1 WP-316-2008.doc

Jose

IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO.316 OF 2008

WITH

MISC. CIVIL APPLICATION NO.598 OF 2022 (F)

IN

WRIT PETITION NO.316 OF 2008

FRANKY MONTEIRO AND 4 ORS. … Petitioners

Versus

STATE OF GOA THROUGH

CHIEF SECRETARY AND ORS. ... Respondents

Ms. Aditi Saxena with Mr. Ryan Menezes, Mr. N. Fernandes and

Ms. Gina Almeida, Advocates for the Petitioners.

Mr. A.D. Bhobe with Ms. S. Shaikh, Advocates for Respondent

No.2.

Mr. P. Faldessai, Additional Government Advocate for Respondent

Nos.1, 5 and 6.

Mr. Surendra Desai, Senior Advocate with Mr. N. Takkekar,

Advocate for Respondent No.7.

Mr. S. Karpe with Mr. A. Shirodkar, Ms. Siddhi Parodkar, Ms.

Gabe Mendes and Ms. S. Vaingankar, Advocates for Respondent

No.8.

CORAM: G.S. KULKARNI &

BHARAT P. DESHPANDE, JJ.

DATED: 13

th

October, 2022

ORAL ORDER: (Per G.S. Kulkarni, J.)

1.The petitioners, who claim to be public spirited persons from Goa,

who believe in good governance and transparency and fair play in

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administrative action have approached this Court by filing the present

Petition by praying the following substantive reliefs:-

“(a) issue a writ, order or direction in the nature of certiorari

quashing the allotments made in respect of M/s K. Raheja

Corporation Pvt. Ltd., M/s Paradigm Logistics and

Distribution Pvt. Ltd.; M/s Inox Mercantile Company

Limited; M/s Planet View Mercantile Company Pvt. Ltd.;

Maxgrow Finlease Private Limited in Verna Phase IV;

(b) issue a writ, order or direction in the nature of Mandamus

directing the respondent 1 and 2 to take back the possession of

the land from the respondent No-3 to 8 and revert it back to the

original owners from whom the land was acquired;

(c) have the entire process of allotment enquired into by an

independent body like the CBI or have a commission of enquiry

headed either by a High court or a Supreme Court Judge to

look into the irregularities in the entire allotment procedure

including the possibility of irregular graft and recommend

action against the people responsible for these illegal

allotments;” (emphasis supplied)

2.This Petition was adjudicated by a Division Bench of this Court by

an extensive judgment and order dated 26.11.2010 passed by the Division

Bench of this Court (A.S. Oka J., and F.M. Reis, J., as Their Lordships

then were). Insofar as the prayer clause (a) is concerned, the petition was

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partly allowed inasmuch as this Court set aside the allotment of lands in

question and subject matter of the impugned orders of allotment made by

the Goa Industrial Development Corporation (for short “the GIDC”).

The operative order as passed by the Division Bench of this Court is

required to be noted, which read thus:

“(i) The allotment of lands made By the GIDC to the said

companies ( the Petitioners in Writ Petition Nos. 349 of 2008,

380 of 2008, 436 of 2008, 437 of 2008, 438 of 2008 and 501

of 2008 and 507 of 2008) is illegal. The allotments as well as

the Lease Deeds executed on the basis of the orders of

allotment are quashed and set aside.

(ii) Accordingly, rule issued in Writ Petition nos.310 of 2008,

314 of 2008 and 316 of 2008 is made absolute in terms of

prayers (a) thereof.”

