Allowed

Riva Resorts Pvt. Ltd., through Its Director Shri Vishwanath Balaram Naik Palyekar and Anr., v. State of Goa through Its Chief Secretary, and 3 Ors.

Bombay HC12 Dec 2013WP/168/2013

Case brief

AI extract

What is this about?

The High Court allowed a writ petition seeking to quash notifications under Sections 4 and 6 of the Land Acquisition Act, 1894. The Court held that the one-year limitation under Section 6 began upon the last date of Section 4 publication, which was September 16, 2011. Since the declaration was made in September 2012, it was time-barred.

What did the court decide?

The impugned notifications under Sections 4 and 6 of the Land Acquisition Act, 1894, qua the petitioners' land are quashed and set aside.

Riva Resorts Pvt. Ltd., through Its Director Shri Vishwanath… — Land Acquisition | Bombay HC (2013)

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IN THE HIGH COURT OF BOMBAY AT GOA

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WRIT PETITION NO. 168/2013

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Riva Resorts Pvt. Ltd., a Company incorporated under the Companies Act, 1956 (Act 1 of 1956) through its Director, Vishwanath Balaram Naik Palyekar, having its registered Office at A-306, Radhakrishna Apartments, S.V. Road, Dahisar (East), Mumbai 400 068.

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Vishwanath Balaram Naik Palyekar, aged 67 years, Indian National, businessman, resident of 2501, Challengers Tower 2, Thakur Village, Kandivali-East, Mumbai – 400 101. ….... Petitioners. V/s.

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State of Goa, through its Chief Secretary, having Office at Secretariat, Porvorim, Bardez,Goa.

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The Deputy Collector/SDO & Land Acquisition Officer, having office at Pernem – Goa.

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The Under Secretary (Revenue-I) Government of Goa, having Office at Secretariat, Porvorim, Bardez, Goa. 4) The Director of Sports & Youth Affairs, Government of Goa, having office at Campal, Panaji-Goa. …... Respondents.

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Mr. Devidas J. Pangam, Advocate for the petitioners.

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Mr. A. N. S. Nadkarni, Advocate General with Mr. N. Pai, Additional Government Advocate for the respondents.

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CORAM :- B.R. GAVAI & F.M. REIS, JJ. Date :- 12^th December, 2013.

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ORAL JUDGMENT :- (PER B.R. GAVAI, J.)

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Heard. Rule. Rule made returnable forthwith. Heard by

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consent.

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The petitioners have approached this Court, praying for quashing and setting aside of the notifications issued under Sections 4 and 6 of the Land Acquisition Act, 1894 (hereinafter, referred to as “the said Act”)

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Petitioner No.1 is owner of the property bearing Survey No. 277/2 (part) of Village Mandrem of Pernem Taluka. A notification dated 19^th August, 2011 came to be issued under Section 4 of the said Act, intending to acquire the land along with other lands, for the public purpose of construction of sports village at Mandrem.

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The petitioners, along with others, had submitted their objections under Section 5-A of the said Act. The Land Acquisition Officer subsequently submitted a report to the State Government under Section 5-A. According to the petitioners, Section 6 notification came to be published after a period of one year from the last publication of Section 4 inasmuch as according to the petitioners, the last date of publication of notification was 16^th September, 2011. Being aggrieved thereby, the petitioners have approached this Court.

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We have heard Shri Pangam, learned Counsel appearing on behalf of the petitioners and the learned Advocate General.

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Shri Pangam has raised the following submissions :

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That the last date of publication under Section 4 of the said Act was 16^th September, 2011. The learned Counsel submits that if this is considered and even if it is accepted that Section 6 declaration was issued on 26^th September, 2012, the date of declaration would be beyond the period of one year from the last date of publication of Section 4 notification.

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Shri Pangam further submits that while considering the

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date of declaration under Section 6 what is relevant is the date of publication of the same in the official gazette. The learned Counsel in this respect relies on judgments of the Apex Court in the case of Devender Kumar Tyagi and ors., vs. State of Uttar Pradesh and ors., (2011) 9 SCC 164; and in the case of Mohan Singh and ors. vs. International Airport Authority of Indian and ors., reported in (1997) 9 SCC 132.

