1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.79 OF 2011 SANTANA FIDELIS ROSADA D'SILVA AND 12 OTHERS. ........ Petitioners. V/s. THE STATE OF GOA THROGH ITS CHIEF SECRETARY AND ANR. ......... Respondents. Mr. Nigel Da Costa Frias, Advocate for the Petitioners. Mr. S. S. Kantak, Advocate General with Mr. A. Kamat, Addl. Govt. Advocate for the Respondents. CORAM :- S.C. DHARMADHIKARI & F.M. REIS, JJ. Date :- 26th April 2011. P.C.:- The Petitioners have questioned the acquisition of their lands vide Notification dated 22nd December, 2009 by the Government of Goa. 2. In the Notification, a copy of which is at Annexure "B", (page 26 of the Paper Book) it has been stated that the Petitioners' lands specified in the Schedule are required for public purpose, viz., 2 land acquisition for expansion of Sewerage Treatment Plant - Margao and Providing Buffer Zone. 3. The Petitioners raised their objections under Section 5A of the Land Acquisition Act, 1894. They submitted that the lands, proposed to be acquired, are paddy fields and they have been cultivated for last more than 45 to 50 years by their ancestors and the lands are their only source of livelihood. It is their further case that the vast tract of land that has been notified for acquisition is really not required for expansion of the Sewerage Treatment Plant and for providing buffer zone. They placed reliance on the report of the consultant, appointed by the State, namely, Japan International Cooperation Agency. According to the Petitioners, the Agency recommended in its report that the existing sewerage treatment plant is enough for any expansion in future and that even for the buffer zone there is requisite land already in possession. Therefore, no further land is required to be acquired. 4. The Collector in the Report, a copy of which is at Annexure D-colly, has stated that the objections of the residents/ 3 farmers were thoroughly studied and verified. Site was inspected on 6th May, 2010 and the Collector/Land Acquisition Officer further opined that the land under acquisition is required to expand the existing sewerage treatment plant at Margao, taking into consideration the rapidly increasing population of Margao Municipal Council and fast expansion of the City. The land proposed to be acquired will be used for expansion and for buffer zone in order to plan for future. It is further stated that the residents/farmers may state that these are cultivable lands/paddy fields, but, during the inspection it was noticed that there does not appear to be any fields under cultivation for many years. They are lying uncultivated. Major portion of the proposed land is a water body, locally known as "Salpen Lake" wherein there is no cultivation and during inspection it was seen that several sewage outlets of various constructions were diverted into the lake, which would stop once the sewerage connections are provided. Therefore, the claim of the objectors that due to acquisition of these paddy fields they would lose their livelihood, is not acceptable. 5. Consistent with this Report, further Notification has been issued and that is dated 1st June, 2010. A copy of the same is at 4 Annexure "E" to the Petition. 6. It is these Notifications which are challenged in this Writ Petition. 7. Mr. Nigel Costa Frias, learned Counsel appearing on behalf of the Petitioners, firstly, submits that the objections that are required to be considered in law, is an opportunity to the Petitioners to resist the acquisition on the grounds permissible in law. In this case, on these permissible grounds, the objections have been raised and attention of the Authorities was invited to the Report of the Agency, which is stated to be an expert agency, chosen by the State itself. That Agency has opined that the existing facilities are sufficient even for future expansion and that the additional land would not be required. Further, what is being projected as the Buffer Zone, is not the intended expansion of the existing sewerage treatment plant or to provide huge tract of open land as buffer, so as to avoid any odour of obnoxious waste. However, even by the latest figures of population and the projection for the future, the Report indicates that the existing land is enough till 2025. In these circumstances, there is no substance in the Report which recommends acquisition of huge tract of land for the 5 buffer zone. For all these reasons, it is submitted that the Notifications be quashed and set aside. Reliance is placed on the decision of the Supreme Court in case of Hindustan Petroleum Corpn. Ltd., vs. Darius Shapur Chenai and ors., reported in (2005) 7 SCC 627, and another decision of the Supreme Court in the case of Karnataka Industrial Areas Development Board vs. C. Kenchappa and ors., reported in (2006) 6 SCC 371. 8. On the other hand, Mr. Kantak, learned Advocate General appearing for the State would submit that the Notifications, in question, must be read as a whole. That the acquisition is for the public purpose, namely, expansion of Sewerage Treatment Plant - Margao and Providing Buffer Zone. Naturally for the future expansion of the existing sewerage treatment plant -Margao, a buffer zone will have to be provided and a provision for the buffer zone is made well in advance bearing in mind projections for future. In 2011, the population of Margao has now been notified in the census and the figures indicate that this is the most populous city of Goa. In 2011, the population was 1,10,000 and the treatment capacity required at the rate 150 lts/day/person for 1,10,000 is 16.5 MLD. However, the population 6 is projected to increase twofold by 2030-2040 and the treatment capacity would be to the tune of 39.75 MLD. The available land is sufficient for 14.2 MLD; whereas the additional capacity would be sufficient upto 2015 and by 2040, additional land would be required for an additional 25.55 MLD plant, which is planned to be constructed phasewise. 