3.The petitioners had assailed the said judgment and order passed by

this Court in proceedings before the Supreme Court being Civil Appeal

No. 9710/2013. The said Civil Appeal came to be disposed of by

Supreme Court by an order dated 14.02.2022 inter alia relegating the

petitioners to this Court on a limited issue regarding the return of the

acquired land to the original owners as prayed in the petition. It is

recorded in paragraph 1 of the orders passed by the Supreme Court that

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the petitioners are the original land owners. It appears that in such

context the Supreme Court accepted the petitioners' case and passed the

order relegating the issue to be addressed by this Court. The orders of

the Supreme Court are required to be noted, which read thus:

“This appeal is filed by the original land owners against

the judgment and order dated 26.11.2010 passed by the High

Court of Bombay at Goa in Writ Petition No. 316 of 2008.

The limited grievance in this appeal is that the writ

petition filed by the appellants explicitly sought relief of

reverting the subject lands to the original owners. That fact

has been taken note of in paragraph 50 of the impugned

judgment. However, no issue in that regard has been

framed in paragraph 51 of the impugned judgment nor the

High Court has dealt with the said aspect at all.

In the circumstances, we deem it appropriate to remand the

matter to the High Court for examining this limited issue

regarding return of property to the original land owners,

as prayed. That contention will have to be considered on its

own merits in accordance with law.

Mr. Colin Gonsalves, learned senior counsel appearing for the

appellants submits that there are certain subsequent

developments. It will be open to the appellants to amend the

writ petition to bring on record those developments asking for

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appropriate relief incidental to the issue under consideration, if

so advised.

We may not be understood to have expressed any opinion either

way on the merits of the issues to be dealt with by the High

Court in the remanded proceedings.

We further clarify that the parties are relegated only for

examination of the aforenoted limited issue. The rest of the

judgment and order is kept intact, as there is no challenge

to that part of the order, before us.

In terms of this order, the writ petition shall stand restored to

the file of the High Court for consideration of the limited

relief prayed by the appellants, as noted earlier.

The parties to appear before the High Court on 08.03.2022,

when the High Court may consider the said relief on that day

or on some convenient date, while ensuring that the remanded

issue/relief is considered and answered by the High Court

expeditiously.

The appeal is disposed of in the above terms.

Pending applications, if any, stand disposed of.”

(emphasis supplied)

4.It is on the above backdrop the proceedings are listed before us

today. As ordered by the Supreme Court the scope of adjudication of writ

petition on remand by the Supreme Court is limited which pertains to the

relief as prayed in prayer clause (b) of the writ petition. The Supreme

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Court, as noted above, has categorically observed that the said judgment

of this Court dated 26.11.2010 pronounced on a batch of petitions

including the present petition is in no manner disturbed except for the re-

consideration of such limited issue by this Court on remand.

5.At the outset, we would be concerned with the very first paragraph

of the orders passed by the Supreme Court wherein the Supreme Court

has observed that the appeal filed by the present Petitioners assailing the

Judgment dated 26.11.2010 is an appeal filed by the “original land

owners”. Such assertion of the Petitioners would be an issue, now

relevant, in the context of the adjudication and its scope as observed by

the Supreme Court. This more particularly for the reason that the

Petitioners are praying for return of the land which was acquired and has

stood vested with the State Government.

6.On a query made to the learned Counsel for the Petitioners as to

whether the Petitioners are the original land owners, it has been pointed

out by the learned Counsel for the Petitioners that the Petitioners are not

the original land owners in regard to the land which was the subject

matter of the acquisition proceedings, and they are only the components

of the Communidade. We also note from the averments as made in

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paragraph 3 of the petition that the Petitioners have filed the present Writ

Petition in “public interest” which is the interest to protect the land of

the Communidade that was compulsorily acquired. The said averments

in the petition is required to be noted which reads as follows:-

“That the petitioners are public spirited petitioners of Goa

(India) who believe in Good Governance and “transparency

and fair play in Administrative action. They are villagers and

components of the communidade of villages of Verna and

Loutolim. The petitioners are interested in protecting the land

of the communidade that was compulsorily acquired and

transferred in the most high handed manner by defrauding the

public exchequer to the Respondents No-3 to 7 for developing

SEZz.”