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Shri Pangam further submits that when an official act is to be done, the same would take effect only after it is published in the official gazette and relies on a judgment of the Apex Court in the case of State of West Bengal vs. M.R. Mondal and another, reported in (2001) 8 SCC 443.

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The learned Counsel further submits that the Land Acquisition Officer has not considered the objections raised by the petitioners in the enquiry under Section 5-A of the said Act and the enquiry is nothing else but a farce.

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He further submits that the acquisition for the sports village itself is not permissible inasmuch as the acquisition in effect is for hotels. The learned Counsel submits that a perusal of Section 5-A report as submitted by the Land Acquisition Officer itself shows that the site is ideally suitable for hotel industry and, therefore, under the

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garb of sports village, the respondent-State is intending to start a hotel which will be utilised only for 12 days for sports and thereafter, leased out to some private individuals.

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The learned Counsel further submits that the sports city is being constructed at Dhargal, Pernem, which is around 20 kms. away from the land of the petitioners and, as such, there is no justification as to why the sports village should be situated at such a long distance.

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He further submits that though 13.00 lakhs sq. metres area was sought to be acquired at Dhargal, the same has been brought down to 9.00 lakhs sq. metres.. Thus, an area of 4.00 lakhs sq. metres has been deleted. He submits that if that area was not deleted, the same area would have been sufficient enough to provide for residential facilities.

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The learned Advocate General, in reply, submits that perusal of Sections 4 and 6 would reveal that while considering the period of limitation, the last date of publication by various modes under Section 4 of the said Act will be the starting point for limitation. The learned Advocate General submits that however, while considering the declaration under Section 6, the date on which Section 6 declaration was issued by the State Government would be the relevant

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date. The learned Advocate General submits that the notification under Section 4 was initially issued on 19^th August, 2011 which was published in newspapers on various dates. He submits that though the notification was published in the Office of Village Panchayat of Mandrem on 16^th September, 2011, the notification itself was again published in the Office of Village Panchayat on 4^th October, 2011. The learned Advocate General further submits that on the same day, the notification was also published in the Office of Mamlatdar, Pernem. The learned Advocate General submits that the Office of Mamlatdar, Pernem will also have to be considered as one of the convenient places, at which publication could be made and, therefore, 4^th October, 2011 will have to be taken into consideration as last date of publication having been published at the Office of Mamlatdar of Pernem. The learned Advocate General submits that the declaration under Section 6 was signed on 26^th September, 2012 and was published in the newspaper “Gomantak Times” on 2^nd October, 2012 and was published in the Official Gazette on 4^th October, 2012.

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The learned Advocate General further submits that the sports complex would come within the definition of the term “public purpose” as defined in the said Act and, therefore, the contention of the petitioners in that regard would be without substance. The learned

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Advocate General in that regard relies on the judgment of the Apex Court in Bandari Pentaiah and ors. vs. Government of Andhra Pradesh and ors., reported in (2008) 9 SCC 552. The learned Advocate General further relies on the judgment of the Apex Court in the case of Venkataswamappa vs. Special Deputy Commissioner (Revenue) reported in (1997) 9 SCC 128 in support of the same proposition.

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For considering the rival submissions, it will be relevant to refer to sub-section (1) of Section 4 of the said Act and sub-section (1) of Section 6 of the said Act, which read thus :

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“ 4. Publication of preliminary notification and power of officers thereupon.- (1) Whenever it appears to the [appropriate Government] the land in any locality [is needed or] is likely to be needed for any public purpose[ or for a company], a notification to that effect shall be published in the Official Gazette [and in two daily newspapers circulating in that locality of which at least one shall be in the regional language], and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality [(the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification)].

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6. Declaration that land is required for a public purpose.- (1) Subject to the provision of Part VII of this Act,[ appropriate Government] is satisfied, after

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considering the report, if any, made under section 5A, sub- section (2)], that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorized to certify its orders[ and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under section 4, sub- section (I) irrespective of whether one report or different reports has or have been made (wherever required) under section 5A, sub- section (2)]; [Provided that no declaration in respect of any particular land covered by a notification under section 4, sub- section (1)-

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(i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 (1 of 1967), but before the commencement of the Land Acquisition (Amendment) Act, 1984 (68 of 1984), shall be made after the expiry of three years from the date of the publication of the notification; or

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(ii) published after the commencement of the Land Acquisition (Amendment) Act, 1984 (68 of 1984), shall be made after the expiry of one year from the date of the publication of the notification:]

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Provided further that] no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a Company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority.”

