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2012 DIGILAW 2100 (BOM)

Estefania Dias e Pereira v. State of Goa

2012-11-01

F.M.REIS, S.J.VAZIFDAR

body2012
Judgment :- S.J. Vazifdar, J. 1. Rule in both the writ petitions. With the consent of the parties, the Rule in both the writ petitions is made returnable and heard forthwith. The parties agreed that the result in Writ Petition No.170/2011 follows the result in Writ Petition No.460/2011. 2. Respondent No.2 in both the writ petitions is the Deputy Collector and Land Acquisition Officer. The other respondents in both the writ petitions are private parties. 3. The petitioners seek a declaration that the acquisition proceedings in respect of the properties have lapsed and cannot be proceeded with; a writ of mandamus directing the respondents to revoke/cancel the notifications issued under Sections 4 and 6 of the Land Acquisition Act, 1894; to refrain from acquiring the properties and a writ of certiorari, quashing the said notifications and a report dated 28th October, 2010 under Section 5A of the Land Acquisition Act. 4. We intend disposing of these writ petitions only on the ground that the report of the Land Acquisition Officer under Section 5A of the Act has not considered the objections raised by the petitioners and, in any event, does not contain reasons sufficient to even indicate the basis on which the objections raised by the petitioners have been rejected. 5. In view thereof, it is sufficient to state only a few facts. 6. The Notification under Section 4 dated 30th December, 2008 stated that the land was likely to be needed for the public purpose of constructing a road in the existing available land, including a retaining wall. The lands in the two petitions bear Survey Nos. 57/3A, 59/2 and 57/1 of Deussua village of Salcete Taluka. 7. The petitioners, by letters dated 22nd January, 2009 raised various objections under Section 5A of the Act. The objections were in considerable detail. The petitioners, inter alia, contended that the acquisition was not for public purpose and that it was malafide, only to benefit two individuals, viz. respondents No.3 and 4 who are interested in the acquisition. In support of this, the petitioners relied upon certain facts, including that the road commences from and/or ends in a dead end at the properties of respondents No.3 and 4, making it obvious that the same was only for their benefit. None of the owners of the adjoining properties need the road as they have direct access to the existing public road. None of the owners of the adjoining properties need the road as they have direct access to the existing public road. Allegations are also made regarding the proximity of these respondents with certain politicians. The petitioners then rely upon a circular of the Government dated 7th April, 2003 and contend that the acquisition is contrary to the same. Contentions are also raised regarding the alignment of the road. Most important, however, is the allegation that the proposed acquisition benefits only respondents Nos.3 and 4 and does not benefit any other persons or households. 8. The report under Section 5A of the Act dated 28th October, 2010 records that the respondents denied that the acquisition serves only a single house and their contention that it serves 5 houses. Even according to the respondents only, the following part of the report can be said to constitute the reasons for the same: “It is clear from the comments submitted by the Acquiring Department that the proposed land under acquisition for the land acquisition project for construction of road in the existing land including retaining wall at Tolleband in V.P. Chinchinim in Velim Constituency will improve the accessibility in the village of Deussua in Velim Constituency. It is further stated that the Acquiring Department have submitted the revised survey plan and report as per the requirement of the roads in the locality and as per the report submitted from the PWD., which department is well aware what area is required for construction of road. Further it is submitted that the present alignment of the road is done by the acquiring department as per the technical requirements and therefore the objection relating to the alignment of the road is not maintainable. All objections are based on the personal benefit and not broadly looked for the benefit of public at large. As of now the accessibility to the houses existing in the locality does not have a proper network & hence creating infrastructural needs would add a long way towards the benefit of the public. It is also to be noted that the Town & Country Planning Department vide letter dated 20-09-2008 has given No Objection from planning point of view for the acquisition of the proposed land acquisition. It is also to be noted that the Town & Country Planning Department vide letter dated 20-09-2008 has given No Objection from planning point of view for the acquisition of the proposed land acquisition. As per the comments from the Acquiring Department & from the physical inspection at the site, I am of the view that the land under acquisition is required to be acquired for construction of motorable road to the residents of Deussua Village. In view of the same the objections filed by the above interested parties are not maintainable and therefore, in the interest of Public in general the same are rejected. Therefore since the proposed Land Acquisition of land is required to construct roads in the interest of the public in general, I hereby commend the same.” 9. The entire portion quoted above does not constitute reasons. The second and third sentences of the first paragraph merely refer to what the Acquiring Department stated and submitted. The remaining portions of the above extract are only conclusions without any reasons. Conclusions do not constitute reasons. 10. Section 5A of the Act requires the Collector to furnish reasons in the report for his recommendation on the objections. Section 5A reads as under: “5-A. 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, subsection (1), or make different reports in respect of different parcels of such land, to the 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. The decision of the appropriate Government on the objections shall be final. (3) For the purposes 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 land were acquired under this Act.” 11. As held by the Supreme Court in Rambhai Lakhabai Bhakt vs. State of Gujarat and ors. (1995) 3 SCC 752 : “Section 5-A(2) was amended and right of hearing was made mandatory consistent with development of law of natural justice”. It is settled law that granting the objector an opportunity of being heard is mandatory. It is equally clear that it is mandatory for the Collector to furnish reasons in his report containing his recommendations on the objections. The rules of natural justice mandate a reasoned order. There is nothing in section 5A that excludes this requirement. Neither section 5A, nor any of the provisions of the Act exclude these requirements of the rules of natural justice either expressly, impliedly or by necessary intendment. The language of Section 5A(2), in fact, clearly mandates the Collector to furnish reasons for his report. 