7.On such backdrop, learned Counsel for the Petitioners, referring to

the order dated 14.02.2022 passed by the Supreme Court, would insist

that this Court ought to adjudicate the reliefs as prayed for in prayer

clause (b) (supra) namely that a mandamus ought to be issued to

Respondent Nos.1 and 2 to take back possession of the land and revert it

back to the original owners from whom the land was acquired. The

learned Counsel for the Petitioners in support of such prayers has made

submissions.

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8.It is her contention that as a corollary to the relief as granted by

this Court in its judgment and order dated 26.11.2010, by which the

allotments of the land for Special Economic Zone allottees being set

aside, the obvious consequence would be that the lands are required to be

reverted back to their respective owners. The reason being that the

acquisition itself would be required to be considered to be of no

consequence once the allotment of the lands were set aside by the

decision of the Division Bench of this Court. Learned Counsel for the

Petitioners has supported this proposition by placing reliance on the

decision of the Supreme Court on Kedar Nath Yadav vs. State of West

Bengal

1

, wherein the Court was concerned with the acquisition of the

land at Singhur in West Bengal for the purpose of setting up a large car

manufacturing plant. The questions before the Supreme Court in such

case were in relation to the legality of the acquisition proceedings. In

such context, the Supreme Court had made observations in paragraph 85

of the judgment as relied on behalf of the Petitioners, that it is the duty of

the acquiring authority (State Government) to ensure that the mandatory

procedure laid down under the Land Acquisition Act and the Rules made

thereunder is followed scrupulously, failing which the acquisition

1 2017 11 SCC 601

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proceedings would be rendered void ab initio in law. The Supreme Court

observed that the compliance of the provisions of the Land Acquisition

Act cannot be treated as empty formality by the State Government and

that would be akin to handing over the eminent domain power of the

State to the 'Executive', which cannot be permitted in a democratic

country, which is required to be governed by the rule of law and

considering the fact that the acquisition was not conforming to the

procedure under the Land Acquisition Act. On such premise, the

Supreme Court exercising powers under Article 142 of the Constitution,

quashed and set aside such land acquisition proceedings.

9.On the other hand, learned Counsel for the Respondents have

submitted that Petitioners cannot make a grievance that the lands are

required to be returned to the original owners as the Petitioners

themselves are not the owners. It is their common submission that there

is an inherent lack of locus standi on the part of the Petitioners to assert

any such contention. It is submitted that the land in question was

acquired by the State of Goa by following the procedure under the Land

Acquisition Act. The acquisition was for a public purpose namely for

expansion of the Industrial Estate, Phase-IV at Verna. It is submitted that

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an award under the Land Acquisition Act was published in a manner

known to law, as also the possession of the land was taken over by the

Land Acquisition Officer of the Goa IDC. It is hence submitted that as

the land free from all encumbrances stood vested with the 'State' as also

the possession of which was taken over, even the original land owners

cannot maintain a prayer that the possession of the land be divested from

the State and handed over to the original land owners, much less to the

Petitioners who have no locus whatsoever to maintain such prayer. Our

attention in such context is drawn to the details of the acquisition which

are set out in the petition itself. Learned Counsel for the Respondents

have placed reliance on various decisions to contend that once the land

on its acquisition stands vested with the State Government and of which

possession has been taken over, a writ petition praying for such relief that

the possession be handed over is certainly not maintainable. It is

submitted that prayer (b) is opposed to the specific provisions of Section

48 of the Land Acquisition Act, 1894 under which the acquisition had

taken place.