9. As far as the Report is concerned, it is submitted that the Report must be read in its entirety and so read, it would be clear that the odour nuisance in the vicinity of sewage treatment plant, particularly in the down-wind direction of prevailing winds, can have adverse impacts on land values, public health and well being. These factors have to be considered in selecting sites for location of sewage treatment plants and layout study of the facilities at the proposed site. In such circumstances, the areas which are to be afforested and can be under its cover, would be maintained as buffer zone. Learned Advocate General has pointed out that to avoid pollution to the existing water resources, viz. small lakes, springs, etc., it would be necessary to have a proper treatment of the sewage generated by construction activity which is rapidly increasing. He, therefore, submits that there is 7 no basis for the apprehension expressed that the acquisition of the large tract of land is bearing in mind the commercial potential and the land would ultimately be handed over for commercial, non-residential and other user. He allayed the fear expressed, on instructions, that the lands which are to be maintained as buffer zone, would be kept under trees and forest cover and there would not be any construction of any nature, much less commercial, as apprehended. In these circumstances, he submits that there is no merit in the contentions and merely because another view is possible, or that this Court is of the opinion that a large area is being acquired, that by itself is no ground to interfere when the purpose for which the lands are being acquired is, admittedly, a public purpose. For all these reasons, he submits that the Petition be dismissed. 10. As far as the principles which are applicable in this case are concerned, they were never in dispute and right from the decision of the Supreme Court in Smt. Somawanti and ors. vs. The State of Punjab and others, reported in AIR 1963 SC 151, this Court can interfere only if the acquisition is not for public purpose. Further, the limitation of writ jurisdiction envisages that the Court should not 8 interfere unless clear proof of malafides and colourable exercise of power has been made out. Merely because, another opinion or view is possible, is not a ground to interfere with the acquisition. 11. In this case, it is not in dispute that the acquisition is for a public purpose, namely, for expansion of the existing sewage treatment plant at Margao and providing buffer zone. It is not seriously disputed that wherever sewage plants are to be expanded in future, an area has to be provided as buffer zone, so that the treatment of sewage generating obnoxious odour and other hazardous material does not affect the residents in the vicinity. There is, therefore, a clear intention to have such plants away from the residential areas. Even the buffer is something which is needed and that is spelt out by the affidavits placed on record and the Report of the expert agency. Merely because some of the recommendations of the Agency may not have been accepted by the State, is no ground to interfere. It has been demonstrated to the Court that the population figures would indicate that Margao city will have population of nearly 2,65,000 by 2040. The rate at which the city is presently expanding, the population is also increasing and the need for expansion of sewage treatment facilities 9 has been, thus, made out. Further, it is stated that it will not be possible to expand the existing sewage treatment plant if the population projected crosses a particular figure. If the present facilities would suffice upto 2015 or say for 5 or 10 years more, that does not mean that there cannot be projection for future. Ultimately, they are projections and nobody can, with certainty, say today that the population will increase at that rate only. What is stated in the affidavits is that it may be more or less. But that, by itself, without anything more is no ground to interfere. Bearing in mind that sewage treatment plants is a necessity considering high-rise buildings and cluster houses in cities, like Margao, we are not in agreement with the learned Counsel appearing for the Petitioners that the buffer zone for the expanded facilities in future is not necessary. Further, the apprehension of the Petitioners that cultivable lands are being acquired today for this public purpose, but in future, they may not be used for the said public purpose and there will be diversion for some other user has been taken care by the statement of learned Advocate General, on instructions, that the lands upon acquisition would be maintained as a buffer zone and no construction activity of commercial or such nature would be permitted. The area shall be brought under afforestation 10 and tree cover. In these circumstances, even this apprehension does not survive. 12. The Supreme Court in Hindustan Petroleum Corpn. Ltd., vs. Darius Shapur Chenai and ors. (supra), interfered because, it was satisfied in the facts that were brought to its notice that an opportunity conferred by Section 5A of the Land Acquisition Act, 1894 is a valuable right which is in favour of the person whose lands are sought to be acquired. After referring to well settled principles, Supreme Court held that the hearing given to a person must be an effective and not a mere formality. There has to be application of mind. In the instant case, we have perused the objections and the Report and we find that the proceedings have been treated with necessary seriousness with which they are to be decided. The nature of public purpose, as also the suitability of lands therefor has been judged by proper application of mind. Relevant factors have been considered, and the irrelevant factors are excluded. Bearing in mind that sewage treatment facilities have to be expanded for cities like Margao, it cannot be stated that there is any non-application of mind or that the acquisition of area has been notified without any such objective or purpose. Future 11 projection is also a relevant consideration and the experts have applied their mind. Considering the population figures and the need of the city of a proper sewage treatment facilities and its future expansion, we do not think that they have exercised their power to acquire the lands not in public interest or for public purpose. Therefore, reliance on this decision to the extent that the principles have to be adhered is well placed. But in the facts before the Supreme Court, interference by the High Court, was held to be justified. 13. The other decision in the case of Karnataka Industrial Areas Development Board vs. C. Kenchappa and ors., (supra), the lands were notified for acquisition for industrial purpose, namely for Karnataka Industrial Areas Development Board. Bearing in mind ecological and environmental issues, the Supreme Court while upholding the acquisition, imposed certain conditions, and particularly with concern for the environment and ecology. In these circumstances, when the State has satisfied us that bearing in mind the expansion in future, the buffer would be required or else there would be an issue of safety and health of the residents, even the environment and ecological issues have been taken into consideration. 12 14. In the aforementioned facts and circumstances and finding that the limits of writ jurisdiction do not permit us to interfere with the Notifications, in question, we proceed to dismiss this writ Petition. However, with no order as to costs. S.C. DHARMADHIKARI, J. F.M. REIS, J. ssm.