12. This is evident from the section which, apart from requiring the Collector to hear the objector requires him to make such further inquiry as he thinks necessary and to make a report containing his recommendations on the objections. This is to enable the Government to take an informed decision in the matter of acquisition. That the Government is not bound by his recommendations is an entirely different matter. The Supreme Court in Shri Mandir Sita Ramji vs. Lt. Governor of Delhi and ors. (1975) 4 SCC 298 , held that the fact that the ultimate decision has to be made by the State Government did not relieve the Collector from his statutory duty to enquire into the objections and make his recommendations. The report is one of the factors the Government would consider while taking a decision in the matter. The preparation of the report by the Collector under section 5A is not a mere clerical or ministerial function. Although, the Collector does not conduct an inquiry under Section 5A like a trial, he is bound to hear the parties, make further inquiries, if necessary and to make a report containing his recommendations on the objections. The requirement is of the Collector making a recommendation after considering the objections. Although, the Collector does not conduct an inquiry under Section 5A like a trial, he is bound to hear the parties, make further inquiries, if necessary and to make a report containing his recommendations on the objections. The requirement is of the Collector making a recommendation after considering the objections. Unless the report discloses the reasons that prompted the recommendation, the provisions of section 5A would not be complied with. Reasons are a safeguard against arbitrariness. They facilitate the Government in taking an informed decision. 13. If the Collector was merely required to note or state the objections, and the response thereto the provisions of Section 5A would have been entirely different. In that event, Section 5A would merely have required the Collector to forward a report “containing the objections and the responses thereto”. In that event, the words “containing his recommendations on the objections” would not have been there for in any event he is to forward to the Government the “record of the proceedings” held by him. This record would contain the objections and the responses in any event. It is axiomatic, therefore, that the words “containing his recommendations on the objections” mandate reasons for the Collector's recommendations on the objections. 14. A report under section 5A is an important step in the acquisition proceedings. It affects the rights of the parties substantially. We do not suggest that the report under section 5A must be detailed or read like a judgment. It must however indicate that the objections have been considered. Merely noting the objections does not constitute a consideration of the same. Mere conclusion do not, at least in most cases, indicate that the objections and the response thereto, if any, of the authorities were considered by the Collector. The report must indicate why the objection or the response thereto as the case may be, is accepted by the Collector. 15. The report in this case does not meet this fundamental requirement. For instance, the petitioners contend that the acquisition is only for the benefit of two houses, whereas the authorities contended that it would benefit five houses. The report merely states that the acquisition will improve the accessibility in the village and will “add a long way towards the benefit of the public” and that the acquisition is required for the construction of the motorable road “to the residents of the Deussua village”. The report merely states that the acquisition will improve the accessibility in the village and will “add a long way towards the benefit of the public” and that the acquisition is required for the construction of the motorable road “to the residents of the Deussua village”. This is merely a conclusion. There is absolutely nothing to indicate any application of mind on the rival contentions as to why the Collector preferred one version against the other. The Collector has a duty not merely to hear and note the objections, but to make a recommendation about the same to the Government. A recommendation posits a view being taken on the objections and the response thereto. The report must therefore indicate what prompted him to make a recommendation. It must disclose his mind. 16. It was obvious during the course of hearing that an attempt was made to support the order on the basis of affidavits filed in this Court and submissions advanced only during the hearing of this writ petition. In other words, we were invited to discharge functions of the Land Acquisition Officer under Section 5A of the Act. We are not inclined to do so, especially in the facts and circumstances of the present case. Had the matter been clear and uncomplicated, we may have done so with a view not to delay the acquisition proceedings. We, however, find that the nature of the objections are such that they require consideration and possibly a further inquiry. It is essential that the objections and the answers thereto are considered by the authorities. 17. In the circumstances, the impugned report under Section 5A dated 28th October, 2010 is set aside qua the land of the petitioners alone. Respondent No.2 is directed to file a fresh report, after hearing the petitioners and furnishing reasons in support thereof. 18. Having said so, it is necessary to ensure that the proceedings do not lapse on account of limitation. We therefore intend staying the proceedings for acquisition only to protect the respondents from any contention that the proceedings have lapsed. 19. In the circumstances, the writ petitions are disposed of by the following order: (I) The impugned report under Section 5A dated 28th October, 2010 and all acts consequent thereto are set aside qua the land of the petitioners alone. 19. In the circumstances, the writ petitions are disposed of by the following order: (I) The impugned report under Section 5A dated 28th October, 2010 and all acts consequent thereto are set aside qua the land of the petitioners alone. Respondent No.2 is directed to file a fresh report with reasons, after affording the petitioners an opportunity of being heard. The petitioners shall appear before the Land Acquisition Officer in the first instance at 11.00 a.m. on 20th November, 2012 and thereafter, as directed by the Land Acquisition Officer. The petitioners shall not seek any adjournment before the Land Acquisition Officer. (II) The entire proceedings, however, shall remain stayed till the fresh report is made and for a period of four weeks after a copy thereof is served on the petitioners. (III) The rights and contentions of the parties, on merits, are kept open. No order as to costs.