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Judgment
U.V. Bakre
Heard Shri Nigel Da Costa Frias, the learned counsel for the petitioners, Shri S. S. Kantak, learned Advocate General, on behalf of the respondents no. 1 to 3 and Shri Sudesh Usgaonkar, the learned counsel for the respondents no. 5 and By this petition under Article 226 of the Constitution of India, the petitioners have challenged the Notifications dated 11/09/1995 and 07/08/1997, respectively, under Sections 4 and 6 of the Land Acquisition Act,1894 (''the Act'') as also the award dated 24/12/1999 passed by respondent no. 1.
The petitioners claim to be owners/ agricultural tenants/ mundkars of lands under survey numbers, mentioned at Annexure "A" and situated in village Orlim. The Forms No. I & XIV in respect of those lands are at Exhibit A/colly.
Respondent no.2 had issued a notification dated 11/09/1995 u/s 4(1) of the Act stating that the lands specified in the schedule is needed for public purpose viz. "construction and B.T. of Codlem Church Road in the length of 1110 square metres in the Village Panchayat of Orlim, Salcete, Goa" In terms of the said notification, land totally admeasuring about 29075 square metres spread over the village Orlim, was proposed to be acquired. According to the petitioners, the land proposed to be acquired is agricultural in nature and is also partly residential wherein some of the petitioners have their residential houses and that it comprises of paddy fields, coconut plantation and other fruit bearing trees. The petitioners/ their predecessors in title and other affected persons lodged objections in the matter of the proposed acquisition. Respondent no.1 conducted site inspection on 29/05/1997 and concluded that the area under Survey Nos. 98/1 and 98/2 proposed to be acquired, but not shown in the revised survey report, is especially showing very good strength for the construction of the road and absolutely essential and required for public purpose. It was further concluded that the proposed acquisition for construction of the road is suitable and does not cause serious disturbance to any existing structures. However, thereafter on 15/07/1997, respondent no.1 prepared a report u/s 5A of the Act and concluded that the area proposed for acquisition with exception of the area in Survey Nos.98/1 and 98/8 is required for public purpose and, therefore, is recommended. After survey and deletion of the area under Survey Nos. 98/1 and 98/2, the total area proposed for acquisition was 13734 square metres. Respondent no.2, thereafter, issued a declaration u/s 6 of the Act on 07/08/1997. Vide Notification dated 10/8/1999, further stretch of land admeasuring 1300 square metres, under survey nos. 63/12, 63/18, 63/32, 62/10, 62/8, 63/33, 63/24, 59/7, 62/5, 62/4 and 62/3 was dropped. The true area to be acquired was found to be 11134 square metres. Respondent no.1 made the award on 24/12/1999.
According to the petitioners, the acquisition is not in public interest but is a colourable, arbitrary and malafide exercise of power by the respondents no. 1 to 3 solely to benefit the respondents no. 5 and 6; that there was no order u/s 7 of the Act; that some of the petitioners were not served with notices under sections 9 and 10 of the Act; that the last date of publication of the Notification u/s 6 of the Act, was not 26/12/97 but was some time prior and that the said date has been inserted into the letter dated 4/12/99 only to bring the award within the limitation period of 2 years; and that the possession of the acquired land has not yet been taken. The petitioners have also sought to explain as to why there is delay in approaching the Court.
Initially, on 19/7/2011, by way of ad-interim order, status quo was directed to be maintained in respect of petitioners no. 1, 2, 3, 5, 11, 12, 13 and 14. However, on 2/8/2011, the learned Advocate General stated that the possession of the land in question has been taken by the Government on 25/5/2011. Hence, the ad-interim order was vacated. The respondent no.1 has filed affidavit-in-reply through Under Secretary (Revenue-I) and respondents no.5 and 6 have filed the affidavit-in-reply through their constituted attorney. The petitioners have filed affidavit-in-rejoinder through power of attorney holder of petitioner no.3.
Shri Nigel Da Costa, on behalf of the petitioners, argued that after the objections were filed by the villagers, major chunk of the land was dropped. According to him, delay in approaching this Court has been satisfactorily explained in the petition. He pointed out the averments made in the petition which would reveal that assurances were given to them that the acquisition would be dropped and that the petitioners learnt that the proposed road has been revived and an award has been passed on 24/12/99, in the year 2010 after the dispute with the respondents no. 5 and 6 arose regarding the access road to their project. He invited our attention to the photographs, which show the paddy fields, boundary walls, religious monument and residential houses, etc., which are affected and to the reports dated 17/6/11 and 8/10/11 of Architect P. V. Raikar wherein he has detailed the effects of the proposed road. He also contended that though the award has been made, no possession of the land has been taken. In support of his contentions, learned Counsel for the petitioners relied upon following citations:
(i) Sita Ram Bhandar Society, New Delhi Vs. Lt. Governor, Govt. of N.C.T. Delhi and Others, ;
(ii) Raghbir Singh Sehrawat Vs. State of Haryana and Others, ; and
It is also the contention of the petitioners that the directions contained in section 7 of the Act, were not complied with. Relying upon Harakchand Misirimal Solanki (Waghresea), Chief Promotor Mohant, View C-Operative Housing Society Vs. The Collector and Others, , the learned counsel for the petitioners submitted that the requirement of the Collector "to take order for acquisition of the land" as contemplated by the provisions of section 7 of the Act, is a substantive requirement and is not just procedural. The same is mandatory in nature and not just directory. On this ground, the learned counsel for the petitioners submitted that on account of non-compliance of the provisions of section 7 of the Act, the proceedings of acquisition are null and void and liable to be quashed.