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Perusal of the said provision would reveal that for considering as to

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what could be the date of publication as provided under sub-section

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(1) of section 4 of the said Act, is the last date of publication and giving of such public notice, will have to be construed to be the date

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of publication of the notification. Sub-section (1) of Section 4 provides three modes, (1) by publication in the official gazette; (2) by publication in two daily newspapers circulating in that locality of which at least one has to be in the regional language; and (3) by publication of the substance of such notification at convenient places in the said locality. Clause (ii) of sub-section (1) of Section 6 provides that the declaration as required under Section 6 has to be made within a period of one year from the date of publication of the notification under Section 4.

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The law on the point is now no more res integra. The issue has been considered by the Apex Court in the case of Krishi Utpadan Mandi Samiti and anr. vs. Makrand Singh and others, (1995) 2 SCC 497. The Apex Court, in the said case has held that the publication of declaration in the official gazette as provided under sub-section (1) of Section 6 would be the date which has to fall within the period of limitation from the last of the dates of such publication as provided under sub-section (1) of Section 4 of the said Act . The said judgment has been followed by another judgment of the Apex Court in the case

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of Eugenio Misquita and ors. vs. State of Goa and ors., reported in (1997) 8 SCC 47. It will be relevant to refer to para 9 of the said

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judgment, which reads thus :

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“ 9. Let us examine whether the learned counsel is right in his submission. As seen from the above extracts of relevant provisions, while Section 4(1) commands publication of notification under that section, Section 6 speaks of the declaration being made to the effect that any particular land is needed for public purpose or for a company. There are judicial decisions that have interpreted the word “made” to mean “published” for the reasons stated in those decisions. Therefore, strictly speaking, but for those judicial decisions the date of making of the declaration under Section 6(1) will be the relevant date for reckoning the period of limitation. However, in the interest of the general public, the courts have taken the view that the declaration made will stand accomplished only when it is published. This publication has, therefore, nothing to do with the publication referred to in Section 6(2) of the Act which is for a different purpose, inter alia, for reckoning the limitation prescribed under Section 11A of the Act. This construction is supported by the language employed in Section 6(2) of the Act. In particular, the word “hereinafter” used in Section 6(2) will amply prove that the last of the series of the publication referred to under Section 6(2) is relevant for the purposes coming thereafter, namely, for

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making award under Section 11-A. The language employed in second proviso to Section 6(1) also supports this construction. Therefore, the contention of learned counsel cannot be accepted.”

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It will also be relevant to refer to para 17 of the said judgment, which reads thus :

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“ 17. In the light of the law laid down by this Court, we have no hesitation to hold that the declaration published under Section 6 of the Act was well within one year and the challenge to the same has been rightly rejected by the High Court. However, the view taken in the judgment of the High Court under appeal that the relevant date for reckoning the period of limitation will be the date of making of the declaration under Section 6, may not be correct. As held in Krishi Utpadan Mandi Samiti case (1995) 2 SCC 497 mere making of declaration is not enough. The making of declaration under Section 6 is complete for the purpose of clauses ( i ) and ( ii ) of the first proviso to Section 6(1) when it is published in the Official Gazette.”

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It can thus be clearly seen that from the aforesaid observations of the Apex Court, that making of a declaration under Section 6 of the said Act is complete when it is published in the official gazette. In that view of the matter, it is a date on which declaration, as provided under

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Section 6, is published in the official gazette, will have to be construed as the date which must come within the limitation prescribed under Section 6 of the said Act.

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Undisputedly, in the present case the declaration under Section 6 was published in the official gazette on 4^th October, 2012. In that view of the matter, it will have to be considered as to whether the date of publication of declaration under Section 6 in the official gazette falls within a period of one year from last of the date of publication as provided under Section 4(1) of the said Act.