Reasons and conclusion

10.Having heard the learned Counsel for the parties and having

perused the record, at the outset, from the very averments as made in the

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petition, we note that the land was acquired for a public purpose namely

for expansion of the Industrial Estate, Phase-IV at Verna by following the

procedure as contemplated by the Land Acquisition Act. The Petitioners

in paragraph 4(a) to (d) have set out such steps as taken by the Special

Land Acquisition Officer to acquire these lands. Paragraph 4(a) to (d) of

the petition reads thus:-

“a. That on 3/11/2000 a notification was issued under S.4

read with S. 17(4) of the Land Acquisition Act in respect of

35,88134 sq mts of land at Verna / Loutulim for expansion of

Industrial Estate Phase IV at Verna. A true copy of the S.4

notification dated 3/11/2000 is annexed herewith as

Annexure P-1.

b. That vide notification dated 20/12/2001, a declaration

under S.6 of the Land Acquisition Act was issued and it was

also clarified that the provisions of S.17 (4) of the Act would

also apply. A true copy of the S.6 notification dated

20/12/2001 is annexed herewith as Annexure P-2.

c. That the award in respect of the said land was made on the

29/9/2003 by the special Land Acquisition Officer. A true

copy of the award dated 29/9/2003 is annexed herewith as

Annexure P-3.

d. That the possession in respect of the said land was taken

over by the Special Land Acquisition Officer Goa IDC.”

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11.Thus, from the Petitioners' own showing, a proper land acquisition

procedure was followed and a finality to the acquisition was brought

about. The possession of the land has been taken over by the State

Government. The land stood vested with the State Government.

12.It appears that subsequent to the acquisition which was concluded

in the year 2003 to 2006 in view of the policy of the Government of

India, the State of Goa considered to utilize the acquired lands for the

purpose of setting up a Special Economic Zone (SEZ) in pursuance of

the 2006 policy of the Government of India, under which the allotments

in question in favour of the private parties came to be made which were

the subject matter of challenge in the present proceedings. As noted

above, we are not concerned with any issue of allotment as the same was

already adjudicated by an exhaustive judgment and order of the Division

Bench dated 26.11.2010, rendered on the present petition and the same

has attained finality in view of the Petitioners' appeal being disposed of

confining only to the issue in regard to the reverting of the subject lands

to the original owners.

13.It is a settled principle of law that the Land Acquisition Act is a

code in itself. It is clearly seen that to acquire the land in question for the

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purpose of expansion of Industrial Estate, Phase-IV at Verna, a

notification under Section 4 of the Land Acquisition Act came to be

issued on 03.11.2000 read with Section 17(4). Section 6 notification was

issued on 20.12.2001 clarifying that the provisions of Section 17(4) of the

Land Acquisition Act would also apply. After following the procedure,

the Special Land Acquisition Officer, Goa IDC published an award dated

29.09.2003. A copy of the award is annexed to the petition as “Annexure

P-3”. Consequent thereto, the possession of the land was also taken over

by the Special Land Acquisition Officer, Goa IDC on which there is no

dispute. It is thus required to be observed that once the acquisition is

complete and the possession is taken over, the owner of the land would

not have any right to make a claim that the land be returned considering

the provisions of Section 48 of the Land Acquisition Act. Section 48

reads thus:-

“48. Completion of acquisition not compulsory, but

compensation to be awarded when not completed. —

(1) Except in the case provided for in section 36, the

Government shall be at liberty to withdraw from the

acquisition of any land of which possession has not been taken.

(2) Whenever the Government withdraws from any such

acquisition, the Collector shall determine the amount of

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compensation due for the damage suffered by the owner in

consequence of the notice or of any proceedings thereunder,

and shall pay such amount to the person interested, together

with all costs reasonably incurred by him in the prosecution of

the proceedings under this Act relating to the said land.”

(emphasis supplied)

14.A claim for return of the land necessarily would be a claim that the

land stands withdrawn from the acquisition. It is thus clear that except in

the case provided for in Section 36, the Government is at liberty to

withdraw from the acquisition of any land of which possession has not

been taken, and if the Government withdraws from any such acquisition,

the Collector is required to determine the amount of compensation due

for the damage suffered by the owners in consequence of the notice or

any proceedings thereunder and is required to pay such amount to the

person interested with all costs reasonably incurred by him in the

prosecution of the proceedings under the Act in relation to the land in

question.