On the other hand, Shri S. S. Kantak, learned Advocate General, submitted that there is inordinate delay and laches on the part of the petitioners to challenge the Notifications and the Award due to which the petition is bound to be dismissed. He contended that the petitioners were aware of the proceedings right from the time of publication of Notifications under sections 4 and 6 of the Act. He further argued that the award has been made on 24/12/1999 and possession of the acquired land has been already taken on 25/5/2011 as a result of which, the land vests in the Government. According to him, therefore, the previous steps like the one u/s 7 of the Act are not relevant. He submitted that the acquisition of the land cannot be challenged after taking over the possession and after the award having become final. Learned Advocate General pointed out that there was already an existing road and the land was acquired for widening of the said road. He invited our attention to the award, which does not reflect that any structure is situated in the acquired land which comprises of small portions of Survey holdings belonging to the interested persons. Besides relying upon the judgment in the case of "Harakchand Misirimal Solanki"(supra), the learned Advocate General has relied upon following Judgments:
(i) "May George Versus Special Tahsildar and others" [(2010) S.C.C. 98]
(ii) "Mr. Barnabas P. George Versus State of Goa by the Secretary (Revenue) and 4 Others " [Writ Petition No. 371 of 2010,]
(iii) "Shri Josinho Correia and anr. Versus State of Goa through the Chief Secretary and 2 ors." [Writ Petition No. 163 of 2011]
(iv) Swaika Properties Pvt. Ltd. and Another Vs. State of Rajasthan and Others, .
Shri Sudesh Usgaonkar, the learned counsel for the respondents no. 5 and 6, has adopted the arguments advanced by the learned Advocate General.
Perused the material on record, with the assistance of the learned counsel for the parties and the citations relied upon by them.
In so far as the question of taking of possession of the acquired land from the petitioners is concerned, the contention of the learned counsel for the petitioners is that there is no evidence like recording of panchanama or doing any other overt act to record possession. In the case of "Sita Ram Bhandar Society" (supra), relied upon by learned Counsel for the petitioners, the Apex Court has held that when possession of a vast area of land is to be taken, the recording of a panchanama is one of the methods to record possession. The Apex Court has observed that while taking possession, symbolic and notional possession is perhaps not envisaged under the Act. In the case of "Raghbir Singh Sehrawat" (supra) also relied upon by the learned counsel for the petitioners, the revenue record showed that the possession was taken and the delivery of land on which there were standing crops, was given. It was found that the State had not produced any other evidence to show that actual possession of land on which crops were standing, had been taken after giving notice to the appellant or that he was present at the site when possession of the acquired land was delivered. It was observed by the Apex Court that as crops were standing on several parcels of land including the appellant''s land, the possession could not have been taken without giving notice to the land owners. It was, therefore, held that the possession of the acquired land had not been taken. A reading of the judgments in both the citations above, reveals that vast area of land was acquired in those cases. It is not a principle laid down that in every case a panchanama has to be drawn or that the persons interested should be notified to remain present. What emerges from the above citations is that each case depends upon facts and circumstances of that case and the manner in which the possession is taken, is of necessity depending upon the facts of each case. No hard and fast rule can be laid down as to what act would constitute taking of possession of the acquired land.
In the case of "Swaika Properties Pvt. Ltd." (supra), relied upon by the learned Advocate General, the the possession of the land in question was alleged to have been taken by the respondents and handed over to Jaipur Development Authority, but according to the appellants, possession was not taken. It was found that the appellants had sought enhancement of compensation by filing reference application u/s 18 of the Act. The Apex Court has observed that the award in respect of the land having become final, the State Government is vested with the powers to take possession of the land concerned and, therefore, there is no reason to disbelieve the claim of the State Government that the possession had been taken before filing of the writ petition. In the case of "May George", (supra), the appellant had challenged the acquisition proceedings on the ground that she had no knowledge thereof, and that she was not served with notice as contemplated u/s 9(3) of the Act. However, the challenge was at a belated stage after a decade of taking possession of land in dispute. The Hon''ble Supreme Court has held that it is difficult to presume that the appellant had no knowledge of acquisition proceedings and that once the award was made and possession was taken, land stood vested in State free from all encumbrances and it cannot be divested even if some irregularity is found in award.