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We have perused the entire file which was produced before this Court by the learned Advocate General for our perusal. Perusal of the file, which unfortunately is not paginated, would show the following factual aspects. The Talathi of Mandrem has addressed a letter to the Mamlatdar of Pernem on 16^th September, 2011 stating therein that he has affixed a copy of the notification at the office of Village Panchayat, Mandrem of Pernem and at the land proposed to be acquired of Mandrem Village on 16.9.2011 at 10.20 a.m. and 10.50 a.m. and duly executed a panchanama. Along with the said letter, there is a panchanama executed in presence of one Smt. Kasturi K.

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Parsekar and Ravindra M. Govekar which states that the notice has been fixed at the office of the Village Panchayat on 16/9/2011 at 10.20 a.m. and at the land proposed to be acquired at 10.50 a.m.. On 15.9.2011, a letter is addressed by the Bailiff of the Mamlatdar's Office of Pernem stating therein that a notification dated 19.8.2011 has been published by him on the notice board of Mamlatdar's Office, Pernem. All these three documents have been forwarded by the Mamlatdar of Pernem to the Deputy Collector and S.D.O. vide communication dated 27.9.2011. Since the file is not paginated, we are marking these documents as “X”, “X-1”, “X-2” and “X-3” for identification.

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It can thus be seen that the notification was duly published in the Office of Mamlatdar, Pernem on 15.9.2011 and in the office of Village Panchayat of Mandrem on 16.9.2011 and at the land in question on the same day.

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Again, a letter is addressed by the Mamlatdar of Pernem on 7.10.2011 to the Deputy Collector, annexing along with the said letter three documents. The first one is a letter dated 4^th October, 2011 addressed by the Talathi stating therein that he had affixed the notice

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in the Office of Village Panchayat Mandrem and at the land proposed to be acquired at Mandrem on 4.10.2011 at 10.20 a.m. and at 10.50 a.m., respectively. Along with the same, panchanama is also annexed dated 4.10.2011 which is, incidentally, signed by the same persons who had signed the panchanama dated 16.9.2011, namely Smt. Kasturi K. Parsekar and Ravindra M. Govekar. The same also annexes the letter addressed by the Bailiff of Mamlatdar's Office, Pernem Taluka dated 4.10.2011, stating therein that he had affixed copy of the notification on the notice board of Mamlatdar's Office, Pernem. The said documents are marked as “Y”, “Y-1”, “Y-2” and “Y-3” for identification. Perusal of Y1-X1, X-2-Y2, and X3-Y3 would reveal that they are identical in toto. The author of the documents is so meticulous that on 16.9.2011 he writes time 10.20 a.m. of affixing notice at the Office of Village Panchayat, Mandrem, so also on 4.10.2011 the timing is the same i.e. 10.20 a.m.. Incidentally, time of of affixing notice at the land to be acquired, in both documents, is also the same i.e. 10.50 a.m.. It can thus be clearly seen that the substance of notice as required to be published at convenient places in the locality, was complete at 3 places on 15^th and 16^th September, 2011 i.e.

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the Office of Village Panchayat, Mandrem, at the land which was sought to be acquired and in the Office of Mamlatdar, Pernem.

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In this respect, therefore, it will be relevant to refer to the judgment of the Apex Court in the case of Devender Kumar Tyagi and ors. (supra). In the said case, the notification under Section 4 of the said Act which was issued on 3.7.2006 was published in the newspapers in Hindi language on 4.7.2006. True English translation came to be published in two newspapers on 5.1.2007. In that background, it was sought to be argued that the subsequent publication in the English newspapers on 5.1.2007 could be the starting point for considering the period of limitation. The Apex court observed thus in paras 13 and 14.

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“ 13. It is not in dispute that the declaration of the Notification under Section 6 was issued on 18-122007. It is also not in dispute that the Notification under Section 4 was issued on 3-7-2006 and the same was published in two daily newspapers in Hindi language on 4-7-2006 having circulation in the locality where the land is situated. Also, the people at Pargana Hapur in Ghaziabad District are wellconversant with the Hindi language. In our considered view, the publication of the notification in two newspapers having circulation in the locality where the land is situated and where people are wellconversant with Hindi amounts to ample compliance

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with the requirement of the publication under Section 4(1) of the LA Act. In view of this, the subsequent publication of English translation of the said Notification under Section 4 in two newspapers on 5-1-2007 is unnecessary and will not assist the respondents to extend the period of limitation envisaged in the proviso to Section 6(1) of the LA Act. Hence, the last date of publication for the purpose of Section 4(1) of the LA Act, which can be treated as the date of publication, is the date on which, the second Notification under Section 4 was published in the newspaper, that is, 4-7-2006. Therefore, the period of limitation commences from 4-7-2006, which is the date of publication of the Notification under Section 4(1) of the LA Act.

