused the reply affidavit filed on 11 behalf of the State. With the assistance of the learned Advocates, we have considered the map which was made available for our inspection by the learned Government Advocate. Photograph was also pointed out to us by the learned Government Advocate. 9. Considering the submissions of the learned Counsel for the parties, fact situation obtaining in the case at hand, in our view, the only remedy available to the petitioner is to challenge the award in view of the various decision of the Hon'ble Supreme Court, by filing a writ petition under Articles 226 and 227 of the Constitution of India, before this Court. In other words, ordinary remedy of filing civil suit before the Civil Court is not available in such circumstances. In the case in hand, on the basis of the material made available by the parties to us, we are of the view that the mandatory hearing under Section 5A was not properly and adequately given to the petitioner. 10. In this view of the matter, we are inclined to set aside the Award pertaining to the petitioner alone and more specifically land bearing Survey No.80/2 admeasuring 490 sq. metres. 12 11. So far as alleged delay and laches is concerned, the date of filing of the petition is on record, which is not in dispute. The fact that during the pendency of the petition before this Court the Award is passed by the Authority, is also not in dispute. The fact that the petition was sought to be amended with the leave of this court, and is accordingly amended, is also not in dispute. It is, therefore, not possible for us to countenance the view of the learned Government Advocate on the point of delay and laches. In this view of the matter, we are inclined to quash and set aside the Notification issued under Section 6 pertaining to the petitioner's portion of land admeasuring 490 sq. metres bearing Survey No.80/2. We, accordingly, direct the Land Acquisition Officer concerned to give personal hearing to the petitioner under Section 5-A of the Act 1894 within four weeks from today. The petitioner shall appear before the Land Acquisition Officer, in his Office, on 17th August, 2009 at 11 a.m.. We make it clear that issuance of notice under Section 5-A of the Act 1894 now is not necessary. The learned Counsel for the petitioner, on instructions, submitted that the petitioner and/or his representative, will remain present before the Land Acquisition Officer along with his Advocate on 17.8.2009 with all material/documents. We further make it clear that the petitioner shall 13 not seek unreasonable adjournments and the hearing under Section 5-A shall be completed by the Officer concerned on or before 7th September, 2009. The Land Acquisition Officer, thereafter, may proceed and pass an award and/or appropriate orders in view of the provisions of the Act 1894. The learned Counsel for the petitioner, on instructions, submits that the amount of compensation, determined and offered to the Petitioner, has not been accepted by the petitioner. The statement is accepted. We clarify that the petitioner shall not raise objections as to limitation i.e. passing of the award and issuance of notification under Section 6 of the Act, 1894. This order is confined to the acquisition of land of the petitioner admeasuring 490 sq. metres of survey No.80/2 alone. Rule is made absolute in the above terms. No order as to costs. Authenticate copy of the Judgment may be issued to the parties, on their request, as per usual procedure. S.B. DESHMUKH, J. U. D. SALVI, J. ssm.