CHARLES F PAIS Vs. STATE OF GOA

JUDGEMENT

(1.) THE Petitioner initially had filed the Petition to quash the Notification dated 3-10-2001 under Section 4 of the Land Acquisition Act and Declaration under Section 6 dated 17-4-2002. On Affidavit having been filed by the Respondents setting out that the Award has been passed on 1-11-2002, the Petition has been amended to also include the challenge to the said Award and with the further direction commanding the Respondents to restore the acquired land. A few facts may be set out: The Village Panchayat passed a Resolution at the meeting held on 30th July, 2000 to acquire land surveyed under No. 97/22 and 97/23 for construction of existing road. In the Resolution it was set out that the said construction would benefit 17 houses and the expenditure would be borne by the Village Panchayat. A second Resolution came to be passed on 18-3-2001 whereby it was resolved to acquire the pathway as set out in the said Survey numbers which included Survey No. 97/22 (part) and 97/23 (part ). For the moment, we are not referring to the other Survey numbers. Based on those Resolutions and considering the material on record, administrative approval was granted by the Government by its Order dated 26-7-2001 for acquisition of 1275 square metres of land for the said purpose. Subsequent to that, Notification under Section 4 came to be issued on 3-10-2001. The said Notification was published in the newspaper "navhind Times" dated 7-10-2001. The Gazette Notification had been published on 8-10-2001 and in the daily "pudhari" on 31-3-2002. The Petitioner and some others filed objections by their lawyers Notice dated 29-10-2001. The receipt of those objections are not denied and as can be seen also from the records of the Land Acquisition Officer which has been produced before the Court. The declaration under Section 6 thereafter came to be issued on 17-4-2002 and was published in the Official Gazette, on 25-4-2002 and the newspaper daily Herald on 18-4-2002 and daily Navprabha on 18-4-2002. An Award thereafter came to be made on 1-11-2002.

(2.) IN the Petition on behalf of the Petitioner it is contended that they had filed objections under Section 5-A of the Land Acquisition Act. Respondent No. 1 has framed Rules under the Land Acquisition Act which are known as the Goa, Daman and Diu Land Acquisition Rules, 1972. In terms of Rule 4, sub-rule (2), read with sub-rule (3), it is set out that an objection has to be made within 30 days after the issue of Notification which must allege some specific objections. The Collector on admitting such an objection and after giving the objector an opportunity of being heard, shall decide whether it is desirable to take oral or documentary evidence under Section 14 or Section 40. After that rt has to be submitted to the Government. It is contended by the Petitioner that the objections raised amongst others were as under: That the person who sponsored the Resolution or proposed the Resolution on 30th July,2000 Respondent No. 4 is one of the occupants of the 17 hours mentioned in the Resolution. The Petitioner herein had filed suits against the Respondent No. 4 for trespass in the property identified under Survey No. 97/22 and 97/23 which is pending before the Civil Court. Reference is also made to earlier suit filed against the State Government for removal of water pipeline illegally put up in the land. It is then set out that the acquisition of the land amongst others of the Petitioner was illegal and malicious and instigated to subserve the whims and fancies of Respondent No. 4. It was also set out that there was no link between Survey No. 97/22 and 97/23 and the other plots which were acquired. It is, therefore, submitted that the Respondent No. 2 was bound to conduct an enquiry under Section 5-A read with Rule 4. The Respondent No. 3 has failed to exercise the statutory powers conferred on him and consequently the Declaration dated 17-4-2002 is null and void and consequently also all subsequent actions including the Award and taking of possession of the land. In the grounds in the Petition it is specifically set out that acquisition is for the private benefit of four houses owners who are all related to Respondent No. 4 by getting a road constructed at the cost of tax-payers. It is further set out that the other exercise for the proposed acquisition is that it is to settle personal scores between the Petitioner and the Respondent No. 4. Though the road purports to be existing on the public footway, yet no acquisition has been proposed in Survey 97/29 The property surveyed under No. 97/22 and 97/23 and the rest of the acquired property are separated by Survey No. 97/29 which has not been acquired. It is therefore submitted that it is evident that no purpose, much less any public purpose, would be subserved by acquisition of Petitioners property No. 97/22 and 97/23. The insistence upon the acquisition is for reasons which are extraneous and irrelevant. It is therefore submitted that considering the failure by the Respondent No. 2 to comply with the mandatory requirement of Section 5-A read with Rule 4 of the Rules, the Declaration issued be declared a nullity in law and consequently quash and set aside the same and all consequential acts.

(3.) AFFIDAVIT has been filed on behalf of Respondent No. 2 by Shri T. S. Sawant who has been working as Land Acquisition Officer since 23-10-2002. Preliminary objections have been raised that the Award was passed on 1-11-2002. Notice under Section 12 (2) was issued on 16-1-2003 and the payment was made on 14-2-2003 to the interested parties and the possession has been taken over on 14-2-2003. In view of that, it is contended that the Petition is not maintainable and ought to be dismissed. It is then set out that the Petition involves mixed questions of fact and law. It is then set out that the Respondent No. 3 had passed a resolution for construction of 3 metres wide road as the same was essential for the residents residing in the said area and also for free movement of vehicular traffic. To that resolution the Government of Goa granted administrative approval on 26-7-2001. The Panchayat then deposited the amount towards the approximate cost of the acquisition whereupon the various steps taken for the acquisition under Section 4 and Section 6 and the publication has been set out. The 2nd Respondent it is pointed out sought the comments from the Block Development Officer vide letter dated 9-11-2001 over the notice dated 29-10-2001 received from Advocate for the Petitioner. Respondent No. 3 submitted his comments by letter dated 4-12-2001. It is then set out that site inspection was carried out on 5-4-2002. The 2nd Respondent submitted his report under Section 5-A to the 1st Respondent and pursuant to that the Declaration under Section 6 came to be published. It is also then set out that representation of 13-2-2003 was received in the Office of the 2nd Respondent after the passing of the Award. The acquisition, it is contended, for constructing road will benefit 17 houses. Money has also been disbursed to the interested persons and in these circumstances it is pointed out that the Court should not grant any relief. On behalf of Respondent No. 3 the Sarpanch has filed an Affidavit. A preliminary objection is raised wherein it is contended that the Petition should be dismissed in limine as it is filed on 25-3-2003 much after the passing of the Award and after possession of the acquired land has been taken. On this ground alone it is contended the Petition is liable to be dismissed in limine. In paragraph 6 the purpose for which the land was sought to be acquired is set out. It is then pointed out that the resolution for acquiring land were unanimous resolution and for public purpose to convert the existing traditional pathway into a public road as it was a felt necessity for the residents therein. Respondent No. 4 has filed an Affidavit. All that is set out therein is that resolution of 30th July, 2000 and 22-9-2001 were proposed by Respondent No. 4 for conversion of the existing road into ap public road and the same was very much essential for the residents of the area. It is specifically denied that the acquisition was to target et the Petitioner by way of settlement of personal scores of animosity that had arisen between the Petitioner and the Respondent No. 4. For all the reasons it is set out that the Petition ought to be dismissed.