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14. If the declaration under Section 6 of the LA Act is made before the expiry of the period of one year starting from 4-7-2006, then, only such declaration will be considered as valid for the purpose of the acquisition of land. However, in the present case, the declaration under Section 6 was issued on 18-12-2007 which is clearly beyond the period of limitation of one year as mandated by the proviso to Section 6(1) of the LA Act. Therefore, the declaration of notification under Section 6 and its subsequent publications are clearly beyond the period of limitation of one year starting from the date

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of publication of notification under Section 4 of the LA Act.”

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It can thus be clearly seen that the Apex Court found that once the notification was published in Hindi language newspapers, it was a sufficient compliance with one of the modes of publication as required under sub-section (1) of Section 4 of the said Act. Merely publication in English newspapers would not save the notification which was beyond the period of three years from 4.7.2006 i.e. publication in Hindi newspapers. The Court found that the period of limitation would commence from 4^th July, 2006 and not from 5.1.2007 as was contended.

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In the present case, though it was sought to be argued by the learned Advocate General that the notice in the Office of Mamlatdar was published for the first time on 4^th October, 2011, therefore the limitation would start from that day is concerned, the same is not borne out from the record. As already discussed above, the notification under Section 4 was already published in the Office of Mamlatdar on 15.9.2011. As such, the requirement of publishing the substance of notification at the convenient places was complete on 16^th September, 2011 itself. We find that the subsequent publication at the

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Office of Village Panchayat and at the Office of Mamlatdar, has no significance, in view of the judgment of the Apex Court in the case of

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Devender Kumar Tyagi and ors. (supra).

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Though the learned Advocate General has also sought to urge that the Office of Mamlatdar will also have to be construed to be a convenient place, as provided in sub-section(1) of Section 4 of the said Act wherein public notice of substance is required to be given, we find that in the facts of the present case, it will not be necessary to go into that aspect of the matter. If the last date of publication, as provided under sub-section (1) of Section 4 is considered to be 16.9.2011, then it is not even necessary for us to go into the question as to which of the dates i.e. the date of signing declaration or the date of publication thereof in the Official Gazette would be the date to be construed as the date of declaration under clause (ii), sub-Section (1) of Section 6 of the said Act. Needless to state that the issue is also answered by the Apex Court in the two judgments cited supra.

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Undiputedly, in the present case, even according to the State, the declaration is signed on 26^th September, 2012 i.e. after a period of one year from 16.9.2011. We, therefore, find that the petition

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deserves to be allowed on this ground alone.

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Since we find that the petition deserves to be allowed on the ground of non-compliance of second proviso to sub-section (1) of Section 6 of the said Act, it is not necessary to go into other rival issues raised by the parties.

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In that view of the matter, the petition is allowed. The impugned notifications under Sections 4 and 6, qua the land of the petitioners, are quashed and set aside. Rule is made absolute in the above terms. There shall be no order as to costs.

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Needless to state that we have not considered other rival contentions and the same are kept open to be agitated by the parties at an appropriate stage.

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At this stage, however, we may request the learned Advocate General to impress upon the authorities that in order to maintain transparency of the official files, least that can be done is the pagination of the files, so that interpolation of them is prevented.

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ssm.

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F.M. REIS, J. B.R. GAVAI , J.

Riva Resorts Pvt. Ltd., through Its Director Shri Vishwanath Balaram Naik Palyekar and Anr., v. State of Goa through Its Chief Secretary, and 3 Ors.

Case brief

What is this about?

What did the court decide?

Riva Resorts Pvt. Ltd., through Its Director Shri Vishwanath Balaram Naik Palyekar and Anr., v. State of Goa through Its Chief Secretary, and 3 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

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