15.When a prayer for the land to be reverted to the original owner is

made, it thus necessarily implies that the Government would be required

to withdraw from the acquisition proceedings and it can withdraw from

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the acquisition proceedings only when the possession of the land has not

been taken over. This is certainly not the situation in the present

proceedings. There is nothing on record even to remotely suggest that in

respect of certain lands, the possession was not taken over and that the

provisions of Section 48 were invoked by the land owners. Thus, on the

face of it, a prayer for return of the land or its reversion to the original

owners would not be maintainable.

16.There is something more significant which we need to address and

which in our opinion would go to the root of the present proceedings

namely that the land acquisition proceedings itself were never assailed by

the Comunidade, including by the Petitioners who are mere components

of the Comunidade. Thus, in the absence of any challenge to the land

acquisition proceedings or the Petitioners in any manner demonstrating

any foundation in the writ petition for any such relief to be granted, the

present proceedings asserting return of land are being pursued by the

Petitioners and in our opinion too casually, and that too stated to be in

public interest.

17.We are at a loss to understand as to when the land acquisition itself

was never questioned, how the Petitioners in public interest without

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assailing the land acquisition can maintain such prayers. The land

acquisition proceedings as noted above are of the year 2000-2003 despite

which it appears that the Petitioners in February 2022 asserted even

before the Supreme Court that they being the land owners they are

entitled for a relief of reversion of the lands.

18.We are afraid that on the aforesaid conspectus, any such relief of

reversion can at all be even considered in the present proceedings by the

Court, much less granted. Once the land acquisition proceedings have

attained finality and the lands have stood vested in the State

Government, a writ petition for prayers that the possession be returned

to the land owners is certainly not maintainable. The settled principle of

law can be seen from the following decisions of the Supreme Court:- (1)

C. Padma and others vs. Dy. Secretary to the Govt. of T.N. and others

2

;

(2) Senjeevanagar Medical & Health Employees' Cooperative Housing

Society vs. Mohd. Abdul Wahab and others

3

; (3) Chandragauda

Ramgonda Patil and another vs. State of Maharashtra and others

4

; (4)

Lilawanti and others vs. State of Haryana and others

5

; (5) Vishnu

2 (1997) 2 SCC 627

3 (1996) 3 SCC 600

4 (1996) 6 SCC 405

5 (2012) 1 SCC 66

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Namdeo Kumar vs. State of Maharashtra & others

6

; (6) Sulochana

Chandrakant Galande vs. Pune Municipal Transport and others

7

; (7)

Ganesh Rangnath Dhadphale vs. Special Land Acquisition Officer (I)

8

.

19.In C. Padma and others (supra), the Supreme Court has held that

the acquired land having vested in the State and compensation paid to the

predecessor in title to the claimants, the claimants are not entitled to

restitution of possession on the ground that the public purpose had

ceased to exist or the land could not be used for any other purpose.

20.In Senjeevanagar Medical & Health Employees' Cooperative

Housing Society (supra), the Supreme Court has held that since

possession of the land in question in the said proceedings was already

taken over and the land having stood vested in the State free from all

encumbrances, the High Court was not justified in interfering with the

acquisition of land, and hence there was no question of the land being

returned to the land owners.

21.In Chandragauda Ramgonda Patil and another (supra), again the

Supreme Court held that once possession of land was taken over and land

6 2002 SCC OnLine Bom 491

7 (2010) 8 SCC 467

8 1979 Mh.L.J. 786

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stood vested with the Municipality free from all encumbrances,

restitution of surplus land to the owners cannot be ordered. The relevant

observations in that regard have to be noted which read thus:-

“2. .............. We do not think that this Court would be

justified in making direction for restitution of the land to the

erstwhile owners when the land was taken way back and vested

in the Municipality free from all encumbrances. We are not

concerned with the validity of the notification in either of the

writ petitions. It is axiomatic that the land acquired for a

public purpose would be utilised for any another public purpose,

though use of it was intended for the original public purpose. It

is not intended that any land which remain unutilised, should

be restituted to the erstwhile owner to whom adequate

compensation was paid according to the market value as on the

date of the notification. Under these circumstances, the High

Court was well justified in refusing to grant relief in both the

writ petitions.”