In the present petition, as pointed out by the learned Advocate General, small portions of various survey holdings have been acquired for widening of the already existing road. The Annexure "A" and the Forms No. I and XIV produced by the petitioners do not show as to which portion of each survey holding has been acquired; which part of the acquired land is in possession of which petitioner; which part is paddy field, compound wall, religious monument, residential house, etc. There is no specific pleading in the petition, in this regard. The award reveals that the acquired land was bharad land consisting of trees. There is no mention of existence of any structure in the acquired land. There is a certificate dated 27/05/2011 issued by the Deputy Collector and S.D.O. certifying that the possession of the acquired land described therein has been taken over on 25/05/2011 u/s 16 of the Act and that the said land vests absolutely in the Government free from all encumbrances. There is also a certificate by the Assistant Engineer, PWD, WD-III, SD-I, Fatorda, Margao certifying that the possession of the land mentioned in the said certificate has been taken over on behalf of the acquiring body consequent upon issuing the payments to the interested parties. There is no dispute that some of the interested persons namely Shri Lazarinho Dias- the owner of the acquired land from Survey No.101/19, Luizinha D''Silva - the owner of the acquired land from Survey No.86/19, Shri Alhinha Saldana- the owner of the acquired from Survey No.84/1 and Alzira Carvalho- the owner of the acquired land from Survey No.77/20 have already received the compensation. In the circumstances above, it is not possible to hold that the possession of the acquired land has not been taken over.
In the case of "Swaika Properties Pvt. Ltd." (supra), the Hon''ble Supreme Court has observed that it has repeatedly held that the writ petition challenging the notification for acquisition of land, if filed after the possession having been taken, is not maintainable. In a recent case of Delhi Airtech Services Pvt. Ltd. and Another Vs. State of U.P. and Another, , the Apex Court while comparing the normal mode of vesting of acquired property u/s 16 of the Act with the mode of vesting under emergency provisions of section 17 thereof, has discerned that under the normal mode, the vesting of acquired property in the State presupposes compliance with two conditions u/s 16. First there has to be an award u/s 11 and then there has to be taking over of possession. Only thereupon the land shall vest absolutely in the State, free from all encumbrances. In the present writ petition, the award has been made and possession of the land has been taken over and some of the interested persons have even received compensation. Therefore, the acquired land absolutely vests in the Government and present petition is liable to be dismissed.
The Notification issued u/s 4(1) of the Act, is dated 11/9/1995. The Notification u/s 6 of the Act is dated 7/8/1997. The Award is dated 24/12/1999. The petition has been filed on 5/7/2011, i. e. after the expiry of about 12 years. The petitioners were well aware of the said Notifications. The petitioners say that they did not challenge the section 6 Notification at that stage as they were given assurances by various local politicians and by PWD that the acquisition is not likely to be followed through. They further say that they were under a bonafide belief that the proposed road would be realigned. There is no documentary evidence, in this regard. In our view, these are not at all satisfactory explanations for delay. The petitioners cannot, therefore, be heard to say that they learnt of the award only in the year 2010. There is therefore gross/inordinate delay in challenging the acquisition. The possession of the acquired land was taken over on 25/5/2011. Some of the interested persons have already received compensation. In the case of "Harakchand Misirimal Solanki" alongwith other writ petitions decided together(supra), the petitions were filed either before making the award or immediately after making the award. Several serious lapses were noticed and there was non-compliance of various provisions of the Act. The facts and circumstances in the said acquisition were totally different and are distinguishable. Be that as it may, the Division Bench of this Court, in the case supra, has held that if there is gross and unexplained delay, a writ petition challenging the acquisition will have to be dismissed on that count. In Writ Petition No.163/2011 ("Shri Josinho Correia and another Versus The State of Goa, through the Chief Secretary and two others") filed before this High Court, even the possession of the acquired land was not taken. Inspite of that, the Division Bench of this Court refused to entertain the said petition for quashing and setting aside the notifications under Sections 4 and 6 of the Act, holding that the challenge was belated and delay was not explained.
In the case of "Municipal Council of Greater Bombay Versus Industrial Development Investment Company Pvt. Ltd. and others [(1996)11 SCC 511]", the Apex Court has held as follows :
It is thus well-settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. The High Court has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification u/s 4(1) and declaration u/s 6. But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case is hardly a ground for interference. The Division Bench of the High Court was not right in interfering with the discretion exercised by the learned Single Judge dismissing the writ petition on the ground of laches.
In Writ Petition No. 371 of 2010 ["Mr. Barnabas P. George Versus State Of Goa By The Chief Secretary (Revenue) and 4 others"], the contention of the petitioners therein was that the acquisition was made without compliance with section 7 of the Act and in view of the decision in the case of "Harakchand Misirimal Solanki"(supra), the same was without jurisdiction and was null and void. The Division Bench of this Court, in the case supra, refused to entertain the petition on the ground that there was gross and unexplained delay in approaching the Court for challenging proceedings for acquisition.
The present is a case where there is gross and inordinate delay in approaching the Court for challenging the acquisitions proceeding and the award made therein, which delay has not been satisfactorily explained. Hence, we refuse to entertain this petition. The writ petition is accordingly rejected, however with no order as to costs.