22.A similar view was taken in Lilawanti and others (supra). It was

held that any prayer for return of the land by the original land owners

would be contrary to the language of Section 16 of the Act in terms of

which the acquired land vests in the State Government free from all

encumbrances, it was observed that it was settled that the land acquired

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for a particular purpose can be utilized for any other public purpose. In

such context, the Supreme Court referred to the earlier decision in State

of Kerala vs. M. Bhaskaran Pillai

9

and Govt of A.P. vs. Syed Akbar

10

,

observed that the land cannot revert back to the original owners once it

was acquired and accordingly vested with the State Government and the

same can be used for a purpose different from the purpose for which it

was acquired.

23.A Division Bench of this Court in Vishnu Namdeo Kumar vs.

State of Maharashtra & others (supra) had an occasion to consider a

similar prayer as made by the Petitioners in the present proceedings. In

such case, the contention of the Petitioners was to the effect that the

Petitioners’ land has not been utilized for the purpose for which it was

acquired and hence, they were entitled to restoration of their lands.

Referring to the decision in M. Bhaskaran Pillai (supra), it was held that

such a relief cannot be granted. The observations of the Court in regard

to the settled position of law in that regard are required to be noted and

read thus:-

“Thus, the legal position is no more res integra and it is settled

that an expropriated owner cannot insist on restoration of the

9 (1997) 5 SCC 432

10 (2005) 1 SCC 558

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land even if the land has not been utilized for the purpose it

was acquired or for other purpose. If the land has not at all

been used, the land of the Government should be sold through

public auction and not to the expropriated owner. In view of

this legal position, the Government Resolution dated 10th

October, 1973 cannot be enforced. The petitioners are, thus, not

entitled to restoration of land as claimed by them on the basis of

Government Resolution dated 10th October, 1973.”

24.In a recent decision of the Supreme Court in Sulochana

Chandrakant Galande (supra), on a survey of the position in law in such

context, as also referring to the decisions as noted above, the Supreme

Court again reiterated that once the land stood vested in the State, it

could not be divested and the State had the authority to change the user.

It was observed that the Appellant cannot be heard raising a grievance on

either of these issues. Accordingly, it was held the Appellants therein

were not entitled to the reliefs of restoration of the land.

25.Thus, adverting to the above position in law, in our opinion, the

contention of the Petitioners that the land be reverted to the original

owners is wholly untenable. In any event as observed above, such a prayer

is being pressed knowing well that the Petitioners are not the owners of

the land as also knowing well that the land had stood vested with the

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State Government. Also the context in which such prayer is made does

not arise from any challenge to the land acquisition proceedings but the

allotment of the land under the SEZ which is subsequent to the land

acquisition proceedings attaining finality. Thus, on none of the counts

such a prayer was maintainable. We, accordingly, hold that the Petitioners

are not entitled to maintain such a prayer that the lands be reverted to the

original owners. The prayer is accordingly rejected.

26.In the facts and circumstances, the relief cannot be rejected

simplicitor, it is rejected by directing the Petitioners to deposit cost of

25,000/- with the Goa Legal Services Authority.₹

27.Miscellaneous Civil Application would not survive and is

accordingly disposed of.

BHARAT P. DESHPANDE, J. G.S. KULKARNI, J.  

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October 2022

JOSE

FRANCISCO

DSOUZA

Digitally signed by JOSE

FRANCISCO DSOUZA

Date: 2022.10.21 19:49:35

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